Writ In Houston Imam's Detention

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ________________________ § § Zoubir BOUCHIKHI, § Plaintiff § § v. § § Janet NAPOLITANO, § Case No. _______________________ Secretary, U.S. § Department of Homeland Security § § and § Ken Landgrebe, Field Director § U.S. Immigration and Customs Enforcement, § Houston Office § § Defendants § ________________________

PLAINTIFF’S ORIGINAL APPLICATION FOR WRIT OF HABEAS CORPUS, AND FOR TEMPORARY RESTRAINING ORDER COMES NOW Zoubir BOUCHIKHI, Plaintiff in the above-styled and numbered cause, and for cause of action would show unto the Court the following:

1.

This is an action to challenge the unlawful and egregious order of detention entered against Plaintiff by the Defendants in violation of the Immigration and Nationality Act (“INA”), regulations implemented pursuant to the INA, and the United States Constitution.

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PARTIES

2.

Plaintiff is a 49 year old native and citizen of Algeria who has lived in the United States for the past 11 years and serves as a religious leader to the Houston Islamic community. He has a wife and son who are also Algerian nationals, and three younger children born in Houston who are therefore United States citizens. In December 2008, Plaintiff was arrested at his home in Houston by agents of U.S. Immigration and Customs Enforcement (“ICE”). He has been held in ICE custody since.

3.

Defendant Janet Napolitano is Secretary of the Department of Homeland Security (“DHS”), and this action is brought against her in her official capacity. She is generally charged with administration and enforcement of the Immigration and Nationality Act (“INA”), and is further authorized to delegate such powers and authority to subordinate employees of her Department. See, 8 USC §1103. Both CIS and ICE are component agencies within the DHS.

4.

Defendant Kenneth Landgrebe is the Houston Field Office Director of Immigration and Customs Enforcement, an official of the ICE generally charged with supervisory authority over all operations of the agency within his District. Mr. Landgrebe and his subordinates are the custodians in whose custody Plaintiff is unlawfully held.

JURISDICTION

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5.

Jurisdiction for this cause of action in this Court is proper under 28 USC §2241(c), in that Plaintiff is in the Defendants’ custody under or by color of the authority of the United States, and in violation of the Constitution or laws of the United States, as more fully set forth below. Requena-Rodriguez v. Pasquarell, 190 F3d 299 (5th Cir. 1999); INS v. St. Cyr, 121 S.Ct. 2271 (2001), Shokeh v. Thompson, 369 F.3d 865 (5th Cir. 2004).

6.

Jurisdiction is also conferred by 28 USC §1331, in that this is a civil action arising under the Constitution and laws of the United States.

7.

Authority to grant the requested injunctive relief in cases otherwise within the court's jurisdiction is conferred by 28 USC §2201(a).

VENUE

8.

Venue is proper in this court, pursuant to 28 USC §1391(e), in that this is an action against officers and agencies of the United States in their official capacities, brought in the District where a Defendant resides and where a substantial part of the events or omissions giving rise to Plaintiff's claim occurred. Plaintiff is detained within this District, and administrative decisions regarding his custody have largely been made within this District.

EXHAUSTION OF REMEDIES

9.

Plaintiff has exhausted his administrative remedies. As will be detailed below, Plaintiff and others acting upon his behalf have made numerous requests for his release to Defendants.

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These requests have been ignored and ultimately denied for reasons that do not bear even cursory review. As detailed below, Imam BOUCHIKHI has no other administrative remedies.

CAUSE OF ACTION

10.

Plaintiff has made every effort to consistently maintain lawful immigration status. He was originally admitted with a lawful nonimmigrant visa in December 1997, and legally changed his nonimmigrant status to that of an “R-1” religious worker in February 2000 under the sponsorship of the Islamic Society of Greater Houston (“ISGH”).

He was granted

subsequent extensions by U.S. Citizenship and Immigration Services (“CIS”), extending his lawful immigration status until December 2004. While maintaining lawful nonimmigrant status, CIS approved an immigrant visa petition on Imam BOUCHIKHI’s behalf in July 2003 and, based upon that approved petition he applied for adjustment of status to lawful permanent resident in October 2003.

11.

Adjustment of status under INA §245(a) requires that the applicant: (a) have been lawfully admitted or paroled; (b) be the beneficiary of an approved immigrant visa petition under INA §204 [8 USC §1154]; (c) have an immigrant visa immediately available; and (d) be legally admissible to the United States under INA §212. 8 USC §1182. At the time his application for adjustment of status was filed, Imam BOUCHIKHI had been lawfully admitted as a nonimmigrant, had an approved immigrant visa petition filed by his employer, ISGH, was legally admissible to the United States and had an immigrant visa immediately available.

