UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

FILED

oct 3 0 ZOO3

VAD1M KAZAROV AND VOUETH LONG,

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INDIVIDUALLY AND ON BEHALF OF ALL

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OTHERS SIMILARLY SITUATED,

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cLe ,, u.s. OISr ler

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Petitioners,

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No. 02 C 5097

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JUDGE ZAGEL

) THOMAS RIDGE, Secretary of the Department of )

Homeland Security, THE DEPARTMENT OF

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HOMELAND SECURITY, JOHN ASHCROFT,

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Attorney General of the United States, CYNTHIA )

O’CONNELL, as Interim Chicago District Director )

of the Bureau of Immigration and Customs

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Enforcement of the Department of Homeland Security),

and the UNITED STATES DEPARTMENT OF

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JUSTICE,1

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Respondents.

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RESPONDENTS’ MEMORANDUM IN OPPOSITION TO PETITIONERS’ MOTION FOR CLASS CERTIFICATION
Now, as this lawsuit progresses into its second year, the most recent set of named petitioners, Vadim Kazarov and Voeuth Long, have moved for class certification, pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure ("FRCP"). See Petitioners’ Motion for Class Certification (filed Sept. 16, 2003) ("Pet. Mot."). In the alternative, they have

~ As noted in Respondents’ Return to Counts One Through Five Of the Third Amended Petition For a Writ Of Habeas Corpus Relating To The Individual Petitioners And Motion To Dismiss Counts One and Two ("Resp. Mot. to Dismiss Third Pet."), filed this same day, {he only
proper respondent to this habeas petition is Deborah Achim, the Interim Field Operations Director for the Chicago District of DHS’s Bureau of Immigration and Customs Enforcement ("ICE"). See Resp. Mot. To Dismiss Pet., at 1 n. 1. Accordingly, Ms. Achim, acting in her official capacity as Interim Field Operations Director, should be substituted as the sole
respondent to this petition.

asked the Court to allow this habeas action to proceed as a representative action. Pet. Mot. at 1. Kazarov and Long say that they seek to represent a class of aliens "who have or will have been detained by and under the authority of the Chicago District of the INS for more than six months after the entry of an administratively final order of removal." Sere Petitioners’ Third Amended Petition for Writ of Habeas Corpus, Both Individually And On Behalf Of A Class, And Amended Class Action Complaint ¶ 47 (filed August 25, 2003) ("Third Amended Petition"). The motion should be denied because, whether styled a "class action" or a "representative action," Petitioners - neither of whom are currently detained by the Government (see infra.)2 - have not satisfied, and indeed, cannot satisfy, any of the requirements for class certification, or representative status. The detention decisions which Petitioners purport to challenge rest on highly individualized assessments of such factors as the alien’s cooperation with ICE’s removaI efforts, the prospects for the alien’s repatriation, and the length of his detention, and thus, are not amenable to review on a class-wide basis. Moreover, putative class members face no sigr~ificant obstacles to bringing individual habeas actions, as is evident from Vadim Kazarov’s own petition for writ of habeas corpus, which this Court dismissed on March 6, 2003. Kazarov v. Ashcroft, No. 02-CV3357 (N.D. Ill.) (Zagel, J.). Accordingly, the Court should deny Petitioners’ motion and dismiss the class allegations of Petitioners’ Third Amended Petition.
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2 Concurrently with this Opposition, Respondents have flied a motion to dismiss the Third Amended Petition because the named petitioners are no longer in immigration custody, and thus, their claims are moot.
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BACKGROUND I. PETITIONERS’ EFFORTS TO IDENTIFY CLASS REPRESENTATIVES AND
PUTATIVE CLASS MEMBERS A. Petitioners’ First, Second, and Third Amended Petitions While we will not recount the complete history of this case, we note that it has been pending since July 18, 2002, when the Midwest Immigration and Human Rights Center (the "Center") filed its original "Class Action for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief." The Center soon filed an amended petition, in which it named the following four aliens as class representatives: Jalal Hmaidan, a native of Kuwait and citizen of Jordan; Mohammed Aidouni, a native and citizen of Algeria; Maitham Alzehrani, a native and citizen ofIraq; Keovongsack Pongphrachanxay, a native and citizen of Laos; and Den Son, a native and citizen of Vietnam. The Amended Petition alleged that these individuals were representative of a class of aliens who were being detained without statutory authority, in contravention of the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678 (2001), because more than six months had elapsed since their final removal orders, and there was no significant likelihood of their repatriation within the reasonably foreseeable future. Amended Petition ¶¶ I-7. Notwithstanding these allegations, Hmaidan was removed from the United. States and repatriated to Jordan on October 31, 2002.3 Similarly, Aidouni was removed to his native Algeria on April 4, 2003.4 The remaining petitioners were released from immigration
3 See Respondents’ Retum To, And Motion To Dismiss, Counts Six Through Ten Of the Amended Petition (filed Nov. 18, 2002).
4 See Respondents’ Notice of Intent To Remove Petitioner Aidouni From the United States (filed March 31, 2003); Respondents’ Motion To Clarify The Record For A Rule 16 Scheduling Order at 2 (filed April 30, 2003).
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custody, after the former Immigration and Naturalization Service ("INS")5 concluded that there was no significant likelihood of their repatriation in the reasonably foreseeable future, based upon custody reviews conducted pursuant to the so-called "Zadvz~_~" regulations at 8 C.F.R. § 24I .13. On April 16, 2003, on Respondents’ motion, the Court dismissed the individual habeas counts of the First~ Amended Petition, but Iet stand the class action counts. See Order (April I6, 2003).
The Center made a second attempt to identify aliens who could serve as representatives for the putative class on March 8, 2003, when they filed a Second Amended Petition naming five new representative petitioners: Tayseer Yousef, a native of Israel and citizen of Jordan; Sothea Bun, a native and citizen of Cambodia; Kbahn Nguyen, a native and citizen of Vietnam; Touy Prasoeuthsy, a native and citizen of Cambodia; and Alla Aburwaished, a native of Iraq of Palestinian ethnicity, who entered the United States using a Jordanian passport. On June 21, 2003, Respondents moved to dismiss the individual counts of the Second Amended Petition, because of all of the named petitioners had been released from ICE custody. At a status hearing held on August 19, 2003, petitioners’ counsel agreed that the individual counts were no longer viable. The Court, however, gave the Center an opportunity to file a third amended petition and to move for class certification.
On August 25, 2003, the Center filed a Third Amended Petition in which it named the current petitioners, Vadim Kazarov and Voeuth Long, as named representatives. In the instant
5 On March 1, 2003, the INS ceased to exist as an independent agency within the Department of Justice, and its enforcement functions were transferred to DHS, ICE, pursuant to section 441 of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25,2002).
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motion for class certification, petitioners assert that they "do not intend to rely upon Voeuth Long as a class representative" because they were informed that his release from.immigration custody was imminent. Pet. Mot. at 11 n.5. This information was correct: Long was released from ICE custody on September 30, 2003, following a repatriation likelihood review conducted pursuant to 8 C.F.R. § 241.13. Se_~e Exhibit ("Exh.") A. As of the,Center’s September 16, 2003, filing, Kazarov was still detained because ICE was making substantial progress in obtaining travel documents for him from the Georgian government. ICE’s optimism was justified, as the traveI documents were issued, and, on October 21, 2003, Kazarov was removed from the United States to Georgia. See Exh. B.
Thus, since July 2002, the Center has named no less than twelve aliens as potential representatives of the class it seeks to have this Court certify. Of these twelve aliens, three Jalal Hmaiden, Mohammad Aidouni, and Vadim Kazarov - have been removed from the United States. The remaining nine aliens have all been released from ICE custody, following repatriation reviews conducted in accordance with agency regulations.
B. Petitioners’ Efforts To Identify Putative Class Members On May 27, 2003, the Center served Respondents with written discovery requests on class certification issues. At a status conference two days later, this Court declined to order discovery but requested that Respondents disclose the number of aliens currently being detained by ICE’s Chicago District who had been subject to final removal orders for more than 180 days. At a status conference on June 9, 2003, Respondents, through their counsel, disclosed that, by the most recent count, there were seventeen aliens within the jurisdiction of ICE’s Chicago District who had final removal orders and had been in ICE custody for longer than 180 days.
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Respondents expressly denied that any of these seventeen aliens were being detained unlawfully, under either the regulations or the Supreme Court’s Zadvvdas rule. The Court then asked Respondents’ counsel to provide Petitioners’ counsel with a declaration from the ICE deportation officer who compiled the data underlying the number, and to make that officer available for an interview by Petitioners’ counsel if they had questions concerning his methodology, or what the number purported to represent.
On June 16, 2003, Respondents provided the requested declaration by the deportation officer, Officer Jose Louis Zamora (Exh. C), and on June 20, 2003, Petitioners’ counsel interviewed him. Respondents also allowed Petitioners’ counsel an opportunity to test the veracity of the information compiled by Officer Zamora by conducting a survey of aliens detained at a detention center, the Tri-County Jail in Ullin, Illinois. After Respondents’ counsel proposed parameters for the visit (see Exh. D), which were necessary to meet the facility’s security requirements, Petitioners’ counsel orally informed Respondents’ counsel that they no longer wished to visit the Tri-County Jail. Petitioners’ counsel have made no other requests of Respondents or their counsel in their efforts to identify putative members of the class they seek to have certified. ii. PETITIONERS’ CLASS ALLEGATIONS
Petitioners challenge the published regulatory procedures for immigration custody reviews, following entry of a final removal order, contending that such procedures routinely lead to detention beyond the period authorized by section 241 (a)(6) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1231(a)(6), as construed in Zadvvdas v. Davis, 533 U.S. 678 (2001). In addition, Petitioner contend that the regulations violate the procedural and substantive
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due process rights of detained aliens, as well as the Administrative Procedure Act ("APA"). See Third Amended Petition, ¶¶ 87-147. Petitioners seek injunctive and declaratory relief on behalf of themselves and members of the following class:
Individuals who have "entered" the United States, other than those detained pursuant to 8 C.F.R. § 241.14 (2002), or any other regulations or law relating to terrorism or national security, who have been or will have been detained by and under the authority of the ICE Chicago District for more than six months after the entry of an administratively final order of removal. Sere Third Amended Petition at ¶ 47.
ARGUMENT Petitioners’ motion must be denied because the claims they raise are not amenable to adjudication in a class action or representative action. As a threshold matter, Petitioners are wrong in assuming (without citation) that class certification is available in a habeas action. See Pet. Mot. 4-12. The Seventh Circuit has recognized that Rule 23 of the Federal Rules of Civil Procedure does not technicalIy apply to habeas corpus proceedings. Bij eol v. Benson, 513 F.2d 965,968 (7th Cir. I975), citing United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974), cert. denied, 421 U.S. 921 (1975). While the Seventh Circuit has authorized "representative habeas actions" in "unusual circumstances," ~, 513 F.2d at 967, and has looked to the provisions of Rule 23 "for guidance in determining whether a representative action is appropriate,’’6 it has not expressly approved class certification in the habeas context. See also Sero, 506 F.2d at 1125 (cautioning that "the class action device should not be imported into collateral actions, at least in its full vigor as contemplated by Rule 23"). Accordingly, this Court
United States ex rel. Morgan v. Sielaff, 546 F.2d 218,221 (7th Cir. 1976) 7

should limit its inquiry to whether a representative action is "appropriate" on the facts before it, using the Rule 23 factors only as guideposts for its analysis.
Considering the Rule 23(a) criteria, it is clear that this case does not present the "unusual circumstances" that might justify adjudication of Petitioners’ claims in a representative action. First, and perhaps most importantly, Petitioners cannot point to common questions of fact or law which predominate among urmamed petitioners. Second, and closely linked to the commonality question, the Court cannot order the injunctive relief Petitioners seek on a class-wide basis, without considering the specific circumstances of each unnamed petitioner. Third, Petitioners have not shown, and indeed, cannot show, that the unnamed petitioners face significant impediments to bringing their own habeas actions; indeed, any such claim is belied by the fact that named petitioner Kazarov pursued his own habeas action before he was identified as a representative of the proposed class. Fourth, petitioner Kazarov cannot qualify as a representative petitioner because he is not a member of the proposed "class," as he has been removed from the United States. Likewise, petitioner Long’s release from detention precludes him from serving as a named representative - a point Petitioners have already conceded. Sere Pet. Mot. 11 n,5. Finally, Petitioners have not shown that the class of unnamed petitioners is so numerous that joinder of individual suits would be impracticable. I. PETITIONERS CANNOT MEET THE REQUIREMENTS OF RULE 23(a)
A party seeking class certification (or, as here, leave to proceed on a representative basis), bears the burden of proving that the Rule 23 factors are met and that a representative action is appropriate. Sere General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982); Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 596 (7th Cir. 1993) cert. denied, 519 U.S.

932. The Court has broad discretion in determining whether or not to allow a representative action. See General Tel. Co., 457 U.S. at 161; Chavez v. Illinois State Police, 251 F.3d 612, 629 (7th 2001). Most importantly, the motion for class certification, or to adjudicate claims on a representative basis, must be judged on its own facts because such motions "involve[] intensely practical considerations." Se.__e Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir. 1988).
Under Rule 23(a), a party seeking class certification must show that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of those of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Failure to satisfy any one of the requirements of Rule 23(a) requires denial of class certification. Se,__~e Retired Chicago Police Ass’n, 7 F.3d at 596. If the requirements for Rule 23(a) are met, the Court must go further and determine whether the facts before it satisfy Rule 23(b). ~ee Ellis v. EI~ Riverboat Resort, 217 F.R.D. 415,419 (N.D. Ill. 2003), In short, a motion for class certification must be denied, unless the Court, "after a rigorous analysis," is satisfied that the party seeking such certification has met the prerequisites of Rule 23. Se__~e General Tel. Co., 457 U.S. at 161. Furthermore, the Court has a continuing duty to ensure compliance with Rule 23 and may decertify or modify the class, as appropriate. See Fed. R. Cir. P. 23(c) (1) and (4); General Tel. Co., 457 U.S. at 160; Eggleston v. Chicago Joume.5~aen Plumbers~Et~., 657 F.2d 890, 896 (7th Cir. 1981).
In this case, the named Petitioners cannot satisfy the Rule 23(a) factors for class certification, and thus cannot demonstrate that adjudication of their habeas petitions on a representative basis is appropriate.
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Ao

A Representative Action Is Inappropriate Because Material Factual

Differences Are Pervasive Throughout The Proposed "Class"

The Supreme Court’s decision in Zadvydas largely resolved the legal question of when

post-order detention of admitted aliens is authorized by the Immigration and Nationality Act]

Zadvydas held that, with certain exceptions not pertinent here, section 24 l(a) of the INA, as

amended, does not authorize the indefinite detention of an admitted alien subject to a final

removal order beyond that period "reasonably necessary" to secure the alien’s removal from the

United States. Zadvydas, 533 U.S. at 500, construing 8 U.S.C. § 1231(a) (2001). For these

purposes, the Supreme Court found that post-order detention for a period of six months is

"presumptively reasonably," after which time the alien may be subject to release "once the alien

provides good reason to believe that there is no significant likelihood of removal in the

reasonably foreseeable future," and the Government has been afforded an opportunity to rebut

that showing. Id. at 701. The Supreme Court was clear, however, that release after expiration of

the presumptively reasonable six month period is not automatic: "This 6-month presumption, of

course, does not mean that every alien not removed must be released after six months. To the

contrary, an alien may be held in confinement until it has been determined that there is no

7 There continues to be extensive litigation over whether the Zadvydas rule extends to aliens who have not been admitted to the United States. Compare Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003) (en bane) (holding that, under Zadv2.0~, inadmissible aliens who cannot be repatriated in the reasonably foreseeable future may not be detained indefinitely, based on considerations such as their proclivity for criminal recidivism), cert. denied sub nora, _~vder v, Rosales-Garcia, 123 S. Ct. 2607 (2003) and Xi v. INS, 298 F.3d 832 (9th Cir. 2002) (same), with Borrero v. Aljets, 325 F.3d 1003 (Sth Cir. 2003) (holding that Zadv~ does not reach unadmitted aliens, who have no due process rights in the United States),/imenez-Rios v. 1NS, 324 F.3d 296 (5th Cir. 2003) (same), and Benitez v. Wallace, 337 F.3d 1289 (1 lth Cir. 2003) (same). Petitioners, however, have limited their proposed class to detained aliens who have been "admitted" to the United States (Third Amended Petition ¶ 47), and thus, that unsettled question has no bearing on this lawsuit.
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significant likelihood of removal in the reasonably foreseeable future." Id._.,. Petitioners’ proposed class definition - which would include all admitted aliens detained
by ICE for more than six months after entry of a final removal order (Third Amended Petition ¶ 47) - is obviously overbroad under the Zadv2_0_~ rule. The proposed class, as defined in the Third Amended Petition, includes all those who are under final removal orders, have "entered" the United States, and are currently detained by ICE at particular locations and for particular lengths of time, regardless of whether repatriation is likely or not, whether the alien has or has not hindered his or her own removal, and whether ICE has or has not conducted a repatriation likelihood review for the purpose of determining custody pursuant to 8 C.F.R. § 241.13. Were this case to proceed as a representative action, the Court would have to order modification of the class definition, to limit it to cases where the alien’s detention, in fact, is not authorized by the statute, as construed in Zadvydas. But therein lies the problem with Petitioners’ proposed class: To identify such cases - and thus far, Petitioners have pointed to none - the Court would have to engage in a highly fact-intensive examination of the circumstances of each unnamed petitioner’s
case.
While the individualized nature of habeas relief is inherent in all habeas cases,~ the need for an individualized examination of each case is even more pronounced in Zadv dy._~a3.-related claims, which require ICE to consider the particular facts of each case. The relevant considerations include, inter alia, the amount of time a petitioner has been in detention, the respective efforts by ICE and the petitioner to accomplish the repatriation, the responses of the
~ See ~ ~ 513 F.2d at 968 (holding that a representative habeas action is appropriate only where there is a common legal question, and no genuine factual issues as to individual prisoners: "Given the nature of the case, there can be no genuine issues of fact").
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particular foreign government in each case, and the status of diplomatic relations with the foreign
government in question. These factors vary substantially from case to case, and cannot be
addressed on a class-wide basis. See generally, 8 C.F.R. § 241.13(f) (2003)9; Lema v. INS, 341
F.3d 853, 856-57 (gth Cir. 2003) (holding that an alien who refused to cooperate with the INS’s
efforts to obtain travel documents could not meet his burden under Zadvydas of demonstrating
that there was no significant likelihood of removal in the reasonably foreseeable future); Pelich v.
INS, 329 F.3d 1057, 1060 (gth Cir. 2003) (finding that the risk of indefinite detention that
motivated the Supreme Court’s statutory interpretation in Zadvydas does not exist when the alien
"has ’the keys [to freedom] in his pocket’ and could effectuate his removal by providing the
information requested by the INS"), quoting Parra v. Perrvman, 172 F.3d 954, 958 (7th
Cir. 1999).
It is no answer to say, as Petitioners do in their motion, that "[i]ndividual differences in
national origin, Ievel of cooperation, or time spent in detainment are subsidiary to the larger due
9 Section 241.13 provides that in evaluating whether to continue post-order detention, the Headquarters Post-Order Detention Unit ("HQPDU")
shall consider all facts of the case, including, but not limited to, the history of the alien’s efforts to comply with the order of removal, the history of the Service’s efforts to remove aliens to the country in question or to third countries, including the ongoing nature of the Service’s efforts to remove this alien and the alien’s assistance with those efforts, the views of the Department of State regarding the prospects for removal of aliens to the country or countries in question, and the receiving country’s willingness to accept the alien into its territory. Where the Service is continuing its efforts to remove the alien, there is no presumptive period of time within which the alien’s removal must be accomplished, but the prospects for the timeliness of removal must be reasonable under the circumstances.
8 C.F.R. § 241.13(0 (2003). 12

process question and should be ignored for the purpose of class certification." Pet. Mot. 8.
Under Zadvyda_s, the legality of post-order detention hinges entirely on whether the detention
continues to serve the statutory objective of facilitating the alien’s removal from the United
States. This, in turn, depends on whether there exists a significant likelihood of the alien’s
removal in the reasonably foreseeable future. The likelihood of repatriation cannot be evaluated
without consideration of individual differences in national origin, level of cooperation, and time
spent in detention,l° These are not minor factual discrepancies, with no bearing on the substance
of Petitioners’ class allegations. ~1 Instead, the alien’s prospects for repatriation bear directly on
the core issue of whether an alien’s post-order detention is lawful. Because, as Petitioners
implicitly concede, repatriation likelihood is a fact-intensive inquiry, it precludes any finding of a
"common nucleus of operative fact," as required for commonality under Rule 23. Rosario v.
Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992).
Petitioners argue that factual commonality exists because Respondents "have engaged in
10 In the Third Amended Petition, Petitioners allege that Respondents have required "clearly futile efforts by individuals to secure their removal from the U.S., even where the [Respondents] know that the detainee’s country of origin will not accept their removal." Third Amended Petition ¶ 144(d). DHS removal statistics, however, show that it has consistently removed at least some aliens to countries, such as Cambodia, Vietnam, Laos, and Cuba, which have a history of intransigence in repatriating their nationals. Sere DHS’s 2002 Yearbook of Immigration Statistics (Oct. 2003) (Table 46) (reporting that in fiscal year 2002, DHS removed 18 aliens to Cambodia, 15 to Vietnam, 5 to Laos, and 64 to Cuba) (Exh. E). Commonsense dictates that if the alien himself asks his foreign consulate for travel documents, he stands a far better chance of removal than if he relies upon ICE’s requests to the consulate, or actively obstructs his removal.
1~ Compare with Rosario v. Livaditis, 963 F.2d 1013, 1017-18 (7th Cir. 1992) (finding that Rule 23(a)’s commonality requirement was satisfied as to class of former students of beauty coliege, who alleged that colIege misrepresented the education it provided, notwithstanding that some former students were satisfied with the college, and at least two class members passed the state licensing exam).
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standardized conduct toward members of the proposed class." Pet. Mot. 8, citing McKenzie v. City of Chicago, 175 F.R.D. 280, 286 (N.D. Ill. 1997). More specifically, they assert that Respondents have engaged in a "systematic [] practice of keeping aliens in custody Ionger than 6 months after a final order of deportation .T...he common issues of fact stemming from the government process are whether Respondents have a practice of delaying adjudication of release decisions, a practice of failing to give an opportunity to be heard, and/or a practice of justifying continued detention on non-existing failures to cooperate or possibilities of return to home countries." Pet. Mot. 8-9. These conclusory allegations do not demonstrate the commonality required for a representative action.
First, Petitioners have not pointed to a single class member, much less a named petitioner, who is currently being detained because Respondents have delayed in completing his repatriation likelihood review. Second, while Petitioners might prefer additional or different procedures than those in place,~2 they have not identified a single instance where a detained alien was denied a meaningful opportunity to be heard on the repatriation likelihood issue. Finally, Petitioners’ allegation that Respondents have justified continued detention based on "non-existing failures to cooperate or possibilities of return to home countries" is belied by the experiences of their named representatives. Petitioner Kazarov supposedly is the exemplar of an alien unreasonably denied release, notwithstanding his cooperation with ICE’s removal efforts and ICE’s allegedly dim prospects for effectuating his removal order. Yet Petitioners were utterly wrong about Kazarov’s
J2 But see Vermont Yankee Nuclear Power Corp...y. Natural Resources Defense Council., Inc., 435 U.S. 519, 543 (1978) (administrative agencies should be "free to fashion their own rules of procedure and pursue methods of inquiry capable of permitting them to pursue their multitudinous duties").
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removal likelihood, as, on October 21, 2003, he became the third named Petitioner to be deported
during the pendency of this action. Petitioners cannot establish commonality based on
conclusory allegations which are inconsistent with the experiences of their named
representatives.
While "[f]actual differences between plaintiffs are to be expected," see Jenson v.
Eveleth Taconite C_o...., 139 F.R.D. 657, 664 (E.D. Minn.1991), the factual patterns implicated in
this action are inherently distinct, and apart from the allegedly unifying abstract allegation that
the Respondents have violated Petitioners’ due process rights and the APA in administering the
governing regulation, little else about the Petitioners’ and putative class members’ claims are
common. ~3 In short, the proposed representative action is unworkable because an analysis of the
release considerations with respect to each unnamed petitioner would raise a multitude of factuai
issues that are not amenable to generalized proof. Accordingly, the Court should deny the
motion, as Petitioners have failed to satisfy the commonality requirement for a representative
13 This case is easily distinguished from those cited by Petitioners, in arguing that representative actions are available in the habeas context. See Pet. Mot. 3-4. Unlike the situation here, in Petitioners’ cases, any factual discrepancies among the putative class members were minor, and could have no bearing on the legality of the government conduct at issue. For example, in ~, the Seventh Circuit approved a representative habeas action brought by prisoners at a particular penitentiary, who alleged that the United States Parole Board was not conducting meaningful parole hearings after expiration of one third of the prisoners’ sentences, as required by circuit precedent. 513 F.2d at 968. In doing so, the Court emphasized that there were "no genuine issues of fact" as to each prisoner, and that a "single issue of law" was presented, which was "identical as to all prisoners identified" and which had "already been definitively adjudicated for the circuit" in a prior case. Id. See also Sero, 506 F.2d at 1125-26 (approving a representative habeas action brought on behalf of juveniles who received longer sentences than adults who had committed the same offense); Williams v. Richardson, 481 F.2d 358, 360-61 (8th Cir. 1973) (finding that a representative habeas action might be permissible where petitioners were inmates challenging conditions of confinement at the same institution); Mead v. Parker., 464 F.2d 1108, 1110-12 (gth Cir. 1972) (fining that a habeas "class action" might be appropriate where inmates challenged the adequacy of prison law library materials).
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action. B. A Representative Action Is Inappropriate Because The Court Cannot Grant The Injunctive Relief Petitioners Seek On A Class-Wide Basis A representative action is also inappropriate because of the type of relief sought by the
named Petitioners. In Counts Three and Four of the Third Amended Petition, Petitioners seek an order requiring the "immediate[]" release of all class members from immigration custody. Third Amended Petition ¶¶ 117, 128. Similarly, in Counts Five and Six, they seek to have the Court order Respondents to "cease and desist from detaining members of the Plaintiff class after the end of the presumptively reasonable six month period after a final order of removal, pursuant to the rules and regulations currently enacted by [Respondents]." Id. ¶¶ 135(C), 142(C). By asking for this relief, Petitioners are essentially asking the Court to ignore the holding of Zadvydas, which, as noted, explicitly recognized that release of an alien after the presumptively reasonable six month period is not automatic. Zadvydas, 533 U.S. at 701. Thus, class certification should be denied because the Court cannot grant the injunctive relief requested by Petitioners on a classwide basis. See Wang v.. Reno, 862 F. Supp. 80I, 811 (E.D.N.Y. 2001) (holding that, to the extent a proposed class of detained aliens was seeking more than declaratory relief, "the habeas relief sought must be considered on an individual basis").
C. A Representative Action Is Inappropriate Because The Unnamed Petitioners Face No Significant Impediment To Bringing Individual Habeas Actions
Petitioners also fail to demonstrate that aliens in the putative class would not pursue individual habeas actions on their own. Petitioner’s contention that members of the purported class lack the resources to file litigation on their own is without merit. The fact that members of the purported class are detained, and that some do not speak English, hardly means that the aliens
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lack adequate access to the courts. ~4 As previously noted, named petitioner Kazarov, with the
assistance of counsel, filed a habeas petition before this lawsuit was flied. According ~to the
Third Amended Petition, that lawsuit ultimately was denied on March 6, 2003, "because his
removal proceeding had concluded and there had been no claim that ’Georgia is unwilling to take
back deportees.’" Third Amended Petition at ¶ 61 (quoting Order issued in Case No. 02-C-3357).
Even without resort to this Court’s extensive docket of habeas actions brought by detained aliens,
Kazarov’s petition demonstrates that detained aliens do have access to the courts to litigate
individual habeas actions.
D. Kazarov and Long Are Not Adequate Representative Petitioners Because They Are Not Members Of The Proposed Class
The representative plaintiff, (or petitioner, as is the case here), must be able to represent
the interests of the class adequately. See Gaspar v. Linvatec, 167 F.R.D. 51, 58 (N.D. Ill. 1996).
Class representatives must share interest and injury with class members in order to adequately
protect their interests. Sere Uhl v. Thoroughbred T.eeh. & Tel., Inc., 309 F.3d 978, 985 (7th Cir.
2002).
Named petitioner Kazarov - the sole representative upon which the motion relies -
cannot satisfy this requirement because he is not a member of the putative class, and thus does
not share its interests. The same holds true for petitioner Long, in light of his release from ICE
L4 Perhaps recognizing that it refutes their claim of unsurmountable hurdles to individual habeas suits, Petitioners now withdraw the allegation made repeatedly in their Third Amended Petition that "more than 80" habeas petitions challenging post-order detention are currently pending in the Northern District of Illinois, Eastern Division. Se.__~.e Pet. Mot. 5; Third Amended Petition ¶¶ 38 (alleging a "flood"of habeas petitions "brought by pro se detainees and through pro bono counsel), 48, We have not determined how many post-order detention suits are pending in this Court, but are confident that the number far exceeds the approximately seventeen aliens who Petitioners say belong to their proposed class.
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custody. This precludes the named Petitioners from have the same interests as detained putative class members, and thus prevents them from representing their interests. 1~
E. Petitioners Have Failed To Establish That Joinder Of Unnamed Petitioners Is Impracticable
Petitioners must show that the putative class is so numerous that joinder of all of the class members is impracticable. See Young v. Magnequench Int’l inc., 188 F.R.D. 504, 506 (S.D. Ind. 1999). "While no magic number satisfies this element, the plaintiff must show that it is extremely difficult or inconvenient to join all of the class members in the suit." See id. While there is no fixed numerosity rule, generally less than twenty-one individuals is insufficient to demonstrate numerosity. See Evans v. Evans, 818 F.Supp. 1215, 1219 (N.D. Ind. 1993) ~ Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (1 lth Cir. 1986); Danis v. USN Communications, 189 F.R.D. 391,399 (N.D. II1. 1999) (finding that fifteen members was not so numerous so as to render joinder difficult and inconvenient); CL Atexanders Lanig & Cruickshank v. Goldfield, 127 F.R.D. 454, 455-57 (S.D.N.Y. 1989) (finding that twenty-five prospective class members is an insufficiently low number); State Security Ins. Co. v. Frank B. Hall & Co., 95 F.R.D. 496, 498 (N.D. Ill. 1982) (eighteen members is an insufficiently low number to demonstrate numerosity). Certification of classes generally containing less than twenty-five members is generally not permitted absent special circumstances. See Dani_s, 189 F.R.D. at 399; CL Alexanders Lanig & Cruickshank, 127 F.R.D. at 455-57; State Security Ins.. Co., 95 F.R.D. at 498.
~s Respondents do not dispute that the named Petitioners’ factual allegations, as set forth in Counts Two and Three of the Third Amended Petition, are typical of the proposed class. The problem is that the named Petitioners do not belong to the class, because they have been released from ICE custody.
18

In this case, Petitioners allege that there are approximately thirteen members in the putative class, and that this number may be between ten and seventeen. See Pet. Mot. 5. This number corresponds to Respondents’ disclosure of the number of aliens who currently are being
detained more than six months after entry of their final removal order. For the reasons discussed above, this number is not reflective of the number of admitted aliens unlawfully detained beyond the six month period, as it includes cases where there exists a significant likelihood of
repatriation within the reasonably foreseeable future, or where the alien refuses to cooperate with ICE’s removal efforts. In fact, Respondents do not concede that any aliens are currently being detained by ICE’s Chicago District in violation of the Zadvydas rule. L6 Yet, assuming that the
class consists of ten to seventeen individuals, as alleged, Petitioners have failed to demonstrate special circumstances which would justify the certification of such a small class.
Petitioners simply cannot demonstrate that joinder of these few cases is impracticable. Therefore, because Petitioners have failed to demonstrate that there are enough class members to
make joinder impracticable, they cannot meet the numerosity requirement under FRCP 23 (a)(1).
II. PETITIONERS CANNOT MEET THE REQUIREMENTS OF RULE 23(b)(2). To proceed under Rule 23(b)(2), Petitioners must establish that "the party opposing the
class has acted or refused to act on grounds generally applicable to the class, thereby making
16 Petitioners assert that "the nature of the suit is such that individuals come in and out of the class all the time." Pet. Mot. 2. We agree. However, the fact that the composition of the class is constantly in flux shows that the pervasive illegalities that Petitioners allege simply do not exist. If ICE were routinely denying release to detained aliens, one would expect that the proposed class would remain static, but for the addition of new, unlawfully detained members. Instead, the composition of the class is constantly changing as aliens are removed from the United States - as in the cases of Kazarov, Hmaidan, and Aidouni - or released from ICE custody - as in the case of every other named petitioner in this lawsuit.
19

appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." FRCP 23(b)(2). This role does not require that all members of the class be aggrieved by the challenged conduct, but proponents of a Rule 23(b)(2) class must be able to demonstrate that the "’conduct or lack of it which is subject to challenge be premised on a ground that is applicable to the entire class,’" and that the entry of declaratory or injunctive relief would remove a barrier or impediment common to the class. See Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir. 1975). In the instant case, Petitioners’ due process and APA challenges to the regulations do not involve a question which, if resolved, would remove a common barrier to the putative class members’ quest for release from ICE custody, because each class member’s detention status still would have to be determined on a case-by-case basis. Accordingly, Petitioners cannot meet the requirements of Rule 23(b)(2).
CONCLUSION As is evident from the named Petitioners’ own experiences, the proposed representative habeas action would be unworkable, given the vast array of material factual issues that would have to be resolved, before the legality of each putative cIass member’s post-order detention could be assessed. Moreover, Petitioners do not belong to the class they seek to represent, and have not shown any significant impediments to individual habeas suits, which undoubtedly will continue to be filed in this Court, regardless of the result of this motion. Accordingly, we
2O

respectfully request that the Court deny Petitioners’ motion for class certification, or

representative status.

Respectfully submitted,

PATRICK J. FITZGERALD United States Attorney

PETER D. KEISLER Assistant Attorney General

TERRI J. SCADRON Assistant Director

Assistant United States Attorney SHEILA M. ENTENMAN Special Assistant U.S. Attorney 219 South Dearborn Street Chicago, Illinois 60604 (312) 353-8788

EFTHIMIA S. PILITSIS Trial Attorney Office of Immigration Litigation U.S. Department of Justice, Civil Division Ben Franklin Station, P.O. Box 878 Washington, D.C. 20044

Dated: October 30, 2003

Attorneys for Respondents

21

SEP-15-2003 18-" 22

DOJ-OIL

202 616 497S P, 02
~oo~
B~r.,~ of lmmig~io, snd Customs Enfomem~nt

244
Voeurh Long C/O Tr~-Co~aty Deteotion Center 10 West Jackson Boulevard Chicago, IL 60604
Release Notification
Upon review of your case, the Bureau of Immigration ~ad Customs ~forcemeRt (ICE) ~ ~n¢ludcd that you ~y be ~l¢~ed from ICE ~rody pen~g your r~oval ~m ~e ~ni~ States. [h~s a~ssio~ ~ the Uui~
Your reba.~ will be subj ~ to certain wriscn conditions tl:~: will be provided to you shortly, and by which you must ~ide, A violation of one of more o{these co)~ditions; Io ai, sta~ or federal law may resuk in your being taken bzck into custody and any bond t.hat you may have posted being fozfcitcd. Your release from custody is also conditioned upon yo~ rndntainlng proper beho.vior while sponsorship and placement efforts for you are being undertaken.
P~or to your release from ct~stody~ an immi~adon officer ~.’~II vcrif’y the sponsorship or ernploymcn~ oft’~rs presented du.dng your review. Phase forward a~y additional in.formatlon regarding potend~ -~ponsodng family m~mbers or non-gov~rnm~tal org~zations ~at may be willi~ to asset you upon release.
It is particularly import~at that you kc~ the ICE advised of your addzess at all times, we will continu~ to ma)~ efforts to obtain your ~ravc[ document b~at will allow the United States govemmcm to ca_r~ out your removal pursuant to your order ofd~ortation~ exclusion~ or removal. In add/don, you are requLr~d by law m onth~ue ~o make good fa/th efforts to secure a ~svel document on your own. Once a travel document is obtained, you will be required to surrender ro T.he ICE for removal You w~II, at that t~me, be ~ven an o~porttmity to prepare for an ord~-ly departure.

tl~ I or’2)

r/Desi~ated Rc~)re~camtlve

10/29/2003 11:51 FAX 312 3853401

INS

U,S. Department of Justice and Natt=alization Service

,..arrant of Removal/Deportation
File No: A71 359 627 Date: January 21, 2003

To any officer of tile United States Immigration and Naturalizat~o~ Service:

V~dim Robertovich

KAZAROV

who entered the United States at

chicago, IL _.

~ on

12-07-1996

is subject to romovaVdeportation from the United States, based upon a final ordsr by:

[] an immigration judge in exclusion, deportation or removal proceedings [] a district director or a district directors designated officia;I [] the Board of Immigration Appeals [] a United States District or Magistrate Court Judge

and pursuant to the following provisions of the Immigration and Nationality Act:
Section 237 (a)(2)(A)0ii) of the Immigration and Nationality Act. ....... Section 237 (a)(2)(A)(ii) of the Immigration and Nationality Act ............

