20-2056-cv
Hassoun v. Searls

                          In the
              United States Court of Appeals
                     FOR THE SECOND CIRCUIT



                          AUGUST TERM 2019
                           No. 20-2056-cv

                       ADHAM AMIN HASSOUN,
                         Petitioner-Appellee,

                                   v.

  JEFFREY SEARLS, IN HIS OFFICIAL CAPACITY AS ACTING ASSISTANT
   FIELD OFFICE DIRECTOR AND ADMINISTRATOR OF THE BUFFALO
                   FEDERAL DETENTION FACILITY,
                        Respondent-Appellant.



            On Appeal from the United States District Court
                for the Western District of New York



                        SUBMITTED: JULY 14, 2020
                         DECIDED: JULY 30, 2020



Before:        CABRANES, SULLIVAN, and MENASHI, Circuit Judges.

       The government moved to stay the release of Adham Amin
Hassoun pending its appeal of the order granting his release. The U.S.
District Court for the Western District of New York (Wolford, J.)
decided that the government was not authorized under 8 C.F.R.
§ 241.14(d) to continue holding Hassoun in immigration detention
pending his removal from the United States and ordered the
government to release him. Although 8 C.F.R. § 241.14(d) permits the
government to detain removable aliens on account of security or
terrorism concerns, the district court held that the regulation does not
authorize Hassoun’s continued detention because it is inconsistent
with its authorizing statute, 8 U.S.C. § 1231(a)(6), and because it
provides inadequate procedural due process. The government
appealed and argued that 8 C.F.R. § 241.14(d) is not inconsistent with
§ 1231(a)(6) and that it provides adequate procedural due process.
Because the government made a strong showing that it was likely to
succeed on the merits and that it would suffer irreparable harm absent
a stay, we granted the government’s motion for a stay pending appeal
by an order issued July 16, 2020.



             Jonathan Hafetz (Brett Max Kaufman, Charles Hogle,
             Judy Rabinovitz, Celso Perez, for the American Civil
             Liberties Union Foundation, New York, NY; A. Nicole
             Hallett, Supervising Attorney; Jessica Lewis, Stephen
             Ferro, Rule 46.1(e) Law Students, for the Mandel Legal
             Aid Clinic, University of Chicago Law School, Chicago,
             IL; Jonathan Manes, for the Roderick & Solange
             MacArthur Justice Center, Chicago, IL, on the brief), for
             Petitioner-Appellee.

             Anthony D. Bianco, Senior Counsel for National Security
             (Ethan P. Davis, Acting Assistant Attorney General;
             William C. Peachey, Director; Kathleen A. Connolly,
             Deputy Chief; Steven A. Platt, John J.W. Inkeles, Counsel
             for National Security, for the Office of Immigration
             Litigation, United States Department of Justice,

                                    2
             Washington, DC; Daniel B. Moar, Assistant United States
             Attorney, for James P. Kennedy, Jr., United States
             Attorney for the Western District of New York, Buffalo,
             NY, on the brief), for Respondent-Appellant.



MENASHI, Circuit Judge:

      Adham Amin Hassoun was held in immigration detention at
the Buffalo Federal Detention Facility (BFDF) from October 10, 2017,
until July 21, 2020, pending his removal from the United States. 1 He
is a stateless alien who was ordered removed in 2003 for violating the
terms of his non-immigrant visa. From 2004 until 2017, he served a
term of imprisonment for committing three terrorism-related
offenses. After Hassoun was released from imprisonment, “he was
again detained by immigration authorities on his original order of
removal.” Hassoun v. Sessions (Hassoun I), No. 18-CV-586 (FPG), 2019
WL 78984, at *1 (W.D.N.Y. Jan. 2, 2019).

      Because an alien typically must be removed within ninety days
of a final order of removal or be released under supervision, 8 U.S.C.
§ 1231(a)(1), the government invoked several authorities to justify
Hassoun’s continued detention: 8 U.S.C. § 1231(a)(6), 8 C.F.R.
§ 241.14(d) (a regulation promulgated pursuant to § 1231(a)(6)), and
8 U.S.C. § 1226a (the “Patriot Act”). Section 1231(a)(6) allows the
government to detain an alien, such as Hassoun, who is inadmissible,
removable, or “has been determined … to be a risk to the community


1 After our decision on the government’s motion to stay his release, the
government informed the court that it removed Hassoun from the United
States. For the purpose of explaining our decision on the government’s
motion, we rely on the facts before us at the time of that decision.

                                   3
or unlikely to comply with [an] order of removal.” On January 2, 2019,
the U.S. District Court for the Western District of New York
concluded that § 1231(a)(6) did not authorize Hassoun’s continued
detention on account of his deportable status for violating the terms
of his non-immigrant visa because there was no significant likelihood
that he would be removed in the reasonably foreseeable future.
Hassoun I, 2019 WL 78984, at *3 (applying the framework of Zadvydas
v. Davis, 533 U.S. 678, 701 (2001)). The government did not appeal that
decision.