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12.

While his application for adjustment of status was pending, in January 2006, Imam BOUCHIKHI traveled outside the United States for emergent personal reasons. Pursuant to federal regulation, he obtained an advanced parole document from CIS authorizing his travel incident to the pending adjustment of status application. See, 8 CFR §245.2(a)(4)(i)(B). A departure from the United States without obtaining this advanced parole document operates to abandon the application for adjustment of status. 8 CFR §245.2(a)(4)(i)(A).

13.

The statutory authority for this parole procedure is set forth in §212(d)(5) of the INA. 8 USC §1182(d)(5). That statute authorizes the Attorney General (now the Secretary of DHS) to parole aliens into the United States temporarily on a case by case basis “for urgent humanitarian reasons or significant public benefit.” 8 USC §1182(d)(5)(A).

(a)

A parole is not considered an “admission.” Id.

(b)

While worded as an extraordinary and exceptional act, advanced parole incident to a pending application for adjustment of status has routinely been employed by immigration officials for decades. Presumably, as the time necessary to adjudicate adjustment of status applications has grown, facilitating the travel of applicants without forcing the process to begin all over again has been deemed “a significant public benefit.”

14.

After Plaintiff filed his application for adjustment of status in October 2003, and after he had traveled on advanced parole in January 2006, CIS revoked the approval of the immigrant visa

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petition filed by ISGH on his behalf and denied his application for adjustment of status in March 2007. This revocation, undertaken under INA §205 [8 USC §1155], was challenged administratively without success until November 2008.

15.

While both Plaintiff and ISGH urgently maintain that the petition was properly approved and unjustifiably revoked, Plaintiff cannot (and therefore does not) bring that issue before this Court. The Court of Appeals for the Fifth Circuit has specifically held that the federal courts do not have jurisdiction to review a revocation under INA §205. Ghanem v. Upchurch, 481 F.3d 222 (5th Cir. 2007).

16.

Having no other means of challenging the revocation of their visa petition, Imam BOUCHIKHI and the ISGH have recently filed a new petition addressing all issues and concerns raised in the revocation proceedings.

17.

However, before Plaintiff and ISGH were able to do that, removal proceedings were commenced against Plaintiff, wherein he was charged as an “arriving alien” without a valid immigrant visa. 8 USC §1182(a)(7). Even though Imam BOUCHIKHI last “arrived” in the United States in February 2006, his travel on advance parole and the subsequent denial of his application for adjustment of status resulted in his classification as an “arriving alien.” 8 CFR §245.2(a)(4)(i)(B). Plaintiff was arrested at his home in December 2008, shortly after his administrative appeal on the visa petition revocation had been denied and before he could file a new application for adjustment of status.

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18.

Removal proceedings remain pending before the Immigration Judge in Houston. Plaintiff is not asking this Court to review any matter that is within the Immigration Judge’s jurisdiction. However, solely because Plaintiff traveled on advance parole before his petition was revoked and his application for adjustment of status of status was denied, the Immigration Judge has no jurisdiction over his custody status.

8 CFR

§1103.19)(h)(2)(i)(B), Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998).

Only the

Defendants or, alternatively, this Court can order Imam BOUCHIKHI’s release.

19.

Plaintiff has no criminal record. He has resided in Houston for over ten years and has three United States children. He has tremendous support in the Houston area Muslim community. He is by no means dangerous or likely to abscond. He has many supporters willing and able to post a reasonable bond for his release.

20.

Plaintiff has made every reasonable effort to obtain relief from the Defendants. Specifically:

(a)

Shortly after Plaintiff’s arrest and upon learning that the Immigration Judge had no custody jurisdiction, Plaintiff’s undersigned attorney attempted to contact the responsible Detention Officer (DO), Officer Kutz. He was unable to reach the DO personally, and left a detailed voice mail message.

(b)

Having heard nothing, counsel called again on December 23 and learned that the DO Kutz was detailed out of town and another DO, Officer Franco, was responsible. Counsel was told to put the request in writing, addressed to Field Office Director

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Kenneth Landgrebe. This information came from one of Mr. Landgrebe’s subordinate supervisors, Ms. Arendale.

(c)

A written request for Imam BOUCHIKHI’s release was sent by overnight delivery., and was delivered to Defendant Landgrebe’s office on December 26, 2008. A copy of this request with attachments is attached hereto as Exhibit A.