I, the undersigned officer of the United States, by virtue of the power and authority vested in the Attorney General under the laws of the United States and by his ol.- her dkeefion, command you to take into custody and remove fi:om the United States the above-named alien, pursuant to law, at the expense of:
The appropriations, "salaries and expenses of the U.S. Immigration and Natttr~Iiza~m sewice, 2003."
~=:~Dxr¢ctor " 3anuary 21,2003 Chicago, Ill._mpis (D~a, a~l office Mcadon)
Form 1-205 (Rev, 4-I .97) N

INS 1012912003 %1:51 FAX 312 385 3401

To be completed by Service officer executing the warrant:

Name of alien, being removed:

Vadim Robeaovich

KAZAROV

Port, date, and manner of removal:

Photograph of alien removed

Right index fingerprint of alien r~moved

Departure witnessed by:

(S~gmture ~d ~J~ of INS off~

If actual departm’e is not witnessed, fully identify source or means of verification of dcpartm’e:

self-removal (self-deportation), pm’suant to 8 CFR 241.7, check here. )epatture Verified by:

Form 1-205 (Rcv. 4-!-97) N

10/29/2003 11:51 FAX 312 385 3401 U.S. Dep~rtmer~t of 3~astiee
ration ~ Na~fion ..... Se~e
Vadim Robertovich Alien’s full name:

INS

~v.

Wara~g to ~i~_ Ordered_ _Rem°ved_ or Deported

KAZAROV

File No: A71 359 627 Date: January 21, 2003

In accordance with the provisions ofse~’tion 212(aXg) of the Immigratioaaud Nation~iity Act (~¢t), ~ ere pmlu’bited from entering,

attempting to enter, or being in tl~ United States: .

" " " ¯ :.. . ’.

For a period of 5 years f~om the date of your departure ~om the United States because you have been found deportable unde~
section 237 of the Act ~ ordered removed from the United States by an immibnationjudge in proceedings under section 240 of
the Act initiated upon your arrival in the United States as a returning lawfid pennaeent resident. .~

[] For a period of 10 years from the date of your departme from the United States because you have been found: [] deportable under section 237 of the Act and ordered removed f~om the Unit~:d States by an immigration judge ~ proceedings under section 240 Of the Act.
l-I inadmissible under section 212 of the Act and ordered removed from the United States by an immigration judge in proceedings under section 240 of the Act initiated as a result of your having beam present in the United States without admission or parole.
[] deportable under section 241 of an Act and ordered deported from the. U~ted States by an immigration judge in proceedings commenced before April 1, 1997 lmder section 242 of the Act.
I’-I deportable under section 237 of the Act and ordered ~eraoved f~om the United States in accordance with section 238 oftbe Act by a judge of a United States district court, or a magistrate of a United States magistrate court.

[]

For a period of 20 years from the date of your departure from the United States because, after having been previously excluded, deported, or removed firom the United States, you have been found:

[] inadmissible under section 212 of the Act and ordered removed from the United States by an immigration judge in proceedings under section 240 of the Act.

~-I deportable under section 237 of the Act and ordered removed from the Uni~t Stal~s by an immigration judge in proceedings under section 240 of the Act.

deportable unde~ section 237 of the Act and ordered removed fxom the United S~tes in proceedings under section 238 of the [] Act.

deportable under section 241 of the Act and ordered deported from the Unite~t States by an immigration judge in proceedings [] commenced before ApriI 1, 1997 under section 242 of the Act.
to have reentered the United States illegally and trove had the prior order rei~ttated under section 241(a)(5) of the Act.

At any time because you have been found inadmissible or excludable under section 212 of the Act, or deporl~ble under section 241 or 237 of the Act, and ordered dep6rted or removed from the United States, and 3~u have been convicted of a crime designated as an aggravated felony.

After your removal has been effected you must request and obtain perrnissio~ from ~e Attorney General to re.apply for admission to the United States dmfng the period indicated, You must obtain such permission hero:re ~omrneneing your travel to the United States. Application forms for requesting permission to reapply for admission may be obtain~.~ by contacting any United States Consulate or office of tl3e Immigration and Naturalization Service. Refer to the above file number when requealing fo.r~ or infm’mation.

WARNING: Tire 8 United States Code, Section 13:~6 provides that it is a crim,~ for an alien who has been removed from the United States to enter, attempt to enter, or be found in the United States withot,t the Attorney General’s express consent. Any alien who violates thissection of law is subject to prosecution for a fe.lony. Depending on the circumstances of the removal, convict/on o uld result in a sentence .0f impriso nme nt for a period of |tom 2jrd!or a fine of up to

[ //’ "7 ~

.... - .~.....

’ ~ " fI’itle of O~-eO

~:,. ~

"

Chicago, Illlnois
0.ocat]~n of INS

~ . .~"

Fo~’n 1-294 (R.ev. 6-I-97)N

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Tayseer YOUSEF, Sothea BUN, Touy PRASOUETHSY, Khanh NGUYEN, Alia ABURWAISI-I~D,

Petitioners,
Vo
Thomas RIDGE, Secretary.Department of Homeland Security, et al.
Respondents.

)

No. 02 C 5097

)

)

Judge Zagel

)

)

)

)

)

DECLARATION OF JOSE LUIS ZAMORA
Pursuant to 28 U.S.C. § 1746, I, Jose Luis Zamora, hereby state: I. i am employed as a Supervisory Deportation Officer by the United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("ICE"), Office of Detention and Removal in Chicago, Illinois. 2. As a Supervisory Deportation Officer, my responsibilities include supervising the execution of administratively final orders of removal entered against aliens within the jurisdiction of ICE’s Chicago District Office. In addition, I track the cases of detained aliens who may be eligible for custody reviews to determine whether they should be released from detention pending execution of their removal order ("post-order custody reviews"). 3. In the course of my duties, I maintain a searchable database on Microsoft ACCESS of aliens in immigration custody within the jurisdiction of ICE’s Chicago District who appear to be eligible for post-order custody reviews. I obtain the information entered in this database from ICE Deportation Officers who are assigned to execute the removal orders in the individual aliens’ cases. The ICE Deportation Officers forward the alien registration files CA-files") of

these aliens to me and I input the following information into the database: the alien’s name, the alien registration number ("A number"), date of the alien’s administratively final removal order, the date the alien came into ICE custody, the date a post-order custody review was made, whether the alien has filed a suit challenging his removal order or detention in either a United States District Court or a Court of Appeals, and whether the alien has obtained a judicial stay preventing his removal.
4. On May 30, 2003, at the request of government counsel in the above-captioned case, I performed a search of the ACCESS database and produced a report showing the number of aliens within the jurisdiction of the ICE Chicago District who have administratively final removal orders and have been in ICE custody for longer than 180 days. The number of aliens listed in the report was twenty-four (24). Of these twenty-four aliens, six had obtained judicial stays, thereby preventing ICE from removing them from the United States. Since I produced the report on May 30, 2003, one alien was ordered released by ICE, thus leaving seventeen aliens who potentially could be removed from the United States, or released from immigration custody as of June 9, 2003. I provided this information to government counsel in this case.
5. The number of aliens in ICE custody fluctuates from day to day, as aliens are taken into custody, released from custody, or removed from the United States.
6. On June 9, 2003, the jurisdiction of the Office of Detention and Removal for the ICE Chicago District was expanded to include control over ICE detention and removal operations in Missouri, Kansas, and Kentucky. The ACCESS database does not include information about detained aliens who came within the ICE Chicago District’s jurisdiction as a result of this recent expansion. To date, I have not been assigned responsibility for any cases originating from ICE detention and removal offices in Missouri, Kansas, or Kentucky, which continue to handle those cases pending further instruction.
7. The number of cases reported to counsel pursuant to the ACCESS database search I performed on May 30, 2003, does not include any cases originating from ICE detention and

removal offices in Missouri, Kansas, or Kentucky, which were not part of the ICE Chicago District when I produced the report.
I declare under penalty of perjury that the foregoing is true and correct. Executed on this 13th day of June, 200~ inffhicago~
I, u s
3

U. S. Department of Justice

Sheila ~ Entenman Special Assistant United States Attorney

United States Attorney Northern District of Illinois
Dirksen Federal Building 2t9 South Dearborn Street. Fifth Floor Chicago, Illinois 60604

Direct Line: (312) 353-8788 Fax: (312) 886.4073

July 10, 2003
Christopher J. Wemer, Esq. Michael Smith, Esq. FOLEY & LARDNER 321 North Clark Street Suite 2800 Chicago, IL 60610-4764
Charles Roth, Esq. Midwest Immigrant & Human Rights Center 208 S. LaSalle Street, Ste. 1818 Chicago, IL 60604
Re: Yousefv. Ridge, U.S.D.Ct. Case No. 02 C 5097
Dear Sirs,
This is in regard to your request at June 9, 2003, status conference that defendants provide you with opportunity to confirm the number of individuals in the custody of the Department of Homeland Security (DHS), Bureau of Immigration and Customs Enforcement (ICE), who potentially could be class members in this lawsuit, that is, aliens within the jurisdiction of ICE’s Chicago District Office with final removal orders who have been in immigration custody for six months or longer since entry of the order, and who are not subject to a judicial stay of removal. Defendants agree to the following parameters for an on-site visit to the Tri-County Jail in Ullin, Illinois.
Specifically, ICE agrees to allow a maximum of six (6) plaintiffs’ representatives to visit the facility on Monday July 21, 2003, to conduct the verification survey. There will be at least one representative from DHS, ICE present during the verification survey. The facility will be available for the survey beginning at 8:00 am, and the survey should be completed by 11:00 am. These time restrictions are necessitated by the facility’s daily schedule for detainees and staff; the facility is modifying the schedule to accommodate plaintiffs’ request for a site visit to the extent possible. The total number of detainees at the Td-County Jail on arty given day fluctuates, given travel and transfers. However, DHS, ICE will make available to you the total number of detainees registered in the facility as of July 21, 2003, subject to any absences necessitated by court appearances, medical problems, or other matters specific to the detainee. DHS, ICE will bring one pod (i.e., housing trait) 0fdetainees at a time into a meeting room, and when one pod has completed the survey, they will be escorted from the room and the next pod will be brought

J~aly 11, 2003 Page 2
in. The purpose of this arrangement is to provide your representatives with maximum access to the detainees, while maintaining the security necessary to ensure the safety of facility personnel, plaintiffs’ representatives, and the detainees themselves.
With respect to the format of the verification survey, the detainees must be initially informed that their presence is voluntary and that they are under no obligation to participate in the verification survey. DHS, ICE will agree to the following preliminary questions which should be sufficient to identify individuals who might be within plaintiffs’ proposed class.
Have you received a final order of removal in your immigration case, either from the Board of Immigration Appeals or, if you did not file an appeal, from an immigration judge?
If you have received a final order, have you been detained by the INS (now ICE) for six months since receiving your order? You should not count any period of detention while you were still litigating your case before the immigration judge or the Board, or while you were serving a criminal sentence.
If you have received a final order, have you received a stay of removal from any federal court?
If you received a final order, and you have been detained by ICE for six months or more, and you do not have a judicial stay of removal, have you received a Post Order Custody Review, or correspondence from ICE relating to a Post Order Custody Review?
5. If not, are you represented by counsel?
At this point, those detainees who have volunteered to participate could be separated into two groups, those who have received correspondence relating to a post-order custody review and those who have not.
Because the court has not authorized any general discovery in this case, the information you collect from the individuals who elect to participate should be limited to:
-Name -Alien Registration Number -Date of Final Order (administrative or by Immigration Judge), if known by detainee -Length of time in custody since final order, if known by detainee -Response to Post Order Custody Review correspondence from ICE
Furthermore, defendants understand that the sole purpose of this visit is to verify the accuracy of the numbers provided previously by the defendants. No private consultations with the detainees ~wiI1 be permitted in the pod area during the verification survey.

J~iy 11, 2003 p.age 3
In Iigh~ of our recent telephone conversations, defendants believe that it is essential that the parties reach agreement as to the parameters for the site visit before it takes place. Please let me know at your earliest convenience whether plaintiffs agree to these parameters.
Sincerely,
SHEILA M. ENTENMAN Special Assistant U. S. Attorney 219 South Dearborn Street Chicago, Illinois 60604

0CT-~0-2003 12:25

DO~-OIL

202 ~IG 49TS P,B2

0CT-30-2003 12:25

DOS-OIL

202 GiG 4995

TABLE ~. ALIENS REMOVI~D BY C]RJ~[I~AL STATUS AND REGION AND COUNTRY OF’ NATIONAJ, I’rY
FISCAL YEARS 1997-2002--Continued

Region and couamy of n~iona~i~y ’

2000 Crin~naJ : criminal

93

Arr~ettia .........................................1. 3

Aus~a ............................................

Azcrb~ij~ ......................................

B~laras ...........................................

I

B~lgium ..........................................

19

Bosnia-Hcr’~govi~a .......................

3

Bul~m’h ..........................................

3

Cto~&z ............................................

9

Czech Republic .............................. 5

Cz~¢ho~lovaJ6a ’. ...........................

135

Denmark ......................................... 12

~oaia ............................................

~4

(~,~;Fil’lOr,,y ........................................

~r~ ............................................

4~

~ungZL~ ..........................................

42

~ceJand ............................................

1

Ireland ............................................

39

ImJ.y ................................................

132

Ky r~/z~ztx .....................................

Laeda ............................................. _ II

Lit~uanLa ........................................

33

Lt~cmbourg ................................... |

MOc.~loaia ......................................

Malta ..............................................

]

MoI~ova .........................................

MOI1~Q ...............,..........................

Netherlands ....................................

7t

Norway ...........................................

Poland ............................................

Portugal ..........................................

Rom~ia .........................................

69

Russia .............................................

117

$1ovak Re~ub~io ............................. 20

S~ovcnia .......................................... 5

Sov~ ~n[Ofl : ................................

Spa~a ..............................................

Sweden ...........................................

28

Switz~d~d ....................................

16

Ta~ildstan ........................................

73

United Kingdom .............................

41.~’

Uz.~kis~n ......................................

Yugos|nv~a ~ ...................................

4|

3,3.33 A.fsha~iSFAn ................................5....

B~nglad~h .....................................

77

See foolnot¢~ ~ en0 oflablc. 194

"/1.001
7 9 4 I i3 3 4 I
2
87
$2 l

113,930 1,4~ 4 4
109 8 /2 3 71 16 93 13 30 I 50
II l 11 l

6 262

107

2t

13 96

lo

l0

9

-6

19

39

6

2~

5

11

IO

63

|7

~4

2

2O01

2OO’2

Tot~ _I
ql,994 10~,45| 148,619 70,759

,~496

924

105

14

10

16

12

|

4

4

5 8

7

6

3 4g

9

10

221

7

l

25

2

6

167

~o

I;39

~7

17

17

]27

70

1

1

16

3

36

1

2

,:2

4

1~2

67

16

121

13

2

39

68 t5

125

2

13

13

2

62

lO

1

22

4

74

11

5

81

I07

82

86

7.4

95

49

3 I

6

61

2

27

6

12

35

7_$

I IS

6g

62

~

34

142

7

2

12

37

76 31

33

9

22 6

123

10~

36o

185

175

31

~7

71

30

54

14

1,~1o

10

3

1

68

15

2,19~ 4~17 1,1~

7

I

3

"

53

91

4~ 262 ~0 105 ’ 29
I
16
3,12~

0CT-3@-2@@3 12:25

DOJ-OIL

282 616 4975 P.

Re~n~md

TABLE 46. ALIE~fS REMOVED BY CRIMII~fAL STATUS AND REGION AND COUNTRY OF NATIONALITY
F~SCAL YEARS 1997-2002--,Continued

2000

Cz~n~n~J ~

Noncrl~]

NonTo~ CIimin~1 : ~al Tot~

Criminal ~ ~’imind

Czribbe:m .....................&.S-.9.9.............

7~16

Anguilla ........................................ I

33

27

5

2

3

3

123 Ba;ba,b~ ......................................

16

10

~8

l~er~u~ .......................................5

4

I

l~rW~h VI@i~ Islands ...................

8

Ca~rr~ fsl~d~ ............................

2

7[

15

84

Dominka ......................................

|1

7

Dombic~ Re~ubti~ .................... 3J.II

2,23-7

1,154

3,955

Gre[t~.4a ................... , ....................

2|

9

Guad=lotlpe ..................................

1

I

I

37~t

89

L,927

L,~47

7.,017

Mam~qo= .................................... !

!

~4on~errat ....................................

Netherbr~ Antilles .....................

St. Ki~-Nevis ..............................

$~ Luci~ ....................................... St. Vincent aftd the G~enadin~ ....

20

lO

Tdnld~d and Tobago ....................

2 ~7

I ~3

Turl~ an~ C.~¢os ~sL~nds .............

3

Ce.tral America ................

4 9,242 13,~

8eliz~ ........................................... Z6~’

125

180

C~ Ric~ ....................................~13

56

25?

E~ $ tlva~or ............4.5.56......2..O.7.0 .....%4.-.86.....3

G~emala .................................... ~, 162

1.158

3,06~

Hoadums ......................................

1,395

3,216

&373

Nicara~a .....................................

450

257

193

ll0

42

4#17 I
92
1 77 11 2,149
[,298 I 2 4
2O 13 18 4
1.107

3
~6 ~3 Jl

?
I0 I
719 6
lO 17 173
321 1326 3,163

29 3,473
2 467 2j22
4 3 27
397 2
14~414 I~7
4,680

4.365 2
35 3
47 9 3
56 24 I 20
I
|,517 1 4 3
26 190
4594 115
1.7t2 1,164 1.396
2~

l
L
6 2 !
5 1,483
I | 77 605
3
3 II
207 I
2,105 3,626

$oulh Amerie~ ..............

138

4O

Boli,4a ............................................

?.4

Brazil .............................................. 1,079

71

1.654

I.~4

49

Colombia ...........: ............................ 2.0#6

I,~I0

~uoaor ..........................................

188

674

F~k l,~nd/~lands .............................

I

F~ench (}uiaae ................................

Goyana ........................................... 239

P~l’ag~aay .....................................,.,.

14

88

151

I

13

Su~oan~ ....................$.......2.158.......~0.~....

787 4

Uru~y ..........................................47

L4

33

Veq~zu~4 ....................................... 244

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119

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197 TOTAL P. ~4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

VADIM KAZAROV AND VOEUTH LONG, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
Petitioners,

FILED

VS.

THOMAS RIDGE, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, THE DEPARTMENT OF HOMELAND SECURITY, JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, CYNTHIA O’CONNELL AS INTERIM CHICAGO DISTRICT DIRECTOR OF THE BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT OF "[’HE DEPARTMENT OF HOMELAND SECURITY, AND THE UNITED STATES DEPARTMENT OF JUSTICE,
Respondents.

JUDGE JAMES B. ZAGEL
No. 02 C 5097

PETITIONERS REPLY TO RESPONDENTS’ MEMORANDUM 1N OPPOSITION TO PETITIONERS’ MOTION FOR CLASS CERTIFICATION
INTRODUCTION The Respondents in this case acknowledge that the Petitioners seek to certify a class in order to gain injunctive and declaratory relief relating to the policies and procedures by which the Respondents detain putative class members for more than six months after the entry of an administratively final order of removal. See Respondents’ Brief at 6-7. The Respondents then ignore all of Petitioners’ claims and arguments other than the claims for writs of habeas corpus.

011.1168431.2

As set forth in the numerous authorities in Petitioners’ first brief, it is entirely appropriate for this court to determine the common issues of law and fact that the members of the proposed class share regarding their due process claims against the Respondents. These claims include, but are not limited to, the habeas claim. See, e.g., Counts V, VI and VII of the Petition. Certifying aclass or representative action regarding habeas corpus claims is appropriate in this case.But even if it were not, it would still be appropriate to certify a class to adjudicate the non-habeas claims set forth in the PetitioRn.espondents’ silence on these issues effectively concedes the propriety of class certification.
As set forth below, the Court should grant Petitioners’ motion and enter an order certifying a class in this case.
ARGUMENT I. Petitioners’ Suit Contains Common Questions of Law and Fact.
Although the Court may need to grant individualized relief at some point in this case, the central issue for the class is common to all: the question of the constitutionality of the practices and procedures of the BICE. Class certification under these circumstances is appropriate. Some factual variation among class members does not prevent class certification. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7t" Cir. 1992). Indeed, class certification has been granted when there are questions common to the class, despite the need for individual remedies for class members. Coley v. Clinton, 635 F.2d 1364, 1378 (8~h Cir, 1980). In Coley, the Eighth Circuit reversed a district court’s denial of class certification that was based upon "’so many variations of remedy (for each inmate of Rogers Hall) that any sort of class relief would be impossible.’" Id. The appellate court stated that "It]he fact that individuals may also seek relief on the basis of facts peculiar to their individual cases does not deflect the thrust of this lawsuit
2
011.1168431.2

away from the constitutional questions" and thus provides no basis for refusing to grant class certification. Id.
Respondents rely on two individual habeas corpus cases to support their allegation that individual factual differences in the present case should prevent class certification. Resp. Mere. 12. However, these cases do not address the commonality requirement for class certification and thus are inapplicable to the present case. Both Pelich v. Immigration and Naturalization Service, 329 F.3d 1057 (9th Cir. 2003), and Lema v. U.S. Immigration and Naturalization Service, 341 F.3d 853 (9~h Cir. 2003), deal with individual habeas corpus pleas for release from detention. The Ninth Circuit, in these cases, decided only the appropriateness of continued detention for the individual before the court. Lema, 341 F.3d at 857; Pelich, 329 F.3d at 1062. Broader, procedural claims were not present.
Respondents cite Wang v. Reno, 862 F. Supp. 801, 811 (E.D.N.Y. 2001), for the proposition that class certification is inappropriate in this case because of the injunctive type of relief requested. Wang is also inapplicable in this case. The petitioners in Wang were seeking asylum. Id. at 807. They were seeking review of their final orders of exclusion. Id. at 808. The court discussed at length the difference between this type of claim, a substantive, individual claim and the type of claim that Petitioners make in this case, a procedural claim. Id. at 809. The court stated "Plaintiffs claims are simply a challenge to rulings made by B1A in individual cases. They are not a challenge to the procedures used...nor are they based on a contention that a statutory or constitutional right has been violated." Id. Because of jurisdictional problems and because of the substantive rather than procedural claim being made, the court found that class certification was inappropriate. Id. at 813.
3
011.1168431.2

If Respondents believe these cases are instructive in the case before this Court then they have misunderstood the claims of Petitioners. As a class, Petitioners are not challenging the decision the government eventually makes for each individual in continuing detainment upon a likelihood of removal to the alien’s home country or releasing the individual back into the country. The Court is not being asked to determine whether every member of the class is being appropriately detained. Petitioners agree with Respondents that those decisions are highly individual and inherently factually based. Instead, Petitioners are challenging the process used by the BICE against those in the class. The question before the Court is whether BICE has appropriate procedures in place for ensuring that individuals are not detained outside of the rule set by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001).
As long as "a single issue is common to all class members," factual and legal questions do not need to be the same for all class members. Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1111 (N.D. Ill. 1982); Evans v. Evans, 818 F. Supp. 1215, 1219 (N.D. Ind, 1993). "Class actions, therefore, cannot be defeated on commonality grounds solely because there are some factual variations among the claims of individual members." Evans v. Evans, 818 F. Supp. 1215, 1219 (N.D. Ind. 1993).
When the central issue in the case is a challenge to the process applied to all class members, factual differences are irrelevant. See Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1111 (N.D. Ill. 1982); Evans v. Evans, 818 F. Supp. 1215, 1219 (N,D. Ind. 1993). For example, in Tonya K., plaintiffs challenged the process by which educational placements of handicapped children were made. Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1108 (N.D. Ill. 1982). The court found that the question of whether placement was completed in a timely manner was an appropriate one for a class action. Id. at 1111. In doing so, the court
4
011.1168431.2

stated that "it is irrelevant for commonality purposes that class members are variously disabled or need either day or residential placement." Id, The reason these individual differences were irrelevant was that the court was not evaluating the appropriateness of individual placement decisions. Id. ("The Court is not asked here to determine whether a placement decision is appropriate."). It was reviewing the process by which those decisions were made.
Similarly, in Evans, the court stated "the issue presented by the Plaintiffs, whether the Process violates IDEA insofar as it imposes lengthy delays after development of an IEP, clearly presents a question of law common to all class members. The Plaintiffs’ challenge does not require this Court to make individual determinations concerning the necessity of a residential placement. Rather, the question is simply whether the Process, which is common to all class members, violates IDEA." Evans v. Evans, 818 F. Supp. 1215, 1219 (N.D. Ind. 1993).
Like the plaintiffs in Evans and Tonya K., Petitioners in this case have claims appropriate for a class action. Although only one common issue is necessary for class certification, Petitioners have many common issues of both fact and law. Common questions of law include whether BICE’s procedures are facially violative of due process, violative of due process as applied, and violative of the Administrative Procedures Act. See Pet. Mot. 7. Common questions of fact derive from the systematic government practice of keeping aliens in custody longer than 6 months after a final order of deportation and include whether the Respondents have a practice of delaying adjudication of release decisions, a practice of failing to give an opportunity to be heard, and/or a practice of justifying continued detention on nonexisting failures to cooperate or possibilities of return to home countries. Id. The decision to continue detainment or to release that is made by the BICE may or may not be appropriate, but
5
011.1168431.2

the central issue in this action is the invalidity of the timing and procedure by which that decision is made. Ii. Joinder of All Members of the Putative Class is Impracticable.
The cases cited by Respondents are not applicable to the case before us. All of the cases cited by Respondents for denial of class certification either have (1) no factors to consider in addition to class size or (2) have extenuating circumstances that mitigate against rather than in favor of class certification. None of these cases provide a reason not to certify the present class and some re-emphasize the same reasons for classification in this case discussed in Petitioners’ original brief.
For example, certification was denied in Young and in Danis because class size was not only small but class members were clearly known and easy to join. Danis v. USN Commun, Inc., 189 F.R.D. 391,399-400 (N.D. Ill. 1999); Young v. Magnequench Intl., Inc., 188 F.R.D. 504, 507 (S.D. Ind. 1999). in Young, the plaintiff actually made an alternative motion for joinder of the four proposed members as an alternative to class certification, Young v. Magnequeneh Intl., Inc., 188 F.R.D. 504, 505 (S.D. Ind. 1999) (Footnote 1). The court believed that the real desire of the Plaintiff was to make this into a "multiple-plaintiff action."/d, at 507 (FN4). The court did recognize the importance of considering other factors when class number is small and cited cases in which groups of eighteen and twenty-two were certified. Id. at 506507 (’%vhen the putative class is small, other factors become more significant"). Class certification was not granted in Young, but only because there was no "difficulty whatsoever" in joining these four clearly identified individuals to the suit and no complicating factors were shown. /d. at 507. Similarly, the Danis court denied Plaintiffs’ motion for certification of a defendant class consisting of fifteen "major brokerage firms" with "readily obtainable"
6
011.1168431.2

addresses. Danis v. USN Commun., Inc., 189 F.R.D. 391,400 (N.D. I1l. 1999), The Plaintiffs had failed to "demonstrate special circumstances warranting certification" of a small class. Id.
In CL-Alexanders and State Security, in addition to a small class, there were factors actually negating the propriety of class certification. See State Sec. Ins. Co. v, Frank B. Hall & Co., Inc., 95 F.R.D. 496, 498 (N.D. Ill. 1982); CL-Alexanders Laing & Cruickshank v. Goldfeld, 127 F.R.D. 454, 460 (S.D.N.Y. 1989). In CL-Alexanders, the proposed class consisted of twenty-five clearly identified British investors all of whom had already signed forms consenting to the class action. Id. at 455-457, The court interpreted this participation by the individuals as a showing of interest in joining the suit and noted the ease of future litigation coordination because of the cohesiveness of the group, since many of the proposed class members were present or former co-employees or relatives. Id. at 457. Even with these factors negating the need for class certification, the court refused to rely solely on these facts in denying class certification. Id. at 455. instead, the court relied upon the totality of circumstances in the case. id. at 460. The court was concerned over possible conflicts of interest between class members. Id. And, because of the international nature of the case, res judicata issues made a special and complicated opt-in procedure necessary if class certification was granted, Id.
In State Security, a class of twenty-eight members was denied certification after no "more than simply the number of potential claimants" was shown. State Sec. Ins. Co. v. Frank
B. Hall & Co., Inc., 95 F.R.D. 496,498 (N.D. Ill. 1982). In addition, jurisdictional concerns and
opt-out practicalities led the court to believe the class would be "a good deal smaller" than the twenty-eight asserted. Id. The numerosity issues favoring denial were exacerbated by the improbability of satisfying the other requirements for class certification and the impropriety in litigating in a forum inconvenient to all but the named plaintiff. Id, at 499.
7
011.1168431.2

Respondents also cite Evans v. Evans, 818 F. Supp. 1215 (N.D. Ind. 1993), in support of their argument against class certification. See Resp. Mere. 18. However, in Evans the court granted class certification based on the large number of class members. Evans v. Evans, 818 F. Supp. 1215, 1219 (N.D. Ind. 1993). The court recognized the importance of factors such as judiciaI economy and the ability of individuals to bring individuals suits in deciding impracticability but didn’t need to address these issues because of the easy satisfaction of the impracticability requirement. Id.
The cases cited by Respondents are not significant in deciding the present class certification motion. Unlike Young and Danis, Petitioners have special circumstances favoring class certification in addition to class size. And, unlike CL~Alexanders and State Security, there are not factors preventing the effective application of class certification in this case. There is no reason certification should not be granted in this case.
Both sides in this case have turned to conflicting cases regarding class size. Petitioners have cited several cases certifying classes of less than twenty members. See Pet. Mot. 6. Respondents have found cases denying certification to larger groups. See Resp, Mere. 18. The real difference between these cases is the factors courts consider in addition to number that allow the principles underlying the impracticability requirement to be fully accounted for. All of the cases cited by the Respondents recognize that factors apart from class size shouId be considered in the decision to certify a class. Danis v. USN Commun., Inc., 189 F.R.D. 391,400 (N.D. Ill. 1999); State Sec. Ins. Co. v, Frank B. Hall & Co., Inc., 95 F.R.D. 496, 499 (N.D. Ill. 1982); Young v. Magnequeneh Intl., Inc., 188 F.R.D. 504, 506 (S.D. Ind. 1999); Evans v, Evans, 818 F. Supp. 1215, 1219 (N.D. Ind. 1993); CL-Alexanders Laing & Cruickshank v, Goldfeld, 127 F.R.D, 454, 456 (S.D.N.Y, 1989). These additional factors favor class certification in this case.
8
011.1168431.2

As discussed in Petitioners’ Memorandum in Support of their Motion for Class Certification, several factors in addition to class size support a finding of impracticability of joinder in this case. See Pet. Mot. 6-7. The nature of relief sought, the dispersed locations of class members, the inability of class members to bring their own suits, the interests of judicial economy, and especially the transient nature of the class, compel the granting of class certification. See Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1109 (N.D. Ill. 1982) (recognizing that future class members in an evolving class should favor a finding of impracticability); Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981) (stating "constantly revolving" nature of inmate population a factor in finding of impracticability). Because of the constant evolution of the proposed Petitioner class and the already numerous complaint amendments, "joinder would be a mere ’fiction for class adjudication.’" Northwestern Natl. Bank of Minneapolis v. Fox & Co., 102 F.R.D. 507, 511 (S.D.N.Y. 1984). Class certification is appropriate. Ill. The class action is not moot.
In Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553 (1975), the Supreme Court recognized that there may be times when a proposed named plaintiff’s claims become moot before "the district court can reasonably be expected to rule on a certification motion." Id. at 402 (FN11). There are cases in which although "state officials will undoubtedly continue to enforce a challenged statute" or continue to utilize a challenged procedure, "because of the passage of time, no single challenger will remain subject to its restrictions for the period necessary to see such a lawsuit to its conclusion." Id. at 400.
In these cases, the court should examine "the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review" in deciding whether to ’"relate back’" the time for certification to the filing of the complaint and thus avoid
9
011.1168431.2

mootness. Id, at 402 (FNll). The Supreme Court applied this standard to a class of pretrial detainees in Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854 (1975) and found that time realities
made the claims ’"capable of repetition, yet evading review,’" Id. at 111,861. The Court said: Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures.
Id. In Gerstein, the length of time any individual would be detained could not be determined at
the outset because many events could lead to discharge or conviction and thus end the pre-trial
detainment. Id. it was "by no means certain" that any particular named plaintiff would stay in pre-trial detainment "long enough for a district judge to certify the class." Id.; See Green v. Johnson, 513 F. Supp. 965,975 (D. Mass. 1981) (finding class action not moot because of the
revolving nature of the inmate population and the amount of time necessary to get through the
class certification process); But See Robinson v. Leahy, 73 F.RD. 109, 113-114 (N.D. Ill. 1977) (finding Gerstein time requirements for certification of a moot class representative not satisfied
since plaintiff was in custody for two years after commencement of the action). In Dixon v. Quern, 537 F. Supp. 990 (N.D. Ill. 1982), vacated on other grounds,
559 F. Supp. 395 (N.D. Ill. 1984), the court considered the defendant’s control over the mootness of named plaintiffs’ claims in addition to time considerations. Id. at 993. The court stated that
declaring the class action moot and thereby denying certification because of satisfaction of the proposed named plaintiffs’ claims:
would mean that the procedures at issue would constantly evade review. The SSA could avoid judicial scrutiny by granting hearings to the named plaintiffs and informing plaintiffs of the basis for SSA’s determination of non-disability. However, long delays and lack of information about the basis for findings of non-
10
011.1168431.2

disability might still continue. These critical issues are issues that are alive for members of the class, Id, The court decided the class action controversy was not moot and granted certification. Id. Both the time realities discussed in Sosna and Gerstein and the defendants’ control over mootness recognized in Dixon favor the continuation of this lawsuit as a class action, In the case before this Court, as in Gerstein, it cannot be determined at the outset how long any particular class member will be detained. To become a member of the class, an individual must have already been detained by the government for six months after a final order of deportation. The length of time a detainee will be kept beyond that point is only speculation. In addition, the Respondents have complete control over the release of these individuals. At any time a named petitioner could be released by the government, making the claims of that individual moot. If the court allows the release of a named plaintiff to prevent certification of the class, Respondents could continually thwart the progress of this litigation. The constitutional claims of the class members would never be addressed. Not granting class certification in this case "would effectively preclude any judicial relief’ for the individuals detained by B1CE. Dixon v. Quern, 537 F. Supp. 990, 992 (N.D. [11. 1982), vacated on other grounds, 559 F. Supp. 395 (N.D. Ill. 1984). IV. Named Petitioners, Voueth Long and Vadim Kazarov, are adequate class representatives. Courts have consistently found that a moot named plaintiff can satisfy the requirement of adequate representation necessary for class certification, See Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1112-1113 (N.D. Ill. 1982) (finding no reason to doubt adequacy of representation of class members by named plaintiffs whose individual claims are moot and granting class certification); Dixon v. Quern, 537 F. Supp. 990, 992 (N.D. Ill. 1982), vacated on other grounds, 559 F. Supp. 395 (N.D. Ill. 1984) (certifying class despite mootness of
11
011.1168431,2

individual claims of named plaintiffs); Green v. Johnson, 513 F. Supp. 965,975 (D. Mass. 1981) (certifying cIass with moot plaintiff as adequate class representative as no cor~flicting interests exist and counsel is competent and experienced).
In granting certification, the Court must decide that the named plaintiffs whose claims are now moot "will adequately protect the interests of the class." Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 559 (1975). A moot named plaintiff will adequately represent the interests of the class where it is "unlikely" that members of the proposed class "would have interests conflicting" with those advanced by the named plaintiff and "where the interests of that class have been competently urged at each level of the proceeding." Id.
The first prong of the test for adequate representation assures that "the named plaintiffs’ interests are not antagonistic to those of the class." Tonya K. v. Chicago Bd. of Educ., 551 F. Supp. 1107, 1112 (N.D. I11. 1982). Neither Long nor Kazarov have interests adverse to those of the other class members. See Dixon v. ~_.uern, 537 F. Supp. 990, 993 (N.D. ill. 1982), vacated on other grounds, 559 F. Supp. 395 (N.D. Ill. 1984) (dismissing idea that moot plaintiffs’ claims are antagonistic to the class). Both named petitioners and class members have been harmed by the unconstitutional governmental procedures and seek an end to the practices and procedures currently in place by the BICE. For the purposes of deciding whether class certification is appropriate, Long and Kazarov can serve as adequate representatives for the class. If substitution of the r~amed petitioners becomes r~ecessary further into the litigation, counsel for petitioners will address the concern at that point.
The second prong of this adequacy test is concerned with the ability of counsel to competently handle the litigation. See Green v. Johnson, 513 F. Supp. 965, 975 (D. Mass. 1981). In Green, the court recognized the experience of counsel in representing similarly-situated
12
011.1168431.2

individuals and in conducting class litigation. Id. The emphasis of the adequacy analysis was two case characteristics: the existence of a class still affected by defendant practices and attorneys with a "sufficient interest in protecting the fights of inmates" affected by defendant practices. Id. The named plaintiffs act through their attorneys in "fairly and adequately" representing the interests of all class members. Id.
Respondents have not disputed the capabilities of Petitioners’ counsel in representing the class concerning the matter before the Court. Counsel for the Petitioners are experienced litigators, ready and willing to vigorously pursue the interests of all of these class members. And, clearly there is a class of individuals still affected by the unconstitutional practices and procedures of the BICE.
CONCLUSION All of the requirements for class certification are satisfied. First, there are common issues of law and fact. At the center of this dispute is the question of the constitutionality of the procedures and practices used by the BICE against all class members. Second, joinder of all members of the proposed class is impracticable because of the significant number of individuals considered in light of the special circumstances present in this case, such as the revolving nature of a detainee class. Third, the Named Petitioners, Kazarov and Long, are adequate representatives for this action. Neither has interests adverse to those of the other class members and their counsel is more than competent to assure that the common interests of the class are pursued. Fourth, the claims of the named petitioners are typical of those of the class. Respondents do not dispute this fact. See Resp. Mere. 18 (FN15). All of the requirements are satisfied and Respondents have not provided a valid reason to deny class certification. Therefore, the Court should grant Petitioners’ Motion for Class Certification pursuant to Fed. Rule Civ. Proc. 23(a) and 23(b)(2).
13
011.1168431.2

November 18, 2003
Douglas M. Hagerman Michael D. Smith Thomas P. Krebs Christopher J. Werner FOLEY & LARDNER 321 North Clark Street Suite 2800 Chicago, Illinois 60610 312.832.4500 312.832.4700 (fax)
Charles Roth Anne Relias MIDWEST IMMIGRANT AND HUMAN RIGHTS CENTER 208 South LaSalle Street Suite #1818 Chicago, Illinois 60604 (312) 660-1613 (312) 660-1505 (fax)

Respectfully submitted, Vadim Kazarov and Voeuth Long
Attorneys (or Petitioners ~,,,5

14
011.1168431.2

CERTIFICATE OF SERVICE
I, Michael D. Smith, an attorney, certify that I served a copy of the Petitioners Reply to Respondents’ Memorandum in Opposition to Petitioners’ Motion for Class Certification, via first class U.S. mail, with proper postage affixed, from 321 North Clark Street, Chicago, Illinois 60610, upon the following individuals:

Sheila M. Entenman Assistant District Counsel United States Department of Justice, Immigration & Naturalization Service 219 South Dearborn Street 5th Floor Chicago, Illinois 60604
(312) 353-8788 Fax: (312) 353-2067

Craig A. Oswald Assistant United States Attorney United States Department of Justice 219 South Dearborn Street 5th Floor Chicago, Illinois 60604 (312) 886-9080 Fax (312) 353-2067

Efthimia S. Pilitsis Assistant Director Office of Immigration Litigation U.S. Department of Justice, Civil Division Ben Franklin Station, P.O. Box 878 Washington, D.C. 20044

on November 18, 2003, before the hour of 5:00 p.m.