      The other two authorities, 8 C.F.R. § 241.14(d) and 8 U.S.C.
§ 1226a, allow the government to detain aliens who are inadmissible
or removable for, or suspected of, terrorism or endangering the
national security. On June 29, 2020, the district court held that neither
8 C.F.R. § 241.14(d) nor 8 U.S.C. § 1226a authorized the government’s
continued detention of Hassoun and ordered the government to
release him. Hassoun v. Searls (Hassoun IV), No. 19-CV-370 (EAW),
2020 WL 3496302, at *1 (W.D.N.Y. June 29, 2020). The government
appealed the district court’s 8 C.F.R. § 241.14(d) decision to this court
and its 8 U.S.C. § 1226a decision to the U.S. Court of Appeals for the
D.C. Circuit, as required by § 1226a(b)(3).

      The government moved in both courts for a stay pending
appeal to prevent Hassoun’s immediate release. We granted the
government’s motion by an order issued July 16, 2020, which noted
that an opinion would be forthcoming. We explain the reasons for that
ruling, concluding that the government made a strong showing that
it was likely to succeed on the merits and that it would suffer
irreparable harm absent a stay.




                                   4
                           BACKGROUND

      Hassoun was born in Lebanon in 1962 to Palestinian refugee
parents. He was admitted to the United States in 1989 on a non-
immigrant visa and was subsequently detained, placed in removal
proceedings, and ordered removed for failing to comply with the
conditions of his visa. Before he could be removed, Hassoun was
taken into custody on federal criminal charges.

      The government charged that between October 1993 and
November 2001, Hassoun participated in a conspiracy to murder,
kidnap, and maim persons overseas; conspired to provide material
support to terrorists; and provided material support to terrorists. At
trial, “the government presented evidence that [Hassoun and his co-
defendants] formed a support cell linked to radical Islamists
worldwide and conspired to send money, recruits, and equipment
overseas to groups that [they] knew used violence in their efforts to
establish Islamic states.” United States v. Jayyousi, 657 F.3d 1085, 1104
(11th Cir. 2011). A jury in the Southern District of Florida found
Hassoun guilty on all three counts and the district court sentenced
him to 188 months in prison. “[I]n finding [Hassoun] guilty, the jury
rejected [his defense] that [he was] only providing nonviolent aid to
Muslim communities.” Id. at 1115.

      After Hassoun completed his criminal sentence in October
2017, he was transferred to immigration detention under 8 U.S.C.
§ 1231(a)(6), which allows for the continued detention of an alien
subject to a final order of removal who is inadmissible, removable for
certain reasons, or is “a risk to the community or unlikely to comply
with the order of removal.” Subsequently, he was detained at the
BFDF in the custody of the Department of Homeland Security (DHS).


                                   5
DHS made requests to Lebanon, the Palestinian Territories, Egypt,
Iraq, Somalia, Sweden, and the United Arab Emirates but had not at
the time of the government’s motion been able to obtain travel
documents to remove Hassoun.

       In May 2018, Hassoun filed a petition for a writ of habeas
corpus, challenging his continued detention under 8 U.S.C.
§ 1231(a)(6). On January 2, 2019, the district court concluded that
Hassoun’s “continued detention [was] … no longer authorized under
§ 1231(a)(6)” because it could not “conclude that there [was] a
significant likelihood of [Hassoun’s] removal in the reasonably
foreseeable future.” Hassoun I, 2019 WL 78984, at *6. The district court
delayed Hassoun’s release, in part, to allow “immigration authorities
… to determine whether [he] may be detained on some basis other
than his compliance with his nonimmigrant status.” Id. at *7.

      On February 22, 2019, DHS notified Hassoun of its intent to
continue his detention pursuant to 8 C.F.R. § 241.14(d). That
regulation permits the detention of an alien who is inadmissible or
removable for, or suspected of, among other things, terrorist
activities, whose “release presents a significant threat to the national
security or a significant risk of terrorism,” and for whom “[n]o
conditions of release can reasonably be expected to avoid the threat
to the national security or the risk of terrorism.” Other provisions of
the same regulation also permit the detention of “[a]liens with a
highly contagious disease that is a threat to public safety,” “[a]liens
detained on account of serious adverse foreign policy consequences
of release,” and aliens whose release would “pose a special danger to
the public.” 8 C.F.R. § 241.14(b)-(c), (f).




                                     6
      DHS based its invocation of 8 C.F.R. § 241.14(d) on Hassoun’s
“role in a conspiracy recruiting fighters and providing material
support to terrorist groups overseas engaging in ‘jihads’ in Chechnya,
Bosnia, Kosovo, Algeria, Afghanistan, Pakistan, Somalia, Eritrea, and
Libya.” Notice of Intent & Factual Basis to Continue Detention, Am.
Verified Pet., Ex. D, Hassoun IV, 2020 WL 3496302 (No. 19-CV-370),
ECF No. 13-4. On March 15, 2019, Hassoun filed a new petition for a
writ of habeas corpus, challenging his detention under 8 C.F.R.
§ 241.14(d).

      Five months later, the government certified Hassoun for
continued detention under 8 C.F.R. § 241.14(d) but also, for the first
time, asserted authority to detain him under 8 U.S.C. § 1226a as well.
Section 1226a is a provision of the Patriot Act that permits the
government to detain an alien whom the Attorney General has
reasonable grounds to believe “is engaged in … activity that
endangers the national security” or is removable or deportable for
terrorist activities. After the government invoked § 1226a, the parties
filed supplemental memoranda addressing the legality and
application of that section to Hassoun.

