Megahed on ICE
by Bill West
April 10, 2009
Youssef Megahed, a 23-year-old former student at the University of South Florida (USF) in Tampa, last week was acquitted of federal explosives and related charges in U.S. District Court in Tampa. Those charges stemmed from Megahed traveling with a fellow Egyptian USF student in South Carolina in August 2007 with explosive material found in the trunk after a stop by local deputies. His confederate, Ahmed Mohamed, pled guilty to providing material support to terrorists after investigators discovered a how-to video on his computer showing wanna-be jihadis how to build remote control bombs out of simple toys so they might live to fight another day.
Jurors weren't convinced Megahed was in on Mohamed's plan. Megahed's freedom was short-lived, however. Immigration and Customs Enforcement (ICE) agents arrested him Monday in Tampa. He faces removal (deportation) proceedings, reportedly based on similar charges to his criminal case.
Megahed's supporters have decried his most recent arrest, claiming it is unfair and akin to double jeopardy since he was just cleared by the federal jury in his criminal trial. Such a stance might be expected by his supporters, but it displays ignorance of U.S. immigration laws and procedures.
Megahed is reported to be a legal permanent resident alien residing in the United States. That means he is not a U.S. citizen. As such, he is subject to removal provisions of the Immigration and Nationality Act (INA). Those provisions are not criminal in nature, but are administrative/civil violations. Removal charges can be based on criminal activity, activity contrary to national security and public safety, and some of those legal sections do not require conviction.
Complaints that Megahed's arrest is a form of sour grapes after he was acquitted in his criminal case are misguided. There's the simple matter that ICE played no significant operational role in the criminal prosecution and reports to the Department of Homeland Security, which is independent from the Justice Department. In addition, removal cases based on alleged criminal activity, but lacking a conviction, are not new. This approach began in earnest by the former Immigration and Naturalization Service (INS) in Miami in 1996 against a Cuban spy named Jorge Luis Rodriguez. Rodriguez was never charged criminally but was ultimately deported for having engaged in espionage related activities in violation of the Foreign Agents Registration Act. This was a "case of first impression" that became a precedent for other such removal cases, bolstering the U.S. Government's ability to bring such cases into Immigration Court and beyond in the appellate process. Those other cases have successfully targeted foreign nationals who were involved in espionage, terrorism support and even organized crime, but who were not criminally convicted for the underlying activities.
Since removal proceedings are administrative/civil in nature, the rules of evidence are somewhat different and less restrictive than in criminal proceedings. The standard of proof (being found "removable") in such proceedings is "clear, convincing and unequivocal" as opposed to "beyond a reasonable doubt" in criminal cases. This is important because the level of proof required of the Government in removal proceedings is less than in criminal proceedings, though it is higher than in "normal" civil matters like a lawsuit.
They also are different because someone "found guilty" of a removal violation is ordered to leave the United States and, essentially, go back to where they were born - they cannot be sentenced to prison like they could be if convicted of a crime. The U.S. Supreme Court has upheld this duality between deportation matters and criminal proceedings. There is no double jeopardy if an alien is subject to removal based on the same activity that may have also realized the alien being charged in criminal proceedings, even if those criminal charges resulted in an acquittal. The proceedings and violations are completely separate, even if based on the same underlying activity.
Removal proceedings are adversarial. Respondents (defendants) in removal proceedings are entitled to legal counsel and discovery. They can exam evidence against them and may present their own evidence and witnesses. An Immigration Judge renders decisions, at the lowest level of adjudication in these cases. Respondents have the right to appeal adverse decisions to the Board of Immigration Appeals, then to a U.S. Circuit Court of Appeals, and even ultimately to the Supreme Court. Respondents who claim to have new evidence may file post-decision Motions to Reopen. They may seek post-decision relief from removal under a variety of statutes and policies, such as political asylum, Convention Against Torture and withholding of removal to name a few. It may surprise most Americans to know that an alien respondent in removal proceedings has notably more appellate rights and opportunities than a criminal defendant in the Federal court system. That is why even a seemingly simple deportation case can take years to resolve. Quick and simple deportations are rare when the case is contested.
We do not yet know what specific removal charges Megahed faces. It is possible those charges have nothing to do with the prior Federal explosives case. Has ICE uncovered some other underlying removal charge? However, if the removal charges are linked to the underlying activity that resulted in Megahed being originally charged criminally, and then acquitted, the government's actions in the immigration case would be entirely lawful and fair. Like it or not, foreign nationals (aliens) in the United States really are subject to two separate legal systems. They are subject to the criminal laws like everyone else and they are subject to immigration and nationality laws, particularly removal provisions, which may render them deportable from the United States.
Bill West is a consultant to the Investigative Project on Terrorism. He retired in 2003 as chief of the national security section for Immigration and Customs Enforcement (ICE).