Michael D. Smith

011.1168672.1

3

 
 IN THE UNITED STATES DISTRICT c<00~iF'- \ 8 1";\ I:: '2.h

FOR THE NORTHERN DISTRICT OF ILLINOIS c.. ,.. c'::(\ .' . T

EASTERN DIVISION

U.s. D!':iIK\C I C!.lUI\

)

Jalal Hmaidan,

)

Murad AI-Hnitin,

)

Mohammed Aidouni,

)

DOCKETED
JUL 2 2 2002

Maitham Alzehrani, Nhat Tran, Keovongsack Pongphrachanxay, Den Son, and others similarly situated,
Petitioners
v.
John Ashcroft, Attorney General of the United States; Brian Perryman, as Chicago

)

) )

OSC 5097

)

~JUDGE ll\GEL

)

)

CERTIFICATE OF

)

SERVICE

)

MAGISTRATE JUDGE LEViN

)

)

)

)

District Director, Immigration and

)

Naturalization Service;

)

Immigration and Naturalization Service; )

United States Department of Justice;

)

Respondents

)

CASE No.:

CERTIFICATE OF SERVICE I hereby certify that I served a copy of the attached "CLASS ACTION PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF" by Certified United States Mail, this 18th day of July, 2002.

Anne Relias Midwest Immigrant and Human Rights Center 208 South LaSalle Street, Suite # 1818 Chicago, Illinois 60604 T (312) 660-1613 F (312) 660-1505

I

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Jalal Hmaidan, Murad AI-Hnitin, Mohammed Aidouni, Maitham Alzehrani, NhatTran, Keovongsack Pongphrachanxay, Den Son, and others similarly situated,

~ DOCKH£O

~

JUL Z Z 2.002.

c:

(/,

)

r- .~

~2C 509~.

) JUDGE. ZAGEL ~~;

fJl
,~ -n
t ....
~: :},
-~i,;

Petitioners

)

CLASS ACTIOIiPETITION

-j

C'l

)

FOR WRIT OF HABEAS

v.

)

CORPUS AND

)

COMPLAINT FOR

John Ashcroft, Attorney

)

DECLARATORY AND

General of the United States;

)

INJUNCTIVE RELIEF

Brian Perryman, as Chicago

)

District Director, Immigration and

)

MAGISTRATE JUDGE LEVIN

Naturalization Service;

)

CASE No.:

Immigration and Naturalization Service; )

United States Department of Justice;

)

Respondents

)

CLASS ACTION PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. The Supreme Court has held that the Attorney General and the Immigration and Naturalization Service ("INS") have no statutory authority to detain aliens where there is no reasonable likelihood of removing them from the United States. Zadvvdas v. Davis, 533 U,S, 678 (2001). The Attorney General and his Immigration and Naturalization Service ("INS") have adopted procedures that delay, ignore, or hinder the release of individuals whom the INS has no authority to detain, practically forcing detainees to bring suit in federal court in order to obtain their liberty, The Attorney General's administrative procedures place unreviewable and standardless decisions to continue detention in the hands of a I

faceless bureaucracy, without setting any deadlines, providing for any hearing, ordaining any review by an impartial adjudicator, permitting any administrative appeal of a negative decision, or instituting any other procedures designed to safeguard the liberty interests of indefinite detainees. The seven named Plaintiffs are all detained by the INS; they have been ordered removed from the United States, but cannot be removed to their countries of origin; they have all been detained for longer than six months after entry of the final order of removal (the "presumptively reasonable" length of time for the INS to secure removal). They argue that the Respondents' procedures violate Procedural and Substantive Due Process, as well as the Administrative Procedures Act. These seven detainees seek habeas and injunctive relief for themselves, and for those who are or will be similarly situated in the Chicago District.
JURISDICTION
2. This Court has jurisdiction pursuant to 28 U.S.C. §2241, the general grant of habeas authority to the District Courts; Art. I, §9, cl. 2 of the United States Constitution, 28 U.S.C. § 1361 (mandamus authority), 28 U.S.C. § 1331(a) (federal action), and 5 U.S.C. §§ 701-706 (Administrative Procedures Act). This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 and Fed. R. Civ. P. 57 and 65. Statutory limitations on the Court's ability to grant injunctive relief, 8 U.S.C. §1252(f)(1), are inapplicable to this claim; the Petitioners do not seek to restrain the "operation ofthe provisions of part IV" of the INA, but rather, to limit the Attorney General's ability to continue a form of detention which the Supreme Court has held is not authorized by statute. Further, §1252(f)(1) would go only to limit the remedy requested, and would not deprive the Court of its ability to hear the case.
2

THE PARTIES
3. a) Petitioner Jalal Hmaidan, is a native of Kuwait City, Kuwait, and of Palestinian descent. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States.
b) Petitioner Murad Al-Hnitin is a native of Jordan. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States.
c) Petitioner Mohammed Aidouni is a native and citizen of Algeria. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General ofthe United States.
d) Petitioner Maitham Alzehrani, is a native and citizen ofIraq. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States.
e) Petitioner Nhat Tran, is a native and citizen of Vietnam. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States.
f) Petitioner Keovongsack Pongphrachanxay, is a native and citizen of Laos. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General ofthe United States.
g) Petitioner Den Son is a native and citizen of Vietnam. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States.
4. John Ashcroft is the Attorney General of the United States. He has implemented regulations that have the effect of obstructing and hindering the Supreme Court's
3

decision in Zadvvdas. His agents continue to detain the Petitioners; Petitioners are detained under authority of the Attorney General. 5. Brian Perryman is the Chicago District Director for the Immigration and Naturalization Service. He is the legal custodian of the Petitioners. 6. Respondent Immigration and Naturalization Service is an agency ofthe United States Department of Justice and is the agency responsible for enforcing the immigration laws. 7. Respondent United States Department of Justice is a department ofthe executive branch of the United States government and is responsible for enforcing the immigration laws.
VENUE AND INTRADISTRICT ASSIGNMENT
8. Petitioners are filing this Petition in the district in which the continuing decision is being made to detain the Petitioners; and in which district Petitioners' custodian, Brian Perryman, Chicago District Director of the Immigration and Naturalization Service, resides and has his place of business.
CLASS ALLEGATIONS
9. Pursuant to Fed. R. Civ. P. 23(a) and 23(b)(I) and (b)(2), Petitioners bring this action on behalf of themselves and all other similarly situated individuals. The Petitioner class consists of: Individuals who have "entered" the United States, who are not detained pursuant to any regulation or law relating to terrorism or national security, who have been or will have been detained by and under the authority of the Chicago District of the INS for more than six months after the entry of an administratively final order of removal, without opportunity to have such detention reviewed administratively by an impartial adjudicator. 4

i~
10. The class is so numerous that joinder of all members is impracticable. The number of individuals within the Chicago District who are detained by the INS more than six months after a final order of removal is not known with precision, and is believed to fluctuate. However, there are currently pending, on information and belief, more than 60 separate habeas actions in the Northern District of Illinois, brought by individuals who are, or claim to be, class members. In addition, Plaintiffs seek to define the class to include future class members, so that the actual number will continue to increase.
II. There are a number of common questions of law and fact, including (1) whether the statute authorizes the continued detention of members of the Plaintiff class under the current INS regulations; (2) whether the procedures employed by the INS for class members are facially violative of Procedural or Substantive Due Process; (3) whether Due Process is violated as applied to the Plaintiff class; and (4) whether INS sub-regulatory agency actions, in administering these regulations are arbitrary and capricious actions violative of the Administrative Procedures Act.
12. The claims of the individual-named Petitioners are typical of the claims of the class. Each named Petitioner is a non-citizen with an administratively final order of removal, who has been detained for more than six months after that order was entered. Each has been detained unreasonably and without lawful justification by the Defendants, and each has either failed to receive a timely decision whether to continue or cease detention, or received a decision which is unreasonable and incorrect. Respondents have applied their unlawful practices to each named Petitioner.
13. Petitioners know of no conflict between their interests and those of the class they seek to represent. In defending their own rights, the individual Petitioners will defend the rights of all proposed class members. 5

14. The individual Petitioners are adequate representatives ofthe class because they have been adversely affected by Respondents' statutory and constitutional violations.
IS. Petitioners' attorneys from the Midwest Immigrant and Human Rights Center are experienced attorneys who have the resources to represent the class as a whole. Further, Petitioners' attorneys are the only agency which actively visits the jails in the Chicago District in which the INS detains individuals.
16. Defendants have acted on grounds generally applicable to each member of the class, insofar as they have failed to release the Petitioners despite their inability to remove them to any other country, and have applied statutorily and constitutionally inadequate procedural protections to each.
GENERAL ALLEGATIONS
17. Prior to 2001, the INS interpreted INA §241(a), 8 U.S.C. §1231(a), enacted in 1996, as permitting the indefinite detention of any immigrant whom it could not remove from the country, 8 C.F.R. §241.4(b) (1997); the INS by regulation created a presumption of detention for individuals ordered removed on certain criminal grounds. 8 C.F.R. §241.4(a) (1997). See, 62 Fed. Reg. 10312,10378 (March 6, 1997). The presumption of continued detention could only be disproven by "clear and convincing evidence that the release would not pose a danger to the community or a significant flight risk." 8 C.F.R. §241.4(a) (1997).
18. This regulation created a class of individuals known as "lifers," who were unable to meet this standard of proof, and were therefore potentially detained by the INS until death or deportation, whichever came first.
19. Numerous lawsuits followed. Many detainees argued that the statute and regulations violated the Due Process Clause ofthe Fifth Amendment. The circuits
6

split on the issue. Cf., Zadvvdas v. Underdown, 185 F.3d 279 (5th Cir. 1999) (finding Due Process not violated because deportation was not "impossible"); Kim Ho Ma v. Rcno, 208 F.3d 815 (9th Cir. 2000) (holding statute did not authorize detention past a "reasonable time" after 90 day removal period). 20. The Supreme Court granted certiorari to resolve the split, and in 200 I, found as a matter of statutory construction (based on constitutional doubt as to the validity of a statute which said otherwise) that INA §241(a) does not grant authority to detain individuals longer than reasonably necessary to secure deportation or removal. Zadvydas v. Davis, 533 U.S. 678 (2001). To limit litigation, the Supreme Court held that a six month period of detention was presumptively reasonable. 21. The Attorney General publicly attacked the Supreme Court's decision. "Absent
prompt action on our part, th[e Zadvydas1decision could result in the release of
thousands of dangerous criminal aliens onto the streets of America over the next several months.... The result of the Supreme Court's ruling is that criminal aliens will be released from detention onto the streets of America." Attorney General Prepared Remarks, Long-term INS Detainees/Colorado Safe Neighborhoods Event, July 19,2001, www.usdoj.gov/ag/speeches/2001l 07190 Iinsdetaineescoloradosafe.htm. "The Supreme Court's ruling will inevitably result in anomalies in which individuals who have committed violent crimes will be released from detention simply because their country of origin refuses to live up to its obligations under international law." 66 Fed. Reg. 38433-38434 (July 24, 2001). 22. On November 14,2001, the Respondents published post-Zadvvdas regulations governing the continued detention of individuals ordered removed. 66 Fed. Reg. 56967 (Nov. 14,2001), codified at 8 C.F.R. §§241.4, 241.13, 241.14. 23. Under these regulations, the initial determination to continue to detain an individual ordered removed is made by the INS District Office at the end of the
7

statutory 90 day removal period. 8 U.S.C. §l231(a)(l). For this initial determination, the impossibility of effectuating removal does not trigger release. 8 C.F.R. §241.4(e). The initial review process maintains the pre-Zadvvdas focus on dangerousness and flight risk, postponing a Zadyydas analysis for a second round of custody review. 24. The Attorney General also created, by regulation, the "Headquarters Post-order Detention Unit" ("HQPDU") to conduct the second level custody review. Only the HQPDU can consider release under Zadyydas - though the custodian of given detainees remains the various District Directors. 25. The HQPDU is given the option to wait until six months have passed in order to begin considering release. 8 C.F.R. §241.13(d)(3). The HQPDU generally does not decide to release a detainee until they have been detained six months after their final order of removal. 26. Under the current procedures, there is no evidentiary hearing regarding the individual case of an individual whom the INS determines to detain due to the possibility of that individual being removed to their country of citizenship; nor is there a hearing where an individual has allegedly failed to cooperate with efforts to secure removal. 27. The current procedures permit a role for an impartial adjudicator only in cases involving "special circumstances," where the INS acknowledges that a given individual cannot be removed from the United States, but believes that release into the community should not be permitted. See generally, 8 C.F.R. §241.14. On information and belief, these proceedings are rarely, if ever, employed. They have no applicability to the Plaintiff class, which definitionally excludes individuals detained as threats to national security and individuals who receive evidentiary hearings before impartial magistrates. No impartial adjudicator issues any determination in a case in the Plaintiff class.
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28. The regulations provide for no administrative appeal of an INS agent's determination (I) that an individual has not cooperated in securing their own return, or (2) that there is still a possibility of removal.
29. The regulations provide no timeframe within which an INS agent's determinations are to be made. At no point does an INS failure to make a determination trigger review by any other impartial or review body, or trigger release.
30. Although required by regulation to give 30 days notice to the detainee of any review by the HQPDU, 8 C.F.R. §241.4(k)(2)(i) and (ii), such notice is not meaningfully given to the plaintiff class. Either it is not given, or in the rare case where it is given, it does not comport with the regulatory requirement.
31. The INS pattern and practice is to take in excess of six months to determine whether to release a given individual from detention.
32. The INS HQPDU has a pattern and practice of "suspending" the removal period for class members, requiring them to show efforts to secure their own removal, in situations where that individual has never failed to cooperate with removal efforts.
33. The Respondents' pattern and practice is to require members of the Plaintiff class to make an affirmative showing of "cooperation" even where INS files clearly demonstrate that such efforts have already been made, or where efforts would clearly be futile, such as in cases where the detainee is a citizen of a country for which the Respondents know it is impossible to obtain travel documents.
34. The Respondents' pattern and practice is to place a burden of proof on detainees to show cooperation, without regard to the length of time for which the detainee has already been detained after entry of an order of removal. This ignores the Supreme Court's holding that the length of time in detention is relevant to the possibility of effectuating removal in the reasonably foreseeable future.
35. These procedures have prompted many actions in habeas corpus to be brought pro
9

se by detainees unsure of what is happening with their requests for release. Since
the plaintiff class has by definition been detained at least six months - many have
been detained for 12 months or longer - there is a high rate of indigence for the
plaintiff class. These individual pro se habeas actions have not resulted in
resolution of the Plaintiff class's procedural claims.
36. The named plaintiffs have all been detained for in excess of six months, and
cannot be removed to their countries of origin.
37. Petitioners herein recount the applicable facts for each of the named plaintiffs
herein. Petitioner Hmaidan's facts are as follows:
a) Jalal Hmaidan entered the United States in 1976 after the death of his mother. Ex. ("Ex.") A(1). He is a Palestinian, who has a Jordanian passport but is effectively stateless. His aunt, a United States citizen, adopted him in 1978, at the age of twelve.
b) As Mr. Hmaidan was permitted by the Respondents to enter and to reside in the United States, he effectuated an "entry" into the United States.
c) In January of 1998, Mr. Hmaidan was convicted of possession with intent to deliver and he received a sentence of six years incarceration. Ex. A(I). After serving 33 months, he was released on account of "Good Time."
d) During his incarceration, Respondent INS began removal proceedings against Mr. Hmaidan. Id. An Immigration Judge ordered Mr. Hmaidan removed on October 5, 2000, Ex. A(2), and the Board of Immigration Appeals denied Petitioner's appeal on August 8, 2001. Ex. A(3). The Board's decision constitutes an administratively final order of removal.
e) Mr. Hmaidan was then released from his jail sentence. He has been detained by the Respondents since September 28, 2001. At this point, he has been detained by the Respondents for more than ten months, all of which are after his removal order was final.
f) Mr. Hmaidan has a mother, brother, and grand-mother living in the United States, all of whom are United States Citizens or Lawful Permanent Residents. He also has United States Citizen daughter who is eleven years old. He has been living in the United States for the past 25 years.
g) Mr. Hmaidan has diligently requested travel documents from both the Jordanian and Kuwaiti consulates. His counsel sent letters requesting travel documents to both consulates by certified mail on February 4,2002. Ex. A(9), A(10). Mr. Hmaidan followed up with handwritten letters on February 18,2002. Ex. A(11), A(12). There has been no response to date.
h) On March 22,2002, Mr. Hmaidan's Attorney requested Petitioner's release from the Post Order Detention Unit of the INS in Washington D.C. 10

("HQPDU"). See Ex. A(4). i) On April 29, 2002, Mr. Hmaidan was served, by hand-delivery, a Notice
to Alien of File Review, to be conducted by the Chicago District Office on May 30, 2002. Ex. A(5). A copy was also mailed to counsel. He was invited to submit documents in support of his release, pursuant to 8 C.F.R. §241.4. j) This local custody review was scheduled to take place at the seven month mark, four months after the point at which the regulations provide for such a custody review. 8 C.F.R. §241.4(h)(1). k) Through counsel, Mr. Hmaidan replied to the INS's invitation to submit documentation in support of release. On May 3, 2002, he again submitted this documentation. See Ex. A(6). 1) Then, on May 8, 2002, the HQPDU replied to Mr. Hmaidan's request for release, asking Mr. Hmaidan to provide copies of correspondence and other documentation to show his good faith effort to secure his own removal. Ex. A(7). This information had already been provided. m) The May 8, 2002, letter also inform Mr. Hmaidan that the removal period is "held in suspense" until such period as he provides this information. Id. n) On May 24, 2002, Mr. Hmaidan responded to the INS's letter of May 8, 2002, including (a third time) proof that he is cooperating with attempts to secure his own removal. See Ex. A(8). 0) Mr. Hmaidan has been in Respondents' custody for ten months and they have been unable to effectuate his removal in this time. Respondents are unable to remove Petitioner to his country of origin, Kuwait, or the country from which Petitioner had a temporary passport, Jordan. There is no reasonable likelihood that the Petitioner can be removed from the United States in the foreseeable future. Petitioner is of Palestinian descent and is stateless.
38. Petitioner Al-Hnitin's facts are as follows:
a) Murad Al-Hnitin entered the United States on June 29, 1996 on a B-2 visitor visa. See, Ex. B(1).
b) Because Mr. Al-Hnitin was permitted by the Respondents to enter and to reside in the United States, Petitioner effectuated an "entry" into the United States.
c) Mr. Al-Hnitin did not leave the United States, as he was supposed to do, on December 28, 1996. Instead, he remained in the United States, and began working at a "Quickstop," in Chicago, Illinois. Id.
d) Respondent INS issued a Notice to Appear against Mr. Al-Hnitin on October 4, 2001, for working when his visa did not permit employment, and for overstaying his visa. Id.
e) Mr. Al-Hnitin did not contest the charges. He was ordered removed by the Immigration Judge on October 24, 2001. See Ex. B(2). No appeal was
II

taken, and that order therefore became a final administrative order of removal. f) Mr. Al-Hnitin is still detained by the Respondents. He has now been detained for nearly eight months after the entry of the order of removal. g) Mr. AI-Hnitin has cooperated, and is willing to cooperate with efforts to secure his removal. See Ex. 8(3). His Attorney has written to the Jordanian Consulate requesting travel documents for Petitioner. See Ex. 8(4). There has been no response. h) Mr. AI-Hnitin has apparently never received any custody review by the Chicago INS. The regulations provide for a file review after 90 days in detention. 8 C.F.R. §241.4(h)(I). i) Mr. Al-Hnitin wrote to the INS, pro se, on March 3, 2002, requesting that the INS either deport him to Kuwait, or release him. Ex. 8(3). j) On June 28, 2002, Mr. AI-Hnitin's attorney, Anne Relias, wrote to the HQPDU, also requesting release under Zadvydas. Ex. 8(5). k) On July 10,2002, the Respondent INS HQPDU advised Mr. AI-Hnitin that it was holding his removal period "in suspense" until he (re)submitted evidence that he was cooperating with attempts to remove him. See Ex. 8(6). I) Respondents are unable to remove Mr. AI-Hnitin the country where he was born, Jordan, due to his Palestinian ancestry. There is no reasonable likelihood that the he can be removed from the United States in the reasonably foreseeable future; there is no indication that Respondents will be able to do in the next nine months what they have not been able to remove him in the past nine months.
39. Petitioner Mohammed Aidouni's facts are as follows:
a) Mohammed Aidouni entered the United States as a stowaway in 1991, fleeing from Algeria. Ex. C(I).
b) Because Mr. Aidouni successfully entered and resided in the United States, he effectuated an "entry" into the United States, under the legal meaning ofthat term, despite the fact that he entered as a stowaway. Matter of A-, 9 I&N Dec. 356, 358 (BIA 1961).
c) Some years after his entry, Mr. Aidouni was convicted of retail theft, and given a sentence of one year incarceration. See, Ex. C(I). The government then began proceedings to remove Mr. Aidouni from the country with a Notice ofIntent to Issue a Final Administrative Removal Order, on June 10, 1999. Id. The INS alleged that Mr. Aidouni had been convicted of an aggravated felony, and had entered the United States as a stowaway on or about September 26, 1991. Since Mr. Aidouni did not contest the facts therein, the INS issued a Final Administrative Removal Order against Mr. Aidouni on August 10, 1999. Ex. C(2).
d) Because Mr. Aidouni was afraid to return to Algeria, he sought
12

"Withholding of Removal" to Algeria, and protection under the Convention Against Torture. For some reason, the government did not act in his case for 10 months, before holding a hearing on June 26, 2000. Ex. C(3). On that date, Mr. Aidouni testified before an Asylum Officer regarding his fear of returning to Algeria. The Asylum Officer determined that there was a "reasonable possibility" that Mr. Aidouni would be tortured or persecuted if returned to Algeria, and referred his case to an Immigration Judge for adjudication of his application. Id. e) The Immigration Judge determined that although there was a "reasonable possibility" that Mr. Aidouni would be tortured or persecuted if returned, that Mr. Aidouni could not show that it was "more likely than not" that these things would occur. He therefore denied Mr. Aidouni's application for Withholding of Removal or Deferral of Remvoal under the Convention Against Torture. Mr. Aidouni appealed the Judge's decision, but his claim was ultimately denied by the Board ofImmigration Appeals on October 11,2001. Ex. C(5). f) Although, Mr. Aidouni has had an administratively final order of removal since August 10, 1999, the Respondents were legally prevented from removing him until the October II, 200 I, order. g) Mr. Aidouni has been detained by the INS for nearly three years since the entry of an administratively final order of removal. Mr. Aidouni has been detained by the INS for more than nine months since the Board's order denying relief under the Convention Against Torture removed all obstacles to his removal from the U.S. h) The government has never been able to secure travel documents for Mr. Aidouni, though they have been seeking such documents for approximately three years. There is no reasonable likelihood that they will succeed in obtaining such documents in the foreseeable future. i) Nevertheless, the government has informed Mr. Aidouni that the Algerian government has never actually refused to issue a travel document; therefore, says the government, it continues to be possible that he can be removed to Algeria. j) On November 6,2001, the Respondent INS informed Mr. Aidouni that it would conduct a file review in his case on December 6,2001. Ex. C(7). k) On May 16,2002, the Respondent INS decided to continue to detain Mr. Aidouni, stating "[ylou were convicted of robbery and possession of a weapon." Ex. C(8). It appears that this letter is in response to the December 6, 200 I, hearing, and that it simply took the Respondents more than five months to make their determination. rn) There is no reasonable likelihood that the Mr. Aidouni can be removed from the United States in the reasonably foreseeable future.
40. Petitioner Maitham Alzehrani's facts are as follows:
a) Maitham Alzehrani entered the United States on August 18, 1993, as a 13

refugee, fleeing persecution in Iraq. See Ex. D(1). He thereafter became a Lawful Permanent Resident, on June 16, 1996. Id. b) Because Mr. Alzehrani was permitted by the Respondents to enter and to reside in the United States, he effectuated a legal "entry" into the United States. c) Mr. Alzehrani was convicted of unlawful restraint and domestic battery in 1997, and criminal sexual assault in 1998. See Ex. D(1). d) On December 15,2000, the Respondents issued a Notice to Appear against Petitioner. Ex. D(1). The Respondents alleged that Mr. Alzehrani was removable for committing crimes involving moral turpitude, for committing an aggravated felony, and under 8 U.S.C. §1227(a)(2)(E)(i) for a crime involving domestic violence. Pursuant to these charges, Mr. Alzehrani was ordered removed on August 20, 2001. See Ex. D(2). He did not appeal; that order was therefore a final administrative order of removal. e) Mr. Alzehrani has been detained by the Respondents since April 13,2001. At this point, he has been detained by the Respondent for fourteen months, nearly 11 of which are subsequent to the entry of the order of removal against Mr. Alzehrani. f) On October 3, 2001, shortly after the Supreme Court's Zadvydas decision, Respondents issued a decision to continue to detain Mr. Alzehrani. See Ex. D(3). The INS said that it was continuing to detain him because (l) he hadn't presented clear plans on where to live and how to support himself once released, (2) he had displayed an "escalating pattern of violence," and (3) he had not demonstrated that he is "no longer a threat to society." Id. g) On May 2, 2002, Respondents issued another decision to continue to detention of Mr. Alzehrani. This time, the INS HQPDU denied release because "[t]he INS has had some success in securing travel documents for Iraqi nationals. A request for a travel document was sent out to the Iraqi Interest Section on December 14, 2002 [sic]. It is currently pending." Ex. D(4). h) On May 10,2002, Mr. Alzehrani, now through counsel, renewed his request for release under Zadvydas with the Post Order Detention Unit of the INS. Ex. D(5). i) On June 6, 2002, the HQPDU responded by informing Mr. Alzehrani that it was holding his removal period "in suspense" pending submission (again) of evidence that he was cooperating in securing his own deportation. j) Respondents are unable to remove Mr. Alzehrani to his country of origin, Iraq. The United States does not have diplomatic relations with Iraq; removing an Iraqi is as difficult as removing an individual from Cambodia, Cuba, Vietnam and other countries. See Ex.s D(9) and D(12). k) Mr. Alzehrani has cooperated, and is willing to cooperate with efforts to secure his removal. See Ex.s D(6), D(7) and D(1 0). Through counsel, Mr. Alzehrani has contacted the Iraqi Interests Section, but without success or
14

response. I) The Attorney General has not been able to remove Mr. Alzehrani for the
past ten months, and will be unable remove him to Iraq for the foreseeable future.
41. Petitioner Nhat Tran's facts are as follows:
a) Nhat Tran entered the United States on March 20, 1984, as a refugee. He was five years old. Mr. Tran is a native and citizen of Vietnam. Ex. E(1).
b) Mr. Tran obtained Lawful Permanent Resident status on December 13, 1985. Id.
c) The Respondent INS began removal proceedings against Mr. Tran after he committed the offenses of Retail Theft in 1997 and Theft Embezzlement by Bank Officer in 2001. The INS began proceedings on November 5, 2001. Id.
d) Mr. Tran was ordered removed on January 8, 2002, by an Immigration Judge. Ex. E(2). He did not contest or appeal the order, and it therefore became an administratively final order of removal.
e) On March 18,2002, the Chicago District of the INS notified Mr. Tran that his custody would be reviewed on April 18, 2002. Ex. E(3). Mr. Tran was invited to submit documents showing why he should be released. Mr. Tran responded by submitting letters and documents from a number of friends and family members.
f) As of the date of this filing, Mr. Tran remains detained by the INS. No decision has yet been communicated to him, regarding his custody status.
g) Mr. Tran has now been detained by the INS for more than six months after the entry of the administratively final order of removal.
h) There is no likelihood that Mr. Tran can be removed to Vietnam in the reasonably foreseeable future, because Vietnam does not accept deportations from the United States.
42. Petitioner Keovongsack Pongphrachanxay's facts are as follows:
a) Keovongsack Pongphrachanxay entered the United States as an immigrant on August 29, 1981. Ex. F(1), F(2). He was born in Laos, but entered the United States through Thailand, where he and his family were living in a refugee camp.
b) The INS began removal proceedings against Mr. Pongphrachanxay on November 9,2001, because of Mr. Pongphrachanxay's 1997 conviction for Armed Robbery and his 1995 conviction for Robbery.
c) Mr. Pongphrachanxay did not contest the charges of removability against
15

him, and was ordered removed by the Immigration Judge on December 20, 200 I. Ex. F(2). This decision was not appealed, and became an administratively final order of removal. d) Because Laos does not accept deportees back into Laos, Mr. Pongphrachanxay cannot bc physically removed to Laos. e) On March 18, 2002, the Chicago District of the INS notified Mr. Pongphrachanxay that it would review his custody on April 18, 2002. Ex. F(3). It invited him to submit documents and other evidence, showing why he is not a danger to the community, and should be released. He complied with this request. f) Mr. Pongphrachanxay's request was apparently denied, though he was not notified of this fact. g) The next communication received by Mr. Pongphrachanxay was a letter from the INS's HQPDU, informing him that his removal period was being "suspended" until he submitted evidence that he was cooperating in securing his own removal to Laos. Ex. F(4). This letter was sent on May 21,2002. h) As the Respondents well know, it is impossible for individuals to be removed to Laos. Any efforts which Mr. Pongphrachanxay would make would clearly be futile. i) Mr. Pongphrachanxay has now been detained for over six months after entry of an order of removal against him. There is no possibility that he will be removed to Laos in the reasonably foreseeable future.
43. Petitioner Den Son's facts are as follows:
a) Den Son entered the United States as an immigrant on May 23, 1991. He came to the United States to look for his father, whom he believes to have been a soldier in Vietnam. Mr. Son is a native and citizen of Vietnam, but is Amerasian by ethnicity. Ex. G(l). He speaks little English.
b) Because Mr. Son was permitted by the Respondents to enter and to reside in the United States, he effectuated a legal "entry" into the United States.
c) In January 1992, Mr. Son was convicted of home invasion and was sentenced to twenty years.
d) While incarcerated, the INS began deportation proceedings against Mr. Son. Ex. G(1). He was ordered deported by an Immigration Judge on February 22, 1995, and the Board ofImmigration Appeals dismissed his appeal on August 3, 1995. This is the final administrative removal order in his case.
e) Mr. Son was then released from his state sentence and transferred to INS custody on June 8, 2001. He has been in INS custody since that point.
f) On September 22, 2001, he was sent a notice, by "institutional mail," that his 90 day file review would be conducted that very day. Ex. G(2). INS
16

Officer Anthony Figueroa signed a certificate of service to that effect on September 22, 200 I. g) Mr. Son has now been detained by the INS for more than a year, all of which has been after the entry of the final order of deportation. h) It appcars, on information and belief, that the INS temporarily misplaced Mr. Son's file. i) Mr. Son has cooperated, and is willing to cooperate with efforts to secure his removal. See, Ex. 0(3). j) Mr. Son has sought release both from the Chicago INS Office and from the HQPDU. Ex. 0(4), 0(5). His requests have thus far been unavailing. k) There is no reasonable likelihood that the Mr. Son can be removed from the United States in the reasonably foreseeable future as the United States has no repatriation agreement with Vietnam.
44. None of the named plaintiffs have been granted any kind of administrative hearing in which an impartial adjudicator has determined that there is any likelihood of their being removed or deported in the foreseeable future.
45. All of the named plaintiffs (and all members of the Plaintiff class, as defined) have effectuated an "entry" into the United States. An entry is defined as (I) physical presence within the United States, (2) either inspection and authorization by a government official, or actual and intentional evasion of inspection, and (3) freedom from restraint within this country. Matter of Pierre, 14 I&N Dec. 467 (BrA 1973).
46. The INS actions with regard to each of these cases have been arbitrary and capnclOus.
EXHAUSTION
47. There is no formal administrative review of Petitioners' requests for release. Petitioners' only course of action is to seek release informally by letter(s) to the INS. Petitioners have done this. These letters ask Respondents to release Petitioners pursuant to the United States Supreme Court decision in Zadvvdas.
17

These attempts have not yet been successful; some have not been answered. 48. Further, it would be unreasonable to require the Petitioners to undertake any
additional steps prior to judicial review, given that the Supreme Court has already found that the Attorney General lacks statutory authority to indefinitely detain individuals who cannot be removed from the United States, and that unreasonable delays are part of what is complained of herein.
RIGHT TO JUDICIAL INTERVENTION
49. The Petitioners reallege and incorporate by reference each and every allegation of paragraphs 1-48 above.
50. By this Petition and Complaint, Petitioners allege grave Constitutional errors, and errors in statutory construction. Petitioners continued detention by the Attorney General is unauthorized by statute, and is violative of their Constitutional rights.
51. Pursuant to Local Rule 81.4, Petitioners would state that the act complained of is the continued detention of the Petitioners, where there is no substantial likelihood that removal can be accomplished in the reasonably foreseeable future, and pursuant to procedures which violate Substantive and Procedural Due Process, as well as the Administrative Procedures Act.
52. Petitioners have a right to judicial intervention, and this Court has jurisdiction over this Petition and Complaint, pursuant to 28 U.S.C. §2241, the general grant of habeas jurisdiction. Petitioners are also guaranteed to habeas review as a matter of Constitutional right. The availability of the Writ of Habeas Corpus is guaranteed by the Constitution, and may not be suspended except where "in cases of Rebellion or Invasion the Public Safety may require it." U.S. Constitution, Art. I, §9, Cl. 2 (Suspension Clause).
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COUNT ONE (Detention not Authorized by Statute)
53. The Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs I-52 above.
54. The Attorney General is authorized by statute to detain individuals ordered removed during the 90 day removal period, 8 U.S.C. §123 I(a)(1 ), and is required to detain certain individuals for that entire period. 8 U.S.C. §1231(a)(2). The length of the removal period may be extended if the detainee refuses to cooperate
in securing their travel documents. 8 u.s.c. §123 I(a)(1)(C).
55. However, the Supreme Court has found that the statute does not authorize the indefinite detention authority claimed by the Attorney General; such length and type of detention goes beyond the detention authority permitted by statute. Zadvvdas v. Davis, 533 U.S. 678 (2001) (interpreting the statute so as to avoid constitutional infirmity). The Supreme Court held that the statute does not authorize detention where there is no reasonable likelihood of removal in the foreseeable future or a compelling state interest; a period of six months is a presumptively reasonable period oftime. rd.
56. The Plaintiff class is composed (definitionally) of individuals who have been detained for more than six months after the entrance of an administratively final order of removal, beyond the presumptively reasonable period necessary to effectuate deportation or removal.
57. Under the doctrine of "constitutional doubt," the courts have an obligation to interpret a statute so as to comport with the Constitution.
58. The administrative procedures and regulations currently employed by the Respondents could not satisfY Procedural or Substantive Due Process, because they provide for no full and fair proceeding to determine whether detention should be continued in a given case. 19