      On December 13, 2019, the district court held that “8 C.F.R.
§ 241.14(d) is not a permissible reading of § 1231(a)(6)” and that it
“does not provide procedural due process.” Hassoun v. Searls
(Hassoun II), 427 F. Supp. 3d 357, 370, 372 (W.D.N.Y. 2019).
Accordingly, the district court ruled that 8 C.F.R. § 241.14(d) is “a
legal nullity that cannot authorize the ongoing, potentially indefinite
detention of [Hassoun].” Id. at 372. On June 29, the district court
issued another opinion holding that § 1226a also did not authorize
Hassoun’s continued detention, ordered his release, and denied the
government’s motion to stay Hassoun’s release pending appeal.
                                  7
Hassoun IV, 2020 WL 3496302, at *1. The government timely appealed
the district court’s decisions to this court and to the D.C. Circuit.

                               DISCUSSION

      In its motion, the government argues that Hassoun’s release
will “threaten the national security of the United States and the safety
of the community.” Gov’t Mot. 4. This court has discretion to stay
Hassoun’s release, pending appeal, after considering “(1) whether
[the government] has made a strong showing that [it] is likely to
succeed on the merits; (2) whether [the government] will be
irreparably injured absent a stay; (3) whether issuance of the stay will
substantially injure [Hassoun] … ; and (4) where the public interest
lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). Having considered all
four factors, we conclude that the government is entitled to a stay
pending appeal.

                                    I

      The government has made a strong showing that it is likely to
succeed on the merits of its argument that the district court erred in
holding that 8 C.F.R. § 241.14(d) is inconsistent with § 1231(a)(6) and
does not provide adequate procedural due process. Hassoun argues
that the government cannot make such a showing because, among
other things, this court lacks jurisdiction to hear the government’s
appeal. See Munaf v. Geren, 553 U.S. 674, 691 (2008) (suggesting that
jurisdictional issues can make success on the merits “more unlikely
due to potential impediments to even reaching the merits”) (emphasis
omitted). “Because we have an obligation to assure ourselves of
jurisdiction under Article III, we begin [there].” Trump v. Hawaii, 138
S. Ct. 2392, 2415-16 (2018).



                                    8
                                   A

      In normal practice, “the court of appeals for the circuit in which
the proceeding is held” has jurisdiction to review final orders
addressing detention under 8 C.F.R. § 241.14(d) and § 1231(a)(6).
28 U.S.C. § 2253(a). So any appeal from Hassoun’s first habeas
petition, challenging his detention under § 1231(a)(6), would have
been taken to this court. And, until the government certified Hassoun
for continued detention under the Patriot Act, there was no question
that any appeal from Hassoun’s second habeas petition would have
been taken to this court as well. But because the government invoked
§ 1226a, Hassoun claims that we lack jurisdiction to review the district
court’s ruling on 8 C.F.R. § 241.14(d).

      The Patriot Act provides that “in habeas corpus proceedings
described in paragraph (1)” of 8 U.S.C. § 1226a(b), “the final order
shall be subject to review, on appeal, by the United States Court of
Appeals for the District of Columbia Circuit.” 8 U.S.C. § 1226a(b)(3);
see also id. (“There shall be no right of appeal in such proceedings to
any other circuit court of appeals.”). Hassoun reads this provision to
require the government to bring its appeal of the district court’s
8 C.F.R. § 241.14(d) decision in the D.C. Circuit because the district
court’s “final order” addressed both 8 C.F.R. § 241.14(d) and 8 U.S.C.
§ 1226a. We disagree.

      Section 1226a(b)(3) governs appeals from final orders “in
habeas corpus proceedings described in” § 1226a(b)(1). Those
proceedings are limited to “[j]udicial review of any action or decision
relating to this section”—that is, to § 1226a. 8 U.S.C. § 1226a(b)(1)
(emphasis added). The government is not seeking review of an action
or decision relating to § 1226a in this court; it is challenging only the


                                   9
district court’s decision regarding 8 C.F.R. § 241.14(d). See id.
§ 1226a(c) (“The provisions of this section shall not be applicable to
any other provision of this chapter.”). Appeals challenging final
decisions applying 8 C.F.R. § 241.14 are regularly heard by the
regional circuit courts of appeals rather than by the D.C. Circuit, see,
e.g., Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008); Tran
v. Mukasey, 515 F.3d 478 (5th Cir. 2008); Tuan Thai v. Ashcroft, 366 F.3d
790 (9th Cir. 2004), and the text of § 1226a does not support the
argument that proceedings challenging detention under 8 C.F.R.
§ 241.14(d) are habeas corpus proceedings described in § 1226a(b)(1).

      Hassoun nevertheless argues that we should construe § 1226a
to control the government’s appeal of the 8 C.F.R. § 241.14(d) decision
in order to avoid the bifurcation of appeals. For support, he points to
United States v. Hohri, 482 U.S. 64, 69 n.3 (1987), which concluded that
“bifurcation [was] inappropriate” in the context of the Federal Courts
Improvement Act, 28 U.S.C. § 1295(a), which describes the exclusive
jurisdiction of the U.S. Court of Appeals for the Federal Circuit. But
§ 1295(a) uses broader language than does § 1226a. Section 1295(a)
gives the Federal Circuit jurisdiction over “an appeal from a final
decision of a district court … if the jurisdiction of that court was based,
in whole or in part” on certain enumerated grounds. 28 U.S.C.
§ 1295(a) (emphasis added). Section 1226a, by contrast, does not
contain such expansive language.

