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United States v. Alzerei

United States District Court, D. Massachusetts

June 27, 2019




         I. Introduction

         Defendant Waad Alzerei (“Alzerei”) has moved for release from custody or, alternatively, dismissal of the indictment against him with prejudice. D. 25. Having considered the parties' filings and heard oral argument from counsel, and for the reasons stated below, the Court DENIES the motion.

         II. Factual Background and Procedural History

         Alzerei is a nineteen-year-old stateless national of the Palestinian Authority from Gaza. D. 19 ¶ 1; D. 25 at 1. On or about April 2016, Alzerei applied for a United States tourist visa. D. 19 ¶ 2. Among other things, Alzerei stated on his visa application that he had never “committed, ordered, incited, assisted, or otherwise participated in extrajudicial killings, political killings, or other acts of violence.” Id. In connection with his visa application, officials from the United States Department of State interviewed Alzerei on or about October 19, 2016. D. 19 ¶ 3. Alzerei, who had his right leg amputated above the knee in 2015, was questioned about his leg injury. Id. Alzerei explained that he had been shot in the leg by a stray bullet from the Israeli Defense Forces while picking olives in an agricultural field near the border of Gaza and Israel. Id. The State Department approved Alzerei's application and issued him a B-1/B-2 tourist visa on or about November 2, 2016. Id. The visa was valid through October 31, 2019. Id. In 2017, using the visa, Alzerei traveled to the United States for about six months and was fitted for and provided with a prosthetic leg. D. 19 ¶ 4.

         On or about February 27, 2019, Alzerei arrived at Logan Airport in Boston on a flight from Egypt and was interviewed by two officers from United States Customs and Border Protection (“CBP”) to determine if he met the admissibility requirements to enter the United States. D. 19 ¶ 5. Alzerei explained that he was a Palestinian citizen, presented them with his visa and told them he was traveling to the United States for treatment for his leg. Id. During the interview, which was conducted with an Arabic interpreter, Alzerei told the officers that he had not been involved in any type of riot, rally or demonstration when he was shot, nor had he ever been involved in any such demonstration. D. 19 ¶¶ 5-6.

         After the initial interview at the airport, the officers conducted a search of Alzerei's mobile phone. D. 19 ¶ 7. During the search, the officers found numerous photographs, images and videos suggesting Alzerei's affiliation with the Popular Front for the Liberation of Palestine (“PLFP”) and Hamas, both of which have been designated as foreign terrorist organizations by the United States. Id. The officers found photographs taken on the same day Alzerei was shot in the leg that appeared to depict Alzerei throwing rocks at the Israeli Defense Forces. D. 19 ¶ 8.

         In a second interview, Alzerei gave a sworn statement from Alzerei to the CBP officers. D. 19 ¶ 9. One of the officers was a fluent Arabic speaker who translated and typed Alzerei's answers. Id. Alzerei admitted that the photographs depicted him shortly before he was shot rioting and slinging rocks at Israeli troops near the border. D. 19 ¶ 10. Alzerei stated that he lied to the State Department about the circumstances that led to his injured leg because he did not want to be arrested by the Israelis and because he knew he could not otherwise obtain a visa. Id.

         Determining that Alzerei's visa had been procured unlawfully, CBP denied Alzerei entry to the United States, deemed him inadmissible and issued a final order of removal. D. 31 at 4. Alzerei then sought asylum and was detained by United States Immigration and Customs Enforcement (“ICE”) pending a “credible fear” interview. Id. While the asylum claim was pending, the United States Attorney for this district filed a criminal complaint against him, charging Alzerei with visa fraud in violation of 18 U.S.C. § 1546(a) and making false statements in violation of 18 U.S.C § 1001(a)(2) (Count 2). D. 1. Alzerei then withdrew his asylum claim and was transferred to the custody of the United States Marshals Service (“USMS”). D. 31 at 4.

         At Alzerei's initial appearance, the government moved for detention on the sole ground that Alzerei was a flight risk. D. 5; D. 27 at 4. After the matter was scheduled for a detention hearing on April 5, 2019, D. 9, Alzerei filed a motion for release, D. 11, which the government opposed, D. 14. The Court (Kelley, M.J.) held the detention hearing over the course of two days on April 5 and 8, 2019. D. 13, 16, 27-28. At the conclusion of the hearing, on April 8, 2019, the Court ordered Alzerei's pretrial release subject to conditions including, but not limited to that he surrender his passport, not obtain a passport, report to Pretrial Services as required and have his travel restricted to Massachusetts and maintain his current residence. D. 17. Because he remained subject to a removal order at the time of Judge Kelley's order of release, Alzerei was then transferred from USMS custody to ICE custody pending his removal from the United States. D. 25 at 2; D. 31 at 4.

         Shortly thereafter, on April 16, 2019, a grand jury indicted Alzerei for visa fraud and making false statements. D. 19. Two days later, Alzerei filed for asylum in the United States, which paused ICE's efforts to remove him. D. 31 at 4. Alzerei still remains in ICE custody pending the full adjudication of his asylum claim. (At the motion hearing on June 4, 2019, counsel informed the Court that his asylum petition has been denied, but his appeal of that denial remains pending). If his asylum claim is denied or withdrawn, the government has informed the Court that ICE will renew its efforts to remove Alzerei from the United States. D. 25 at 3; D. 31 at 5.

         Alzerei has now moved for release from custody or, alternatively, dismissal of the indictment. D. 25. The Court has considered the parties' filings (including the parties' post-hearing filings, D. 36-37)[1] and heard counsel on the motion.

         III. Discussion

         A. The Bail Reform Act and the Immigration and ...

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