59. In the absence of proper Due Process protections, the continued detention of such individuals cannot be said to be justified by statute. Since the statute should be interpreted to authorize detention only where in compliance with the Constitution, the Court should interpret the statute as not permitting the detention complained of herein.
60. A writ of habeas corpus may therefore issue for any member of the Plaintiff class in custody of the Respondents, ordering the Respondents to produce a reason for, and evidence in support of, the continued detention of such class members.
COUNT TWO (Regulations Facially Violate Procedural Component of
Fifth Amendment Due Process Clause)
61. The Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1-60 above.
62. The regulations promulgated by the Respondents permit the continued detention of individuals when there is no substantial likelihood that Petitioners can be removed or deported from the United States in the reasonably foreseeable future.
63. The regulations provide inadequate procedural safeguards to prevent individuals from being wrongfully detained past a point that would be reasonable and legal. They provide for no impartial adjudicator to determine whether an individual is failing to cooperate in good faith with efforts to remove that individual, or to determine whether there is a reasonable likelihood that the government can remove or deport an individual in the foreseeable future. These two determinations are placed in the hands of a nameless, faceless unit, located, on information and belief, in Washington, D.C.
64. The regulations improperly shift the burden of proof onto detained individuals to disprove a negative, by requiring detainees to affirmatively show their
20

cooperation with the removal process. The Respondents detain members of the Plaintiff class, and maintain files on the members of said class. Although it would bc simplc for the local INS to make a determination whether a given individual is cooperating with deportation efforts, the Respondents have shifted the decision to a Unit in Washington, D.C., which apparently does not know (or acts as ifit does not know) whether a given individual is cooperating with the Respondents. This burden-shifting is unreasonable, given the continued detention of the Plaintiff class, the ease with which the INS can inform another part of itself whether there has been cooperation, and the inherent problem with disproving a negative imputation of bad faith. At a minimum, the Respondents should inform members of the class if and when they are allegedly failing to comply with good faith requests, and if so, which requests have not been satisfied; thus, individual class members could submit rebuttal evidence or statement to show cooperation. 65. The regulations fail to properly consider the possibility of effectuating removal in the INS's first determination to continue detention, which takes place at the 90 day mark. 8 C.F.R. §241.4(e), (f), (h). Even where removal clearly cannot be effectuated, the regulations require continued detention of individuals who cannot demonstrate the other factors outlined in 8 C.F.R. §241.4(e), factors which the Zadvydas Court held were inadequate bases for continued INS detention. 66. The regulations impose no time frame on the Respondents within which they are required to make a determination as to release. 67. This creates a pattern whereby individuals are consistently and regularly detained for periods of time after the end ofthe "presumptively reasonable" six month period after entry of a removal order, even where there is clearly no possibility of removal from the United States. This additional, unnecessary detention is not authorized by statute. 68. The consistent and foreseeable detention of individuals not authorized by statute
21

to be detained is, if not intended by the framers of these regulations, a clear and unavoidable consequence of their structure. 69. The regulations permit for no appeal of any determination that a member of the Plaintiff class may be removed in the foreseeable future, or has failed to cooperate in good faith in attempts to secure removal of himself. 70. It is clear that non-citizens are protected by the Due Process clause, Yamataya v. Fisher, 189 U.S. 86 (1903), Plylerv. Doe, 457 U.S. 202 (1987), and that lawful permanent residents have an even stronger claims to Constitutional protections. Landon v. Plasencia, 459 U.S. 21,32 (1982); Kwang Hai Chew v. Colding, 344 U.S. 590 (1953). 71. The Fifth Amendment creates a procedural due process right (which extends to aliens in deportation or removal proceedings) to be heard at a meaningful time and in a meaningful manner, before a deprivation of liberty occurs. Mathews v. Eldridge, 424 U.S. 319, 334 (1976). What process is due depends on the private interest affected by the official action, the risk of erroneous deprivation of the interest, the value (if any) of additional or substitute procedural safeguards, and the government's interest (including fiscal and administrative burdens that additional or substitute procedural requirements would impose). Mathews, 424 U.S. at 335. 72. The interests at stake here are substantial. They involve nothing less than the personal, physical liberty of individuals who have entered and formed ties with the community of the United States. 73. There is a significant risk of the erroneous deprivation of rights in this case, particularly as delay in release implicates a continuing deprivation of rights. 74. The procedures adopted by regulation do not incorporate safeguards to ensure that erroneous deprivation does not occur; indeed, these regulations practically assure that erroneous deprivation will occur. There would be some cost associated with
22

safeguarding the Petitioners' liberty interests, but it would be fairly minimal, as the Immigration Court infrastructure already exists and is capable of weighing these matters. 75. When these factors are considered together, it is clear that the risk of deprivation is so great, and the procedures here so absent in any concern for that risk, that these procedures are constitutionally insufficient. 76. Thus, the regulations violate, on their face, the right of the Plaintiff class to Procedural Due Process, under the Fifth Amendment.
COUNT THREE (Regulations Facially Violate the Substantive Component of
Fifth Amendment Due Process Clause)
77. The Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1-76 above.
78. Petitioners have a liberty interest in not being detained for an indeterminate length of time by the Attorney General. Zadyydas v. Davis, 533 U.S. 678 (2001). The liberty interest involved here is fundamental.
79. Where the government provides itself with no set time frame within which to decide whether to release individuals, and when such time frame may extend into months or years, such detention may fairly be said to be indefinite.
80. Deprivation of a fundamental liberty interest can only justified if narrowly tailored to serve a compelling governmental interest. Flores v. Reno, 507 U.S. 292,302 (1993).
81. The Supreme Court held in Zadvydas v. Davis that the government interests at stake here were not compelling. The Court considered two interests asserted by the government: ensuring the alien's appearance at future proceedings, and preventing danger to the community. The first interest was held to be "weak or
23

nonexistent" when an individual cannot be deported in the reasonably foreseeable future. Zadvvdas v. Davis, 533 U.S. 678 (2001). The second interest, preventative detention, could only be upheld where "limited to specially dangerous individuals and subject to strong procedural protections." rd. Such protections, as the Supreme Court held in Zadvydas v. Davis, are not incorporated here. rd., at 24992500. 82. Likewise, these regulations provide only vague procedural protections, and then place responsibility for handling those procedures in the hands of the very same Respondents who are detaining members of the Plaintiff class in the first place. 83. These regulations apply broadly, and not merely to specialized groups such as terrorists or spies. While it is conceivable that regulations could be narrowly drawn to encompass only such individuals, these regulations clearly encompass a far broader class. 84. There exist no reasonable administrative or judicial safeguards governing the continued detention of members of the Plaintiff class. To the extent that the government has enunciated standards to govern its discretion, it has placed its determination in the hands of employees, rather than an impartial adjudicator; it fails to provide for any appeal of its administrative determinations; it does not provide for an actual hearing; it unfairly places burdens of proof on detainees for matters already within the knowledge of the agency itself. 85. Thus, these regulations are not narrowly tailored to serve the government's interests. 86. Assuming arguendo that the interests involved here are not fundamental, these regulations are not "rationally related" to a legitimate government interest. There is no legitimate interest in punishing these non-citizens; if immigration detention were punishment, the double jeopardy clause would be implicated. The only legitimate interest involved here is the government's ability to effectuate
24

deportation, and these regulations are not rationally related to that objective, since these individuals cannot be removed from the United States.
COUNT FOUR (Due Process violated by Rules and Procedures, as applied)
87. The Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1-86 above.
88. Under current procedures and regulations, Respondents are not considering the release of individuals who cannot be deported until long after the end of a presumptively reasonable period for removal. By regulation, the Respondent INS claims for itself a right to delay "in the exercise of its discretion" even initial consideration of release until the end of the removal period. 8 C.F.R. §241.13(d)(3). In practice, this delay is habitual, and results in individuals systematically being detained long after it is clear that they cannot be removed from the United States, and long after the end of the six month presumptively reasonable post-order period.
89. Under current procedures and regulations, members of the Plaintiff class are given no reasonable opportunity to be heard prior to an INS determination regarding their cooperation with efforts to secure removal which delays their release. The INS makes this determination spontaneously, without regard to logic or an actual possibility that an individual can be returned to a given country, making it impossible to predict whether or when the INS will make such a determination.
90. Assuming arguendo that the absence of a pre-determination right to be heard is not a per se violation of Due Process, Due Process is offended when the INS ordinarily and consistently refuses to consider release of individuals due to alleged failure to cooperate with efforts to secure removal when (I) such efforts
25

either would clearly have been futile or (2) evidence of reasonable efforts was already in possession of the Respondents. 91. The opportunity for a detainee to submit more evidence after an INS determination does not obviate or reduce the original Due Process problem. Forcing detainees to go through this futile post-determination process results in unreasonable and unnecessary delay in the release of detainees. 92. Further, the Respondents engage in undue delay in the review of postdetermination submission of evidence. 93. Under current procedures and regulations, members of the Plaintiff class are given no reasonable opportunity to be heard regarding an INS determination of the possibility of their being removed or deported from the United States in the reasonably foreseeable future. Assuming arguendo that it is not a per se Due Process violation that the INS grants no right of administrative appeal or oversight regarding this crucial determination, Due Process is offended when (I) the Respondents apply this provision to individuals after the expiration of the six month presumptively reasonable period to secure removal and (2) the Respondents apply this provision to individuals from countries which habitually refuse to accept the return of deported individuals. 94. Under current procedures and regulations, members of the Plaintiff class are detained for unreasonable time periods even after it is clear that they cannot be removed from the United States. In such circumstances, their continued detention is without statutory authorization, and is therefore violative of Due Process. 95. Under current procedures and regulations, members ofthe Plaintiff class are subject to continued detention, without any fixed time frame within which their release will be considered, and a decision made. Even assuming that the absence of a fixed time frame does not constitute a per se Due Process violation, Due Process is offended where the INS ordinarily and persistently fails to release
26

individuals whom it knows cannot be removed from the country in a timely manner. 96. The regulations, as currently implemented, are "excessive in relation to the regulatory goal Congress sought to achieve," United States v. Salerno, 481 U.S. 739,747 (1987). 97. The regulations, as currently implemented, are not narrowly tailored to serve a compelling governmental interest. 98. The regulations, as currently implemented, violate Procedural Due Process insofar as they fail to adequately balance the liberty interests involved and the risk of erroneous deprivation with the government's interests.
COUNT FIVE (Administrative Procedures Act)
99. The Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1-98 above.
100. The Respondents have adopted sub-regulatory policies or procedures of (1) failing to adjudicate requests for release under Zadvvdas in a timely manner; (2) "suspending" removal periods and postponing release of individuals who allegedly have not shown sufficient efforts to secure their own removals, where those individuals have in fact performed all acts reasonably to be expected by Respondents; (3) requiring detainees to submit evidence oftheir cooperation in securing their removal from the United States, while refusing to consider facts within the files of detainees, despite regulations authorizing review of the file; 8 C.F.R. §§241.4(i)(7), 241.13(f); (4) requiring clearly futile efforts by individuals to secure their removal from the U.S., even where the Respondents know that the detainee's country of origin will not accept their removal; and (5) failing to
27

consider the length of post-order detention in evaluating the possibility that removal can be effectuated or that effect of any purported non-cooperation in securing removal. 101. These agency actions are, and will remain, agency actions which are arbitrary, capricious, and not in accordance with the law. Administrative Procedure Act, 5 U.S.c. §§ 701 et seq. 102. The INS and its district and subdistrict offices are "agencies" as defined in the Administrative Procedure Act. See 5 U.S.C. § 701(b)(l).
103. As a direct and proximate result of the Respondents' policies and procedures,
members ofthe Plaintiff class have suffered the injury of continued detention, even where detention is not authorized by statute since there is no reasonable likelihood of removal in the foreseeable future. The Plaintiff class will continue to suffer said injury while the current policies, procedures, and regulations are in place.
COUNT SIX (Declaratory and Injunctive Relief)
104. The Petitioners reallege and incorporate by reference each and every allegation contained in paragraphs 1-103 above.
105. An actual and substantial controversy having arisen between the parties, and that controversy continuing to exist regarding their respective rights and duties, including without limitation the finding that the Petitioners remain subject to the Attorney General's power to detain non-citizens and the propriety of that continued detention, Petitioners ask the Court to issue a decision regarding the respective rights and obligations of the parties.
106. Declaratory relief is necessary in that, as noted herein, Petitioners contend that the
28

Respondents are improperly continuing to detain the Petitioners beyond the grant of statutory authority and in violation of the Constitution. Further, Petitioners contend that the Due Process clause of the Fifth Amendment prohibits their continued detention past the presumptively reasonable deportation period of six months unless some impartial adjudicator determines that such detention should continue. 107. The Petitioners allege that the relief available in law is insufficient to cure the injury complained of herein, namely, continued detention without sanction of law. 108. Petitioners ask the Court to grant preliminary and permanent injunctive relief, ordering the Respondents to release the Petitioners from custody, unless and until the Respondents become able to effectuate the deportation / removal of the Petitioners from the United States. Petitioners would also ask the Court to grant preliminary and permanent injunctive relief ordering the Respondents to cease and desist from detaining members of the Plaintiff class after the end of the presumptively reasonable six month period after a final order of removal, unless and until some impartial adjudicator determines, through a procedure which comports with Procedural and Substantive Due Process, that the continued detention of class members is justified and proper. 109. Petitioners ask the Court to grant Declaratory relief to the Plaintiff class, finding that the continued detention of the Plaintiff class after the end of a presumptively reasonable six month period is unauthorized by statute under the current regulatory scheme, because that scheme is violative of Due Process norms; that the Respondents' regulations and procedures are facially violative of the Due Process Clause of the Fifth Amendment; and that Respondents' regulations and procedures violate of the Due Process Clause as applied to the Plaintiff class.
29

PRAYER FOR RELIEF
WHEREFORE, Petitioners respectfully asks the Court to:
I. Assume jurisdiction over this matter; 2. Issue a Writ of Habeas Corpus requiring the Respondents to produce the
Petitioners and to show why Petitioners' detention is not unlawful; 3. Declare that the continued detention of individuals past the six month
"presumptively reasonable" period is beyond the authority granted to the Attorney General by statute, in the absence of constitutionally sufficient procedures; that the Respondents' regulations and procedures are facially violative of the Due Process Clause of the Fifth Amendment; and that Respondents' regulations and procedures violate of the Due Process Clause as applied to the Plaintiff class; 4. Grant temporary and permanent injunctive relief, ordering the Respondents to release all members of the Plaintiff class from custody, unless and until the Respondents become able to effectuate the deportation I removal ofthose individuals from the United States. 5. Grant temporary and permanent injunctive relief ordering the Respondents to cease and desist from detaining members of the Plaintiff class after the end of the presumptively reasonable six month period after a final order of removal, unless and until some impartial adjudicator determines, through a procedure which comports with Procedural and Substantive Due Process, that the continued detention of that individual is justified and proper. 6. Grant preliminary and permanent injunctive relief, enjoining the Respondents from (I) failing to make a determination whether to continue detention before the expiration of 180 days after entry of the order of removal; (2) "suspending" the removal period for members of the Plaintiff class where efforts to secure removal
30

would be futile, or where the detainee's file shows no evidence of noncooperation; (3) refusing to consider the likelihood of removal in the reasonably foreseeable future at the first stage of the post-order detention process; (4) requiring members of the Plaintiff class to prove cooperation, where there is no evidence or indication of non-cooperation in securing removal; and (5) failing to consider the length of post-order detention in evaluating the possibility that removal can be effectuated or the effect of any purported non-cooperation in securing removal. 7. Order the immediate release from custody of members of the Plaintiff class, under appropriate and reasonable conditions of parole; 8. Order the Respondents to pay appropriate legal fees to the Plaintiffs; and 9. Grant such other relief as the Court deems necessary and proper.

Respectfully Submitted:
Attorneys for Petitioners Charles Roth Anne Relias Midwest Immigrant and Human Rights Center 208 South LaSalle Street, Suite # 1818 Chicago, Illinois 60604 T (312) 660-\613 F (312) 660-1505

,
Date

31

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Jalal Hmaidan Murad AI-Hnitin Maitham Alzehrani Muhammad Aidouni NhatTran Keovongsack Ponghrachanxay Den Son
Petitioners
v.
John Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, an Agency of the United States Department of Justice, Respondents

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INDEX OF EXHIBITS

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INDEX OF EXHIBITS

EXHIBIT A PERTAINING TO PETITIONER JAMAL HMAIDAN

I) Notice to Appear 2) Order of Removal from the Immigration Judge 3) August 8, 2001 Written Order of the Board ofimmigration
Appeals denying Petitioner's appeal of his order of removal 4) March 22, 2002 Letter from Petitioner's Attorney to the Post Order
Detention Unit ofthe INS in Washington, DC requesting Petitioner's release from INS Custody and including a March 22, 2002 Notice of Entry of Appearance as Attorney or Representative (INS Form G-28) and Attached Supporting Documentation 5) April 29, 2002 Notice of Custody Review from INS Chicago District 6) May 3, 2002 Letter from Petitioner's Attorney to the INS Chicago District in response to their Review Letter (and additional documentation for which see also Exhibit A(4»

7) May 8, 2002 Letter from the Post Order Detention Unit indicating that the removal period is "suspended" until Petitioner supplies evidence that he cannot be removed to Jordan.
8) May 24,2002 Letter from Petitioner's Attorney to the Post Order Detention Unit ofthe INS in Washington, DC in response to their May 8, 2002 letter
9) February 4, 2002 Letter from Petitioner's Attorney to the Embassy of Kuwait requesting travel documents on behalf of Petitioner
10) February 4,2002 Letter from Petitioner's Attorney to the Jordanian Consulate requesting travel documents on behalf of Petitioner
II) February 18,2002 Letter from Petitioner to the Jordanian Consulate requesting travel documents
12) February 18,2002 Letter from Petitioner to the Kuwaiti Embassy requesting travel documents
EXHIBIT B PERTAINING TO PETITIONER MURAD AL-HNITIN
I) October 4,2001, Notice to Appear before an Immigration Judge 2) October 24,2001 Order of Removal 3) March 3, 2002 Letter from Petitioner to the INS Chicago District
Director indicating his willingness to cooperate 4) June 6, 2002 Letter from Petitioner's Attorney to the Jordanian
Consulate requesting travel document for Petitioner 5) June 28,2002, Letter from Petitioner's Attorney to the Post Order
Detention Unit of the INS in Washington, DC requesting Petitioner's release from INS Custody and including a May, 5 2002 Notice of Entry of Appearance as Attorney or Representative (INS Form G-28) 6) July 10, 2002, Letter from the Post Order Detention Unit, indicating that the removal period is "suspended" until Petitioner supplies evidence that he cannot be removed to Jordan
EXHIBIT C PERTAINING TO PETITIONER MOHAMMAD AIDOUNI
I) June 30,1999, Notice ofIntent to Issue an Administrative Final Removal Order & Final Administrative Removal Order
2) August 10, 1999, Final Administrative Removal Order 3) Notice of Referral to Immigration Judge, Reasonable Fear
Determination Worksheet and Record of Determination/Reasonable Fear Worksheet 4) October II, 200 I, Board of Immigration Appeals Decision 5) December 28,1999, Notice to Alien of File Custody Review 6) February 4, 2000, Letter from Brian Perryman, District Director of the INS Chicago District 7) November 6, 2001, Notice to Alien of File Custody Review

8) May 16, 2002, Decision to Continue Detention Following Review
EXHIBIT D PERTAINING TO PETITIONER MAITHAM ALZEHRANI
1) December 15, 2000, Notice to Appear before an Immigration Judge
2) August 20, 200 I Order of Removal from the Immigration Judge 3) October 3, 2001 Decision to Continue Detention 4) May 2,2002 Decision to Continue Detention 5) May 10, 2002 Letter from Petitioner's Attorney to the Post Order
Detention Unit ofthe INS in Washington, DC, including a December 28, 200 I Notice of Entry of Appearance as Attorney or Representative, (INS Form G-28) 6) Letter to Chicago District Director, Brian Perryman, from Petitioner, requesting his release 7) November 5, 2001 Letter to Frank Moore, Chicago INS Officer from Petitioner indicating his willingness to cooperate 8) June 7, 2002 Letter to the Post Order Detention Unit of the INS in Washington, DC from Petitioner requesting release 9) May 22, 2002 Letter from the American-Arab Anti-Discrimination Committee to the Post Order Detention Unit of the INS in Washington, DC 10) Letter from Petitioner's Attorney to the Iraqi Interests Section requesting travel documents for Petitioner I I) June 6, 2002, Letter from the Headquarters Post Order Detention Unit, indicating that the removal period is "suspended" until Petitioner supplies evidence that he cannot be removed to Iraq. 12) Fiscal Years 1993- I998 Chart: Aliens Removed by Criminal Status and Region and Selected Country of Nationality
EXHIBIT E PERTAINING TO PETITIONER NHAT TRAN
1) November 15,2001, Notice To Appear 2) January 8, 2002, Removal Order of the Immigration Judge 3) March 18, 2002, Notice to Alien of File Custody Review
EXHIBIT F PERTAINING TO PETITIONER KEOVONGSACK PONGPHRACHANXAY
I) November 9, 2001, Warrant for Arrest of Alien 2) December 20, 2001, Order of Removal from the Immigration
Judge 3) March 18,2002, Notice to Alien of File Custody Review

4) May 21, 2002, Letter from Post Order Detention Unit, indicating that the removal period is "suspended" until Petitioner supplies evidence that he cannot be removed to Vietnam.
EXHIBIT G PERTAINING TO PETITIONER DEN SON
I) May 25, 1993, Order to Show Cause 2) September 22, 200 I, Notice to Alien ofFile Custody Review 3) June 28, 2002, Petitioner's Attorney's Letter to Embassy of
Vietnam Requesting Travel Documents 4) June 28,2002, Letter to INS Chicago District requesting release
from custody 5) June 28, 2002, Letter to INS HQPDU requesting release from
custody under Zadvvdas v. Davis and including an April 8, 2002, Notice of Entry of Appearance as Attorney or Representative (INS Form G-28)

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EXHIBIT A

~UU2

In removal proceedings under sectiOll 240 of the Immigration and Nationality Act File No: A2I) 318 431
Tn the Mattei of:

(Numbec. ~ dI,y. IIbste aDd ZIP coc1o)

IL

62656

(217)735-5581

oD 1. You are an arriving alieo..
2. You ""6 an alien present in.' tIu> Unixed States who bas not been admitted or paroled.

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_.

....,

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Il!I 3. You bave been admitted to the United States, but SIC deportable for the rea.oons stated below.

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\ n• Service alleges that you:

(,;.,,~.
~ ~"'

1.You are not a citizen or national of the Unixed States:

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. "2.Youare a native of Kuwait and"a cili2!en o f J o r c l a n ; "

;:=<"l

g 3.You were admitted to theUDited States at New York City, ~ on or about 06/1:3n6 asanonimmigraat (B-2);'

~" 4.Your status waS adj\lSted to that of a Iawfu1 pel'llWlCllt resident on 02102183 under section 24S of the Act;

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f:
0

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_~ S.You were, 00. 04/08/99, oonvieted in the Citc:uit Court [at] Cook County, n. for tbe off'CIISC of Aggmvated Disc.bai'g'e of'a)Fireaim,"case

'll N9SCR1960401, in vioJanon of 720 n.CS S/24-1.5(A), ("Or which a sentence of 3 yea:tS IDOC was imposed.

It.~\)

6.You were, Substll!1cc,

on 04/08199; convicted in the Circuit Court [at] Cook County, n. for the offense of Matw1lIcturinglDelivcxy ofa Controlled
to wit: Cocaine, ease #$96CR3067201, in violetion of 720 n.cs S70/401(C)(2), for which a sentence of 6 years IDOe was

imposed."

S:. On the basis of the foregoing, it is charged that you are subject to reJlIOval from tIu> United states pw:suant to the following
~ provision(s) of lew:
~ Section 237(a)(2)(A)(ill) of the Immigratton and Nationality Act (Act), as amauIed, in that, at any time after admission, .you h:ive been
t of ~ convicted of an aggravated felony as defined in Section 101(a)(43)(I3) of the Act, an offense relating to the nJicit trafficJcing in a controlled substll!1ee, ... described in sectiO!1l02 of the Controlled Substances Act. including a drug ttafficlcing crime, as defined in section 924(c)
r Title 18, UDited States Code. Section 237(a)(2)(I3)(i) of the Immigration and Nationality Act. as amended, in that, at any time after admission, you have been convicted of a vio1etioo. of (or a conspiracy or attempt to violate) any lew or regulation of a State, the UDited States, or a fomgo. counlly Ieleting to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. 802), other than a single offense involving possessio\l for one's own use of 30 grams or less of marijuana.

o This notice is being issued after an asylllm officer has found that the respondent bas demcmstrated a credible fear .of persecution.

D SectiOJ123S(b)(1) order was vacated purswml to: 0 8 CPR 208.:30(1)(2) 0 8 CPR 23S.3(b)(S)(iv)

YOU ARE ORDl3RBD to appear before an immigration judge of the United States Department of Iustice at:

S5 E MOlll'Oe, Suite 1900 Chicago, TIlinios 60604

"

011

To BeSet

(DO'"

charge(s) set forth above.

(CompIetcAdQ:a orhant~.a.Coo.iA, faoIudlq Rooa:r.NIIII:Ibcr. iC..,J
at --""'(11000)=:;---- to show why you should not be re!l'lov<,a

th."United States based on the

See reverse for important information

40)

07/17/2002 WED 13:49 FAX

141 003

-. .!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!l!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!r"~!!!l!!l!!!!!!!l!!!!!!!!!!!!!!!!!!!!l!!!!!!!!l!!!!!!!!!!!~<" .W!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!l!!!!!!!!!!!!!!!~

~ -::'ee reverse for important infonnat. _./

warning: Ally statement you make may be used against you in removal proceedings.

Alieq Registration: This copy of the Notice to Appear served upon you is evidence of your alien tegistration while YOll are under removal proceedings. YOll are required to CMry it wilh you at all times.

Representation: Ifyou so cboose, you lIllIy be repzeoented in Ibis proceeding, at no expense to the Govemmenl, by an attomey or other individual autl).onw and qualified to tepresent persons bcfoxe the Executive Office for Immigration Review, pursuant to 8 CFR
3.16. unltSs YOll SO request, no he3ring will be scheduled earli~ than ten days from the date of this none., to allow you sufficient
time to secure collDS6l. A list of quaIified attomey. and organ;...tions who may be available to represent YOll at no cost will be provided with Ibis Notice. .
Conduct ot the hearing: Ai tho lime ofYOW' hearing, you should bring with you any affidavits or other documems which YOll desire
to have COllSidered in collDcction with your case. Ifany docUJneal is in a foxeign languAge, you must bring the oJisinal and a certified English translation of the document. Iiyou wish to bave the testimony of any wituesscs considered, you should urange to have such witnesses present at the hearing.

At yout' bearing you will be given the opporrunity to admit or deny any or all of the allegations in the Notice to Appear and that you

are inadmissible or deportable on the cbargcs contained in the Notice to Appear. You will have an opportu:olty to present evidence on

your own behalf, to examine any evidence presented by the Government, to object, on proper legal grounds, to the receipt of evidence

Snd to c%c>ss examine any witnesses preseated by the Government.

.

You will be advised by the immigratiol1judge before whom you appear, of any relief from removal for which you may appear eligible including the privilege of del'a:rting volUlllarily. You will be given a rellSODable opportunity to msh: any sueh application to the immigration judge.

Failure to appear: You are required. to provide the INS, in writing, wlthyour full mailing address. and telephOlll> number. You must

notify lb. Jmmigl'ati0ll Court the course of dUs ptoceeding.

jm",...,)jatcly by using FOl11l You will be provided with

EOIR-33 wh£:Devcr a copy of thi$ form.

you ehange your address Notices of hearing will

or be

tefephone mailed 10

nIbuismabdedrrd"u".r.inIgf

)'Ou do not submit .Pam. BOIR·33 and do not othctwige provide an address at which you may be ~bed during proceedings, then Ibe

Government shall not be required to PC'OvWe you witb written notice ofyoUr hearing. Ifyou fail to attcod the hearing at the time and

place designated on Ibis notice, or any date and lime later directed by the Immigralion Court, a temOvaI order may be made by the

immigration judge in your absence, and you may be arrested and detained by the INS.

Request Cor Prompt Hearing
To expedite a detenniDation in my case, I request an immediate bearing. I waive my right to have a lCklay period prior to appcarin! before an immigration judge.

Jlefore:

Date: ____________------

Certifuate of Service

l,/d!hQ This Notice to Appear was served QJ1 the respondent by me 011

compliance with section 239(a)(1)(F) of the Act:

(IJoU\l

' in the follOWing manner and in

D in person

D by certified mail, return receipt requested

9V by regular mail

liQ?\tts.ched is a list of organizations and attorneys wbich provide free legal services.

D The allc:n wss provided oral notice in the

languAge of the time and place of his or her

hearing and ofthe consequences of failure to appear as provided( :

4O(b)(7) of the Act.

(m~or~JtPortoa:all)'SoMId)

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Iil the Matte>r of;
~C\\t\\ At£~ Respondent

.~e, xeellt''l\tC G,'~, irt' ce lco, r I nll1U' Sl~''.U'L!on Jn.:...eV"le\V

,"'·OffiCi> ofth" Immigration Judge

55 E. Mouroe Street, Suite 1900

. Chic~go> Illinois 60603

\ \

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~f\~A!1>AJ

INEEMOVAL PROCEEDINGS

This is a summary ofthe oral decision entered on

I() - L,..r - ~

This mtlmonmdum is solely for the conv,,'uj,mcIil of th.. partilils, If th", proceedings should b" appIilllled

Of J'eopefl~J, me orai decision wiB becom e me ofikiai opinion in the case.

[><::]. The t-espondent was ordered removed from the United States to

L ~(J(

;( ] Respondetlt's application for voluntary departure W!lll denied 91ld respondent W!lll ordered

n'llloved to

.

[ ] Re>1polldetlt's application forvoltUltary departure was grallted until

_

. upon postID.3.n bond in the ruUUWlt oU

with an altet1latea order ofr-emoval to

[ ] :RespondIlIit's application for asylum 'NUS ( ) granted ( ) dlilnied. ( ) withdrnwn,

[ J Respondent's application fOl'withholding ofremoval waa(' ) granted, ( ) denied

( ) withdrawn, ' .

'. '"

.

[ ] Re~'P0lldent'snpplic9tjon forcancelt9tion of removal under Section 240A(a) WIIilJ ... ) granted

. ( ) denied () withdrawn,

. . ' .' ....

'. ..... .' •.•.... .

( ] Respondent's9pplication for c91lcdlation of remoyal undet Section240~(~) ~. ( .... ) ptod

( ) denied .' ( ) withdraW!!. 1£granted, jt~ ordered tbm the respond~t be issued all·

was (. -) nppropriatedocum.mtsuecessllryto give effect to thisol'der.. '.. .... .... .....'. ' •.•••. "..

[ l ' ResponcWnt's application for a waivE.'r under SE.'ctiou·' 2~_ oftheINA

Sr!ll1ted

( ) denied ( ) witlt<w.l.wn ( ) other.

'.

.' .'

( ] Respondent's application foradju&tmentofstatirsunder~e~tion .... . •. ..~f.theiNAW!lll .
was ( ) @-aIlfed ()d~ni"d (.) ~lithdrmviz, Ifgrant~d; it ordered thaftb respondent be

issued all approprhit" QQcu!U<:>nts ll."!!,,ssary to give ~~ct to this Qrd",r. . ' , .

[ J Respondent's silliull W!Ill re~cinded uuder Section 246.

' .

] Rt!>1poncient is !!dillitted to the United States ruI a '. .

until ,_.'_ _ _ _.

] All a condition ofmisgion, respond~nt is to post a $______boncl.

]. Respondent knowingly filed a fHvolous asyluIDepplicatiori. after proper notice. .

] .' RespolJdent waq advised of the limitmion on discretionary relieffol' fhllu!'e to lIPpeill' IlB ordered

' .. in th.;; Immigration JtII:!g~'s ornl d~cisii)l1. .

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_~~dJ-U ¥"SO Appeal Due by: ''--''-1),

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R05.m D, Vinikoor (.
Iuunigl'ationJudge .

..... -IIII!EX!H~II!BI!!!IT!III·
fA (2.)

'of: .

Berg, Royal F., Esquire
33 ,North LaSalle, Suite 2300 Chicago, IL 60602

u.s. Department of l "-~ ~

Executi ve Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

_~G'3> -cJ <~\ ~

fS-- \ J.1j fOr 5201 Leesburg Pike. Suite 1300 "

I - ~ 0 0 - ['1 ~-1'\ ~' (

Falls Church. Virgin;:;~~ q'J~"\- ') '\ ).. - :3

1

Office of the District Counsel/CHI P.O. Box A-3423 Chicago, IL 60690

Name: *S-HMAIDAN, JALAL AYED

A20-318-437

Date of tl)is notice: 08/08/2001

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Very Truly Yours,

.•. -'"
Enclosure

Lori Scialabba Acting Chairman

Panel Members: GRANT, EDWARD R. JONES, PHILEMINA M. THOMAS, ELLEN K.

EXHIBIT
I A(s)

U.S. Department of· 'tic,",
Executive Office for Imm.". .ltic view
Falls Church, Virginia 22041
File: A20 318 437 - Chicago

Dec

I ' lard ofImmigration Appeals

Date: AUG a8 2001

In re: JALAL' A YED HMAIDAN

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Royal F. Berg, Esquire

ON BEHALF OF SERVICE: Seth B. Fitter Assistant District Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)]Convicted of aggravated felony

Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)]Convicted of controlled substance violation

APPLICATION: Deferral of removal

We have jurisdiction over this timely appeal pursuant to 8 C.F.R. §§ 3.1(b) and 208.31.

Removability is contested. The first issue on appeal is whether these proceedings should be

terminated because the respondent is a United States citizen. The second issue on appeal is whether

the respondent was denied due process in these proceeding. The third issue on appeal is whether the

Immigration Judge correctly found that the respondent was not entitled to deferral ofremoval under

article 3 of the United Nations Convention Against Torture ("Convefition").t We find that the

Immigration Judge's resolution of these issues was correct, and we will dismiss this appeal. The

request for oral argument is denied.

,

~

We will first address whether the respondent is a United States citizen. The respondent argued on appeal that he is a citizen of this country because his mother became a citizen of this country through naturalization on March 6, 1973, and she legally adopted him on May 17, 1978. We note that he was less than 18 years old at the time of his adoption. We also note that the respondent did not become a lawful permanent resident of this country until February 2, 1983.

1 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature February 4, 1985, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51 at 197, U.N. Doc. AlRES/391708 (1984), reprinted in 23 l.L.M. 1027 (1984), modified in 24 l.L.M. 535 (1985).

A20 318 437

The burden of proof in establishing alienage in deportation proceedings is on the Immigration and-Naturalization Service. United States ex rei. Bilokumsky v. Tod, 263 U.S. 149 (1923); United States v. Neelly, 207 F.2d 281 (7th Cir. 1953). However, one born abroad is prima facie an alien. Matter ofA-M-, 7 I&N Dec. 332 (BIA 1956). Furthermore, where it is undisputed that an alien sought to be deported was born in a foreign country and came to the United States from that country, the burden of proof to establish United States citizenship is upon the alien. United States y. Neelly, supra. Such an alien is required to affirmatively establish his citizenship claim. Matter ofA-M-, supra. A bare claim of citizenship, unsubstantiated by any evidence is insufficient to meet the alien's burden. United States v. Neelly, supra.

The respondent has admitted th~t he is a native ofKuwait and a citizen ofJordan. Thus, he bears the burden of establishing his United States citizenship. He has submitted documentation with his Notice of Appeal to prove his claim that he is a citizen of this country based upon his contention mentioned above.

Section 321 (a) ofthe Immigration and Nationality Act provides that a child born outside ofthe United States of alien parents automatically acquires United States citizenship upon fulfillment of the following conditions:

(1) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one of the parents is

deceased; or

(3) The naturalization of the parent having legal custody ofthe child

when there has been a legal separation of the parents or the

naturalization of the mother if the child was born out of wedlock and

the paternity of the child has not been established by legitimation;

and if

(4) Such naturalization takes place while such child is under the age

of eighteen years; and

~.

(5) Such child is residing in the United States pursuant to a lawful

admission for permanent residence at the time ofthe naturalization of

the parent last naturalized under clause (I) or the parent naturalized

under clause (2) or (3), or thereafter begins to reside permanently in

the United States while under the age of eighteen years.

However, section 321 (b) 6fthe Act further provides that subsection (a) referred to above shall apply to an adopted child only if the child is residing in the United States at the time of naturalization of such adoptive parent or parents, in the custody ofhis adoptive parent or parents, 'pursuant to a lawful admission for permanent residence.
•

2

A20318437

The respond::nt has not proved that he is a United States citizen because he has not established that when his mother was naturalized on March 6,1973, he was residing in the United States in her custody as a lawful permanentresident ofthis country. Consequently, we find insufficient evidence in the record that the respondent is a United States citizen under this provision.