      Moreover, when the Federal Circuit “reviews a district court’s
judgment involving” issues outside the Federal Circuit’s exclusive
jurisdiction, it is “guided by the law of the regional circuit in which
that district court sits.” Nobelpharma AB v. Implant Innovations, Inc., 141
F.3d 1059, 1067 (Fed. Cir. 1998). This ensures uniformity in the
application of law when a given issue is outside the Federal Circuit’s
                                    10
exclusive jurisdiction. By contrast, Hassoun’s reading of § 1226a
would require district courts to apply D.C. Circuit law, rather than
the law of the regional circuit, when deciding issues unrelated to the
Patriot Act. According to this reading, D.C. Circuit law applies
because, under 8 U.S.C. § 1226a(b)(4), D.C. Circuit law must be “the
rule of decision in habeas corpus proceedings described in paragraph
(1).” If those “proceedings” included not only “[j]udicial review of
any action or decision relating to [§ 1226a]” but also review of any
actions or decisions related to other provisions that a detainee or the
government invokes, then the statute would require the application
of D.C. Circuit law to issues that are the province of the regional
circuit. Compare 8 U.S.C. § 1226a(b)(3), with id. § 1226a(b)(4).

      The district court did not see itself as bound by D.C. Circuit law
when it ruled on the government’s invocation of 8 C.F.R. § 241.14(d).
See Hassoun II, 427 F. Supp. 3d at 363 n.2 (“[W]hile the Court applies
the law of the Second Circuit in considering [Hassoun’s] challenge to
his detention under 8 C.F.R. § 241.14(d), it must apply the law of the
D.C. Circuit in considering his challenge to his detention under
§ 1226a.”); Hassoun v. Searls (Hassoun III), No. 19-CV-370 (EAW), 2020
WL 1819670, at *5 n.2 (W.D.N.Y. Apr. 10, 2020) (“As the Court has
previously explained, [Hassoun’s] habeas claim under 28 U.S.C.
§ 2241 is governed by Second Circuit law, while his claim under
8 U.S.C. § 1226a(b) is governed by D.C. Circuit law.”). And the parties
themselves “primarily cited Second Circuit law in their respective
briefs.” Hassoun III, 2020 WL 1819670, at *5 n.2.

      Mandating the application of D.C. Circuit law to disputes over
8 C.F.R. § 241.14 whenever the government has also invoked § 1226a
would lead to absurd results. For example, two prisoners at the BFDF
in neighboring cells could have their challenges to detention under
                                   11
8 C.F.R. § 241.14 adjudicated under different law depending on
whether they also challenged detention under, or the government
also invoked, § 1226a. Moreover, if the government invoked § 1226a
but later decided not to rely on that section to justify continued
detention, an appeal under 8 C.F.R. § 241.14 would still go to the D.C.
Circuit even though no issue related to § 1226a remained part of the
case. And it would do so even if the ground invoked under 8 C.F.R.
§ 241.14 was unrelated to terrorism. See, e.g., 8 C.F.R. § 241.14(b)
(permitting the detention of aliens with a highly contagious disease).
Most relevant here, if a case followed the trajectory of Hassoun’s
case—in which the government initially invoked 8 C.F.R. § 241.14(d)
by itself and only later invoked § 1226a—the district court might
begin its consideration of the habeas petition by applying the law of
the regional circuit and only later discover that D.C. Circuit law must
apply.

      This approach would contravene the principle that “appellate
jurisdiction should normally be known and remain unaffected”
throughout “the entire process of filing, pretrial, trial, and post-trial
motions” so as “[t]o impart certainty.” Atari, Inc. v. JS & A Grp., Inc.,
747 F.2d 1422, 1432 (Fed. Cir. 1984) (en banc), overruled in part on other
grounds by Nobelpharma, 141 F.3d at 1068 & n.5. The government did
not invoke § 1226a until five months after Hassoun filed a habeas
petition that challenged his detention under 8 C.F.R. § 241.14(d). It
cannot be that the rule of decision governing Hassoun’s challenge to
his detention under 8 C.F.R. § 241.14(d) changed several months into
the proceedings because of a unilateral decision made by one party.

      Our conclusion that § 1226a permits bifurcated appeals is
strengthened by the fact that Congress has provided for bifurcated
appeals before, also in the context of national emergency and national
                                   12
security powers. In 1970, Congress established the Temporary
Emergency Court of Appeals (TECA), which had exclusive
jurisdiction over “cases and controversies arising under” the
Economic Stabilization Act of 1970 (ESA), and later, the Emergency
Petroleum Allocation Act of 1973 (EPAA). See Coastal States Mktg. v.
New England Petroleum Corp., 604 F.2d 179, 182 (2d Cir. 1979). It was
initially unclear whether “the exclusive appellate jurisdiction of the
TECA [should] be … construed to include all cases involving any ESA
issue … [or] only those issues involving any aspect of the ESA …
while leaving to the court of appeals all other issues in the same case.”
Id. Although “[t]he statutory language offer[ed] … no firm answer,”
this court followed “a system of bifurcated appeals” and concluded
that “[s]plitting the cases and giving the TECA only … ‘issue’
jurisdiction assure[d] uniformity of decision-making on all ESA
issues.” Id. at 183-84.

