United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. CASPER, U.S. DISTRICT JUDGE
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
Factual Background and Procedural History
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.
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.
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.
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.
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.
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.
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.
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) and heard counsel on the motion.
The Bail Reform Act and the Immigration and