In reaching our decision, we have considered the respondent's argument that section 321 (b) of the Act is unconstitutional. The Board is not empowered, however, to rule on the constitutionality of the statutes and regulations that we administer. Matter of Valdovinos, 18 I&N Dec. 343 (BIA 1982).

We further note that the respondent argued that he is a United States citizen based upon the automatic cit:zenship provisions of section 320 of the Immigration and Nationality Act, 8 U.S.C § 1431 (1994), as amended by the Child Citizenship Act of2000, Pub. L. No. 106-395, 114 Stat. 1631 ("CCA"). Under the new law, a child born outside of the United States automatically becomes a citizen when the following conditions are met: I) at least one parent of the child is a United States citizen, whether by birth or naturalization; 2) the child is under the age of 18, and 3) the child is residing in the United States in the legal and physical custody of the citizen parent after having been lawfully admitted for permanent residence. However, all these requirements must be proven to exist on or after February 27,2001.

In addition, we note our decision in Matter ofRodriguez-Tejedor, 23 I&N Dec. 153 (BIA 2001). Therein, the Board held that the Child Citizenship Act is not retroactive and, consequently. does not apply to an individual who resided in the United States with his United States citizen parents as a lawful permanent resident while under the age of 18 years, but who was over the age of 18 years on the effective date of the Child Citizenship Act. See also Hughes v. Aschcroji, 2001 WL 699351 (9th Cir. 2001); Nehme v. INS, 252 F.3d 415 (5th Cir. 2001).

We conclude that the respondent has not established that he is a citizen ofthis country under the

.

<.

Child Citizenship Act. The record reflects that the respondent was 34 years old on February 27,

2001, and therefore he cannot prove that he satisfies the second element referred to above. See

MatteroJRodriguez-Tejedor. supra. We therefore decline to terminate orremand these proceedings.

We will now address whether the respondent was denied a fair hearing in these proceedings. He argued that it was improper for the Immigration Judge to have conducted these proceedings through a video· conference. The regulations provide, however, that an Immigration Judge may conduct hearings through a video conference to the same extent as he or she may conduct hearings in person. See 8 C.F.R. § 3.25(c). Consequently, we find nothing inherently improperregarding the use ofa video conference in these proceedings.

3

A20 318 437
In addition, before the proceeding will be invalidated, it is required that the respondent establish that he was prejudiced by the use of a video conference. Hartooni v. INS, 21 F.3d 336. 339-40 (9th Cir. 1994); Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994); United States v. Mendoza-Lopez, 7 F.3d 1483 (10th Cir. 1993); Ortiz-Salas v. INS, 992 F.2d 105 (7th Cir. 1993); United States v. Polanco-Gomez, 841 F.2d 235 (8th Cir. 1988); United States v. Garcia-Jaramillo, 604 F.2d 1236 (9th Cir. 1979); Matter ofG-, 20 I&N Dec. 764 (BIA 1993); Matter of Santos, 19 I&N Dec. 105, 107-08 (BIA 1984).
Having carefully reviewed the record, we find that the respondent has failed to demonstrate that he was denied a fundamentally fair hearing. The respondent has presented no specific illustrations of exactly how the result in these proceedings would have been different had the Immigration Judge conducted the proceedings in person. Consequently, this aspect of the appeal is dismissed.
The respondent further argued on appeal that the Immigration Judges who heard his case were biased. We find no indication from the record that the Immigration Judges' conduct was improper, displayed bias, or exceeded judicial bounds. We therefore are unable to find that the respondent was denied due process.
The respondent also argued on appeal that the Immigration Judge erred by finding that his alienage had been proven by the Service. We have reviewed the record and find sufficient proofthat the respondent is not a citizen of the United States. We note for instance that the record contains a copy of the Record of Deportable Alien (Form 1-213). This.document appears to be reliable and contains the respondent's name, date of birth, and indicates that he was born in Kuwait. Consequently, we find that alienage has been established. See Matter of Hernandez. Interim Decision 3397 (BIA 1999); Matter ofMejia, 16 I&N Dec. 6 (BIA 1976).
We have also considered the respondent's argument that the Immigration Judge incorrectly admitted this document into evidence because it was presented in violation of the 1O-day rule. The record reflects that the respondent refused to admit or deny at the hea"fing any of the allegations contained in the charging document. To prove alienage, the Service then introduced the Form 1-213 into the record. Later in the hearing, the respondent sought protection under the Convention, and testified he is afraid to return to his country 6fcitizenship, Jordan. Inasmuch as it is undisputed that the respondent was not born in this country, we do not find that he was prej udiced by the admission into the record of the Form 1-213. We therefore see no reason to remand these proceedings to conduct a hearing on whether the respondent is an alien.
The respondent argued on appeal that the documents presented to prove removability do not relate to him. We have reviewed the documentation contained in the record including the conviction records, and find that they relate to the respondent and prove the charges contained in the Notice to Appear. Any discrepancy in the spelling of the respondent's name appears immaterial.
4

A203l8437

We will now address the respondent's claim under the Convention. To qualify for withholding or deferral 'of removal under the Convention, an applicant must prove that he will be tortured if he returns to his native country, and the act will be instigated by or with the consent or acquiescence ofa public official or other person acting in an official capacity. See 8 C.F.R. § 20S.1S(a)(I). Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination ofany kind. See S C.F.R. § 208.IS(a)(l). Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment. See 8 C.F.R. § 208.l8(a)(2). An applicant for withholding or deferral of removal under the Convention bears the burden of proof that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. See 8 C.F:R. §§ 20S.16(c)(2); 208.17(a).

The respondent argued that he will more likely than not be tortured in his country because he was convicted ofa drug-related offense in the United States. We have reviewed the background evidence on Jordan submitted by the respondent. Although we do not deny that there are many human rights abuses in that country, we are unable to identify any indication that the Jordanian government more likely than not tortures its citizens for having servedjail sentences in other countries for drug crimes committed abroad. We further are unable to find that the respondent will likely be tortured in his country because he sought protection under the Convention.

In addition, we have reviewed the record ofproceedings, the Immigration Judge's decision, and

the remaining arguments raised on appeal. We find the Immigration Judge adequately and correctly

addressed the issues presented, and the decision of the Immigration Judge is affirmed based upon

and for the reasons set forth in that decision. Consequently, we find no error in the Immigration

Judge's decision to'deny the respondent's request for deferral of removal under article 3 of the

Convention.

"

We have also considered the respondent's argument that the transcript in these proceedings was defective. We find no indication that any material error appears in the transcript ofthe proceedings.

ORDER: The appeal is dismissed.

5

A HEARTLAND ALLIANCE PARTNER
March 22, 2002
David Venturella Office of Detention & Removal Operations 801 "I" Street NW, Suite 900 . Washington, DC 20536 VIA FAX: 202-353-9435
Re: Release of Mr. Jalal Ayed Hmaidan (A20-318-437) under INS v. Zadvydas
Dear Mr. Venturella,
I am writing to request the release of Jalal Hmaidan. Mr. Hmaidan is of Palestinian descent,
born in Kuwait, but who resided in Jordan and is essentially stateless. He was ordered removed by an Immigration Judge on October 25,2000. (See attached removal order, exhibit 1) and the Board ofImmigration Appeals dismissed his appeal on August 8, 2001 (see attached Board decision, exhibit 2). He has been in INS custody for over seven months since a final removal order and the INS has been unable to effectuate his removal. The Federal Regulations regarding release of detainees six months after a final removal order invite him to submit evidence that his
removal is not possible in the reasonably foreseeable future. On behalfof my client I am doing
so.
Mr. Hmaidan has been in INS custody for over seven months since a final deportation order. The
2000 Country Report on Human Rights Practices for Jordan states that there are" 150,000 Palestinian residents who are refugees or children ofrefugees." See Department of State 2000
Country Report on Human Rights Practices for Jordan, p. la, exhibit 3. In addition, the
government has emphasized that passports given to Palestinians" do not connote citizenship, which only can be proven by presenting one's national number, a civil registration number accorded at birth or upon naturalization to persons holding citizenship." ld. Mr. Hmaidan never received a national number and thus never was considered a citizen of Jordan and therefore, will not, reasonably in the foreseeable future, be issued travel documents. INS has not been able to remove Mr. Hmadian in the six months the United States Supreme Court has allotted them.
Mr. Hmaidan has fully cooperated with the INS's efforts to remove him from the United States.
In complying with INS's further request that the detainee attempt to facilitate his release we have
written to the Jordanian and Kuwaiti Consulates requesting travel documents from Mr. Hmaidan. Both Mr. Hmaidan, and myself, have written to the Jordanian and Kuwaiti Consulates. See
attached copies ofletters, exhibits 6,7,8,9 and 10.

Providing paths from harm to hope through human services Midwest Immigrant & Human Rights Center
TIAlChicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604 phone 312-660-1300 fax 312-660-1505 website: www.heartland-alIiance.org

EXHIBIT

The crimes Mr. Hmaidan committed were drug related and are not of a violent nature. See attached criminal records, exhibit 4. Mr. Hmaidan has many family members in the United States who are either United States citizens or lawful permanent residents. His mother, Haifa Ahmed, has been a United States citizen since 1973. If released he will live with Jamal Hemeidan at 1595 Brookvale Drive, #5, San Jose, CA 95129 (T: (408) 255-8997, C: (408-656-2333). Jamal is Jalal's brother and is in the process of naturalizing. See Support Letter, LPR Card, and Naturalization Appointment, Exhibit 5. Mr. Hmaidan also has a United States citizen child who is eleven years old.
Enclosed are the following documents supporting Mr. Hmaidan's release under Zadvvdas v. Davis:
1. The decision of the Immigration Judge ordering removal, dated October 25, 2000. 2. The decision of the Board of Immigration Appeals, dated August, 8, 2001. 3. United States Department of States Country Report on Jordan, 2000, excerpt. 4. Criminal records of Mr. Hmaidan. 5. Support letter ofbrother of Mr. Hmaidan, a copy of his LPR Card, and copy of
Naturalization Appointment. 6. Mr. Hmaidan's letter to INS Chicago District reflecting Mr. Hmaidan's willinguess to
cooperate in his removal. 7. Mr. Hmaidan's letter to the Jordanian Consulate requesting travel documents. 8. Mr. Hmaidan's letter to the Kuwaiti Consulate requesting travel documents. 9. My request to the Kuwaiti Embassy for travel documents for Mr. Hmaidan and a certified
receipt. 10. My request to the Jordanian Consulate for travel documents for Mr. Hmaidan.
I further reiterate my request that Mr. Hmaidan be released as continuing to hold him violates United States law as decided by the United States Supreme Court. Please respond to this letter within five days. Failure to comply with the Supreme Court decision within that time will result in appropriate legal action.
Thank you for your attention in this matter. Sincerely,
Anne Relias Attorney at Law Midwest Immigrant and Human Rights Center 208 South LaSalle, Suite 1818 Chicago, Illinois 60604 T: (312) 660-1359 F: (312) 669-1505

SENDER: COMPLETE THIS SECTION
• Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired.
• Print your name and address on the reverse so that we can return the card to you.
• Attach this card to the back of the mailpiece, or on the front if space permits.
1. Article Addressed to:
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If YES, enter delivery address below:
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2. Article Number (Copy from service label) PS Form 3811. July 1999

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102595-99·M-1789

*************** -OOMM.JOURNAL- ******************** DATE MAR-22-2002 ***** TIME 18:18 *** P.01

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~

MODE = MEMORY TRANSMI~"JON

START=MAR-22 ~8:~7

END=MAR-22 18: 18

FILE NO.= 052
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001

STATJ ON NAME/ TELEPHONE NO.
12023539435

PAGES PRG. NO. PROGRAM NAME -TJA MIRe

************************************ -

- ***** -

3126291960- *********

FACSIMILE

f.~
HEA:RTLAND~E

MIDWEST IMMIGRANT & HUMAN RIGHTS CENTER

Fax: (312) 660-1505 Phone: (312) 660-1370

TO:

FAX:

FROM:
PHONE: _~3"",,1.ld:.2,-,-Io"-"'(D,,-,"Q,----,-,1s.....,5.::::...9-<--_ _ _ __

DATE: PAGES:

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nus MESSAG6 IS INTBN!>ED ONLY FOR THE USE OF THE INt)MDUAL OR ENTIrr' TO WHICH IT IS ADDRESSED, AND MAY
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DEUVER1NG THS MESSAG! TO 'tHE INTEN08t) ltEClPJENT. YOU ARE HEREBY NOTlFl£D THAT ANY DISSEMINATION, DISTRmortoN OR. COWING OF nns COMMUNICATION IS STR1CTLY PROHmI'T'E'D. IF YOU HAW REC8IVED ntIs COMMUNICATION IN ERROR PLSASS NOTIFY US lMMEDIATEl.Y BY TBLBPHONB, AND REroRN niE ORIGINAL M2SSAGE IQ. IrsYIA ErnSTer ASS MArL
Midwes t Immigtant &: Human Rights Center; 208 SOllth LaSalle Street, Suite 1818, Chicago, Illino~ 60604

I

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In th" Matter·of; .'.
~C\\t\\ ~~~ Respond .. mf

Executive. 0fice for Immigration Re~iew ,""'Offic~ oftne Immigrntion Judge

55 E, MOfll'oe Street, Suite 190Cl

Chic'.lgo. Illinois 60603

\ \

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IN REMOVAL PROCEEDINGS

Thia is a Sll..rnmary- oftb.e om! dec:ision entered qn

I0 - t-') -.~ _'

This memorandum is Ilolelyforfhe conwnience oftheparties. Ifthe proceedings should be appeal?d or l"eopened, the oral decision will oecam e the .official opinion in the C2£le,
[Xi .The respon~eni w~ ordered rem~ve~from the UnitedStates to ~{j( . ~
;t: } Respond~t'9 appliclll:ion for voluntary dep9rltire WIlll denied !lIld respondent WIlll ordered

1'etnoved to . . .

.

[ ] Respondent's application forvolwitary departltl<; WIlll grllllte.d Wltil

. upon posting ab(,llld ill the ruuount aU

.with an altetllated order ofrenJovat to

-,---:-----'---:"'--_...•
[ ] R~Spondeiit'5 application for asy'lum W1.lB ( ) grnnted( ) denied ( ) withdraWn•
..[ J .• Respond~~t,~applicclion forVlithhcldulg ofremoval Wrui(· J Srant~d;>( .Jdeni~d.··...

. ( ) withd'nn:vn: ..

. . . . . ..... .... .....: ' ;

..

. [ 1· Respondent'silj>plkstian for cancellation ofremovalllil4er Section 240A(a) W!W.( ,:)grnnted

... ( . ') denied. C) withdrawn.

. . ... ... ... .. '. v.';.,::.:::·;H·\:··.'.'.:;' ...

of ( ]R",spondent'sllpplicat!oD. for cllIlCeliation remoyalliudet; Section,240,.).(i)')WM ( ::)grant",d

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( ) del)ied: ( ... ) ~thdrawn; IfSt'9nted, itl."'1Il! Ol'tlered that the~spori4~tbeisSl1ed 911,

appropriatedocum.ent~necess~toSlve effeCt to tl1i~Ui'<ltn:,. " •..•. ';.., .•.. :;,~ .'.,;, :': ... .

. [ ]. Rllspon<Wnl's application for a waiver under S~"'1ioif:::2~:of*~1NAWiiS C<') g:rmited ..

( ) d.enied· ( ) WithdraWn ( ) other, . , .. ... ... ' _ .... ' : . ' . . . . ..

( .. ] ·Respop4ent'~applica!~oD. for£ldjustmentofstatus~.nder§e.9.tiop··':'·:::~f.theINA~ .......

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.

] .. Respondent's stidri& Was 1'e:'lcinded under Seotion 2;46,· .. . . . :....

. ] Rllspondentiil admitied to the Uuited states Os a .. . ·.ubntil.~"·_·_ _ __ ] Ail Il. condition Qf ndmission, respondent i9 to post a "'_..:.._._ ourl .

].. Respondent knowingly filed a frivolous asylurilllpplication after proper notice, .

.

] . Resporident \-lIIl!l advised of the limitlll:ion au discretionary relieffol' failure to appenr Ilfl ordered

... , . in thHmlIligration . oral decisiol1.

.• ]. ,Proi~eedlinS!.,were lli'l!1"'U.U''h..

4 Appeal Due by: ...' \\--1..'1-~

"" . . ;' ,:',.« . ,:. :.<*i:.~ .

..' . .J
Berg, Royal F., Esquire 33 ,North LaSalle, Suite 2300 Chicago, IL 60602

U.S. Department of ,J "'-"

/"

Executive Office for Imhugration Review

Board ofImmigration Appeals Office ofthe Clerk

_?-G~-aq '2 \ d-
:;?

fS-_ ¥ 'di:rt 520ILeesburg Pike, Suite 1300

/- ~ 00 - ~'1 ~-1'\ ~ 0

Fall, Cllurcll, Virgin;:;~~ ~J t\"\- ')"\ J- - 3

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Office of the District Counsel/CHI P.O. Box A-3423 Chicago, IL 60690

Name: ·S-HMAIDAN, JALAL AYEO

A20-318-437

Date of tois notice: 08/08/2001

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Very Truly Yours,

Enclosure

Lori Scialabba Acting Chairman

Panel Members: GRANT, EDWARD R
JONES, PlllLEMINA M. THOMAS, ELLEN K.

U.S. Department of· 'tice
Executive Office for imm.". .ttion ---'iew Falls Church, Virginia 22041
File: A20 318 437 - Chicago

Dec

lard of Immigration Appeals

Date: AUG 0 8 2001

In re: JALAL' AYED HMAIDAN

•

':."e:;-

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Royal F. Berg, Esquire

ON BEHALF OF SERVICE: Seth B. Fitter Assistant District Counsel

CHARGE:

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)]Convicted of aggravated felony

Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] Convicted of controlled substance violation

APPLICATION: Deferral of removal

We have jurisdiction over this timely appeal pursuant to 8 C.F.R. §§ 3.1 (b) and 208.3l. Removability is contested. The first issue on appeal is whether these proceedings should be tenninated because the respondent is a United States citizen. The second issue on appeal is whether the respondent was denied due process in these proceeding. The third issue on appeal is whether the Immigration Judge correctly found that the respondent was not entitled to deferral ofremoval under article 3 of the United Nations Convention Against Torture ("Convelrtionn)., We find that the
- _... Immigration Judge's resolution of these issues was correct, and we will dismiss this appeal. The
request for oral argument is denied.
We will first address whether the respondent is a United States citizen. The respondent argued on appeal that he is a citizen of this country because his mother became a citizen of this country through naturalization on March 6,1973, and she legally adopted him on May 17, 1978. We note that he was less than 18 years old at the time of his adoption. We also note that the respondent did not become a lawful pennanent resident of this country until February 2, 1983.

1 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature February 4, 1985, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51 at 197, U.N. Doc. AlRES/~9/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in 241.L.M. 535 (1985).

A20 318 437

The burden of proof in establishing alienage in deportation proceedings is on the Immigration
and-Natura}izatkm Service. United States ex reI. Bilokumsky v. Tad, 263 U.S. 149 (1923); United States v. Neelly,"'J.07 F.2d.281 (7th Cir. 1953). However, one born abroad is prima facie an alien. Matter ofA-M-, 7 I&N Dec. 332 (BIA 1956). Furthennore, where it is undisputed that an alien
sought to be deported was born in a foreign country and carne to the United States from that country,
the burden of proof to establish United States citizenship is upon the alien. United States ,'. Neelly, supra. Such an alien is required to afflnnatively establish his citizenship claim. Matter ofA-M-, supra. A bare claim of citizenship, unsubstantiated by any evidence is insufficient to meet the alien's burden. United States v. Neelly, supra.

The respondent has admitted tha' he is a native ofKuwait and a citizen ofJordan. Thus, he bears the burden of establishing his United States citizenship. He has submitted documentation with his Notice of Appeal to prove his claim that he is a citizen of this cOuntry based upon his contention mentioped above.

Section 321(a) of the Immigration and Nationality Act provides that a child born outside of the United States of alien parents automatically acquires United States citizenship upon fulfillment of the following conditions:

(I) The naturalization of both parents; or

(2) The naturalization of the surviving parent if one ofthe parents is

deceased; or

(3) The naturalization of the parent having legal custody of the child

when there has been a legal separation of the parents or the

naturalization of the mother if the child was born out of wedlock and

the paternity of the child has not been established by legitimation;

and if

(4) Such naturalization takes place while such child is under the age

of eighteen years; and

~.

(5) Such child is residing in the United States pursuant to a lawful

admission for pennanent residence at the time ofthe naturalization of

the parent last naturalized under clause (1) or the parent naturalized

under clause (2) or (3), or thereafter begins to reside pennanently in

the United States while under the age of eighteen years.

However, section 321 (b) ofthe Act further provides that subsection (a) referred to above shall apply

to an adopted child only if the child is residing in the United States at the time of naturalization of

such adoptive parent or parents, in the custody ofhis adoptive parent or parents,'pursuant to a lavrful

admission for pennanent residence.

•

2

A20318437

The respond::nthas not proved that he is a United States citizen because he has not established that when his mother was n;;turalized on March 6, 1973, he was residing in the United States in her custody as a lawful permanent-resident of this country. Consequently, we find insufficient evidence in the record that the respondent is a United States citizen under this provision.

In reaching our decision, we have considered the respondent's argument that section 321(b) of the Act is unconstitutional. The Board is not empowered, however, to rule on the constitutionality of the statutes and regulations that we administer. Matter aJValdovinos, 18 I&N Dec. 343 (BLA 1982).

We further note that the respondent argued that he is a United States citizen based upon the automatic citizenship provisions of section 320 of the Immigration and Nationality Act, 8 U.S.C § 1431 (1994), as amended by the Child Citizenship Act of2000, Pub. L. No. 106-395, 114 Stat. 1631 ("tCA"). Under the new law, a childbom outside ofthe United States automatically becomes a citizen when the following conditions are met: I) at least one parent ofthe child is a United States citizen, whether by birth or naturalization; 2) the child is under the age of 18, and 3) the child is residing in the United States in the legal and physical custody ofthe citizen parent after having been lawfully admitted for perrnanentresidence. However, all these requirements must be proven to exist on or after February 27,2001.

In addition, we note our decision in Matter aJRodriguez-Tejedor, 23 I&N Dec. 153 (BL'<\ 200 I). Therein, the Board held that the Child Citizenship Act is not retroactive and, consequently. does not apply to an individual who resided in the United States with his United States citizen parents as a lawful permanent resident while under the age of18 years, but who was over the age ofl8 years on the effective date of the Child Citizenship Act. See also Hughes v. AschcroJt, 2001 WL 699351 (9th Cir. 2001); Nehme v. INS, 252 F.3d 415 (5th Cir. 2001).

We conclude that the respondent has not established that he is a citizen ofthis country under the

.

~.

Child Citizenship Act. The record reflects that the respondent was 34 years old on February 27,

2001, and therefore he cannot prove that he satisfies the second element referred to above. See

.Matter ojRodriguez-Tejedor. supra. We therefore decline to terminate or remand these proceedings.

We will now address whether the respondent was denied a fair hearing in these proceedings. He argued that it was improper for the Immigration Judge to have conducted these proceedings through a video· conference. The regulations provide, however, that an Immigration Judge may conduct hearings through a video conference to the same extent as he or she may conduct hearings in person.
See 8 C.F.R. § 3.2S(c). Consequently, we find nothing inherently improper regarding the use of a video conference in these proceedings.

3

A20 318437

I~

In addition, before the proceeding will be invalidated, it is required that the respondent establish that-he was preJi.I~iced by the use of a video conference. Hartooni v. INS, 21 F.3d 336.339-40 (9th ·Cir. 1994);- Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994); United States v. Mendoza-Lopez, 7 F.3d 1483 (lOth Cir. 1993); Ortiz-Salas v. INS, 992 F.2d 105 (7th Cir. 1993); United States v. Polanco-Gomez, 841 F.2d 235 (8th Cir. 1988); United States v. Garcia.Jaramillo, 604 F.2d 1236 (9th Cir. 1979); Matter o/G-, 20 I&N Dec. 764 (BIA 1993); Matter o/Santos, 19 I&N Dec. 105, 107-08 (BIA 1984).
Having carefully reviewed the record, we find that the respondent has failed to demonstrate that he was denied a fundamentally fair hearing. The respondent has presented no specific illustrations of exactly how the result in these proceedings would have been different had the Immigration Judge conducted the proceedings in person. Consequently, this aspect of the appeal is dismissed.
The respondent further argued on appeal that the Immigration Judges who heard his case were biased. We find no indication from the record that the Immigration Judges' conduct was improper, displayed bias, or exceeded judicial bounds. We therefore are unable to find that the respondent was denied due process.
The respondent also argued on appeal that the Immigration Judge erred by finding that his alienage had been proven by the Service. ,We have reviewed the record and find sufficient proofthat the respondent is not a citizen of the United States. We note for instance that the record contains a copy of the Record of Deportable Alien (Form 1-213). This document appears to be reliable and contains the respondent's name, date of birth, and indicates that he was born in Kuwait.
Consequently, we find that alienage has been established. See Matter 0/ Hernandez. Interim
Decision 3397 (BIA 1999); Matter a/Mejia, 16 I&N Dec. 6 (BIA 1976).
We have also considered the respondent's argument that the Immigration Judge incorrectly admitted this document into evidence because it was presented in violation of the 1O-day rule. The record reflects that the respondent refused to admit or deny at the heanng any of the allegations contained in the charging document. To prove alienage, the Service then introduced the Form 1-213 into the record. Later in the hearing, the respondent sought protection under the Convention, and testified he is afraid to retum to his country ofcitizenship, Jordan. Inasmuch as it is undisputed that the respondent was not born in this country, we do not find that he was prejudiced by the admission into the record of the Form 1-213. We therefore see no reason to remand these proceedings to conduct a hearing on whether the respondent is an alien.
The respondent argued on appeal that the documents presented to prove removability do not relate to him. We have reviewed the documentation contained in the rec'ord including the conviction records, and find that they relate to the respondent and prove the charges contained in the Notice to Appear. Any discrepancy in the spelling of the respondent's name appears immaterial.

4

A20 318 437
We will now address the respondent's claim under the Convention. To qualify for withholding ordeferraLof removal under the Convention, an applicant must prove that he will be tortured ifhe returns to his native country, and the act will be instigated by or with the consent or acquiescence
ofa public official or other person acting in an official capacity. See 8 C.F.R. § 208.18(a)(I).
Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person forsuch purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third
person, or for any reason based on discrimination of any kind. See 8C.F.R. § 20S.IS(a)(I). Torture
is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel,
inhuman or degrading treatment or punishment. See 8 C.F.R. § 208.18(a)(2). An applicant for
withholding or deferral of removal under the Convention bears the burden of proof that it is more
likely than not that he or she would be tortured ifremoved to the proposed country of removal. See
8 C.ER. §§ 208.16(c)(2); 20S.17(a).
The respondent argued that he will more likely than not be tortured in his country because he was convicted ofa drug-related offense in the United States. We have reviewed the background evidence on Jordan submitted by the respondent. Although we do not deny that there are many human rights abuses in that country, we are unable to identify any indication that the Jordanian government more likely than not tortures its citizens for having served jail sentences in other countries for drug crimes committed abroad. We further are unable to find that the respondent will likely be tortured in his country because he sought protection under the Convention.
In addition, we have reviewed the record ofproceedings, the Immigration Judge's decision, and the remaining arguments raised on appeal. We find the Immigration Judge adequately and correctly addressed the issues presented, and the decision ofthe Immigration Judge is affirmed based upon and for the reasons set forth in that decision. Consequently, we find no error in the Immigration
JCuodngvee'nstld.Oenc.ision to .deny the respondent's request for deferral of rem.o.val under article 3 of the
We have also considered the respondent's argument that the transcript in these proceedings was defective. We find no indication that any material error appears in the transcript ofthe proceedings.
ORDER: The appeal is dismissed.
5

Jordan

Page 1 of DEPAR~niJNr

Jordan

Country Reports on Human Rights Practices - 2000
Released by the Bureau of Democracy, Human Rights, and Labor February 23, 2001

The Hashemite Kingdom of Jordan is a constitutional monarchy ruled by King Abdullah II bin Hussein since the death of his father, King Hussein bin Talal, in February 1999. The Constitution concentrates a high degree of executive and legislative authority in the King, who determines domestic and foreign policy. In the King's absence, a regent, whose authority is outlined in the Constitution, assumes
many of these responsibilnies. The Prime Minister and other members of the Cabinet are appointed by the King and manage the daily affairs of government. The Parliament consists of the 40-member Senate, appointed by the King, arid .the SO-member Chamber of Deputies, which is elected every 4 years. The lower house asserts itself only intermittently on domestic and foreign policy Issues. The 1997 parliamentary elections were marred by reports of registration irregularities, fraud, and restrictions on the press and on campaign materials. According to the Constitution, the judiciary is independent of other branches of government; however, in practice it is susceptible to political pressure and
interference by the executive.

General police functions are the responsibility of the Public Security Directorate (PSD). The PSD, the General

Intelligence Directorate (GID), and the military share responsibility for maintaining internal security, and have authority to

monitor the activities of persons believed to be security threats. Elements of the security forces continue to commit

human rights abuses.

0

Jordan has a mixed economy, with significant but declining government partiCipation in Industry, transportation, and communications. The country has few natural resources and relies heavily on foreign assistance and remittances from citizens working abroad. Dunng the year, the Government took steps to increase privatization and to improve the
country's investment climate during the year. For example, in April the country acceded to the World Trade Organization, which entailed extensive legislative and regulatory reform. However, the economy continues to suffer from chronically high unemployment, and GOP growth has remained between 1 and 2 percent since 1996. Price controls remain on bread, pharmaceuticals, gasoline, and animal feed. Wages remain stagnant. Intemational sanctions against Iraq,
historically the country's largest tradin\l partner, continue to inhibit export growth. Violence in the occupied tenritories late in the year adversely affected the tounst industry, and many foreign investment projects were frozen. Per ca~jta gross domestic product in 1999 was approximately $1,542 (1,086 dinars). Many families, especially those in rural areas, are
unable to meet basic needs to subsist.

There continued to be significant problems in the Government's human rights record. There are Significant restrictions on
citizens' right to change their Govemment. Citizens may participate in the polHical system through their elected representatives in Parliament; however, the King has discretionary authority to appoint and dismiss the Prime Minister and Cabinet, to dissolve Parliament, and to establish public policy. Other human rights problems include extrajudicial killings by members of the security forces, police abuse and mistreatment of detainees; allegations of torture; arbitrary
arrest and detention; lack of transparent investigations and accountability within the security services; prolonged detention without charge; lack of due process of law and interference in the judicial process; infringements on citizens' privacy rights; harassment of members of opposition political parties and the press; and significant restrictions on freedom of speech, press, assembly, and association. The 1999 Press and Publications Law reduced somewhat the restrictions outlined in previous legislation on the ability of journalists and publications to function and report freely; however, Significant restrictions continued to be in effect. The Govemment imposes some limits on freedom of religion, and there is official and societal discrimination against adherents of unrecognized religions. The evangelical Christian community
reported fewer incidents of governmental harassment during the year. There are some restrictions on freedom of movement. Violence against women, restrictions on women's rights, and societal discrimination against women are problems. The law still allows for reduced punishments for violent "honor crimes" against women for alleged immoral acts. Child abuse remains a problem, and discrimination against Palestinians persists. Abuse of foreign servants is a
problem.

RESPECT FOR HUMAN RIGHTS Section 1 Respect for the Integrity of the Person, Including Freedom From: a. Political and Other Extrajudicial Killings

S o ' . ~H'a'ro ",' .,

. '.- , ':-0:0/'

' ..:-:+.:

kf+t.<t../luT'lT.nu c.-+t:l+~ rtr..'U/lTlrlrl/rlco/hrrnt/')(}flO/npt;l/Q1h.nf htrn

?'/?'')I

Jordan

Page 9 of]

Anani in April; the book contained a poem that reportedly was offensive to Islam. The authorities did not bring charges

against·

, '"

AI-Anani. The book was published and distributed in Beirut, Lebanon due to the Jordanian ban.

"

In June due to a dispute stemming from an intrachurch rivalry between the Jerusalem Patriarchate and the, Antioch Orthodox Patriachate, the Govemment closed an Arab Orthodox church in Amman that was aligned with the Antioch Patriarch,.t!!, in Damascus, Syria. The Govemment closed the church following a request from local, Orthodox hierarchy to enforce a-1'958 law that grants the Jerusalem Patriarchate authority over all Orthodox churches in the country: On ,,' '
November 29, the Government gave permission to the church to open officially on December 14 despite the fact th<lt the' , ' dispute over <luthority had not been resolved. The church opened as scheduled; however. the Govemmentclosed it " down 1 week later, stating that the church was in violation 0 the 1958 law for associating itself with the Orthodox church. The Government reportedly stated that the church has permission to reopen under a different name.

In December 1999, the municipality of Amman closed the Roy and Dora Whitman Academy-a nonprofit misSionary
school in Amman-on the basis that it was not registered with the Ministry of Education. In April the school received registration and reopened. In July the Ministry of Labor approved official work permits for the academy's staff.

Shari'a in the country is applied in all matters relatin~ to family law involving Muslims or the children of a Muslim father; all citizens, including non-Muslims, are subject to IslamiC legal provisions regarding inheritance. All minor children of a male citizen who converts to Islam are automatically considered to be Muslim. Adult children of a male Christian who has converted to Islam become ineligible to inherit from their father if they do not themselves convert to Islam. In cases where a Muslim converts to Christianity, the act is not recognized legally by the authorities, and the subject continues to be ' treated as a Muslim in matters of family and property law. The minor children of a male Muslim who converts to . .Christianity continue to be treated as Muslims under the law.

The law prohibits non-Muslims from proselytizing Muslims. Conversion to the Muslim faith by Christians is allowed;

however, a Muslim may not convert to another religion. Muslims who convert to other faiths complain of social and

govemment discrimination. The Govemment does not recognize the legality of such conversions. Under Shari'a '

converts are regarded as apostates and legally may be denied their property and other rights. However, this principle is

not applied. Converts from Islam do not fall under the jurisdiction of their new religion's laws in matters of personal status

and still are considered Muslims under Shari'a, although the reverse is not true. Shari'a prescribes a punishment of death

for conversion; however, there is no equivalent statute under civil law.

'

The Political Parties Law prohibits houses of worship from being used for political party activity. The law was designed

primarily to prevent Islam 1St parliamentarians from preaching in mosques.

"

.

"

Religious instruction is mandatory for all Muslim students in public schools. Christian and Baha'i students are not

required to attend courses in Islam.

,

d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation

The law provides for the right of citizens to travel freely abroad and within the country except in designated military areas;

however, there are some restrictions on freedom of movement. The law requires that all women, Including foreign wonien

married to citizens, obtain written permission from a male guardian-usually their father or husband-to apply for a

Jordanian passport. During the year, there were several cases in which mothers reportedly were prevented from "

deparling with their children because authorities enforced requests from fathers to prevent their children from leaving the

country.

'

, ". '

'

The GID sometimes withholds passports from citizens on security grounds. Local govemors have the authority t~~riact'
the 1954 Preventing Crimes Law, which allows them to place citizens under house arrest fOr up to a year without formally charging them (see Section 1.d.). House arrest may involve requiring persons to report daily to local police station and the imposition ofa curfew. Persons who violate the terms of their house arrest may be imprisoned for up to 14 days.

In April after the GID released Hassan Mahmoud Abdullah Abu Hanieh following 20 days of detention without charge (see

Section 1.d.), the governor of Amman, required Abu Hanieh to report to a local police station twice daily and to return,'

home by 6:30 p.m. every evening. Officials did not bring charges against Hanieh and rescinded the house arrest in, '

August.

.

Jordanians with full citizenship receive passports that are valid for 5 years. Most Palestinians living in Jordan are citizens '

and receive passports that are valid for 5 years. However, the Govemment estimates thatthere are,150,OOO Palestinian

residents who are

children of refugees who arrived from Gaza after 1967 do not qualify for citizenship.. They

receive 2-year

for travel only. In the period following the country's administrative and legal

'. ,C.. '

Bank in 1988, Palestinians residing in the West Bank received 2-year passports valid fQr

JOI'Ciania!O P,~ssRol:ts). In 1

Hussein announced thai West Bank residents without

the Govemment has,

only can be proven by'

naturalization to persons holding

recordled'on national identity cards and in family registration books, which are issued

'>.I'J?I(

Jordan

. Page lOof

only to citizens.

The Jordanian Society for Citizens' Rights (JSCR) reported a small number of cases in which Jordanian embassies

overseas refused to issue new passports to Jordanians of Palestinian origin who were domiciled in foreign countries.

Such Palestinians consequently were unable to return to Jordan.

.

The Con.staution specifically p~ohibits the deportation of citizens. However, in J~ly the High Cour:! rejected an appeal .' . challenging the alleged expulSion of four HAMAS leaders, all four of whom are cItizens (see Sections 1.d.,.1.e., and 2.b.).

There were credible reports that, due to a ban on his entering the country, government officials stopped fonner Minisier'of

Parliament, Yaqoub Qarrash, at the border in January when he tried to return from Saudi Arabia.

'.

.' .