      Like § 1226a, the ESA aimed “to funnel into one court all of the
appeals arising out of the District Courts and thus gain consistency of
decision.” Texas Am. Oil Corp. v. U.S. Dep’t of Energy, 44 F.3d 1557,
1562 (Fed. Cir. 1995). Accordingly, the “TECA … steadfastly
implemented the jurisdictional policy and practice of deciding only
the EPAA/ESA issue in a case, leaving to the regional circuit courts all
other issues arising in the same transaction or joined to EPAA/ESA
issues.” Id. at 1563. Even after the U.S. Court of Appeals for the
Federal Circuit assumed the TECA’s responsibilities, it preserved the
practice of exercising jurisdiction only over EPAA and ESA issues. See
Consol. Edison Co. of N.Y. v. Ashcroft, 286 F.3d 600, 604 (D.C. Cir. 2002)
(“A bifurcated appeals process, however, seems precisely what the
Federal Circuit’s issue-based approach contemplates.”). In following
that course in this case, therefore, we adhere to analogous precedent.

                                   13
      The text and structure of the Patriot Act support the conclusion
that this court has jurisdiction to review the district court’s 8 C.F.R.
§ 241.14(d) decision and therefore the government’s motion to stay
that ruling. Accordingly, we proceed to the merits.

                                   B

      The government has made a strong showing of a likelihood of
success on its argument that the district court erred in holding that
8 C.F.R. § 241.14(d) is “not a permissible reading of § 1231(a)(6).”
Hassoun II, 427 F. Supp. 3d at 372. The regulation was promulgated
under the authority provided by § 1231(a)(6), see Continued Detention
of Aliens Subject to Final Orders of Removal, 66 Fed. Reg. 56967-01 (Nov.
14, 2001), that certain classes of aliens “may be detained beyond the
removal period,” 8 U.S.C. § 1231(a)(6). To determine whether the
government’s interpretation of § 1231(a)(6) warrants deference, we
must consider (1) “whether ‘the statute is silent or ambiguous’ as to
the Attorney General’s authority to detain certain categories of aliens
beyond the ninety day removal period” and, if so, (2) “whether the
agency’s construction … represents a ‘permissible reading of the
statute.’” Hernandez-Carrera, 547 F.3d at 1244-45.

      The first question is easily answered in the affirmative. “The
Supreme Court has twice explicitly found [§ 1231(a)(6)] to be
ambiguous as to whether and under what circumstances Congress
authorized the Attorney General to detain aliens indefinitely.”
Hernandez-Carrera, 547 F.3d at 1245. The latter question requires a
closer inspection.

      To determine whether the government has made a strong
showing that its construction of § 1231(a)(6) is permissible, we
consider two issues. First, we decide whether 8 C.F.R. § 241.14(d) is

                                   14
inconsistent with existing Supreme Court precedent that identifies
constitutional concerns in the application of § 1231(a)(6). Second, we
decide whether the regulation raises other serious constitutional
doubts or is otherwise an unreasonable interpretation of the statute.

                                   1

      Hassoun contends that the Supreme Court’s interpretation of
§ 1231(a)(6) in Zadvydas and Clark v. Martinez, 543 U.S. 371 (2005),
forecloses the authority the Attorney General claims under 8 C.F.R.
§ 241.14(d). We disagree.

      In Zadvydas, the Supreme Court construed § 1231(a)(6) “to
contain an implicit ‘reasonable time’ limitation” with respect to
habeas petitioners generally, such that “if removal is not reasonably
foreseeable” after six months, “continued detention [is] … no longer
authorized by statute.” 533 U.S. at 682, 699-700. In so holding, the
Court expressly avoided “consider[ing] terrorism or other special
circumstances where special arguments might be made for forms of
preventive detention and for heightened deference to the judgments
of the political branches with respect to matters of national security.”
Id. at 696. Moreover, the Court did not “interpret section 1231(a)(6)
for all time and all purposes.” Tuan Thai v. Ashcroft, 389 F.3d 967, 969-
70 (9th Cir. 2004) (Kozinski, J., dissenting from denial of rehearing en
banc). “Rather, the Court merely … declined to defer to an agency
interpretation that raised serious constitutional doubts, and was
therefore an unreasonable construction of Congress’ intent.”
Hernandez-Carrera, 547 F.3d at 1249.

      Consequently, “the Court’s method of narrowing” § 1231(a)(6)
in Zadvydas, which it reaffirmed in Clark, “is not the only permissible
one.” Tuan Thai, 389 F.3d at 971 (Kozinski, J., dissenting from denial

                                   15
of rehearing en banc). “[E]ven after a court has construed a statute to
avoid constitutional doubts, an agency remains free to interpret the
same statute in a different manner so long as its subsequent
interpretation is reasonable and avoids serious constitutional
questions.” Hernandez-Carrera, 547 F.3d at 1251; see Nat’l Cable &
Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005) (“A
court’s prior judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if the prior
court decision holds that its construction follows from the
unambiguous terms of the statute and thus leaves no room for agency
discretion.”).