(d)

On the morning of December 30, 2008, having heard nothing in reply to Plaintiff’s request, counsel attempted to contact DO Franco. He did not answer his phone extension, and a voice mail message was left.

(e)

Receiving no reply, counsel called again in the afternoon of December 30, 2008. After calling several phone numbers, being left on hold and cut off in the process of transfer, calling back, etc., counsel was finally told that DO Franco was also out of the office and no one but the Duty Officer was available. Counsel spoke to the Duty Officer, who expressed his opinion that probably no one had looked at Plaintiff’s parole request because of the holidays and that no one would until after the New Year.

(f)

On January 2, 2009, counsel attempted once again to discuss Plaintiff’s custody status with someone in Defendants’ office. Initially no one answered the telephone at the number distributed for public use -- (281)774-4816; the automated system transferred the call to a voice mail system which had no “valid attendant number” and simply said

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“goodbye” and terminated the call. Counsel then called another office, learned that DO Franco was still out. Counsel then asked to be transferred to whomever was covering Franco’s cases in his absence. Counsel was placed on hold while the availability of such an officer was checked. After being left on hold for approximately ten minutes, and after having already been told that DO Franco was out of the office, counsel was transferred to Franco’s voice mail without any further explanation.

(g)

On January 6, 2009, having heard nothing, Plaintiff’s counsel again called the ICE detention office and was able to speak with DO Franco. Counsel was told that DO Kutz was going to be out on detail for additional weeks, that Kutz’s cases were divided between two other officers, and that Plaintiff’s case officer was now DO Valtierra. Counsel discussed the written release request briefly with DO Franco; while counsel was placed on hold, Officer Franco was able to locate the written request that had been delivered on December 26 -- it had simply been placed in DO Kutz’s box, apparently to await his return. DO Franco promised to deliver the request to DO Valtierra and ask him to call counsel back that day.

(h)

On the morning of January 8, 2008, having heard nothing, counsel attempted to call DO Valtierra, only to find that his name was not listed in the automated directory at the ICE detention office. Counsel therefore called DO Franco again, who transferred the call to Valtierra. Valtierra confirmed that he had Plaintiff’s written release request

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but, since it was DO Kutz’s case, he was not familiar with the case and would have to review the file. DO Valtierra offered to get back to counsel “today or tomorrow.”

(i)

Hearing nothing from ICE, counsel called and left two voice mail messages for DO Valtierra on January 9, 2009.

(j)

On January 12, 2009, with absolutely no opportunity for further contact concerning Plaintiff’s release request, counsel spoke with a DHS attorney familiar with Plaintiff’s removal case. Counsel was told informally that the DHS attorney had been told the release request was going to be denied.

(k)

On January 14, 2009, again having heard nothing formally regarding the written release request, Plaintiff’s counsel again called the ICE detention office and asked for DO Valtierra. Counsel was told that Valtierra was out of town for a few days. Counsel asked to speak to the officer responsible for the case, and was transferred to a voice mailbox. In great frustration, counsel called the main public number, miraculously got a real person rather than a machine, and explained that the responsible officers on Plaintiff’s file kept shifting, counsel kept leaving messages and no one was returning calls. Since the written release request was directed to Director Landgrebe personally, counsel asked to speak to Mr. Landgrebe. The call was transferred to what purported to be Mr. Landgrebe’s office. A detailed message was left and counsel was assured that someone would call back about Plaintiff’s release request. No one did.

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(l)

Plaintiff’s counsel was out of town for several days in mid-January. At counsel’s request, his associate attempted to call DO Valtierra on January 16, 2009. Unable to reach him, she left a voice mail for his supervisor, Ms. Arendale. No reply.

(m)

On the morning of January 21, 2009, counsel again attempted to call the DO. No one answered, and counsel left a voice mail. Counsel then called the main ICE office and was told by an officer that no one at that office could help him and that he must call the DO’s at the detention center. Counsel attempted to explain that he had been doing that, that no one was calling back, and that someone in Director Landgrebe’s office had promised to call back the previous week and had never done so. Counsel was told that he must call the detention center, and ask to speak to a supervisor if necessary. Counsel called back to the detention center, again got only the voice mail, and left a message of compelling clarity to the effect that a call back from a supervisor would be greatly appreciated and expected.

(n)

Having heard nothing by that afternoon, counsel called again on January 21. This time, a real person answered the phone and, upon learning the purpose of the call, advised for the first time that counsel needed to speak with an Officer Mitchell. Officer Mitchell was surprisingly not available at the moment, and counsel was assured that he would call me back as soon as possible.