There is no law or statute that provides for the granting of refugee status to asylum seekers. The Government generally

cooperates with the office of the UNHCR. The UNHCR must resettle refugees in other countries. However, in April 1998

the Ministry of Interior signed a memorandum of understanding with the UNHCR concerning the status and treatment of '

refugees. Under the agreement, the Government admits asylum seekers, including those who have entered the country

clandestinely, and respects the UNHCR's eligibility detenninations under the refugee definitions set forth in the 1951 U.N.

Convention Relating to the Status of Refugees and its 1967 Protocol. The agreement provides protection against the

forcible return of refugees from the country, and recognizes the legal definition of a refugee as set forth in the U.N.

Convention. Since 1996. the UNHCR has held regular seminars to train law enforcement officials in international refugee

law, including specialized courses for policewomen. The Government provides first asylum. According to UNHCR

figures, .55,626 persons have so~ght asylum through the UNHCR since October 1990, and in approximately 8,389 cases

(approximately 15 percent), applicants have been accorded refugee status.

.

The Government estimates that over 200,000 Iraqis reside in the country. Since 1991 thousands of Iraqis have applied'

for refugee status and received legal and material assistance from the UNHCR. During the year, 6,806 Iraqis applied for,

and 641 were accorded, refugee status. Additionally 1,753 out olthe total 1,868 refugees accorded status during the

year were. Iraqi nationals, reflecting applicati?ns from previous years. The l!NHCR ~Iso received applications for refugee

status dunng the year from Sudanese, RUSSians of Chechen decent, Somali, and Entrean asylum seekers. .

'.

For the 1999-2000 school year, the Government reverted to its policy of denying Iraqi children admittance to school unless such children are legal residents of the country or recognized as refugees by the UNHCR.

According to the Government, it deported eight Libyan nationals affiliated with "international terrorist organizations' in

March. The Government did not Infonn the UNHCR of the presence of the Libyans prior to their deportation from,.the

country. The Libyan Government reportedly executed three of the eight Libyans upon their return to Libya (see Section

14

.

.

Almost 1.6 million Palestinian refugees are registered in Jordan with the U.N. Relief and Works Agency for. Palestine .

Refugees (UNRWA). The UNRWA counts another 800,000 Palestinians as either displaced persons from·thEi 1967 war,

arrivals following the 1967 war, or returnees from the Gulf between 1990 and 1991.

'. .

.,: .: .. '

Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government

There are Significant restrictions on citizens' right to change their government. Citizens may partiCipate in the political system through their elected representatives in Parliament; however, the Kin~ has discretionary authority to appoint and dismiss the Prime Minister and Cabinet, to dissolve Parliament, and to establish public policy. Appointments made by the King to high government posts do not require legislative approval. Executive power is vested in the King (or, in' his absence, in the Regent), who exercises his power through his ministers in accordance with the provisions of the .'. ."
Constitution.

In June King Abdullah dismissed then Prime Minister Abdul Raouf Rawabdeh and appointed Ali Abu AI-Ragheb as his

successor. The King also appointed 19 new members to the 29-member Cabinet.

. ",,' .:.

The Parliament is composed of the 40-member Senate, appointed by the King, and the popularly elected80~memb~r '..
Chamber of Deputies. The Parliament is empowered by the Constitution to initiate legislation, and it can approve, reject,
and amend legislation proposed by the Cabinet. A group of 10 senators or deputies may submit draft bills for consideration; however, in practice legislation is initiated and drafled by the Cabinet of Ministers and submitted by t.he Government to the Parliament for its consideration. Opposition Members of Parliament have complained that attempts by
members of the lower house to initiate legislation receive no response from the Government. The King proposes and dismisses extraordinary sessions of Parliament and may postpone regular sessions for up to 60 days. If the Government., amends or enacts a law when Parliament is not in seSSion, by law it must submit the law to Parliament for consideration
during the next session; however, this does not always occur in practice.

The Electoral Law and the distribution of parliamentary seats deliberately favor electorates in rural and southern Jordan, .

regions with populations known f9r their traditional,

. ..

.'

pro-Hashemtte views.

'

.

'l/'},)/(

i\

0.

IN THE Cr.. _aIT COURT OF COOK COUNTY, .LwLINOIS

Page OOl

PEOPLE OF THE STATE OF ILLINOIS

VS

NUMBER 96CR3067201

.JALAL "..,

HEMIDAN

CERTIFIED STATEMENT OF CONVICTION / DISPOSITION

I, AURELIA PUCINSKI, Clerk of the Circuit Court of Cook County, Illinois, and keeper of the records and seal thereof do hereby certify that the electronic records of the Circuit Court of Cook County show that:

The States Attorney of Cook County filed an INFORMATION with the Clerk of the Circuit Court on ll/20/96.

Charging the above named defendant with:

A 720-570/40l (C) (2) 720-550/5 (D)

MANU/DEL Ol-15GR COCAINE/ANLG MANU/DEL CANNABIS/30-500

The following disposition was rendered before the Honorable Judge

DEBONI, FRANK

On :

07/l4/98 CHARGE AMENDED 07/l4/98 PLEA OF GUILTY 07/l4/98 FINDING OF GUILTY 07/l4/98 DEF SENTENCED TO PROBATION
30 MTH'
08/20/98 DEF TRANS OUT OF JURISDICTION
TRANSFER TO IOWA 04/08/99 PLEA OF GUILTY 04/08/99 DEF SENTENCED ILLINOIS DOC
6 YRS
04/08/99 CREDIT DEFENDANT FOR TIME SERV l32 DYS

COOl COOl COOl COOl
CALL
CALL CALL

eXHIBIT' .
l'i>1:"
. ~'-. ,.,'", ".
I hereby certify that the foregoing has been entered of record on the above
OF COOK COUNTY

· -
}ss STATE OF ILLINOIS
COUNTY OF COOK

(Rev.2I18/93) CCCR·56

1,. AURELIA PUcrnSKI, Clerk of the Ciicuit Court of
Coo," CO)lDty, in said County ~d State, aild Keeper of the Records and Seal thereof, do hereby c~ the

abOve and foregoing to be a ~e, perfect and complete copy of •• ;r;n.:t~'!w'}t-:j.I'Jl•••••••••••••••.•••••••••
.. ..I..n..f.o.r~m.. ,a. .t..i.o..n"."N...u..m...b..e.r......9..6....C...R....3.~0'"6..7..2............................................................................ ,. ............................... . J.,. . . .. •1!:J.J.i;d;.... JilpYJ!1TIP$!~. .l.9.9.&. .......... ........................................................... -............................................ ..
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. .. . . . .. . .. . . . . . . . . . . .. ..-............................................................................................................. ~.......... , .......... .

................... "........................... .: .......... :- .......................................... .

In a certain cause •••IF.t;~l-y .................... , .................... pending In Said Court, between

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". ~!1~.!l~.. !l~~~?!1!l........................... ~ ....................................................'~ ~ F,!l;:;................. " ...... ..., Defendant. .... ..

Witness: A~PUCIN~,

ft.rA~. !k~:................-~<Clerk

...

lAPUCINSKI .CLERK OF 'tHE Cm.CUIT COURT 0

· •• ~ ••• *•• *•••• *•• *.* •• ** ••• *~ ••• ***.*.*.* ••• *••••• **.* .••••••••••••••••••••

:.:.,"=
The State's Attorney of Cook County now appears before the Circuit Court

of 'Cook County and in the name and by the al :hor i ty of :he Pf ople of the

State of Illinois states that on )r about OC·rOBER 17, 1996,

in the Cook County, Illinois

JALAL HEM ElAN

committed the offense of

POSSESSION OF CONTROLLED SuBSTANCE WITH INTENT TO DEI,IVER

in that.

HE, KNOWINGLY AND UNLAWFULLY POl:;SESSED WITH INTENT TO DELIVER OTHERWISE THAN AS AUTHORI~ED IN THe ILLINOIS CONTROLLED SUBSTANCES ACr OF SAID STATE OF ILLINOIS THEN IN FORCE AND EFFECT, 15 GR!l.MS OR MORr BUT LESS THAN 100 GRAMS OF A SUBSTANCE COIJTAINING A CLHTAIN CONTROLLED SUBSTANCE, TO WIT: CuCAINE, Itl VIOLATION OF CHAPTER 720, ACT 570, SECTION 401-A"~-A OF THE ILLINOIS COMPILED STATUTES. 1992 ,\S AMENDED, AND

contrary to the Statute, and ag~inst the peace and dignity of the People of the State of Illinois.
(Count No. 01) Charge ID Code: 50951~O No: 96CR-30672 AURELIA PUCINSKI, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
, i

** •••• **~*.'**********.****.***************** •••• **** •••• *•• ******.~*~* ••••

The State's Attorney of Cook Coun· 'i row appear.3 bEfore the Circuit Court.

of Cook County and in the name and by the authority of ~he People of the

State of Illinois states that on or ~bout OCTOBER 17, 1996, in the Cook County, Illinois
JALAL HEMIDAN

committed the offense of

POSSESSION OF CANNABIS WI7H INTENT TO DELIVER

in that

HE, KNOWINGLY AND UNLAWFULLY PO!;SESSED WITH INTEIIT TO DELIVER OTHERWISE THAN AS AUTHORI7.ED IN TEE ~ANNABIS CONTROL. ACT OF SAID STATE OF ILLINOIS THEN IN FORCE AND EFFECT, MORE THAN 30. BU~ LESS TBl'.N 500 GRAMS OF A SUBSTANCE COHTAINING CANl,t\BIS, SOMETIMES CALLED MARIJUANA, IN VIOLATIOn OF CHAPTEr. 720, ACT 550, SECTION 5-0, OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDE;), AND

contrary to the Statute, and against the peace and dignity of the People of the State of Illinois.
(Count No. 02)
Charge 10 Code: 5020300 No: 96CR-30672
AURELIA PUCINSKI, CLERK OF THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

~*~*.:****** •• *****.**••• ** •••••• *•••••••• *•• *••••••••••••••••••• *.**.~.*.*
IN .THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS by thp. Stdte's Attorney of Cook County, through his Assistant State's Att',rney, aft~r first ~eing duly s~orn cn his oath, deposes and swears that th~ foregoing TWO co.mt(s) in this information has/have been read aId snbscxibed by him 11> evidenced by his signature below and that the same in each COl·nt hereby i.lcorporated i>J true.
...... .

Subseri

............. MOV
nd sworn (or affirmed) Lo before ML

, 19 ••••

.by ..•.•..

• • • • • • • • • • • • • • • • • • • • • • • • ~ • • • • • • "f • • •

-"

Notary ubllCCi"fric;:.t 'F,li

(()~~'F '·:n.ll\C

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The bail is fixed at ............................. .

JUDGE: ............................ Enter

AURELIA PUCINSKI, CLERK 02 THE CIRCUIT COURT OF COOK :OUNTY

i:

/\

To Whom It May Concern:

~

::....c

This is a Sworn Statement in Support ofJalal Hemeidan's Application for an order of

Supervision

A-040-115-795

State of California

County or Santa Clara

t, Jamal Hemeidan hereby state under oath as follows:

I am a legal permanent resident of the United States. I am a brother ofjalal Hemeidan who currently detained at the INS Detainee center at Chicago, IL. l am employed as a clerk/cashier at Albertson Corporation, 844 Blossom Hill RD. Sanjose CA, 95123
General office, P. o. Box 20 Boise, ID 83720

I am able and prepared to provide food and lodging for Jalal Hemeidan as long as his case is pending. IfJalal Hemeidan is granted and order ofsupervision, be will reside with me at the following address:
1595 Brookvale Drive ?)r! !'P
San Jose, CA. 95129
Home Pb.# (408) 255 - 8997 Cellular Ph. # (408) 656 - 2333

While Jalal's case is pending, I will do everything in my power to make sure that he attends his bearings in court.

Ifyou require any further information, Please call or write me at the above address. . Thank you.

J~ Hemeidan /

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Marcb21,2002

U,S, Department of Justiee'

" ~

Immigration and Naturalization Service .

[

Notice of Actior .

.. --- ...~ ~-

~--

Request

for

". Applicant to

Appear",!'or

Naturalization

Initio;

Intel"li~~""_ _ _ _ _ _ _ _,:",,,_ _-+...;J.I~ IL=q =arcn~h,C-,1E,-,D1:.A !,.n ;:·2.:;0.:;.0_2___ _ _-I

(",\SE TYPE

. .

I N400 ..Application For Naturalization

. .'

ArPUCATIONNUMBER'
WSC*000427700

RECETVEDDATE
FeblUaI)' 08,

2ooQ'

J PRlO1UTYDAT£
'. ,FebruaI)' 08, 2000

INS'" .
A O~O 115 795
PACE
. 1 of I

AP;UCA."'IT NAME i\ND !'ofAlLll\IC A'DPRESS
JAMAL AHEMEIDAN

.' ~;:r~~~~NCISCO DISTRlCf OFFICE

APT 6 1595 BROOKVILLE BLVD

630 SANSOME ST ROOM 406

SAN JOSE CA 95129

WAITING ROOM B

SAN FRANCISCO CA 94111

On (Date): Tuesday, April 30. 2002 .

At (Time): 08:40 AM

You are bereby notified to appear ~or. an interview, on your Application for Naturalization at tbe date, time"and place indicated
above. Waiting rOOm capacity is limited•. Please do not arrive any earlier than 30 minutes before·your scheduled
appointment time. The proceeding will take about two hoW'S, If for OllY reason you cannot keep this appoiotment, return this
letterimmediately to the INS. omce address listed below with your explanation and a request for a new appointment; otherwise, no
further action will be' taken on your application,

If you are applyiog tor citizenship for YOUlSelf, you will be te;ted 011 )l6ur knOWledge of the government and history of the
United States, You Will also be tested OnTeadiog, writing, and speaking English, unless on the day_you !lied'your application, you bave b.een living io th~ United States for a total of atleaSI 20 ye.... as a lawful permanent resident and are over 50 years old. or you .have'be,en !iviog io the United States for a total of 15 years as a lawful pe~nent resident and are over 5S years old, or
unless you have a medically' determinable disability (you must have IiItrd form N648 Medical Certification for Disa!>ility Exception, with your N400 Application for Naturalization),

You MUST BRING the following witb you to tbe interview:

• This letter,

• Your Alien Registration Card (green card).

• . Any evidence of Selective Service Registration. .

.

• Your passport andlor any other documents you used in connection with any entries iota the United Siates,

• Those items noted below which are applicable to you:

--

a Ifapplyiog for NATIJRALIZATION AS THE SPQUSE of United Slates Citizen; .
e Ycur m~age certifitate.
or .• Proof of death or divorce for each prior maniage otyotlrself spouse,

• Your.spouse's birth or naturaJization certificate ot- ~ertifiaale of. citizenship.

.

.

If applying for NATuRAuzATION as a member of the United states Armed Forces;

• Your discbarge certificate, or form DD 214,

If copies ofa document were slibnuttCd as evidence With'yOllr N401i application, the origmals of those docume';ts should be brought 10 the iolerview.

PLEASE keep this appointment, even if you do not h3\'o all the items indicated above.

Jfyo\ll1a\'~.any questions or comments regarding this notice OT the statll~ -Gf~Our case.: ~rtasc COIllact o,:!r offIce at llie tiC\O\Y' address -orc,,!stomer SCCV1\:C numoer.

You will be notified separately abOut any other case.s you may have mrd.

.

.

.".
.

. "" .

.INS Office Address:

, I N S Customer Service Number: ..

US IMMIGRATION AND NATURALIZATION SERVICj!

. 630 SANSOME ST

'.

(949) 831-8427

SAN FRANCISCO CA 94111-.'

APPLICANT COpy'

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Resolving Crisis, Rebuilding Community
I~.ldd
HEARrLAND~CE
TIAIChicago Connections
The Midwest Immigrant Rights Center
February 4, 2002
Embassy ofKuwait 2940 Tilden Street, NW Washington, DC 20008
Re: Travel documents for Jalal Ayed Hmaidan,
To Whom It May Concern:
I am Writing on behalf of my client, Jalal Hmaidan. Mr. Hmaidan was born in Kuwait in 1966 and is of Palestinian descent. He was ordered removed to Jordan on October 25, 2000. On AugustS, 200i, the Board ofIrnmigration Appeals denied his appeal. Mr. Hmaidan has been detained by the INS for over six months following a final removal order. The INS has not been able to remove him. The INS has requested that Mr. Hmaidan take meaSures to facilitate his removal. I am requesting that you respond, in writing, to this written request to supply Mr. Hmaidan with travel documents. Please state whether INS has requested travel documents for this individual. Please provide an explanation of why Mr. Hmaidan cannot be issued travel documents if that is the case.
Please feel free to call me With any questions: (312) 660-1359.
Thank you for your immediate attention in this matter..
~'~Vt-
Anne Relias Attorney at Law DetentionProject Midwest Immigrant and Human Rights Center 208 S. LaSalle, Suite 1818 Chicago, Illinois 60604
Cc: David Venturella, INS
Travelers & Immigrants Aid/Chicago Connections - 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604 Phone: (312)66(}"'1370,ExlO-Fax: (312)660-1505
A member of the Heartland Alliance for Human Needs & Human Rights in alliance with Chicago Health Outreach ahd Centwy Place Development Corp.

,

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Resolving Crisis. Rebuilding CommunA

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HEARTI..A~ ND~CE

TIAIChicago Connections

The Midwest Immigrant Rights Center

February 4, 2002
Asal ai-Tal Jordanian Consulate 3504 International Drive, NW Washington, DC 20008
Re: Travel documents for JaIaI Ayed Hmaidan,
Dear Ms. ai-Tal,
I am wri,ting on behalfof my client, Jalai Hmaidan. Mr. Hmaidan was born in Kuwait in 1966 and is of Palestinian descent. He was ordered removed to Jordan on October 25, 2000. On August 8, 2001, the Board ofImmigration Appeals denied his appeal. Mr. Hmaidan has been detained by the INS for over six months following a final removal order. The INS has not been able to remove him. The INS has requested that Mr. Hmaidan take measures to facilitate his removal. I am requesting that you respond, in writing, to this written request to supply Mr. Hmaidan with travel documents. Please state whether INS has requested travel documents for this individual. Please provide an explanation of why Mr. Hmaidan cannot be issued travel documents if that is the case.
Please feel free to call me with any questions: (312) 660-1359.
Thank you for your immediate attention in this matter.
Sincerely, OJ~AQ ~.o....f. Anne Relias Attorney at Law Detention Project Midwest Immigrant and Human Rights Center 208 S. LaSalle, Suite 1818 Chicago, nIinois 60604
Cc: David Venturella, INS

Travelers & Immigrants Aid/Chicago Connections· 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604
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March 2_2, 2002

('f~@QuCAGO
~ONNECTIONS
A HEARTLAND ALLIANCE PARTNER

Officer Frank Moore
Deportation Brarlch Immigration and Naturalization Service
10 West Jackson Chicago, Illinois 60604 Re: Release of Mr. Jalal Ayed Hmaidan (A20-318-437) under INS v. Zadvvdas

Dear Officer Moore,
Enclosed is a copy of the letter and support packet I faxed to Washington in regards to Mr. Hmaidan's release under Zadvvdas. Please feel free to call me if you have any questions.

Thank you for your attention to this matter.

Sincerely,

Anne Relias Attorney at Law Midwest Immigrant and Human Rights Center
208 South LaSalle, Suite 1818 Chicago, Illinois 60604 T: (312) 660-1359 F: (312) 660-1505

• ~ompl~te ite~s 1, 2, a~d 3. Also complete

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Jackson lIou;levai"'b

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TINChicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604

ohone 312-660-1300 fax 312-660-1505 website: www.heartland-alliance.org

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10 West JaclQWl a/vd. CMcagt;. Illinois 60604

50/146-C

}alalAyed HMAIDAN CiO Tri County Detention C~llter 1026 Shavm.ce College Rd. Ullin, lL 62992

Ail 20318437

Notice to Alien of File Custody Review

Ytn.; arc dru.iocd in tlle custody of the 'fmm(gt'alion anJ NtUlllalizatioD Suvict (Il\'S) alH": yOl. tre 1'>~.qulred to ...,opaate,
with the INS :in effecting yeur removal fr..,m the Unit...c. State~ !!t'hc. rNS 1.,-s flot removed you fi:otn tht: United Slate'S within the
Io:moval prnoci asset forth in INA 241 (a) (normally 99 diM) of ,iilicr; I) yt!:Jr entering INS cuslodi' with a ';ina.! Clcdr:r of ,removal, deportation, or exclusion, or 2j die aUtE en My fmal ordtr you receive while you are in ~S Q(';sl"ody. th<:: District DiNctor will review your ca.!:e for consideration (}f~lease OD an Order ofSupervision. Release, .however, is dependent Qn your
demonstrating by "clear and convincing evidencc" that you will Dot pose a danger to the community and you will Dot be a
significant flight risk

YOUf custody status will be fCvicw~d on or about: Mav 30, 2002 . The District _Director rDJI,y consider, but is not
limi,.:ed to conside:dng. the following:

1. The: 113ture and seriousness of your criminal convi~tior.s. 2. Other criminal histQry;
3. SentenC¢{s) imposed and time actually served; 4. H.istory o( escape, [llil\J1'e~ to appw Cor judicial or other proceedings, and othtr dcf~!)lts;
5. Prob:i.tion hiStorYi 6. Dis(..~pli"1:UY ptobkms while incarceraIed: 7, Evidence ofrehabilitative effort or recidivism;
$. Equitie$ in the Uni!ed Statc:s; 9. Pri.or immigration viot~tions ;mel history; and Iq. COope-rQ:tion in obtaining your travel docwnent.

You may submJl any d¢cu111('mUlt;on yo:.! wish tQ b~ reviewed in support of your relc:-ase, prior to Ihe cate lis1c;i .,bove.

to the Officer and address below. EnSlish tfanslations mllS! be piovided pwsuant to 8 CFR I03.2(b)(3). An CHO:Itc:y Qr any other

person may submit materials on your behalf.

.

U.S. Department of Justice Tmmigra!ioD and NaturaliZation Sorvice Attn: Officer Navano 10 West Jackson Blvd, Room 55.' Chicago, lL 606<l4
Method Qf Service
G
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INSTITUTION MAlL

EXHIBIT
4(5,)

May 3,2002

A HEARTLAND ALLIANCE PARTNER

Officer Zamora Immigration and Naturalization Service Deportation Branch lOWest Jackson Chicago, Illinois 60603

Re: Release of Mr. Jalal Ayed Hmaidan (A20-318-437) under an order of supervision and Zadvvdas v. Davis

Dear Mr. Zamora,

On M!!!,ch 22, 2002, I wrote, on behalf of Mr. Hmaidan, to INS Headquarters in Washington, requesting his release. A copy ofthis request was given to Officer Fred Moore.

I am now writing in response to your issuance ofa Notice to Alien of File Custody Review. This review should have been conducted in November of200l, rather than May of 2002. On May 30, 2002, Mr. Hmaidan will have been in INS custody following a removal order for $ e months. Mr. Hmaidan is both eligible for release under an order of supervision and under the Supreme Court decision Zadvvdas v. Davis. Therefore, I request that this review be conducted as soon as this letter and supporting documentation are received. Mr. Hmaidan, through counsel, waives the thirty-day period prior to review.

The crimes Mr. Hmaidan committed were drug related and are not of a violent nature. See attached ciiininal records, exhibit 1 While his criminal case was pending, Mr. Hmaidan was released on a bond and went to court for every hearing date. Mr. Hmaidan completed drug and alcohol counseling while in Illinois State custody and received his QED. See Exhibits 2 and 3. Mr. Hmaidan has many family members in the United States who are either United States citizens or lawful permanent residents. His adoptive mother, Haifa Ahmed, has been a United States citizen since 1973. See attached naturalization certificate and adoption records,Exhibit 4. Ifreleased he WiUlive with Jamal Hemeidan at 1595 Brookvale Drive, #5, San Jose, CA95129 (T: (408) 255-8997, C: (408)-656-2333). Jamal is Jalal's brother and is in the process of naturalizing. See attached support Letter, LPR Card, and Naturalization Appointment, Exhibit 5. Mr. Hniaidan also has a United States citizen child who is eleven years old.

Mr. Hmaidan is of Palestinian descent, born in Kuwait, but who resided in Jordan and is essentially stateless. He was ordered removed by an Immigration Judge on October 25, 2000 (see attached removal order, Exhibit 6) and the Board ofImmigration Appeals dismissed his

Providing paths from harm to hope through human services Midwest Immigrant & Human Rights Center
T1NChicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604 phone 312-660-1300 fax 312-660-1505 website: www.heartland-alliance.org

EXHIBIT

appeal on August 8, 2001 (see attached Board Decision, Exhibit 7). He has been in INS custody for eight months since a final removal order has been issued and the INS has been unable to effectuate his removal. The 2000 Country Report on Human Rights Practices for Jordan states that there are "150,000 Palestinian residents who are refugees or children ofrefugees." See attached Department of State 2000 Country Report on Human Rights Practices for Jordan, p. 9, Exhibit 8. In addition, the government has emphasized that passports given to Palestinians "do not connote citizenship, which only can be proven by presenting one's national number, a civil registration number accorded at birth or upon naturalization to persons holding citizenship." Id. Mr. Hmaidan never received a national number and thus never was considered a citizen of Jordan and therefore, will not, reasonably in the foreseeable future, be issued travel documents. INS has not been able to remove Mr. Hmadian in the six months the United States Supreme Court has allotted them. Mr. Hmaidan has fully cooperated with the INS's efforts to remove him from the United States. In complying with INS's further request that the detainee attempt to facilitate his release we have written to the Jordanian and Kuwaiti ConsUlates requesting travel documents from Mr. Hmaidan. Both Mr. Hrnaidan, and myself, have written to the Jordanian and Kuwaiti Consulates. See attached copies ofletters, Exhibits 9, 10, 11, 12 and 13. We have heard no response.
Enclosed are the following documents supporting Mr. Hrnaidan's release under an order of supervision:
1. Criminal records ofMr. Hmaidan. 2. Perfect Attendance Certificate at his General Equivalency Development Program 3. Student of the Month Certificate 4. Naturalization Certificate ofHaifa Mahmoud Ahmad and Court Documents certifying
that she adopted Jalal Hmaidan. 5. Support letter ofbrother of Mr. Hmaidan, a copy ofhis LPR Card, and copy of.
Naturalization Appointment 6. The decision ofthe Immigration Judge ordering removal, dated October 25, 2000. 7. The decision ofthe Board ofImmigration Appeals, dated August, 8, 2001. 8. United States Department of States Country Report on Jordan, 2000, excerpt. 9. Mr. Hmaidan's letter to INS Chicago District reflecting Mr. Hmaidan's willingness to
cooperate in his removal. 10. Mr. Hmaidan's letter to the Jordanian Consulate requesting travel documents. 11. Mr. Hmaidan's letter to the Kuwaiti Consulate requesting travel documents. 12. My request to the Kuwaiti Embassy for travel documents for Mr. Hmaidan and a certified
receipt. 13. My request to the Jordanian Consulate for travel documents for Mr. Hmaidan.

/~,
.-~~----
I further reiterate my request that Mr. Hmaidan be released under an order of supervision. He is not a danger to the community and is not a flight risk. He will continue to cooperate with the· INS in facilitating his removal. Moreover, continuing to hold him violates United States law. as decided by the United States Supreme Court in Zadvvdas v. Davis.
Thank you for your immediate attention in this matter and please do not hesitate to call if you have any questions (312-660-1359).
Sincerely,
~~04
Anne Relias
StaffAttorney
cc: Officer Navarro

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aehieve~ent. The recipient is select.ed Cor student the Inonth as a result of his outstanding perforDlance in the classrooJU during the JDonth of August, 2001 •

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SUPERIOR COURY OF CALIFORNIA, COUNTY OF SANTA CLIIRA

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No. A-2122 JUDGMENt OF ADOPTION

The petition of HAIFA MAHMOUD AHMAD for an order of this.

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J.AHAL lIMAIDAN,
.

born F. ebrua<y 4,

11)96<~;.at Zerka, .Jordan, JIHAN lIMAIDAN, born February 14, 1965, at

/l.Jerl.salem, and JALAL IlMAltlAN, born April 23, 1966, at ,Kuwait, ~~rs, shall be the adopted children of ~he petitioner, came on
"ls regularly Dn the 17th day of May, '1976, for hearing, Roy O. Lange

,19 lI.app.ea,,,,,& as .attorney for .t:be .lletltioner; and the petitioner and.

20 minor children h~vlng 8.ppeared before the Coure, and the Court

21 having exa~ined them, each separately; and the Court having heard

22 the' petition aDd evidence in suppDrt of it, and the matter being

23 submitted, the Court finds:

24

1. That all th~ averments oontained in the petition of

25 IlAIPA MAHMOUD AHMAD are true; that the petitioner is the sister of 20 the late moth~r of the said minor children, HEYAH AYEn HEMIDAN,
..... ~------. 27 deceased; tha~ petLtioaer is an adult person, and is more than ten

2'8 years older than the unmarried minors;

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2. Tbat tha 8urvlvlnS parent of the .aid mlnora. AY£D

~ HMAIDAH. baa con.entad tn rhe ~nnDr God (o~ prelcribed to tho

3 adoption of th. aald minor chlldren by thls petltlone~. and hI.
j"
~ coftaent for. ha_ been f11cd vlth the cleTk of thl1 Court. and that

5 the St.~e of California Health and Velfare Agency, Department of

6 Health, has heretofore filed its written report recommendIng the

7 granting of tbe petition, and tho report has been considered by

8:: the Court;

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9

3. That the petitioner has executed an agree=ent that

10 :; the children ahall be treated 1n clll r~9pect8 as the lawful

it

11.": chi. ldren of petitioner·;

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4 •. That the children are proper subjects for adoptlon~

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13 ,! and the petitioner's home is suitable for the children; and that

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15 Jby the petitioner: now thert:;fore.

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IT IS OROERED TlIAT, JAIiAL Ill!AIDAN, JIlIAN IiHAIDAN, and

17 ~nJALAL HHAIDAN be adopted by HAIFA MAHMOUD AHM. AD, and that these

18 ~ persons shall hereafter sustain toward oach ot:her all tE:gal

19 It obligations of parent and chlld. and shall have all the rights 'and i
::0;' be under all the duties of such rel~tlonshlp. including all legal
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21 '. rights 8,nd duties of custody, support nnd inheritance.

IT IS FURTHER ORDERED TlIAT, the children shall continue

23;i to bear the na",.s of their birth and shan be ,known as JAKAL

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2~!i HMAIDAN, JIlIAN HMAIDAN. and JAUL IIlIAIDAN.

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'~~1(7) \17 ~ . (' :: j Dated:

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U.S. Department / ". lstice Immigration and t ..alization Service

Anne Re1ias Attorney At Law Midwest Immigrant and Human Rights Center 208 S. LaSalle St., Suite 1818 Chicago, Illinois 60604 Re: A20318437

HQPDU Washington, DC 20536
A20 318 437

We have received your request for review for a custody re-determination. The Immigration and Naturalization Service ("INS") is in the process of reviewing the likelihood of repatriating you to your home country or country where ordered removed pursuant to a [mal administrative deportationiremoval order. You are advised that in accordance with the Supreme Court's instruction in Zadvydas v. Davis, 121 S.Ct. 2491 (2001) and INS regulations, 8 C.F.R. § 241.13 (66 FR 56967, November 14, 2001), you have the burden to show that there is no significant likelihood of repatriating you in the reasonably foreseeable future. In order to undertake the review" in accordance with 8 CFR §241.4 and 8 CFR §241.13, you must provide the following documentation:
• Copies all passports, birth certificates or other nationality documents in your possession
• Copies of correspondence indicating your good faith efforts to obtain a passport from your country of nationality or other country indicated on your Order of Removal.
• Copies of receipts or responses from Embassies, Consulates or other governmental offices responding to your request for a travel document
Upon receipt of the above information, this office will conduct a full review of your case and make a determination of custody. Until such time as you submit the above information, the removal period defined in 8 CFR §§ 241.4 and 241.13 is held in suspense.
You may submit additional evidence if you believe your removal is not possible in the reasonably foreseeable future. You must resubmit evidence previously submitted that your removal is not imminent for reconsideration. You must also prove that you are taking positive measures to facilitate your removal from the United States. You are also advised that the Service may continue to detain you until there has been a determination under 8 CFR §241.13 whether there is a significant likelihood that you can be removed in the reasonably foreseeable future.
All evidence should be sent to the Headquarters Post Order Unit (HQPDU), 801 I St, NW, Washington, DC 20536, Room 800.
EXHIBIT
j A-(7)

The HQPDU has chosen not to review your case at this time because of:

•

You are not currently in INS custody.

•

Your immigration case is pending review by the Board of Immigration

Appeals and is therefore, not a final order subject to review by the HQPDU.

•

The Removal Period has not yet expired, thus making you ineligible for any

review.

•

You have not been in custody with a final order of removal for the statutory

period of time.

•

Your case is pending before a Circuit Court of Appeals and you are not

eligible for a review of your case.

•

You have a judicially ordered stay of deportation, exclusion or removal.

•

Records indicate that you are statutorily ineligible for a custody review

pursuant to 8 CFR 241.13

Once you are eligible for review, the HQPDU will conduct a review of your case and issue a decision.

Date

May 24, 2002

III
UIICAGO CONNECTIONS
A REA TLANO "ALLIANCE PARTNER.
\

Officer Rozas Headquarters Post Order Unit 801 I Street, NW, Room 800 Washington DC, 20536 RE: JALAL HMAIDAN, A 20-318-437

Dear Officer Rozas,

On March 22,2002, I submitted a request for Mr. Hmaidan's released under the Supreme Court decision, Zadvvdas v. Davis. In that request I submitted four exhibits (10, 11, 12 and 13) indicating correspondence illustrating my client's good faith efforts to obtain a passport from his country of birth as well as his country of residence. Those exhibits are the following:

1. Mr. Hamidan's letter to the Jordanian Consulate requestingtravel documents (Mr. Hmaidan was ordered removed to Jordan)
2. Mr. Hamidan's letter to the Kuwaiti Embassy requesting travel documents (Mr. Hmaidan was born in Kuwait).
3. My written request to the Kuwaiti Embassy for travel documents for Mr. Hamidan and a certified receipt.
4. My request to the Jordanian Consulate for travel documents for Mr. Hmmdan and a certified receipt.

Neither Mr. Hmaidan, nor I have received any response from either the Jordanian Consulate or the Kuwaiti Embassy.

Mr. Hmaidan used to have a Jordanian passport, however it expired and could not be renewed. Mr. Hmaidan is not a native of Jordan and is ofPalestinian descent, therefore his Jordanian passport was only ofa temporary nature. Mr. Hmaidan is not in possession of his birth certificate.

Because you received this information with my initial request for review of Mr. Hmaidan's case
I expect that a full review of his case has already begun. The removal period defined in 8 CFR §§ 241.4 and 241.13 should not be held in suspense as I submitted this information with my initial request for review.

Providing paths from harm to hope through human services Midwest Immigrant & Human Rights Center
TINChicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604 phone 3I2-660-1300 fax 312-660-1505 website: www.heart1and·a1liance.org

EXHIBIT
4-{S)

I have enclosed a copy of my initial request as wen as the exhibits corresponding to your written . request which were originally submitted two months ago.
Thank you for your immediate attention to this matter.
Sincerely,
~.~c>-4
Anne Relias Attorney at Law
(312) 660-1359
cc: Officer Navarro, Officer Zamora Chicago District

.r--." liEARrr..A~ ND~CE /',
TIAIChicago Connections
The Midwest linmigrant Rights Center

February 4, 2002

Embassy ofKuwait 2940 Tilden street, NW Washington, DC 20008

Re:·Trave1 documents for Ja1a! Ayed Hmaidan,

To Whom It May Concern:

I am 'writing on behalfofmy client, Jalal Hmaidan. Mr. Hmaidan was born in Kuwait in 1966

and is ot-Palestinian descent. He was ordered removed to Jordan on October 25, 2000. On

August..8, 200i, the Board ofImmigration Appeals denied his appeal. Mr. Hmaidan has been

detained by the INS for over six months following a final removal order. The INS has not been

able to remove biro. The INS bas requested that Mr. Hmaidan take measures to facilitate his

removal. I am requesting that you respond, in writing, to this written request to supply Mr.

Hmaidan with travel documents. Please state whether INS has requested ~y:ei dOC\llllents for

this individual. Please provide an explanation ofwhy Mr. Hmaidau. cannot.be issued travel

documents ifthat is the case. . '

. .

Please feel free to call me With any questions: (312) 660·1359.

. Thank you for your immediate attention in this matter...

Sincerely, ~~V{.

Anne Relias

Attorney at Law

Detelition'Project

.

Midwest Immigrant and Human Rights Center

208 S. LaSalle, Suite 1818

Chicago, Illinois 60604

Cc: David Venturella, INS

A-(9)

Travelers & Immigrants Aid/Chicago Connections· 208 South LaSalle Street, Suite 1818. Chicago, Illinois 60604

Phone: (312) 66()-1370, Ext O· Fax: (312) 660·1505

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--(\ liEARn.A~ No~CE ('\
rIA/Chicago Connections
The Midwest Immigrant Rights Center

February 4, 2002

Asal al-Tal Jordanian Consulate 3504 International Drive, NW Washington, DC 20008

Re: Travel documents for Jalal Ayed Hmaidan,

Dear Ms. al-Tal,

I am wrjting on behalfofmy client, Jalal Hmaidan. Mr. Hmaidan was born in Kuwait in 1966
and is ofPalestinian descent. He was ordered removed to Jordan on October 25,2000. On August 8, 2001, the Board ofhnmigration Appeals denied his appeal. Mr. Hmaidan has been
detained by the INS for over six months following a final removal order. The INS has not been
able to remove him. The INS has requested that Mr. Hmaidan take meilsures to ,facilitate his removal. I am requesting that you respond, in writing, to this written request to supply Mr..
an Hniaidan with travel documents, Please state whether INS has requested travel documents for
this individual. Piease provide explanation ofwhy Mr. Hmaidan cannot be issued travel
documents ifthat is the case.