      In promulgating 8 C.F.R. § 241.14(d), the Attorney General
avoided the serious constitutional questions identified in Zadvydas by
focusing narrowly on those “specially dangerous individuals”
implicated in “terrorism or other special circumstances” that the
Supreme Court said were not subject to its holding or the limiting
construction the Court imposed on the statute. Zadvydas, 533 U.S. at
691, 696. The regulation permits continued detention only for aliens
whose “release presents a significant threat to the national security or
a significant risk of terrorism” and for whom “[n]o conditions of
release can reasonably be expected to avoid the threat to the national
security or the risk of terrorism.” 8 C.F.R. § 241.14(d). In limiting the
regulation’s scope to this narrow class, the Attorney General ensured
that it would apply “only to terrorists and criminals“ and not “to [the]
ordinary visa violators” for whom the Zadvydas Court concluded
Congress did not authorize continued detention. 533 U.S. at 697; see
id. at 691 (reiterating that Congress would not have authorized
continued detention “broadly [for] aliens ordered removed for many
and various reasons, including tourist visa violations” rather than for

                                   16
“a small segment of particularly dangerous individuals” such as
“suspected terrorists”).

      Indeed, this class of aliens is so narrow that “this is only the
second time 8 C.F.R. § 241.14(d) has been invoked since its
promulgation in 2001.” Hassoun II, 427 F. Supp. 3d at 366 n.5. As
Zadvydas recognized, “government detention violates [the Fifth
Amendment’s Due Process] Clause unless the detention is ordered …
in certain special and ‘narrow’ nonpunitive ‘circumstances.’” 533 U.S.
at 690 (emphasis added). By limiting the scope of 8 C.F.R. § 241.14(d),
the government ensured that it would apply only in such
circumstances.

      The district court thought that Zadvydas—and the Supreme
Court’s adherence to its limiting construction in Clark—did not
“[leave] open the possibility for a more narrowly tailored regulation
such as the one at issue here.” Hassoun II, 427 F. Supp. 3d at 367-68.
We see no inconsistency between the decisions in Zadvydas and Clark
and the regulation at issue here. The Supreme Court in Clark applied
the same construction to inadmissible aliens that it applied to
admissible aliens in Zadvydas so as not to “give the same statutory text
different meanings in different cases.” Clark, 543 U.S. at 386. Yet the
Zadvydas construction always excluded “terrorism or other special
circumstances where special arguments might be made for forms of
preventive detention.” Zadvydas, 533 U.S. at 696. So there would be no
inconsistency for a court to recognize that, when faced with the
special circumstances identified in Zadvydas, the Court’s construction
allows for a different outcome. Although the Court made other
remarks that could be construed to support the district court’s
reading of § 1231(a)(6), see Clark, 543 U.S. at 379 n.4, 386 n.8, the Court
never suggested that § 1231(a)(6) unambiguously precludes the
                                    17
interpretation the government now urges, see Hernandez-Carrera, 547
F.3d at 1249.

      While judges generally adhere to the same interpretation across
cases, the government was entitled to resolve statutory ambiguities
differently than the Court had done previously. See Brand X, 545 U.S.
at 980.

                                    2

      Having determined that prior precedent does not categorically
prohibit 8 C.F.R. § 241.14(d), we must decide whether the regulation
is a “reasonable” interpretation of § 1231(a)(6). Brand X, 545 U.S. at
980 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 843-44, 843 n.11 (1984)). The statute provides that:

      An alien ordered removed who is inadmissible under
      section 1182 of this title, removable under section
      1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who
      has been determined by the Attorney General to be a risk
      to the community or unlikely to comply with the order
      of removal, may be detained beyond the removal period
      and, if released, shall be subject to the terms of
      supervision in paragraph (3).

8 U.S.C. § 1231(a)(6). The regulation does not apply to aliens beyond
those who have already been ordered removed and meet the
predicate requirements. The question is whether this statutory
language may reasonably be read to authorize the continued
detention of specially dangerous individuals beyond the removal
period upon a showing that their release would threaten national
security or pose a risk of terrorism. We conclude that it does. Not only
does that reading fit naturally with the statute’s express language, but
the government’s interpretations of § 1231(a)(6) are also entitled to

                                    18
“heightened deference” to the extent those interpretations address
“terrorism or other … matters of national security.” Tuan Thai, 366
F.3d at 796.

      The only remaining question, then, is whether 8 C.F.R.
§ 241.14(d) implicates serious constitutional concerns beyond those
raised in Zadvydas and Clark. The district court concluded that it raises
such concerns because the regulation fails to provide for review by a
neutral decisionmaker and to place the burden of proof by clear and
convincing evidence on the government. Hassoun II, 427 F. Supp. 3d
at 369-72. We disagree and conclude that the government has made a
strong showing of a likelihood of success on the merits of its argument
that the regulation provides adequate procedural due process.

      “[T]he nature of [procedural due process] protection[s] may
vary depending upon status and circumstance.” Zadvydas, 533 U.S. at
694; see Hernandez-Carrera, 547 F.3d at 1254 (“[I]t is not at all clear that
removable aliens benefit from precisely the same advantages of due
process as do citizens or lawful permanent resident aliens.”). Under
Mathews v. Eldridge, 424 U.S. 319, 335 (1976), we consider three factors:
(1) “the private interest that will be affected by the official action,”
(2) “the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards,” and (3) “the Government’s
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.”