(o)

Having received no call back, counsel called again late in the afternoon of January 21 and asked for Officer Mitchell. Counsel was told that Officer Mitchell could not be

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reached and that he should leave a message. Counsel then explained that he had left numerous messages over the past month, had made a written release request a month previous, had been told he needed to speak to four different officers and/or a supervisor and that no one was calling back. Counsel asked to speak with a supervisor, any supervisor. Counsel was told that all supervisors were in a meeting but a message would be left and one would call back.

(p)

Having STILL heard nothing, counsel called again the morning of January 23, 2009. Calling several times at several different numbers for both the main ICE office and the detention center, counsel was able to leave three voice mail messages. At a fourth number, he was left on hold for eight minutes before hanging up. The voice mail messages stressed the extreme frustration felt by counsel, the reasons for it, and demanded a call back from a supervisor. Eventually, by calling the main ICE office and begging and pleading, counsel was able to talk to a supervisor, John McPoland. Mr. McPoland was very sympathetic, and said he would have a supervisor at the detention center call counsel. Several hours later, Mr. McPoland called counsel (the very first time in over a month anyone in the Houston ICE office returned a call concerning Plaintiff’s case), and advised that the appropriate supervisor was Ms. Arendale. Counsel was told that Mr. McPoland had discussed the matter with Ms. Arendale and that she would be calling counsel that day.

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(q)

Having heard nothing since January 23, counsel attempted to call Ms. Arendale on January 26, 2009. Not having her direct phone number, counsel called the main number and two assistants’ numbers but got only voice mails. Three voice mail messages were left.

(r)

Having received no phone call in reply to numerous attempts and messages, and with no opportunity to discuss the merits of Plaintiff’s request for release, Defendant Kenneth Landgrebe denied the request in writing on January 23, 2009 (receivd by counsel on January 27). The written denial simply recites the statutory guidelines for parole and asserts that Plaintiff’s release was not shown to be sufficiently in the public interest. (Exhibit B attached).

(s)

Following the written denial, on or about February 24, 2009, Defendant Landgrebe agreed to meet with a Mohammad Khalili, a representative of the Muslim community and member of ISGH and several other Islamic organizations, to discuss the Imam’s detention. Plaintiff’s attorney, however, was not invited to this meeting despite specific request by Mr. Khalili that he be allowed to attend. As a result of this meeting, Mr. Khalili understood that Defendant Landgrebe was willing to further consider the matter and that another written request for release, addressing the concerns raised in the written denial, should be submitted.

(t)

Immediately thereafter, Plaintiff submitted through counsel a supplemental request for release addressed to the immediate and personal attention of Defendant Kenneth

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Landgrebe. (Exhibit C). In that supplemental request, counsel pointed out that the same statutory parole standards recited in the Director’s denial letter also governed Plaintiff’s advance parole, which had been approved in 2005, resulting in his parole back into the United States in February 2006. Ironically, this grant of advance parole resulted in Plaintiff’s current classification as an “arriving alien” thus depriving the Immigration Judge of jurisdiction over his custody status and leaving it entirely in Mr. Landgrebe’s hands. In addition to the above analysis, the supplemental request also contained numerous letters of support demonstrating Plaintiff’s contributions to the community and the damage resulting from his continued detention.

(u)

For approximately two weeks following the supplemental request, Plaintiff and his counsel waited patiently for a response. On or about March 17, 2009, Defendants’ agents approached Plaintiff at the detention center where he is held and showed him a form authorizing his release upon posting of a bond in the amount of $20,000. Plaintiff was asked to sign the form, which he did. The following day, an attempt was made to post the bond at the Immigration and Customs Enforcement office. The bond money was refused, however, on the grounds that the bond had not yet been finally approved. It was apparently suggested that the bond could not be posted until the undersigned counsel spoke with Mr. Landgrebe (something counsel had been trying to do since December!).

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(v)

On March 18, 2009, Director Landgrebe called counsel and advised that the bond could not be accepted until final authorization was received from headquarters in Washington. Counsel was advised that a final decision was expected in the near future and that counsel would be notified immediately when it was received.

(w)

When nothing was heard, counsel called the detention center again on March 23, 2009. At that time, he spoke with DO Kutz who had returned from detail. Officer Kutz checked the status of the parole request and advised counsel that they were still waiting to hear from headquarters, that they had e-mailed a follow up, and that he did not know the cause of the delay or why headquarters was involved.

(x)

Since March 23, counsel has made several telephonic inquiries and has been told the same thing: the bond cannot be accepted without headquarters approval, and headquarters had not given that approval. Many letters and phone calls from community leaders were directed to ICE headquarters on the Imam’s behalf.