Please feel free to call me with any questions: (312) 660-1359.

Thank you for your immediate attention in this matter.

Sincerely,
f./CIMAQ. ~~
Anne Reli!lS Attorney at Law Detention Project Midwest Immigrant and Human Rights Center 208 S. LaSalle, Suite 1818
Chicago,illinois 60604 .

Cc: David Venturella, INS

EXHIBIT
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• Complete Items 1, 2, and 3, Also complete

Item 4 If Restricted Delivery Is desired.

• Print your name and address on the reverse

so that we can return the card to you,

• .Attach .thls card to the back of the mallplece, or on the front If space

x

DAgent

1. ArtIcle Addressed to:
Asct1 alT<u

D. Is deivery address different from

Yes

!J "YES, enter deDvery address below:

No

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, PS Fall'll 3811. March 2001 .

OomesKc Return Receipt

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EXHIBIT .~.,.,..
A-(2)
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·

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··EXHIBITB

Uij/Ub/ZUU2 17:3U MJ. 312 385 3401

INS

or \ '.S. \lclmrtlllent Justice
lllll1lig,n.lliUll and Naturalization Service

Ii!J 0011002

r,
)

- Notice to Appear

I\I I'CIIlOVal proceedings under section Z40 of the Immigration and Nati'Jnality Act

File No: A78 851 016

In Ihe Matter of:
l!csl'olldelll: _ ~AL~H!!!nl!!!ti!!.n _ _ _ _ _!:'!.M!!!urad!!!!._ _ _ _ _ _~_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

I,H!5 Snulh Western Avenue
t'hicagn

(Numbel, sued., cIty, atat.e and ZIP todc)

II.

60636

1-773-778-5200 . ,
(Area code and phone number)

nn I, You are an arriving alien, 2. You are an alien present in the United States who has not been admitted or )Jaroled. P.9 3. You have been admitted to the United States, but are deportable for the reasons stated below_

The Service alleges that you: I. You are not a citizen or national of the United States;

!. You are a native 'of Jordan and a citizen of Jordan; .1, Ynu were admitted to the United States at Chicago, Dlinois on or about June 29, 1996 as a nonimmigrant visitor for pleasure (B-2) with
authorization to remain in the United States for a temporary period not to exceei December 28, 1996;

,I. You remained in the United States beyond December 28, 1996 without authorization from the Immigration and Naturalization Service;

5. You were employed for wages or other compensation in 1997-2000 at Quickstop, in Chicago, Dlinois without authorization of the

I Illllligration and Naturalization Service.

. ,

On Ihe basis of the foregoing, it is charged that you are subject to removal from Ibe Unite!! States pursuant to the following provision(s) of law: S"cliull 237(a)(I)(B) of the Immigration and Nationality Act (Act), as amended, in that after admission as a nonimmigrant under Section IUI (,,)(15) of the Act, you have remained in the United States for • time longer than permitted, in violation of this Act or any other law of Ihe United States.
S"cliull 237(a)(J)(C)(i) of the Immigration and Natio~ty Act (Act), as amended, in that after admission as a nonimmigrant under Section IUI (n)( 15) of the Act, you failed to maintain or comply with the conditions of the [,onimmigrant status under which you were admitted.

Il This notice is being issued after an asylum officer has found that the responde'nt has demonstrated a credible fear of persecution.

I 1 SccliOil 235(b)(1) order was vacated pursuant to: 0 8 CPR 208.30(f)(2) 0 8 CPR 23S.3(b)(S)(iv)

\ O()ll ARE ORDERED to appear before an immigration judge of the United Statl:S Department of Justice at:

5~ Enst Monroe Slreet, Suite 1900, Chicago, Illinois 60603

""

TO Bil SilT

(Dale)

dmrge(s) set forth above.

(Complete Addrw of fmmtpLloa Ccnut. (DcllUlinJ Room Number, Ir any)

,

at TO BB SBT to show why you should :10t be removed from the United States based on the

(rIm<)

Acting Assistant District Director, for lnv.
(Silnarurc lad Tille DfIssulna Officer)

Dalc: _ _1"0-4=-0,,,1~_

Chicago, illinois
(Cit)' and ScaIZ)

EXHIBIT
6CI)

See reverse for important inrormation

Form 1-862 (Rov. 4-1-97)

06/05/2002 17:30 FAX 312 385 3401

INS

~ 002/002

~~~~~~~~ 'Je~ e rev~ erse~ fo~~ impo~ rtan~ t in£~ ~rman~ ',---~ -, ~~~~I-

Wilrning: Any statement you make may be used against you in removal pro,:eedings.

Alien Registration: This copy of the Notic.. to Appear served upon you is evidellCe of your alien registration while you are uruler

removal proceedings. You are required to carry It with you at all times.

.

Representation: If you so choose, you may be represented in this proceeding, at no expense to the Government, by an attorney or olher individual authorized and IJ.1:1a1ified to represent persons before the ExecutiYe Office for Immigration Review, pursuant to 8 CFR 3.16. Unless you so request, no hearing will be scheduled earlier than ten days from the date of this notice, to allow you sufficiem lime 10 secure counsel. A list of qua1ified attorneys and organizations who may be available to represent you at no cost will be
provided with this Notice.

Conduct of the hearing: At the time of your hearing, you ,should bring with YOl, any affidavits or other documeDlS which you desire to have considered in connection with your case. If any document is in a foreign. language, you must bring the original and a'certified English translation of the document. If you wish to have the testimony of any witnesses considered, you should arrange to have such
witnesses present at the hearing.

AI your hearing you will be given the opportunity to admit or deny any or all of the alle&ations in the Notice to Appear and that you arc inadmissible or deportable on the charges contained in the Notice to Appear. You Will have an opportunity to present evidence on your own behalf, to examine any evidence presented by the Government, to object, on proper legal grounds, to the receipt of evidence
and to cross examine any witnesses presented by the Government.

You will be advised by the immigration judge before whom you appear, of any relief from removal for which you may appear eligible including !he privilege of departing voluntarily. You will be given a reasonable (OpPOrtunity to make any such application to the . immigration judge.

Failure to appear: You are required to provide the INS, in writing, with your ,[ull mailing address and telephone number. You must
notify !he Immigration Court immediately by using Form EOIR-33 whenever you change your address or telephone number during the course of !his proceeding. You will be provided with a copy of this form. Notices of hearing will be mailed to this address. If you do not submit Form EOIR-33 and do not otherwise provide an address at which you may be reached during proceedings, then the Government shall not be req.uired to provide you with written notice of your hear~. If you, fail to attend the hearing at the time and
place designated on this notIce, or any date and time later directed by the Immigration Court, a removal order may be made by the immigration judge in your absence, and you may be arrested and detained by th~: INS.

Request for Prompt, Hearing
To expedite a determination in my case, I request an immediate hearing: I waive my right to have a 100day period prior to appearing berore an immigration judge.

Before:

Date: _________________

or Certificate Service

This Notice to Appear was served on the respoD.iem by me on _ _.;:O.;:c::to.;:b::;;er;",:.i4,~2:.:0::0::1,-__ ,in the follOWing manner and in

compliance with section 239(a)(1)(F) of the Act:

(0.0)

d~z~--7 r/'/e' '~

Qg in person

o by certified mail, return receipt requested

. o by regular mail ~·p~eW\.r{...)J W10

Qg Atlached is a list of organizations and attorneys which provide free legal services.

o The alien was provided oral notice in the

__ language of the time and place of his o~ h~r

hearing and of the consequences of failure to appear as. prOvidI]Jne2.40(b)(7) 0 . the Act.

S'
...L'>""~!:;:;':*-~r=k=~:f::ji.--

-
. '.

I
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RTeh~te"!'>tO?n3dpeonnfd''mfj ~:llpWp<llcw5.oatri®onr"f,edrr"e'Jmolouvnetrduyfrdomeptah,e~UenwitaesddSetnatiee3d

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t/"<'f.,ptlt:l(knt'& "\PFil1::,dollfof<i\'lt.hholding of remQval wag ( ) grtulM:l ( ) denied ( ) Vi,;},::"";";;;,,,, Rt'S[X'lld~l)hj appli<;atiO)l for c.-.ncellation of removalU11d~r Section 240A(i) was (, ) grilL:;;-,:;

( ') denied ( }~Nitbd:rg'vll..

., .

FUob1!-',\:>:nae.frf' ~ ':1:t-'1JHe~tiot1 fo1' c.ai'lcelJatio!l of fei:noy~ ~ldet, Sectio.tl 2~Oj.\(b) \VBfi (.) g.m:nifrd

( ) clem.;;;:) , )vvit4zh:ay;n, If graut~d, it wa;;; (lrderediliat ih~ reopcnd"nt b.. i~Bued all app~opri',,;\,'

~tictUtfe\).iif n0(:1j~~'afy to give f;ffe~t to this os'del".

.

, ". ,. ;,,J~#~\!i!.kmt! s',llr..pli\l;'<r.f)l1jiIN~wai~f,un~.,S"'lltien::::.:::c:..::,;;:.:Qf-th~TNAWil~ ." ~" }'gl<l.Hk~d·, .

( ) di::nl€fl ( ) v.ithdrawn ( ) other,

.

1l~E;l-)(':nd~!Jt1p gppliGstion for oojusYm@nt c~f gtatUfJ llilq~r S~,:;tion ___.____ of th~ ~Jr\. 'was

;; ') gt'(j,ll1'!;td!. ) .;kni~d ( ) withdrll'\'i!l-, IfgrmWtl-, it wa~ Qr'~nd that r~~p-;m:zkr"" I;.:: ii>sued !\',\

uppt'Dptiate dOCUm~fi!!l neces!lIl1'Y to give effll0i to this (,rael:',

} R"'''[.lOnOOllt' s st~tus wa$ res(.~iJ.ldW under Section 24q;

" ,

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rmmit1tatioil Judge's om!. deci~iou,

' ,

.! }'lmceeillngs Wele te.ff.tltl:li1ted,
1

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O~1Gee Cvl<M.t; J.oW.\
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. of Wisconsin ... ,;lty of Ozaukee

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• p~i~t y~~~'~~~;';~d~;dd;~~~-O~~th~-~averse

so that we can return the card to you.

C. Signature

~ • Attach this card to the back of the mailpiece,"~

DAg

\ or on the front if space permits.

'

DAd

1. Article Addressed to:

D. Is delivery address different from item 1? 0 Ye: If YES, enter delivery address below: 0 No

June 6,2002
Asal ai-Tal ,~
Jordanian Consulate

~a) oJ-TaJ

JO(cJo/l'iJ OVA Ut6v(G.JQ

g SCf-i 111716 nCGl-rCv1uJ Ot; ~"- 3. Se~e1Ype

\ ' \ ,'. 1-

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~Certjfjed Mail
o Registered o Insured Mail

\
o Express Mail o Return Receipt for Meret
o C.o,D,

3504 International Drive, NW _ _ _ _ _ _ _ _ _ _ _<_-< _~ _l_;'V_Q_--'-_4,_R_._st_rict_ed_D_e_liv_er;'l'----(&t_ra_p._ee_~___D_Ye__"

Washington, DC 20008

Dear Ms. Asal al-Tal,

PS Form 3€

I am writing on behalf of my client, Murad AI-Hnitin, Mr, AI-Hnitin was born in Zarqa, Jordan on January 7, 1980. In 1995 he entered the United States on a B-2 Visitor Visa, He was ordered removed to Jordan on October 24,2001. He is currently in INS custody at Tri-County Detention Center in Ullin, Illinois. At the request ofthe INS, 'and on behalf ofmy client, I am requesting that he.be issued travel documents to Jordan. If the Consulate is unable to do so please explain, in writing, why,

Please feel free to contact me to discuss this case.

~ ~cer. elY'/iL>a-XI.I-i e;,....{
Anne Relias Attorney at Law Midwest Immigrant and Human Rights Center 208 South LaSalle, Suite 1818 Chicago, IL 60604 T: (312) 660-1359 F: (312) 660-1505

u.s. Postal Service
CERTIFIED MAIL RECEIPT
(Domestic Mail Only; No Insurance Coverage Provide

CJ
ru

Postage

'M"

Certified fee

CJ

Return Recelp' Fee

CJ (Endorsement Required)

CJ CJ

Restricted Delivery Fee (EndOl'Sement Required)

$ CJ Total Postage & Fees
::r

IT' M

IAL USI
~ po~~,:",
: A1-+1~(

Providing pathsfrom harm to hope through human serviCes Midwest Immigrant & Human Rights Center
TINChicago Connections, 208 South LaSalle Stree4 Suite 1818, Chicago, Illinois 60604 phone312-660-1300 fax 312-660-1505 website: www,heartland-alliance.org

EXHIBIT

A. HEARTLA.ND ALLIA.NCE PAlI.TNER

0=,'';
June 28, 2002

Headquarters Post Order Unit 801 I Street, NW Room 800 Washington, DC 20536

RE: REQUEST FOR RELEASE OF MURAD AL-HNITIN, A 78-851-016

Dear Officer Rozas

I am writing to request the release ofMurad Al-Hnitin. Mr. Al-Hnitinwas born in Zarqa, Jordan
on January 7, 1980. In 1995 he entered the United States on a B-2 Visitor Visa. He was ordered removed to Jordan on October 24, 2001. He is currently in INS Custody at Tri-County Detention Center in Ullin, Illinois. He has been in INS Custody for over six months after a final order of removal. The INS has been unable to effectuate his removal, and therefore he is eligible for release under the United States Supreme Court decision, Zadyydas v. Davis. Continuing to detain him violates federal law.

Attached are the following documents in support of Mr. AI-Hnitin's release:
I) A copy of the Immigration Judge's removal order dated October 24,2001 2) A letter from Respondent's Counsel to the Jordanian Embassy requesting travel documents 3) A letter from Respondent to the Chicago District Director agreeing to cooperate in effectuating his removal

Thank you for your immediate attention to this matter. Sincerely,

U.S. Postal Service

~

CERTIFIED MAIL RECEIPT

(Domestic Mail Only; No Insurance Coverage Provide

Anne Relias Staff Attorney Midwest Immigrant and Human Rights Center T: (312) 660-1359
Attached: Letter to Jordanian Consulate

t:J
ru

Postage $

00

r'I

Certified Fee

t:J

Return Receipt Fee

t:J (Endorsement Required)

t:J t:J

Restricted Delivery Fee (Endorsement Required)

$ Total Postage & Fees

(e: A-i-~s~
He" ~
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Providing paths from harm to hope through hu~ma~n~se~rv~ic~es~mmDm.~,=~~!!

Midwest Immigrant & Human Rights Center

TWChicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604
nhone 312-660-1300 fax 312-660-1505 wehsite~ www.heartland_aI1iAnce.oTP

8(52

UNITED STATES POSTAL SERVICE
.'"\

First-Class Mail Postage & Fees Paid
USPS
Permit No. G-10

• Sender: Please print your name, address, and ZIP+4 in this box·

SENDER: COMPLETE THIS S£CTfON
-'
• Complete nems 1. 2, and 3_ Also complete nom 4 If Restricted Delivery Is desired,
• Print your name and address on the reverse':", so that we can return the card to you,
• Attach this card to the back of the mallplece, or on the front If space permits_ "

1, Article Addressed to:

If YES, enter delil,.I.radd",ss

.2. Article Number (Copy from service !abel)
PS Form 3811. July 1999

7001 1940 DODD 182D 4449

Domestic Retum Receipt

102S95·g9.M-1789 .

U.S. Department of Justice Immigration and Naturalization Service

n
1\ ~e of Entry of Appearance as or H"rltlPV

An appearance shall be filed on this fann by the attorney or representative appearing in each case. Thereafter. substitution may be upon the written withdrawal ofthe attorney or representative ofrecord or upon notification ofthe new attorney or representative. When
is made by a person acting in a representative capacity, his personal appearance or signature shall constitute a representation that provisions of this chapter he is authorized and qualified to represent. Further proof of authority to act in a representative capacity may be lre'luiJ~d. Availability of Records· During the time a case is pehding, and ex.cept as otherwise provided in 8 CFR l03.2(b). a party to a proceeding
or representative shall be pennitted to examine the record of proceeding in a Service office. He may. in confonnity with 8 CFR
IHIj.J!U,OOlaI.llcopies of Service records or infonnation therefrom and copies of documents or transcripts of evidence furnisbed by him. Upon may, in addition, be loaned a copy of the testimohy and ex.hibits contained in the record ofproceeding upon giving hislher receipt for
and pledging that it will be surrendered upon fmal disposition of the case or upon demand. If ex.tra copies of exhlbits do not exist. they

(Zip Code)

(Apt. No.)

(Number & Street)

(State)

pplicahle l1em(S) below:

1. I am an" attorney and a member in good standing of the bar afthe Supreme Court oftbe United States or of the highest court of the follOwing

f, LOU ( -:r: S~territory,.insular ssession, or District o}....Col1fIlJbi~~
..J-t r\ .5

and am not under a cotut or administrative agency

NamcQfCQurt

o order sus ndin, en'oinin • restraioin • disbanin , or otherwise restrictin me in racticin law. 2. I am an accredited representative of the following named religious, charitable, social service, or similar organization established in the

United States and which is so recognized by the Board:
o 3.1 am associated with
the attorney of record'-p-re-v""io-u-s"'ly-fi"il'"e"'d-a-n-o""'ti"'c-e-o"'f-ap-p-e-a':""-n-ce""'in""th"'is-c-a-s-e-an-d':-m-y-a-p-p-e-ar-an-ce-:-is-a""'t"'h""is-r-e-qu-e-s"'"t.'"'("'lf:"y-ou""'ch'"e-ck'",""'h'",,""item, also

o check item 1 or 2 whichever is appropn·ate.) 4. Others (Explain Fully.)

SIGNATURE
~ Jt,PeJ;Qf

NAME(fypeor~..

~ 0 _I !

('-'(VI Vl.Q U· ~ C( G

COMPLETE ADDRESS
TIA/CHICAGO CONNECTIONS 208 S. LaSalle St, Suite 1818

TELEPHO

ER

PURSUANT TO THE PRIVACY ACT OF 1974.1 HEREBY CONSENT TO THE DISCLOSURE TO THE FOLLOWING NAMED

AlTORNEY OR REPRESENTATIVE OF ANY RECORD PERTAINING TO ME WHICH APPEARS IN ANY IMMIGRATION AND

NATURAliZATION SERVICE SYSTEM OF REr~n ....c.

TIAHIHRC

(NiII'I'IC of AUomcyor ~lDli"c)
THE ABOVE CONSENT TO DISCLOSURE IS IN CONNECTION WITH THE FOLLOWING MAlTER:

Date
5-15-~e'2..

(NOTE: Execution of this box is required under the Privacy Act of 1974 where the person being represented is a citizen of the United States or an alien lawfully admitted for permanent residence.)

This forro may not be used to request f«or4§ Ulld;r the Freedom of ~orroatioD Act or the Privacy Act. The manner of requesting such

records is contained in 8CFR 103.10 and 103.20 Et.SEQ.

Fonn G-28 (09l26fOO)Y

U.S. Department I'""ustice Immigration and Naturalization Service

Anne Relias TIN Chicago Connections 208 South LaSalle St. Suite 1818 Chicago, Illinois 60604

HQPDU
Washington, DC 20536
A 78851 016

We have received your request for review for a custody re-detennination. The Immigration and Naturalization Service ("INS") is in the process of reviewing the likelihood of repatrjating you to your home country or country where ordered removed pursuant to a final admiilistrative deportation/removal order. You are advised that in accordance with the Supreme Court's instruction in Zadyydas v. Dayis, 121 S.Ct. 2491 (2001) and INS regulations, 8 C.F.R. § 241.13 (66 FR 56967, November 14, 2001), you have the burden to show that there is no significant likelihood of repatriating you in the reasonably foreseeable future. In order to .undertake the review" in accordance with 8 CFR §241.4 and 8 CFR §241.13, you must provide the following documentation:
• Copies all passports, birth certificates or other nationality documents in your possession
• Copies of correspondence indicating your good faith efforts to obtain a passport from your country of nationality or other country indicated on your Order of Removal.
• Copies of receipts or responses from Embassies, Consulates or other governmental offices responding to your request for a travel document
Upon receipt of the aboveinfonnation, this office will conduct a full review of your case and make a detenn4Iation of custody. Until such time as you submit the above infonnation, the removal period defined in 8 CFR §§ 241.4 and 241.13 is held in suspense.
You may submit additional evidence if you believe your removal is not possible in the reasonably foreseeable future. You must resubmit evidence previously submitted that your removal is not imminent for reconsideration. You must also prove that you are taking positive measures to facilitate your removal from the United States. You are also advised that the Service may continue to detain you until there has been a determination under 8 CFR §241.13 whether there is a significant likelihood that you can be removed in the reasonably foreseeable future.
All evidence should be sent to the Headquarters Post Order Unit (HQPDU), 801 1St, NW, Washington, DC 20536, Room 800.

EXHIBIT

-'\

(\

The HQPDU has chL .1 not to review your case at this time, ,imse of:

•

You are not currently in INS custody,

•

Your immigration case is pending review by the Board of Immigration

- App'~als and is therefore, not a final order subject to review by the HQPDU.

•

The Removal Period has not yet expired, thus making you ineligible for any

review,

•

You have not been in custody with a final order of removal for the statutory

period of time,

,.

Your case is pending before a Circuit Court of Appeals and you are not

eligible for a review of your case.

•

You have a judicially ordered stay of deportation, exclusion or removal.

•

Records indicate that you are statutorily ineligible for a custody review

pursuant to 8 CFR 241.13

Once you are eligible for review, the HQPDU will conduct a review of your case and issue a decision.

~

'.

'(,l~ignature ofHQPDU DirectorlDesignated Representative

Date

.. EXHIBIT C

.s. Department of Justice
IInigation and Naturalization Service

.~
l\v.lce of Intent to Issue a Final Administrative Removal Order

In removal proceedings under section 238(b) of the Immigration and Nationality Act

PKA.: AIDJN[, M:ialllel

File No; A70 525 4rE

ddress; l+'8 67th Street, !lrcd<lJin, N.{ 11220
(N::":.1abcr. Street, City, Stare and ZIP Code)
~Iephone; (7182..:4",,9=-1-6-717':'!-5""-'::---:-:-7-:_ __
. (Area Code and Phone Number)

Irsuant to section 238(b) of the Immigration and Nationality Act (Act), 8 U.S.C. 1228(b), the Immigration and Naturalization

,rvice (Service) has determined that YOll are amenable to expedited administrative removal proceedings. The determination is based

I the following allegations;

.

You are not a citizen or national of the United States. You are a native of ~

",...".., ~ and a citizen of _ _"'-EP--='_ -= _ _ _ _ _ _ _~----

You entered the United States (at)(near) Iin'ltxn, 'lexas

on or about Septari:er 26, 1991 .

reug At that time you .entered as a s~ wi tIPlt

a:irrj tted or pam1erl joto t:J:e U.S. bv an :inmigmtim offi~.

You are not lawfully admitted for permanent residence.

You were, on Mw 4, 1999

, convicted in the

Cimrlt

Court

oi (rok rout)', Tlljmjs

for the offense of Beta;] 1teft

in violation of

a)'1Pter 72D, Act 5, E:ectjm 16A-3=-A of t:J:e urn 1992, as ararlffi for which the term of imprisonment imposed was

.ere year jp t:J:e I.llirois Igartrrent of OJrrecticns

harge: 011 nrc d."onable IInder scctioll 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), as amended, because you havc beell "Ivicted of all aggravated fclollY as defincd in section 10 I(a)(43) of the Act, 8 U.S.C. 1101 (a)(43).
,sed UpOIl section 238(b) of the Act, the Service is serving "1'011 you this NOTICE or INTENT TO ISSUE ,A FINAL
DMINISTRATIVE REMOVAL ORDER ("Notice of Illtent") without a hearing ?cfore an Immigration Judge.

o.urJligh1s.Jlnd.RcsPQllsiWlitics.: ou may be representcd (at no expense to the United States Il.0vernment) by counsel, authorized to practice in this proceeding. If yoII ish legal advice and cannot afford it, you may contact lega! counsel from the list of available free legal services provided to you.

:HI must respond to the nhovc charges in writing to the Service address provided on the other side of this form within 10 cafcndar
.ys of service of this notice (or 13 calendar days if service is by mail). The Service must H£.CEl.VE you .. response within that lie period.

your responsc YOll may: reguest, for good cause, an extension of time; rebut the charges stated above (with supporting evidence); guest an opportunfty to review the government's evidence; admit deportability; designate the country to which you choose to be moved in the event that a final order of removal is issued (which designation the Service will honor only to the extent permitted Ider section 241 of the Act, 8 U.S.C. 123 I); andlor, if you fear persecution in any specific country or countries on account of race. ligion, nationality, membership in a particular social group, or political opinion or, if you fear torture ill any specific country or .utltries, you mairequest withholding of removal under section 24 I(b)(3) of the Act or withholding/deferral of removal under the )nvention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture). A ant of withholding or deferral of removal would prohibit your return to a country or countries where you would be pcrsecuted or rtured, but would not prevent your removal to a safe country.

. y fi I administrative order by filing a petition for review within 14 calendar days after the date or you may waive such appeal by stating, in writing, your desire not to appeal.

Clri.cago, IJ.1.irois
(Clly IUId Slate ~)r Issuance)

Jtre 3::1, 1999 EXHIBIT

Form 1·851

eLI)

Certificate of Servite

I have determined that the person served with this document is the individual nam

.UloC#IA-~~~:::='-:S~~~-ra..._ (SitnillUrc and Title of Officer)

7 It! her . 9! 10 PC) I ~ (OaIC Mil Manner of Service)

I explained and/or served this Notice of Intent to the alien in the _!;;:M=<=w:wL--.c:(~=.LtfL-_ _ _ _ _ _ language.

Name oflnterpreter

LocationlEmployer

I Acknowledge that I Have Received this Notice of Intent to Issue a Final Administrative Removal Order.
c~:q-- .----(Sjgn~lliurc~of Re~ spond- ent) ----

receipt of this document.
S

(Dale nnd Time)

I Wish to Contest andlor to R<quest Withholding of Remova)
o 1CO!1tcst my deportability because: (Alwd/ any supporting t/ocllm('lItalion)

[J I am a citizen or national of the United States.
[J I am a lawful permanent resident of the United States.
o I was not convicted of the criminal offense described in aliegation number 6 above. o I al11 Httaching documents in support of my ,cbuttal and request for further review. o I request withholding or deferral of romoval to __________________ INilllIc(s) ofCoIIII'ry or COII"U o Under section 241 (b)(3) of the Act, because) fear persecut ion 011 account of my race, religion, nationality, tIletllbersh
particular social group, or political opinion in that country or those countries.
o Under the Convention Against Torture, been use I fear torture in that country or those coulltries.

(Sisnnlure of Rc~pondcnl)

(Printed N!Unc or Jtc~pom.lCIJI)

{Dale nnu Til

I Do Not Wish to Contest or Request Withholding of Removal
o I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not e for any fonn of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petit review of the Final Removal Order. I do not wish to request withholding or deferral of removal. I wish to be remo
o 1also waive the 14-day period for execution of the Final Removal Order.

(Signature ofRcspondenl)

(Printed Name of Respondent)

(Dale andTi

(Signature of Wilness)

(Printed Name of Witness)
RETURN THIS FORM TO: United States Department of J"~.5tice ImmigratIon and Naturalization ·Service
10 loest Jacks:n m\d.

(Date and Ti

-------------------------- -" ..
ATTENTION: D=pxtatioo iltarm
The ServIce office at the above address must RECEIVE your response within 10 catendar days from the date of service ofthls notice (or 13 calendar days i!servlce Is by mail).
Form 1-851 (Rev.

u.s. Department of Justi..
immlettlion and NalUnlizallon Service

Final Administrative Removal Order

FINAL ADMINISTRATIVE REMOVAL ORDER UNDER SECTION 238A(b) OF THE
IMMIGRATION AND NATIONALITY ACT
File No: A10 525 409
Date: August to. 1999

To: AlDOUNI.

Mollamed Ha.nld

Address: cia U. S.imml~ratlon & Naturalization Service.

AKA: Mohamed Aiclouni
Chicago, II.
(Number. street, I;I()' Sfat4 ;!.nd ZIP QJo,Ic)

Telephone: ""31",2..:.38",,5,-,17.72,,,,4---:~-:-_,:"",:,_ __
(Arca code and phone n\Llll~r)

60604

ORDER

<

Based upon the allegations set forth in Ibe Notice of Intent to Issue a Final Administrative Removal Order and

evidence contained in Ibe administrative record. I, the undersigned Deciding Service Officer of the hnmigration

and Naturalization Service, make the following findings of fact and conclusions of law. I find that you are not a

citizen or national of the United States and that you were not lawfully admitted for permanent residence. I

further find that you have a final conviction of an aggravated felony as defined in section 101(a)(43) of the Act,

S U.S.C. llOl(a)(43), and:-are ineligible for any relief from removal that the Attorney General may grant in an

exercise of discretion. I further find that Ibe administrative record established by clear, convincing, and

unequivocal evidence that you are deportable as an alien convicted of an aggravated felony pursuant to section

237(a)(2)(A)(iii) of the Act, 8 U,S.C, 1227(a)(2)(A)(iii). By Ibe power and authotity vested In the Attorney

General and in me as Ibe Attorney General's delegate under the laws of the United States, I fInd you deportable

as charged and order that Y9U be removed from the United StatC$ [0

Algeria

or to any altema e country prescribed In section 241 of the Act.

.' Petition for' review: 0 Waived by respondent.
o Reserved by respondent.

t.lUtot~ INS Official)
(TitI. or amcb.l)
August 10, 1999 - Chicago I!!lnols
(Oltc ilM om.c.c loeadonl

Certificate of Servtce

I served this FINAL ADMINISTRATIVE RE
! /4, If)

Fom> I~-~EX!l!lH!I!II--B--IT!!IIIII·
eel.-)

U. S. Depa....tmeht <If Justice

Immigration and Natuntlizat'ion Service

,

Name AIDOUNI, Mohammed Place and Manner of Arrival "'. houston!txI e..w-I

,'\

rA& /,q,/t:>~,.,

Notice of Ret, al to Immigration Judge

Date
A-FUe 70525409 Country of Citizenship Algerian Date of Arrival
9/26/91

To immigration judge:

o L The above-named alien has been found inadmissible to the United States and ordered removed pursuant to section

235(b)(l) of the Immigration and Nationality Act (Act), A copy of the removal order is attached, The alien has requested

asylum and/ or protection under the Convention against Torture and the matter has been reviewed by an asylum officer

who has concluded the alien does not have a credible fear of persecution or torture, The alien has requested a review of

that determination in accordance with section 235(b)(I)(B)(iii)(lII) of the Act and 8 C,F.R §§ 208,30(e) and (D,

o 2, The above-named alien arrived in the United States as a stowaway and has been ordered removed pursuant to section

235(a)(2) of the Act. The alien has requested asylum and/or withholding of removal under the Convention against

Torture and the matter has been reviewed by an asylum officer who has concluded the alien does not have a credible fear

of persecution or torture. The alien has requested a review of that determination in accordance with section

235(b)(I)(B)(iii)(IIl) of the Act.

.

o 3. The above-named alien arrived in the United States in the manner described below and has requested asylum and/or

withholding of removal under the Convention against Torture. The matter is referred for a determination in accordance

with 8 CFR 208.2(b), Arrival category (check one):

o Crewmember/applicant

0 Crewmember/refused

o Crewmember/violator

0 VWPP/applicant

o 235(c) order

0 S-visa nonimmigrant

o o o

Crewmember/landed VWPP/violator Stowaway: credible fear determination attached

o 4. The above-named alien has been ordered removed by an immigration officer pursuant to section 235(b)(J) of the Act. A copy of the removal order is attached. In accordance with section 235(b)( l)(e) of the Act, the matter is referred for

review of that order. The above-named alien claims to be (check one):

o a United States citizen

0 a lawful permanent resident alien

o an alien granted refugee status under section 207 of the Act 0 an alien granted asylum under section 208 of the Act

o 5. The above-named alien has been ordered removed pursuant to section 238(b) of the Act, or the INS has reinstated a

prior exclusion, deportation, or removal order of the above-named alien pursuant to section 241 (a)(5) of the Act, A copy

of the removal order and, if applicable, the notice of reinstatement, are attached. The alien has expressed fear of

persecution or torture and the claim has been reviewed by an asylum officer who has concluded the alien does not have

a reasonable fear of persecution or torture, The alien has requested a review of that determination in accordance with 8

C.F.R §§ 208.31(D and (g),
~ 6. The above-named alien has been ordered removed pursuant to section 238(b) of the Act, or the INS has reinstated a prior exclusion, deportation, or removal order of the above-named alien pursuant to section 241 (a)(5) of the Act, A copy

of the removal order and, if applicable, the notice of reinstatement, are attached. The alien has expressed fear of

persecution or torture and the claim has been reviewed by an asylum officer who has concluded the alien has a

reasonable fear of persecution or torture. The matter has been referred for a determination in accordance with 8 C,F.R. §

208,31(e).

Page 1 of2

EXHIBIT
C(3j

JUN-21-2000 WED 10:00 £111

FAX NO,

p, 02

U. S, Deparhne"t or Justice Immip,ratiun and Nuturalil'.nti0n ~clVkc

Information about Reasonable Fear Interview

rurl'O'. of this notice
The purp<>sc ofthi~ nofic~ iNC< explain what will happen white your c.se i, beine decided, wllat rights you have, and what Illay harpen to you as ~ re,llit of.talements you make. It is impormnt that you undersmnd your ri~hts and what will happen. PLEASE
,!l.EAD TillS NOTlCE CA RF.FULLY,
You have been orde.red removed becnuse the U,S, Immigration and Naturalization Service (INS) has determined th~t you do not have t11e right to stay ill the United Slates, Vou have indicated an intention to apply for withholding of removal, or have expressed a fcar of persecution, torture, or return to YOllr country. You will be interviewed by a specially trained asylum officer to determille if you havc a "reasonable reM ofpmeclltion or torture," You may be detained bath before and aft.r the int~rview if the INS determines that it is appropriate to detai1\ you.
Right to consult with other perSOllS
Nonn.lIy, you will receive an orientation by an asylum officer shortly after YOll arc ordered removed, The asylum officer will explain the re<lsollable fear process to YOll, and will tell you wh", your interview is scheduled, Normally the illterview is 48 hOllrs after ~our orientation, You may usc this time to find II lawyer or accr~dit~d representative who will represent you. If you need additional time, YOll should ioforin an INS otTicer, You may request tlla! the interview take place sooner if you arc prepared to discuss your fears or cl.im immediately,
You may consuit wilh a lawyer or representative of your choosing, provided that such consliltation is at no expense to the government and does not delay the process. Your representativo can be prcsent with you at your interview, or can participate by telephone. A list of representatives who may be able to speak to you free of charge is attached to tllis notice, You may usc the telephone while you arc ill detention to call a representative, rriend or family member ill the United Stat~s, col1oct or at your OWll expense, If you wish to call someone, yOU m.y a~k an'INS officer for assistance, You also may comaet tlw United Stntes Oftice of tIle United Notions HiSll Commissiollcr for Refugees, at (202) 296-5191 from 9:00 a.m.-5:00 p,m. (eastern standard time), Montlay through Friday.
Description of reasnnable fear Intorvi...
The pUrpose of the r~asonable fcar interview is to dctennine whether YOll might be eligible to apply ror withholding of removal or other protection before an immigralionjudge, This inlerview j, not n fornlal withholding of removal hearing, It is only to help us determine whether you could be eligible for withholding of removal and should therefore be allowed to present your case before an immigration judge.
• At your interview, 1'011 will have the opportunity to explain to the asylum officer why you think you should IlOt be returned to YOllr home COllntry. If you wont to apply ror withholding of removal orthink you will be harmed, pel'sccuted or tortured irYOll return to YOllr honlc country, you must show an asylum oflicer that 1'011 have a reasonable fear ofbcing harmed or persecuted because of your race, religion, ntltionality, member,hip in a particular social group or political opinion, or that there is. reasonable possibility that you will be tomlred, The officer will take written IlotcS.
tf the ofticer determines thnt you have a reasonable fear of persecution or torture in the country to which you have been ordered removed, YOll wilLbe able to ask an immigration judge for wilhholding of removal or deferr~t of removal to that cOllntry, by compicting a Form 1-589 Application ror Asylum and for Withholding of Removal and filing this with Ule Immigration Court.
It is very hnport.1ot that you teU!he officer all the reasons why you have concerns about being removed to the country to which you have been ordered removed, United States law provides strict rules to prevent disclosure of what you teU an asylum officer about the reasons you fe.r harm, The information you provide abou! th~ reasons fOl' your fear will not be disclosed to your government, except in exceptional circumstances,
It is also very imporlant that you tell the t'lItl! during yOU1' inlerview. Although the pUC]lose of this interview is not to gather evidence against you, failure to tell the truth could be used against you in this or in any future immigration proceeding.

JUN-21-2000 WED 10:00 A~

FAX NO,

p, 03

Need for interpreter 0" special consider~tion

Ify.ou do not speak F.nglish well or ifYOll prefer to bc interview~d in your own langltn:;;e, INS will provide atl interpreter for the -. interview. The interpreter has been.old to keep the, information yOtl diseu•• confidential. lfth. interpreter is not translating eon-cctly
or you do not feel cOIilfort>lb!! with the interpreter, you may request another interpreter.

YOIt may request a female orneer and fcm~le interpreter, or a male orncer and male interpreter, if this would make it easiel' for YOll to tell the asylltl'n officer about in furmntioll that is very personal or difficult to discuss. The INS will provide them if they ale availablc, YOIt will also have the 0llportunity to speak with the asylum officer separately from your family if you so desire.
Consequences of faUII.ro to establish reasonable renr and review or determination

If the asylum omcer dctcl'mines that you do not have a reasonable fear ofl'ersecution or torture, you may ask to have an immisration judge review that decision. If you do not request stIch review, you IMy be removed. If YOLl request review, the hnmisrationjudge's review will be ill person or by telephone or video connection. Normally, the review will happen within a rew days. YOIl may consult with your representative before the review by the immigration judge, providcd it does not cause unreasonable delay. You will be given. copy of the asylum officer's record of determination priorto the review by Ihe itnmigration judg~. If any oflhe information is incorrect, you should notify the immigration judge. The immigration judge may decide that you do have a reasollable fear and that YOIl arc eligible hearing to apply for withhOlding or removal. If the immigt'ationjudge agrees with U,e determination that you do not have n reasonable fear of persecution or torture, you may be removed from the United States.

Interpreler Certiticalion

lit I

I\J

(name of intel'jlrcter) certify that I am fluent in both the _-,IJ"-I-\l.l.A-'--__ and

I English languages, thM I interpreted the above inrormation from English to k.J It

completely and accurately, and

that the recipient appears TO have understood my interpretation.

Alien Acknowledgment of Receipt I acknowledge that Ibave been siYen notice concerning my reasonable fear interview. I utlderstand that I may consult with an atTorney or accredited representative of my choo5ing prior to the interview as long as it docs not ullre:lsonably delay the process and is at no expense to the government,
(Sig .ture of person being rc erred to asylum ofncer)
(Date)

or P,IS~ I 1

REASONABLE DEAR DETERMINATION

Alien Number: A # 70 525 409

Name:

Mohammed Aidouni

Country:

"-"Algeria

Asylum Office: ZCH

Interview Date: Asylum Officer: Reviewing Officer: Location:

August 17,2000
~ Bro~eW,iL(CHI)

Background
Applicant is a 35-year old native and citizen of Algeria who entered the United States on 26SEP91 at the Port of Houston, Texas, as a stowaway aboard the MN Maersk Mostoles. Applicant was arrested for domestic violence on two occasions in 1992; arrested and convicted of robbery and possession of a weapon in 1994; burglary in 1995; criminal misconduct in 1997; and retail theft in 1999. On 10AUG99 the INS under Section 237(a)(2)(A)(iii) of the Act issued Applicant a Final Order of Remova!.
Applicant fears he will be persecuted or tortured by the Algerian governmen-t on account of his political opinion.
Testimony
Applicant credibly testified that he is from Arzew, Algeria. He is a citizen of Algeria only and does not have the legal right to reside permanently in any other country. Applicant testified that his father died in 1971 and his mother currently resides in Arzew. Applicant has four siblings, all of whom reside in Algeria. Applicant testified that he married an American citizen in 1991 but has not had contact with her since approximately August 1992. Applicant completed 13 years of school in Algeria, after which he served two years in the military and then worked as a fireman for a_ gas and fuel company.
Applicant testified that he has never been arrested, detained, interrogated or physically harmed in Algeria. In 1990 Applicant volunteered to distribute leaflets for the Front ofIslamic Salvation (FIS). Over the next year he took several boxes containing more than ten thousand flyers from the local mosque and distributed them to villagers and co-workers. In August 1991 Applicant was in his home when two men with guns knocked on his door, yelling his name and demanding that the open the door. Applicant looked outside and noticed a green van in front of the house. He fled through a window in the back and did not return to the house again. Applicant stayed with his brother, cousins and friends for 29 days before securing exit from Algeria. Applicant stated that he believed he would be arrested and tortured because green vans are associated with the military security forces and those forces had earlier apprehended three young men whom Applicant had given flyers to pass out. Applicant's brother later informed him that the forces were searching for Applicant at several locations in the town.
Analysis
To establish a reasonable fear orpersecution, an applicant must establish that there is a reasonable possibility that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion in the country to which he or she has been ordered removed. To establish a reasonable fear of torture, an applicant must establish that there is a reasonable possibility he or she would be subjected to torture, as defmed in the Convention against Torture and U.S. regulations, in the county to which he or she has been ordered removed.
Applicant's Past Mistreatment
Applicant has not been persecuted or tortured in the past; he makes no claim to any past harm.

Applicant's Risk of Being Persecuted or Tortured
Applicant has established that there is a reasonable possibility that he would be persecuted on account of a political opinion of support for the FIS. Applicant has provided credible testimony that supports this tinding.C.ountQ! conditions reports corroborate Applicant's claim that the Algerian government desires to punish him for his membership in and activities for the FIS. The Department of State has indicated: "[T]he security forces committed extrajudicial killings, routinely tortured or otherwise abused detainees, and arbitrarily arrested and detained, or held incommunicado, many individuals suspected of involvement with armed Islamist groups ...FIS president Abassi Madani, who was released from prison in 1997, remains under house arrest and is allowed to receive visits only from members of his family (see Section 2.d.), although he made numerous press statements and conducted interviewswhile under house arrest. Jailed oppositionist and FIS vice president Ali Belhadj, who had been held incommunicado from 1992 until 1998, is allowed contact with members of his family, who speak to the press on his behalL.there are numerous cases of self-imposed exile involving former FIS members or individuals who maintain that they have been accused falsely of terrorism as punishment for openly criticizing government policies ... [D]efense lawyers for members of the banned FIS have suffered harassment, death threats, and arrest. There are no credible estimates of the number of political prisoners; some estimate the number to be several thousand. An unknown number of persons who could be considered political prisoners were serving prison sentences because of their Islamist sympathies and membership in the FIS."
(Coimtry Reports on Human Rights Practices for 1999-Algeria, u.s. Department of State, Februaty 2000)
Amnesty international states: "Thousands of known or suspected FIS supporters were arrested and more than 10,000 were placed in administrative detention without charge or trial in internment camps in the desert in the south of the country." (Civilian Population Caught in a Spiral of Violence, Amnesty International, 0 I November 1997) Human Rights Watch has stated that, "[Wlhile two Islamist parties held seats in parliament and one held government portfolios, the FIS remained outlawed. Those of its leaders who had been released from prison remained under various restrictions, including a ban on making public statements or meeting with visiting delegations." (Human Rights Watch World Report 1999: Algeria, Human Rights Watch, 1999) The Canadian government states: "[P]eo!,le who are known to be, or who are perceived as active FIS supporters could be at risk from the authorities. Individuals who have distributed radical Islamic literature may face problems, including imprisonment. There have been reports of illtreatment of relatives, friends or neighbours of individuals who have been targeted by the authorities." (Algeria: Country Assessment. Country Information and Policy Unit, Asylum and Appeals Policy Directorate, Immigration and Nationality Directorate, Canada, I March 1999) Consequently, Applicant has established a reasonable possibility offuture persecution on account of his political opinion of support for the FIS.
Conclusion
For the reasons stated above, Applicant has established a reasonable fear of persecution.

U. S. Department of Justice Immigration and Naturalization Service

r\
Record Of DeterminationlReasonable Fear Worksheet

chi
District Office Code
Diane
Asylum Officer's Last Name. ""-::-

zch
Asylum Office Code

-Padilla

-

Asylum Officer's First Name

70525409
Alien's File Number
Algerian
Alien's Nationality
AIDOUNI
Alien's Last! Family Name

Mohanuned
Alien's First Name

All statements in italics must be read to the applicant

SECTION I:

INTERVIEW PREPARATION

LI

8/18/00

1.2 broadview

Date of interview (~IDDl

Interview site

0 1.3

Applicant received and signed Form M-488 and relevant pro bono list on

1.4 Representative name, address, telephone number and relationship to applicant:

Date signed [MMlDDIYYI

briceyda cancio, midwest immigrant rights center, 312 629 1960

1.5

Persons present at the interview (check which apply)
o Representative o Other(s), list: ---Cno.:.;n-;-;e_-:---:-_;---;::::-_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ o No one other than applicant and asylum officer

1.6 Language used by applicant in interview:

english

1.7 Interpreter Service, Interpreter ID Number.

DYes 0 No
Interpreter Has Forms

Time Started

Time Ended

1.8
Interpreter Service, Interpreter ID Number.

DYes 0 No
Interpreter Has Fonns

Time Started

Time Ended

1.9

DYes DNa

LlO Ll1

Interpreter Service, Interpreter 10 Number.

Interpreter Has Fonns

o Interpreter oath completed.

o Interpreter was not changed during the interview

Time Started

Time Ended

Ll2 D Interpreter was changed during the interview for the following reason(s) :

0 1.13

Applicant requested a female interpreter replace a male interpreter, or vice versa

0 1.14

Applicant found interpreter was not competent

LIS D Applicant found interpreter was not neutral

0 1.16

Officer found interpreter was not competent

1.17 D Officer found interpreter was not neutral

0 LIS

Bad telephone connection

rtJ 1.11

Asylum officer read the following paragraph to the applicant at the beginning ofthe interview:

T~pu!pose ofthis interview is to determine whether you should be referred to an immigration judge to applyfor withholding or

di'ferral ofremoval. You will be eligiblefor such a referral ifthe INSfinds that there is a reasonable possibility you would be

persecuted or tortured in the country to which you have been ordered removed. I am going to ask you questions about why you

fear returning to the country to which you have been ordered removed, or any other country. It is very important that you tell

the truth during the interview and that you respond to all ofmy questions. This may be your only opportunity to give such .

information. Please feel comfortable telling me why youfear harm. U.S. law has strict rules to prevent the disclosure ofwhat

you tell me today about the reasons you fear harm. The information you tell me about the reasons for your fear will not be

disclosed to your government, except in exceptional circumstances. The statements you make today may be used in deciding
your claim and in anyfutllre immigration proceedings. It is important that we understand each other. Ifat any time I make a statement yull do not understand, please stop me and tell me you do not understandso that I can explain it to you. Ifat any time

you tell me something I do not understand, I will ask you to explain.

Page 1 of3

Form 1.899 (3/22/99)

