A federal judge on Wednesday said Sameeh Hammoudeh has a right to have his detention in an immigration holding facility monitored by the courts.
Judge James D. Whittemore, however, refused to order Hammoudeh's release - yet. He did schedule a status hearing in May, though, at which time he may review immigration officials' actions, if Hammoudeh hasn't been deported by then.
Whittemore was the first of three federal judges to hear the case and assert jurisdiction over Hammoudeh's incarceration. Two previous judges said they were powerless over immigration officials' actions.
Whittemore denied a motion by prosecutors to dismiss a petition by Hammoudeh's attorneys. The petition asks the judge to rule Hammoudeh's detention illegal. The prosecutors argued that prior courts have ruled that judges have no jurisdiction in such cases until subjects are detained at least six months in an immigration facility.
Hammoudeh's attorney, Stephen Bernstein, argued, "You can't say a defense to the denial of due process is just the passage of time."
The judge agreed, saying, "One day of illegal detention is a violation of the Constitution." Consequently, the judge would not dismiss the petition.
Whittemore said, however, that he could not order Hammoudeh freed now because his detention is not illegal at this time because officials are following proper procedure.
After being held in a federal prison for nearly three years, Hammoudeh was acquitted in December of terrorism-related charges in the Sami Al-Arian case. On Dec. 7, he was turned over to immigration authorities for deportation.
Before the Al-Arian trial, Hammoudeh and his wife, Nadia, pleaded guilty to unrelated fraud charges. Under a plea agreement, both agreed to be deported. Nadia Hammoudeh, who was never jailed, was deported last month.
Sameeh Hammoudeh remains behind bars as federal immigration officials say they are working to deport him to the Palestinian territories.
Whittemore said he may be compelled at a later date to review the actions of federal officials.
Bernstein said conversations about release conditions for Hammoudeh have been "one way," because he has reached out and immigration officials have not responded.
The judge noted that Michael Rozos, an immigration district director, wrote Hammoudeh on March 14 informing him he would continue to be held. In the letter, Rozos wrote, "If you disagree with this decision and can provide additional evidence to the contrary, you may submit the documentation to your deportation officer in Bradenton."