      While Hassoun faces the potential of “indefinite detention,”
Zadvydas, 533 U.S. at 690, the government has a compelling interest in
protecting national security, see Haig v. Agee, 453 U.S. 280, 307 (1981)

                                    19
(“[N]o governmental interest is more compelling than the security of
the Nation.”). The regulatory framework features procedural
protections to minimize Hassoun’s risk of being erroneously
deprived of liberty. First, the regulation requires the government to
provide Hassoun with notice of its intent to detain him under the
regulation, a description of the factual basis for the detention, and a
reasonable opportunity to examine the evidence and present
information on his own behalf. 8 C.F.R. § 241.14(d)(2). Second, it
provides Hassoun the opportunity to participate in an interview with
an immigration officer and to produce a sworn statement. Id.
§ 241.14(d)(3). Third, as he did in this case, Hassoun may challenge
his detention by seeking a writ of habeas corpus in federal court.

       The district court held that these procedures are inadequate
because the procedures “[do] not provide for any review by a neutral
decisionmaker.” Hassoun II, 427 F. Supp. 3d at 370. Yet the availability
of habeas corpus is “sufficient to satisfy the requirements of the Due
Process Clause.” Hernandez-Carrera, 547 F.3d at 1255; see Fay v. Noia,
372 U.S. 391, 402 (1963) (“[H]abeas corpus in the federal courts
provides a mode for the redress of denials of due process of law.
Vindication of due process is precisely its historic office.”). The
regulation is unlikely to be held unconstitutional for lack of a neutral
decisionmaker when detainees may seek review of its application in
the federal courts. 2


2 The district court expressed concern that it could not “qualify as the
necessary neutral decisionmaker” if, as the government suggested below, a
court was barred under 8 U.S.C. § 1252(a)(2)(B)(ii) from reviewing the DHS
Secretary’s factual determinations related to certification under 8 C.F.R.
§ 241.14(d). See Hassoun II, 427 F. Supp. 3d at 370 n.8. We do not find this
concern decisive here. First, it appears from the record that the district court

                                      20
       With respect to the standard of proof, the district court held that
the Due Process Clause requires a clear-and-convincing evidentiary
standard because, in Addington v. Texas, 441 U.S. 418, 427 (1979), the
Supreme Court held that “due process requires the state to justify
confinement by proof more substantial than a mere preponderance of
the evidence” in the context of civil commitment proceedings. There
is substantial reason to doubt that Addington is the most analogous
case for determining the proper evidentiary burden here. In that case,
the Supreme Court applied the enhanced burden to avoid “the
possible risk that a factfinder might decide to commit an individual
based solely on a few isolated instances of unusual conduct.” Id.


was able to resolve Hassoun’s challenge to his detention under 8 C.F.R.
§ 241.14(d) without facing any obstacle to fully considering his arguments.
For that reason, the district court did not resolve whether § 1252 applies to
the claims in this case. See Hassoun II, 427 F. Supp. 3d at 370 n.8. Thus, even
if § 1252 applies to habeas challenges and would affect a district court’s
review in a hypothetical case, that issue is not presented in this appeal.
Second, § 1252’s jurisdictional bar applies only where “discretion is
conferred … by statute” rather than “by regulation.” Kucana v. Holder, 558
U.S. 233, 252 (2010). Although the government told the district court that
§ 1231(a)(6) provides discretionary authority to detain Hassoun, the
Supreme Court held when interpreting the statute in Zadvydas that “the
extent of that authority is not a matter of discretion.” 533 U.S. at 688.
Accordingly, when federal officials make determinations—under
certification procedures created by regulation—that a detainee falls within
the class of “specially dangerous individuals” that may be further detained,
it is not clear that those officials are exercising an authority the statute makes
discretionary. Third, even if § 1252 limited review of the substance of the
Secretary’s certification decisions, that alone might not violate the Due
Process Clause. See Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (reasoning
that a “fact-intensive review is vastly different from what the habeas statute
plainly provides: review for statutory or constitutional errors”). The district
court did not fully address these issues.

                                       21
Subsequently, in Jones v. United States, 463 U.S. 354, 367-68 (1983), the
Supreme Court endorsed the use of the preponderance-of-the-
evidence standard for the indefinite confinement of an individual
who was acquitted of a criminal offense by reason of insanity.
Although there was a “diminished concern as to the risk of error” in
part because “the acquittee himself advance[d] insanity as a defense[,]
… the proof that he committed a criminal act” also “eliminate[d] the
risk that he [was] being committed for mere ‘idiosyncratic behavior’”
because “[a] criminal act by definition is not ‘within a range of
conduct that is generally acceptable.’” Id. at 367 (emphasis omitted).
Like the requirement of a criminal act in Jones, 8 C.F.R. § 241.14(d)’s
requirement of a “significant threat to the national security or a
significant risk of terrorism” operates to reduce the risk of erroneous
deprivation based on mere unusual conduct.

