Two Uzbeks fight "danger" charge

Everyone agrees that Ismoil Samadov and Bekhzod Bakhityarovich Yusupov, two Muslims from Uzbekistan, arrived in the United States in 1999, overstayed their student visas, and are subject to deportation.

And there is no question that when the FBI raided the Philadelphia rowhouse Samadov and Yusupov shared with other immigrants in 2002, they found a computer that contained a map of Pennsylvania State Police barracks and jihadi videos downloaded from the Web, including one of a speech by Osama bin Laden.

But does watching a jihadi video make them terrorist sympathizers or two guys interested in the news?

That question and their fate will be decided by a panel of three judges on the U.S. Court of Appeals for the Third Circuit in Philadelphia.

For the second time.

The two contend they are merely immigrants who fear torture and persecution for their religious beliefs if they return to Uzbekistan, and are not stalking horses for the nation's enemies.

In the meantime, they wear electronic monitors and must return home each night at a time set by immigration officials. Both work - Samadov selling high-end plumbing fixtures, Yusupov in odd jobs. Both are married. Court documents say each is 30 years old.

The case has attracted national attention from Muslim organizations and immigration-law specialists, who say the case could set a standard for determining who is and who is not a danger to national security.

"If the court would accept this low a threshold of evidence as proof, then you could employ this national security bar against other noncitizens on largely guesswork and innuendo," said Baher A. Azmy, a Seton Hall University law professor representing Samadov without charge.

"There is no there there," Lawrence H. Rudnick, a Philadelphia immigration lawyer, said of the government's claim the men are potentially dangerous. "My client is a follower of a peaceful imam."

The federal government concedes there is "no evidence" either man has ever had contact with anyone the government considers a terrorist, but argues that an accumulation of details crosses the legal threshold necessary to declare them dangerous.

But even if the government is right, the complexity of U.S. immigration law, and the history of torture and political repression in Uzbekistan, mean the men will remain in the United States no matter what the court decides. The question is what degree of limbo they will occupy.

Samadov was among a group of Uzbeks who arrived in the United States in 1999 with student visas allowing them to attend English-language school. Within weeks, however, he dropped out and started working in odd jobs in Philadelphia.

Samadov, joined by Yusupov, moved into a North Philadelphia rowhouse that doubled as a way station for fellow Uzbek immigrants. Sometimes up to eight men lived in the home.

Inside was a computer. Anyone passing through had access to it.

On the hard drive, the FBI would later discover, was a map of Pennsylvania State Police barracks as well as jihadi videos.

Who downloaded the files, and why, is a mystery. And the meaning of their presences is disputed. At a hearing last month, Judge Dolores Sloviter asked: If there were computers in 1939 and someone watched Adolf Hitler's speeches on them, would that prove that person was a Nazi?

"It doesn't prove, it supports" the government's argument that the men should be labeled a danger, said Lyle D. Jentzer, senior litigation counsel for the Office of Immigration Litigation at the U.S. Department of Justice.

The government's case rests on the "totality" of the evidence, Jentzer argued. That includes what the government says was deception by Samadov, who did not initially admit that he sent $3,000 to his brother in Uzbekistan, where there is an insurgent Islamic movement. Samadov says that it was repayment of a loan and that his initial denial was a misunderstanding.

More important are Uzbekistan's 2002 demand for the men's extradition and a subsequent Interpol warrant claiming the men provided financial support to Islamic extremists in Uzbekistan. Eventually the two were arrested and jailed for more than two years.

Yusupov and Samadov say they are they "independent Muslims" who follow an imam, Obidkhon Nazarov, who opposes violence. Nazarov spent eight years in hiding and in 2006 was granted political asylum in Sweden under the auspices of the United Nations.

In court, Jentzer acknowledged that "there is no dispute" that Uzbekistan's government "gins up charges for political dissidents and religious dissidents." But he said the government usually employs that tactic against Uzbeks at home.

"These people were not in Uzbekistan, but for some reason Uzbekistan wanted them back," he said. To the American government, that is a brick in a layer of questions about the men.

"The attorney general," Jentzer said, "is charged with protecting this country," and has concluded the men represent "a nontrivial risk to the national security."

No one from Uzkekistan's embassy in Washington or consulate in New York could be reached for comment.

Jentzer also said the men lived in Philadelphia with a third Uzbek who in 2002 received an e-mail from overseas that said he should stay in the United States and perform a "big jihad." Jentzer said that showed the man, now in Canada, was being managed by some organization overseas.

Under questioning by the judges, Jentzer said there was no evidence Samadov or Yusupov ever saw the e-mail.

A decision on the case is expected in the next few months.

Whether or not the men are found by the court to be a danger to national security, neither will be leaving this country soon.

Both have been granted "deferral" from deportation because of the likelihood they would be tortured by the Uzbek government.

Lawyers for the men say that if Samadov and Yusupov win their case, they hope to be upgraded to "withholding of removal" status, which would make eventual deportation more difficult.

"It's a better limbo status," Rudnick said, and "it opens the door" for them to seek permanent residence.