(y)

On April 10, 2009, a letter from ICE headquarters was sent to Mr. Khalili (but not served upon Plaintiff’s counsel of record). (Exhibit D). In that letter, Defendants simply intimate that the Plaintiff’s fate and custody status are in the hands of the Immigration Judge, a remarkable statement since as previously noted the Immigration Judge has no jurisdiction over Plaintiff’s custody status. If he had, a reasonable bond would have been set and posted over four months ago! The letter further states that Defendants will continue to review Plaintiff’s custody status.

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21.

Plaintiff complains that his continued detention is illegal and improper, in that conditions for release of aliens must be reasonable and appropriate in the circumstances. Shokeh v. Thompson, 369 F.3d 865 (5th Cir. 2004). The essential issues in determining an alien’s custody status pending removal proceedings are whether he is a danger to the community, a threat to national security, or likely to abscond. Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).

(a)

Plaintiff lived in the Houston area and was at liberty for over ten years before his arrest. He has no criminal history, and he has three United States citizen children. Defendants have not even suggested that he is a threat or danger to the United States or the Houston community.

(b)

Plaintiff’s removal proceedings remain pending. A hearing was held most recently on April 13; the Immigration Judge has yet to make a decision. Regardless of the Immigration Judge’s decision, an appeal to the Board of Immigration Appeals may be taken by Plaintiff and/or the Department of Homeland Security.

22.

The relief Plaintiff seeks herein is therefore quite simple and limited. Plaintiff asks this court to enter an order compelling Defendants to release him under conditions that are reasonable and appropriate under the circumstances. Alternatively, while Plaintiff believes such to be excessive, Plaintiff asks that the Court order Defendants to accept the $20,000 bond agreement communicated to Plaintiff on or about March 17, 2009.

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REQUEST FOR TEMPORARY RESTRAINING ORDER

22.

Plaintiff hereby requests entry of an order restraining Defendants from continuing him in custody. He has already been detained for almost five months, separated from his religious duties and his young children, while Defendants have treated his repeated and urgent requests for release in the manner described above. His continued detention will constitute an irreparable harm.

23.

Plaintiff has no adequate remedy under law. Because the Immigration Judge has no custody jurisdiction in the case of an “arriving alien,” the decisions made by Defendants offer no administrative recourse or review. They are, however, reviewable by this Court. Shokeh v. Thompson, supra.

24.

The legitimate interests of the Defendants would in no way be impaired by Plaintiff’s release. Indeed, in the absence of anything remotely resembling a legitimate reason to detain Plaintiff, his release would serve the interests of administrative economy by saving the costs of his needless detention.

PRAYER 25.

WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully prays that the Defendants be cited to appear herein and that, upon due consideration, the Court enter an order:

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(a)

enjoining the Defendants from further detaining Plaintiff until the merits of the instant action may be decided;

(b)

ordering Plaintiff’s release from custody upon posting of a reasonable bond;

(c)

awarding Plaintiff reasonable attorneys fees for the instant cause, necessitated by Defendants’ lack of response or accountability; and

(d)

granting such other relief at law and in equity as justice may require.

Respectfully submitted, REINA BATES &KOWALSKI IMMIGRATION LAW GROUP

____________________________________ BRIAN K. BATES Texas Bar No. 01899600 6260 Westpark Dr., Suite 110 Houston, TX 77057 (281)448-9500 FAX: (281)448-6767 Counsel for Plaintiff

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VERIFICATION BEFORE ME, the undersigned authority, personally appeared BRIAN K. BATES, known to me to be the same, who stated under oath the following:

“My name is BRIAN K. BATES and I am Counsel for Zoubir BOUCHIKHI, Plaintiff in the instant case, who is presently in the custody of the Immigration and Customs Enforcement Houston District. I hereby affirm that I have read the foregoing Plaintiff's Original Complaint, that the information contained therein is true and correct to the best of my personal knowledge and/or information and belief after reasonable inquiry, and that the requested injunctive relief is warranted to prevent irreparable injury to Plaintiff.”

_______________________________________ BRIAN K. BATES

SIGNED AND SWORN BEFORE ME THIS ____ DAY OF May 2009.

______________________________ NOTARY PUBLIC, STATE OF TEXAS

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LIST OF ATTACHMENTS Exhibit

Description

A

Plaintiff’s First Request for Release

B

Letter from Defendant Kenneth Landgrebe, dated January 23, 2009.

C

Plaintiff’s Supplemental Request

D

Letter from Timothy Tubbs, dated April 10, 2009

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