      The “‘preponderance of evidence’ standard is the traditional
standard in civil and administrative proceedings.” Sea Island Broad.
Corp. of S.C. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980). In Hamdi v.
Rumsfeld, 542 U.S. 507, 534 (2004), which dealt with the potentially
indefinite detention of American citizens on American soil, a plurality
of the Supreme Court held that “the Constitution would not be
offended by a presumption in favor of the Government’s evidence, so
long as that presumption remained a rebuttable one and fair
opportunity for rebuttal were provided.” For that reason, “once the
Government puts forth credible evidence that the habeas petitioner
meets the enemy-combatant criteria, the onus could shift to the
petitioner to rebut that evidence with more persuasive evidence that
he falls outside the criteria.” Id. Applying Hamdi, the D.C. Circuit has
repeatedly upheld the application of the preponderance-of-the-
evidence standard in the context of wartime detention. See Ali v.

                                   22
Trump, 959 F.3d 364, 372 (D.C. Cir. 2020); Awad v. Obama, 608 F.3d 1,
11 (D.C. Cir. 2010) (“A preponderance of the evidence standard
satisfies constitutional requirements in considering a habeas petition
from a detainee held pursuant to the AUMF.”).

      Finally, the district court did not consider whether a clear-and-
convincing evidence standard was required in light of the
“heightened deference to the judgments of the political branches with
respect to matters of national security.” Zadvydas, 533 U.S. at 696.
Those matters were not at issue in Addington but figure prominently
here. For these reasons, there is substantial reason to doubt the district
court’s conclusion that the regulation is invalid because it does not
explicitly incorporate the clear-and-convincing evidence standard,
and the government is correspondingly likely to prevail.

                                    II

      We agree with the government that considerations of
irreparable harm and the equities favor a stay of Hassoun’s release
pending appeal. “Where … special and narrow circumstances are
present,” such as the risk of terrorism, “the government’s interest in
preventing harm outweighs the individual’s constitutionally
protected interest in avoiding physical restraint.” Hernandez-Carrera,
547 F.3d at 1251-52 (internal quotation marks omitted).

                                    A

      Even though the district court imposed conditions of
supervised release intended to ameliorate the harm from Hassoun’s
release, Hassoun IV, 2020 WL 3496302, at *5-6, the government asserts
that Hassoun’s release would still “profoundly burden DHS, the FBI,
ICE, and other law enforcement agencies tasked with monitoring


                                   23
Hassoun” and that “‘it is not possible to fully mitigate the threat
posed by Hassoun’s release.’” Gov’t Mot. 4 (alteration omitted).

      National security concerns “arise in connection with efforts to
confront evolving threats in an area where information can be
difficult to obtain and the impact of certain conduct difficult to
assess.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).
Conclusions about that information therefore “must often be based
on informed judgment rather than concrete evidence, and that reality
affects what we may reasonably insist on from the Government.” Id.
at 34-35. Here, the Acting ICE Director, the Acting Secretary of DHS,
and the FBI Director each has concluded that Hassoun’s release
would pose a threat to national security. Even where “the
dangerousness of an alien pending removal still may not justify
indefinite detention … it may be considered when determining
whether immediate release is the appropriate remedy.” Singh v.
Whitaker, 362 F. Supp. 3d 93, 104 (W.D.N.Y. 2019) (citing Zadvydas, 533
U.S. at 685, and Hilton v. Braunskill, 481 U.S. 770, 779 (1987)).
Accordingly, we conclude that the government has demonstrated
that it would suffer an irreparable injury from Hassoun’s release
absent a stay.

                                    B

      “Once an applicant satisfies the first two factors, the traditional
stay inquiry calls for assessing the harm to the opposing party and
weighing the public interest.” Nken, 556 U.S. at 435. “[T]he
Government’s interest in combating terrorism is an urgent objective
of the highest order.” Humanitarian Law Project, 561 U.S. at 28. This
interest “can, in appropriate circumstances, outweigh an individual’s
liberty interest.” United States v. Salerno, 481 U.S. 739, 748 (1987). This


                                    24
is one such circumstance. As an initial matter, an individual such as
Hassoun who concededly has no legal right to be in the United States
following his removal order—and is not covered by the Supreme
Court’s holding in Zadvydas—does not have a right to be released into
the United States. See Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018)
(“Even once inside the United States, aliens do not have an absolute
right to remain here.”); Zadvydas, 533 U.S. at 703 (Scalia, J., dissenting).

      Although “[t]he interest of the habeas petitioner in release
pending appeal [is] always substantial,” the court must consider
whether “there is a risk that the prisoner will pose a danger to the
public if released.” Hilton, 481 U.S. at 777. Hassoun is a convicted
terrorist who has been ordered removed from the United States, and
our court has noted that “even terrorists with no prior criminal
behavior are unique among criminals in the likelihood of recidivism,
the difficulty of rehabilitation, and the need for incapacitation.”
United States v. Meskini, 319 F.3d 88, 92 (2d Cir. 2003). Although
Hassoun has a strong interest in his release, the balance of the equities
favors granting the government’s motion for a stay.

                             CONCLUSION

      Because the government made a strong showing that it was
likely to succeed on the merits and that it would suffer irreparable
harm absent a stay, we GRANTED the government’s motion for a
stay pending appeal by an order issued July 16, 2020.

      In the interest of judicial economy, any future proceedings on
appeal shall be assigned to this panel.




                                    25
