Megahed case still inciting immigration, terrorism debates

The arrest of Youssef Megahed in a Wal-Mart parking lot three days after a federal jury found him not guilty of explosives charges shocked his family and outraged local human rights activists.

Legal experts say it is part of a tendency by the federal government to use immigration law when federal prosecutors don't have enough evidence to convict in criminal court.

"They lost the case criminally because they don't have a good case, and they turn around and prosecute him in immigration where the standards are lower and where you can keep somebody mandatorily detained simply by alleging he's a terrorist," said Miami immigration lawyer Ira Kurzban.

Megahed, a legal, permanent resident of the United States who has lived in this country with his family for more than 11 years, is being held without bail as immigration authorities move to deport him based on the same facts for which he was prosecuted in federal criminal court, according to his criminal lawyer.

A federal immigration official said, however, that the "charged immigration violations differ significantly from those charged in his criminal case, and he will have the opportunity to present the facts of his case before an immigration judge."

Ivan L. Ortiz-Delgado, spokesman for U.S. Immigration and Customs Enforcement, refused to give any further details on the charges, citing Department of Homeland Security privacy policy. Ortiz-Delgado also wouldn't respond to critics. "The law is the Immigration and Nationality Act," he said. "It's a public document that anybody can read. Therefore, I'm not going to react to the comments of these people."

Adam Allen, one of Megahed's public defenders, said the immigration court notice Megahed received referred to the items found in the car in which Megahed was riding when he was arrested - his friend's laptop computer with "jihadi" videos, a partially filled gasoline can and safety fuse found in the trunk, along with "rocket motors" made from PVC pipes, potassium nitrate and sugar. Those items were described in the notice as being related to terrorism, Allen said, even though Megahed was not charged with terrorism in his criminal trial.

Megahed, who had been free on bail since May, now could be behind bars for more than a year while the deportation is decided, Allen said. "In my 15 years of practicing law, I don't think I've ever been this upset."

Allen's dismay was echoed by local activists who gathered Tuesday to decry Megahed's arrest. "I believe there is a real threat to the democracy that I would like to leave intact for my children and grandchildren," said Lois Price, a member of two groups, Friends of Human Rights and Women of Faith Building Communities.

Megahed's family is getting an education in immigration law, which does not grant the rights afforded criminal defendants. The rules of evidence are much less restrictive, for example, allowing the government to use hearsay. And while criminal prosecutors must prove their cases beyond a reasonable doubt, the standard is lower in immigration court, which requires only clear and convincing evidence.

Kurzban met with the Megaheds on Wednesday, but was unsure whether he would represent Youssef.

"I think he's got an uphill battle, Kurzban said.

A civil proceeding

"The real problem is a complete fiction in immigration law," Kurzban said. "On the one hand they say it's not a criminal proceeding; it's only a civil proceeding. That gives them the right to detain people forever, to abbreviate their constitutional rights, even though detention is clearly a punishment."

The "legal fiction," Kurzban said, is the idea that detention is not a punishment, but a civil, administrative measure. "It's kind of the worst of all worlds."

In some immigration cases, the possible outcome can be more serious than in criminal court. For instance, an immigrant seeking political asylum who is deported could be executed in his home country, Kurzban said.

Even though the stakes can be higher, the protections are lower. "Unlike in criminal proceedings, there's no double jeopardy, there's no speedy trial, there's no right to counsel. And so the family has to retain counsel. Even if you win, the government can come back and re-charge you for something ... They can hold you up to six months even after you're ordered deported."

Immigration court is "the only place in America where there's mandatory detention" even if the defendant is not considered a risk to flee or a danger to the community, he said.

"We're very depressed," said Yahia Megahed, Youssef's older brother. ..."We just want this to be over."

Family members have applied for U.S citizenship, but the father, Samir Megahed, has said they would join Youssef in Egypt, if he has to leave.

It's been nearly two years since Youssef Megahed was arrested in South Carolina while on a trip with his friend, Ahmed Mohamed. Deputies pulled their car over for speeding about seven miles from a military base, and found what the officers described as pipe bombs in the trunk.

Both men, who were then students at the University of South Florida, were arrested and later indicted on charges they illegally transported explosives.

Mohamed, also Egyptian, had been in the United States about six months. He later pleaded guilty to helping terrorists by posting on YouTube a video showing how to use a remote-controlled toy to detonate a bomb. As part of a plea agreement, Mohamed was sentenced to 15 years in prison and the explosives charges against him were dropped

The FBI later said the devices in the trunk were not pipe bombs, but were "low explosives," a mixture of potassium nitrate and sugar stuffed into 4-inch sections of PVC pipes. Megahed said he didn't know the devices were in the trunk, and that they were Mohamed's homemade model rockets, not dangerous explosives.

Yahia Megahed said lawyers are telling his family that immigration court is "very loose-ended and, really the government can do anything in immigration cases. It's not like federal court where you have a good system."

Lawyers have also said his brother would not be allowed to voluntarily leave the country, and must sit behind bars awaiting deportation. "They have to give him permission and deport him," Yahia Megahed said.

Allen said it's possible Youssef Megahed would have agreed to deportation without going through immigration court. But that option never was presented. Nor was Megahed allowed to turn himself in before being surrounded by immigration agents in the store parking lot and spirited away from his stunned father.

"What that says to me is this is not about deportation. It's about punitive punishment," Allen said.

Other cases

Youssef Megahed is not the first green-card holder to find himself cleared in criminal court, then face immigration charges for the same facts.

Lyglenson Lemorin, the only member of the "Miami Seven" to be acquitted on terrorism charges after a trial in 2007, was ordered deported to his native Haiti in November based on similar facts. Prosecutors alleged that Lemorin and his co-defendants were part of a terrorist cell that pledged allegiance to al-Qaeda and planned violence, including blowing up the Sears Tower in Chicago.

The government's efforts to deport Lemorin, in spite of the jury's acquittal, enraged immigrant advocates, according to a report in the South Florida Sun-Sentinel.

"A finding by a jury is not binding on this court in removal proceedings," immigration Judge Kenneth Hurewitz said in his Nov. 20 ruling, which was released by Lemorin's attorneys in November, according to the Washington Post.

Sami Al-Hussayen, a Saudi graduate student in Idaho, was prosecuted in 2004 on terrorism charges for his volunteer work on a Web site for a Muslim charity. Prosecutors said the Web site had secret pro-terrorism messages.

Al-Hussayen was acquitted of the terrorism charges, but jurors deadlocked on separate criminal, immigration violations, his attorney Davic Nevin said. Those charges alleged that Al-Hussayen's work on the Web site violated the provisions of his student visa.

While the criminal case was pending, a federal judge ordered Al-Hussayen released on bail, Nevin said. But prosecutors obtained an order from an immigration judge keeping him behind bars.

"It was just one bizarre thing after another," Nevin said. "Immigration court was like 'Alice in Wonderland.'"

By the time the jury cleared Al-Hussayen on the terrorism charges, he had been jailed 15 months, Nevin said. So to avoid another trial, which would have kept him behind bars even longer, Al-Hussayen entered into a plea agreement and was deported.

"The immigration process is a lot blunter an instrument, and frequently the Department of Justice uses it as a weapon of last resort," Nevin said. "When they can't prove a case, they use that because there's a lower level of scrutiny and the presumptions are placed in a different way. And the judges are all employees of the attorney general, in other words the same people who are the prosecutors, and everybody answers to the same boss.

"In a criminal case, the judge has independent constitutional standing and allegiance only to justice under the Constitution. It's not surprising that you get different results under those two settings.''