~~~~~~~~:~~~~~~~~'~~~~~~ Alien's File Number: 70525409

SECTION II:

BIOGRAPHIC INFORMAnON

_.2.1' . AIDOUNI
Last Namel Family Name [;\LL CAPS]

2.2 Mohammed
First Name
2.4 12/11165
Date of birth (MMlDDIYY]

2.3

Middle Name

2.5

~ Gender

Male

o Female

2.6 Karim KASSAM, Other names and dates of birth used

2.7 Algeria
Country of birth

2.8

Algerian

"'C;:o;;un~try~(;::co"'u"'ntrt"":::es")"'of"'c"'it"iz"'en"s"hi:::Cp"(I'-is"tat:;;I')- - - - - - - - -

2.9 Prior address in last country in' which applicant fears persecution or torture (List Address, Cityrrown, Province, State, Department and Country):

Arzew, Albgeria, Algeria

2.10 9/26/91
Date oflast arrival [MMlDDIYY]

2.11 houston,tx
Port of arrival

2.12 7/8/99
Date of detention [~DIYY]

2.13 chi
Place of detention

2.14

Grounds provided by Deportation Officer for removal:
o Prior order reinstated pursuantto 241 (a)(5) ofthe INA o Removal order pursuant to 238(b) of the INA (based on aggravated felony conviction)

2.15 AI. (; ./t'AP Applicant's race or ethnicity

2.16 Muslim Applicant's religion

2.17 English, Arabic All languages spoken fluently by applicant

2.18 Does the applicant claim to have a medical condition (physical or mental), or has the officer observed any

indication that a medical condition (physical or mental) exists?

0 Yes 0 No

2.19 If YES, Explain:

no medical problems

2.20 Does-applicant indicate, or does officer believe medical condition is serious?

0 Yes 0 No

2.21 Does applicant request immediate attention for a medical condition, or does the officer believe applicant

needs immediate attention for a medical condition?

0 Yes 0 No

2.22 Does applicant claim that medical condition relates to torture?

0 Yes 0 No

Page 2 of3

Fonn 1-899 (3/22199)

~~~~~~~~~~~~.. ~~~~ Alien's File Number: 70525409

SECTION III:

REASONABLE FEAR FINDING

TYPED SWORN STATEMENT_IN QUESTION AND ANSWER FORMAT AND ASSESSMENT OF

-'REASONABLE FEAR l\II!lST BE ATTACHED TO THIS WORKSHEET. If the asylum officer finds the

applicant not 'credible: thesworn statement must reflect that the applicant was asked to explain any inconsistencies

or lack of detail on material issues.

A person has a reasonable fear of persecution or torture ifthere is a reasonable possibility the person would be

persecuted or subjected to torture.

.

A. Credibility Determination

r$. 3.1

The applicant's testimony was sufficiently detailed, consistent and plausible in material respects and therefore is found

credible.

0 3.2

The applicant's testimony was found not credible in material respects. [Assessment must (I) identify specific

discrepancies, inconsistencies, kind of detail applicant was unable to provide, etc. (2) Summarize applicant's explanation

for the inconsistencies, inability to provide detail, etc.; and why the explanation failed to overcome reasons for finding the

3.3

o applicant not credible; and (3) explain how the non-credible aspects of the testimony are material to the claim.] Material aspects of the applicant's testimony were found credible in part and not credible in part. [Assessment must

iden\ify which material aspects were credible and which were not credible. For part of testimony found not credible, (1)

identify specific discrepancies, inconsistencies, kind of detail applicant was unable to provide, etc.; (2) Summarize

applicant's explanation for the inconsistencies, inability to provide detail, etc.; and (3) Explain how the non-credible

aspects of testimony are material to the claim.]

B. Reasonable Fear Determination

3.4

LfJr¥; Reasonable Fear oCPersecution Established (1-863 Box 6)

.

[The applicant has established that there is a reasonable possibility of suffering harm constituting persecution in the

country to which the applicant has been ordered removed, AND the applicant has established that there is a reasonable

possibility the persecutionshelhe fears is on account of race, religion, nationality, membership in a particular social group,

rII or political opinion.]
tt;; Is political opinion related to Coercive Family Planning?

0 Yes

No

D 3.5

Reasonable Fear of Torture Established (1-863 Box 6)

[The applicant has established that there is a reasonable possibility that I) the applicant would be subject to severe pain or suffering in the country to which the applicant has been ordered removed; 2) the feared harm would be specifically intended to inflict severe physical or mental pain or suffering; 3) the pain or suffering would be inflicted by or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity; 4) the

feared hann would be inflicted while the applicant is in the custody or physical control of the offender; and 5) there is a

reasonable possibility that the feared hann would not be in accordance with lawful sanctions.]

D 3.6

No Reasonable Fear of Persecution Established and No Reasonable Fear of Torture Established (1-863 Box 5, if

applicant requests review) [Assessment must explain reasons for both fmdings.]

ASYLUM QFFICER / SUPERVISOR NAMES AND SIGNATURES

3.7 .. Padilla Diane, zch024 Asylum officer name and ID CODE (print)
3.10 r.a. hess Supervisory asylum officer name

@.~:esP.z/- 3.8

3.11

~

3.9 ~ «jn { tU
Decision date
3.12 ~l S'lO !'~~tO

Supervisor's signature

Date supervisor aPPio~ion

Page 3 on

Fonn 1-899 (3/22/99)

Jui-18-02 09:11am From-
DURE,KARIM G. 1621 DOBSON STREE1, EVANSTON, IL 60202-0000 Name: AIDOUNI, MOHAMMED

T-077 P.02/0S F-989
Executive Office for Immigration Review
Board ofImmigration App~als Office ofthe Clerk
5201 L..,.urg Pike. S.lrt I SOO Foil, Churcir. Virginia 22041
Office of the District CounsellCH
P.O. Box A-3423
Chicago, IL 60690
A70-525-409

Date of this notice: 10/11/2001
Enclosed is a copy qf the Board's decision and order in the above-referenced case. VerY Trulv Yours.
o(~d~

Enclosure

Lori Scial abba Acting Chairman

Panel Members:
ROSENBERG, LORY D.
SCHMIDT, 'PAUL W. VIlLAGELlU, GUS

EXHIBIT
I CUI)

Jul-IB-02 09:11am From-
n
U.S. Department of JUS\.~<!
, Executive Office for Immigration Review

("

T-OTT P,Ol/06 F-9B9

Decision ,.. die Board oflmmigration Appeals

Falls Church. Virginia 22041

File: A70 525 409 - Chicago

Date:

OC r 112D(11

In re: MOHAMMED AIDOUNI IN ASYLUM PROCEEDINGS PURSUANT TO 8 C.F.R. § 208.31(e)

APPEAL
ON BEHALF OF RESPONDENT: Karim Dure
ON BEHALF OF SERVICE: Debra G. Gordon Assistant District Counsel

APPLICATION: Withholding of removal

On January 16,2001, an Immigration Judge denied the respondent's applications for withholding of removal. See Section 241(b)(3)(A) of the Immigration and Nationality Act; 8 U.S.C. § 1231(b)(3)(A); Article 3 of the United Nations Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment ("Convention Against Torture").I The respondent
has appealed from this decision. The appeal will be dismissed. The respondent's request for oral
argument is denied. See 8 C.F.R. § 3.1(e).

1. BACKGROUND
The respondent is a native and citizen of Algeria. He entered the United States without inspection in September 1991. In 1999, he was convicted ofretail theft in Illinois and sentenced to 'a yeiU in jJdson fo,:hh. crime~ The Iill..nig;atior. aud N,mmliizatior..Scrvicc placcdhi.~ in expedited
removal proceedings due to his conviction and ordered him removed from the United States.
During his proceedings, the respondent expressed a fear ofreturning to Algeria, and the Service referred him to an asylum officer for a credible fear interview. The asylum officer, in turn, found that the respondent had a credible fear of facing persecution in Algeria, and she referred his case to an Immigration Judge for a full hearing on his eligibility for withholding of removal. The
respondent's aggravated felony conviction makes him statutorily ineligible for asylum. See Section 208(b)(2)(A)(ii) and (B)(i) of the Act, 8 U.S.C. § 1158(b)(2)(A)(ii) and (B)(i).

I United Nations Convention against Tortur.e and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. AlRES/391708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988).

Jul-IB-02 09:11am FromA70525409

(\

T-077 P.04/06 F-9B9

After reviewing the respondent's applications for withholding ofremoval underthe Act and the CAT and considering the respondent's testimony, the Immigration Judge found that he had failed to establish eligibility for these forms of relief. In reaching this conclusion, the Immigration Judge noted that the respondent had not been persecuted or tortured while he was in Algeria and that he had been out ofthat country for over 9 years. The Immigration Judge pointed out that the respondent had not offered any evidence to show that the government had a continuing interest in him, and the Immigration Judge noted the respondent had not indicated that his family members who remained in Algeria had experienced any difficulties since the respondent left. The Immigration Judge therefore found that the respondent had failed to establish that it was more likely than not that he would be persecuted or tortUred by the government ifhe were forced to return to Algeria.
The respondent has appealed from the Immigration Judge's decision. On appeal, he contends that the Immigrati"I' Jw;lge.failed 10 r:onsiderthe f~~ $~tJte.y.r~~~.~ber .9f!J1~ Algeril!1l military
before he joined the Islamic Salvation Front (FIS). He claims thatjoinillg ail opposition PartY waS
a direct violation of his military commitment and makes him a prime target for the Algerian government. In addition, he argues that the Immigration Judge did not acknowledge the fact that three teenagers from his neighborhood who also distributed flyers for the FIS were arrested around the same time the security forces came to his home. He claims that these teenagers have not been seen or heard from since that time. Finally, the respondent maintains that the Immigration Judge did not consider the continued, random violence that is occuning in Algeria when he evaluated the respondent's testimony. The respondent argues that, when this factor, together with his military background and the treatment of his colleagues, is taken into account, he has presented sufficient evidence to show that he has a clear probability of being persecuted in Algeria on account of his political activities.

II. WITHHOLDING OF REMOVAL UNDER THE ACT

According to section 241 (b)(3)(A) of the Act, the Attorney General "may not remove an alien

to a country ifthe Anomey General decides that the alien's life or freedom would be threatened in

~at .~<!~try ~~ca~ 0rth~ -:Ij~'s !ace, religion, ~!I9nal~~, memb:rs~I' i~ ~ particular social
group. or political opinion. The burden is on the alien to show that these conditions exist, and the .

burden is more stringent than the one the alien must met to establish eligibility for asylum. Instead

ofshowing that he has a well-founded fear offacing persecution in his native country, the alien must

show that he has a clear probability of facing persecution on account of one of the five statutory

grounds. In other words, he must show that it is more likely than not'that he will be persecuted if

he is forced to return to his homeland. See INS v. Stevie, 467 U.S. 407, 413 (1984); Milev v. INs,

67 F.3d 1325 (7,h Cir. 1995).

.

The respondent in the present case claims that he has met this burden, but we disagree. We find that the Immigration Judge considered all ofthe respondent's evidence, including the factors he has discussed on appeal, and correctly concluded that the respondent has failed to show that it is more likely than not that he will be persecuted ifhe is forced to return to Algeria.

2

Jui-18-02 09:11am FramA70 525 409

T-077 . P.05/06 F-989

As the Immigration Judge noted, the respondent was not persecuted while he was in Algeria. Members of the secret service came to his home in August 1991, but he escaped through a back window before they entered the house (Tr. at 69-70). He said that several days earlier, members of the secret service had arrested three teenage boys in his neighborhood and no one had seen or heard from the boys since their arrest (Tr. at 69-73). He said the boys had helped him distribute flyers for the FIS, and he seemed to believe that the secret service had obtained his name from them (Tr. at 111-14). He also indicated that the secret service arrested many suspected FrS supporters in his hometown during the same time period (Tr. at 96-99).
The respondent did not return to his house after the secret service's visit; he instead remained in hiding for a month and then left Algeria o.n a ship as a stowaway. The respondent said that, while he was in hiding, the secret service searched his house and confiscated a box of 6,000 FIS flyers from unGer his h.ed (rr. at 79, 83~84). He said that his brother told hlm.about this incid~t and to.ld him not to go home.
These facts suggest that, in 1991, the respondent had a well-founded fear offacing persecution at the hands ofthe Algerian government due to his political activities. But the respondent has been absent. from Algerian for almost 10 years. The FIS is still an illegal party in that country and members rnay still be persecuted by the govemment; however, the respondent had only minor involvement in the party and had only one b~ef encounter with the secret service. He. also has not offered any evidence to suggest that the cUlTent Algerian govemment still associates him with that group.
The respondent stated that he spoke to his mother in 1996 and that she told him the military had
not forgotten him (TT. at 76), but he did not explain the basis for his mother's beliefs. Mo.reover,
his conversation with her OCCUlTed over 4 years ago. The conversation therefore is not sufficient to show that it is more likely than not that the respondent will be persecuted by the Algerian govemment if he is forced to return to that country now.
In addition, the respondent has offered no other evidence to suggest that the govemment has
Eis_ . receJ;lJ!Y. expressed interes~ i~ him. Hi$ l110ther.....his thr<1e .brot1!erHn~.!lis §is!er .still live)n
hometown, bur he does not appear to have received any wamings from them and he has not indicated that they have experienced any difficulties due to ius political activities. In the absence ofthis type o.f evidence, we must agree with the Immigration Judge that the respondent has failed to show that he has a clear probability of being persecuted ifhe is forced to return to Algeria. See e.g. Sofinet v. INS, 196 FJd 742 (7'h CiT. 1999)(finding that the absence ofevidence ofharm to alien's family can undermine claim of well-founded fear of persecution).
The respondent's status as a former member ofthe military and the current unrest in Algeria do .not change this conclusion. The respondent still must show that the current government is aware of both his past military service and his past political activities and that it has the inclination to punish him for these acts. He has not met this burden. See e.g. Nenadovic v. INS, 108 F.3d 124 (7th CiT. 1997)(stating that unpleasant and even dangerous conditions do not necessarily establish that alien has well-founded fear of persecution); Maller ojS-V-, Interim Decision 3430 (BlA 2000)(noting that genera) conditions ofcivil war, on their own, do not establish clear probability ofpersecution).

3

Jui-18-02 09:12am From-
A70 525 409

T-077 P,06/06 F-989

We therefore uphold the Immigration Judge's decision to deny his application for withholding of removal under the Act.

III. WITHHOLDING UNDER CAT
The respondent also has not establish that it is more likely than not that he will be tonured by the Algerian government ifbe is forced to return to that country. As we noted above, the respondent has not offered any evidence to suggest that the government is still interest in him 10 years after he left his homeland. We therefore cannot conclude that he has met his burden of showing that he has a clear probability of facing torture at the hands of the government upon his return, and we must uphold the Immigration Judge's decision denying his application for withholding under the .CoXlyention ~gainst :rorture. Accordingly, we dismi~s ~e resp~~~~::~ ~ppeal~,

ORDER: The appeal is dismissed.

FORTHE OARD

.~.~--

.~

4

U.S. Department of Justice
Immigration and Naturalization Service

, ....
. ~ ,,'
Mohamed Hamid AIDOUNI C/O COLES COUNTY JAIL 701 7th Street Charleston, II. 61920

10 West Jackson Blvd. Chicago, Illinois 60604
A# 70 525 409
December 28, 1999

Notice to Alien of File Custody Review (Alternate Review)
It is the policy ofthe Immigration and Naturalization Service (INS) to periodically review the custody status of detained aliens who have fmal orders of removal, deportation, or exclusion. You are required to cooperate with the INS in effecting your removal from the United States.
The INS District Director will review your case for consideration of release on an Order of Supervision. Release from INS custody is dependent on your demonstrating by "clear and convincing evidence" that you will not pose a danger to the community and will not be a significant flight risk.
Your custody status will be reviewed on or about: 01 /28!ffi9\!Jistrict Director may consider, but is not
limited to consideriag the follOWing:
1. The nature and seriousness of your criminal convictions; 2. Other criminal history; 3. Sentence(s) imposed and time actually served; 4. History of escapes, failures to appear for judicial or other proceedings, and other defaults; 5. Probation history; 6. Disciplinary problems while incarcerated; 7. Evidence of rehabilitative effort or recidivism; 8. Equities in the United States; 9. Prior immigration violations and history; and 10. Cooperation in obtaining your Travel document.
You may submit any documentation you wish to be reviewed in support of your release, prior to the date listed above, to the Officer and address below. English translations must be provided pursuant to 8 CFR I03.2(b)(3). An attorney or any other person may submit materials on your behalf.
U.S. Department of Justice Immigration and Naturalization Service
Attn: Officer 1. C•GARC IA
10 West Jackson Blvd. Chicago, IL 60604

(Page I of2)

EXHIBIT
I C(5)

rO

u.s.

Department

of

'"
j"odce

Immigration and Naturalization Service

lOWest Jackson Blvd. Chicago, Illinois 60604

Mohamed Hamid Aidouni c/o Coles County Jail 701 7th Street Charleston, Illinois 61920

February 04, 2000

RE: INS Fiie KiO 525 409

Dear Mr. Aidouni:

This is to advise that your Service record shall not be reviewed, at this time, as it does not fall under the guidelines for post-order custody cases wherein immediate repatriation is not possible or practicable. The issuance of a travel document is still pending.

EXHIBIT
I C((p)

f)
JJt;Mr _ _ _

,1\
U.S. Department of Justice Immigration and Naturalization Service

10 West Jackson Blvd. Chicago, JIllnois 60604

November 6, 2001

AIDOUNL MOHAMMED
CIO Coles County Jail
701 7'h Street
Charleston, Illinois 61201

A# 70 525 409

Notice to Alien of File Custody Review

You ;u-c d:uUr.:d ir: m;. I:~J' oC the IiTu"'ii!g;ia.ior. and NaturaUza.tl~t, Se, vita (n':5) and ycu are Mluh cd to cooperate with the INS in effecting your removal from the United States. Ifthe INS has not removed you from thc United Stales within thc removal period as set forth in INA 241 (a) (normally 90 days) o!either: I) your entering INS custody with a. final order of removal, depoNtion, Dr e~olu'iOl\, or 2) the date of any final ardor you receive while you arc in INS oUSlOdy, the Disrrict Director will rcv\ew your case for consideration ofreicase on an Order o(Supervision. R.elease, how.ver, is dependent on your demonstraling by "clear and convincing evidencc" thaI you wW Dot pose a danger to the community and you will dot be a. significant flight risk.

Your custody status will be reviewed on oraboul: December 6, 2001. The Disrrict Director may cOllSider, but is not limited to conSidering, the following:

l. The nature and seriousness ofyour criminal convictions;

2, Oth;,r criminal history;

j, Scnter.c\:(s) impoocG and ~imc: I1ct"";;Ally Sw'"i"\'.:d;

4. History ofescape, failures to tppear for judicial or other proceedings, and olber defaults;

S. Probation history; 6, DisoipUnary problems while incareeraied;

I

7. Evidence ofrehabilitative effort or recidivism;

8. Equities in rhe United States;

9. Prior immigration violations and history: and

10. Cooperation in obtaining your travel document,

You may submit any documentation you wish 10 be reviewed in support oryour (elease, prior 10 the date listed above,
to the Officer and address below. English translations must be proVided ptII'$U8IIt to 8 CFR 103.2(bX3). An attorney or any olher person may submit materials on your behalf.

/
7

U.S. Depamnenl of1ustice
Immigrarlon aud NaturaUzaUou Service Attn: Officer l'igu=a 10 West 1ackson Blvd. Chicago, IL 60604
Method of Service

.... )
.'

I ocrtify that this (onn WIS provided 10 the alim by: ( )Ce: Attomey of Record or Designated Representative ()C : A.

EXHIBIT
I CC7)

1',
u.s. Department ofJustJee
Immigration and Naturalization Service

•
Mohammed AIDOUNl
Tri-County Detention Center .1 024 Shawnee College Rd. Ulin, IL 62992

lOWest Jackson BII'd. Chicago. Illinois

Decision to ,Continue Detention Following File Review

.'
A# 70 525 409

This letter is to inform you that your custody status has been reviewed by the Immigration and Naturalization Service (INS) and that you will not be released from custody at this time.
This decision was based. on a review of your file record and consideration ofinformation you submitted to INS' reviewing officials.
You are not being released because (attach additional sheets if necessary):
• You were convicted ofrobbery and possession of a weapon. ,
This concludes all review at the District level. Your case will now be referred to the INS Headquarters Post-Order Detention Unit (HQPDU) in Washington, DC. HQPDU will commence a custody review within 30 days ofreferra1 or as soon as possible thereafter. You will receive 30-days notice of interview when one is scheduled. It is in your best interest to maintain proper behavior whlle awaiting this review. Ifyou have any questions please contact:
Frank Moore

SignalUr
(P... I 0(2)

tative

."",,M",,e.ll,,.,.,,,~,
I c (?,)

; ..

U.S. Department or JusUe.

/"",_

~lm~m~i~gro~tio~n~~~d~N~at~urn~liu~tiO~n~s~e~~~jc~e~~tr~~~~~~~~~~~~~~~~~!!~~~~~O!t~ice~~t!O!i\!!p!p!ea~~r

In removal procee,dings und.er section 240 of the Immigration and Nationality Act
File No; A71 ~74 230

In the Matter of:

Respondent: aAL=ZE~HRAN~=I!..._ _ _ _-"M"'."'ith"'."'m"'Az=iz"'Ka=ri"'m'--_ _ _~K~7040~3:..;P~RD=4~/!;13!!;/2~OO~1_ _ _ _ _ _ _ _--'_ _ _ _ _..;.

clo Big MuddY River CC, PO Box 1000

"!1!,!;n.~=_·",,.,.-----~_.,.,...,.:;;;;::::t::c:;:::;-===;-;;;=;:;'_--"""":__:_!IL!<..:.·~~6!:2846=!....'-:--'-~
'"(Nuinber, ....... .;,y, ...,. aod ZIP code)

, ..(6181437-5300' .'
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o 1. You lirelili arriving alien; . . ...

re 02.-YoU'a '81falienpresent in'the.UniteQ·Stateswho bas not beeiFiidiiiitfeiFofparoled; ....

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S~ Continuation)!ageI-83.1 .

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On~ebaSis-cifthe foregoing, itisch~rgea that you are subject to removal from the United States pursuant to the following

provision(s) of law:

. .. .

as ~eCtion2j7(a)(2)(A)(iii) of the IlllI!ligrati!)n and Nationality Act (Act), amended, in that, at any timea{ter admission, you have been

oonvicted:oh,naggravated felonyas-d~fiired'iln;ection 101(a)(43)(A)'6f!llin..·ct~a)aw relating-to Ripe;c···,·~-c·.··.

. ....

SectiQ.Q.Z~7(a)(2)(A)(i) of the IlIl!l1ig~!iq!!anQ Nationality Act, as amended, in that you have been convicted.ofacrime involving moral'•.
turpitude committed within five years after admission for which a sentence of one year or longer may be i~posed. . ' . '

S~tiQ!I in(a)(2)(A)(ii)
Dr~q~rimes'invDlving

-omf othraelI-rtuwrfpiiitgtir;adteip"tnla0nlidinNsiantgioonuatolift-ya'Asicntg, laes'slcihme,fefinedii~f•-.'Ci!ltitfhuaiitl,aalmt aisncyontidmue¢tI;I:f"t'e""r.";q',!·D:7icS,s'·i·p.n:',y",o".u".h"a.v..e...b.e~e-n.'-c.o..o·".Isc"t,e,:,,d.t,o:

been Section 237(a)(2)(E)(i) of the Immigration'and Nationality Act, as amended, in that you are ~ alien who at any time after en;q has

,onvicted pf a crime of domestic violence, a crime of stalking,. or a crime of child abuse, child 'neglect, or child abandonment.

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o .This notice is being issued aft~r an asylum officer has found that the respondent lias demonstniied a credibl~ fear "fpersecution...

o o b'section235(b)(I) order w"'; vacaied pursuant to:

8 CFR 208.30(0(2)

8 CPR 235.3(b)(S)(iv)

YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at: .-

55 East Monroe

Suite

IL 60603

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To BeSet

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cbarge(s) set forth aoove.

to show why

States based on the

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See reverse for importantinformation

DC!)
Fonn~"" ""'....

U.S. Deparlment ofJustice

Immigration and Naturalization Service ,~

(..........uation Page for Fonn 1-862

A1ien's Name ALZEHRANI. Maitbam Aziz~Ka~n~'m~K~704~O~3"!P~RD~--~F~i':'!le~N~u~m~be~r----,.D~a~t·el·2·/·1·5··/·0iiioiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiio

4/13/2001

A71674230

1.You .ire not a citizen or national of the United States;

2.You are a native of Iraq and a citizen of Iraq;

3.You were admitted to the United States at NYC. NY on or about 8/18193 as a Refugee, Section 209 (a) of the I&N Act;

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on

6/16/96

to

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resident;8Sof!!/18193,

under
.

seciion209'(i)l5f tli,{ Act;

S. You were,.0D::7i~~/97,~nvicted !II ~eSil}1l1j~1~Qqrtat Kan~ Coimt~'. !I..'or .~e'?fr~1I$e ofUnlawful Jt~traint andI>omestic BatteI)'

In violatiQnof720ILCS 5/10-3(a) all:~?.20]I;9S.:?(I2-3.2(a)(I). . '

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on 1'l/17/98, convicted in.:tl!e.Cis:cuit Court at Kane CowitYi.IL.(or the offense of CrioiiDa1 Se~ualAssault in violation of .

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Signature · ann 1·831 Continuation Pago (Rov. 6/12192)

Title Assistant District Director. Imicstigations

3 of 3

Pages

·U.S. GPO: 1992,342·483/72348

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OOClllIlIlUtil U\lC~ssru.-y to give effect to this order.

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as 1··,·, "·.~, R-e,sr:oo.r,-u,i-e.n" t''"II"t,'!ll!'ad"vi"re" d-u.f:tl-i'''e' 1.'.1..•m,-1••t••a~l,-l••<-.'-l.-t-l.-O,.n-,a'"1...s.-.c".r..e-.t-i-o-.t.i,a.:.r--V,---,~r-"e'l" i"e.f-f-',"~,

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( 1Respondent [ 1INS [.JJfOth-
Appe..l due dil.re: ____ ...:---'--________

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('
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EXHIBIT
',,,.
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/\

/' U.S. Department Justice

Immigration and Naturalization Service

lOWest Jackson Blvd. Chicago, Illinois

Maitham Aziz Karim ALZEHRANI C/O Tri-County Detention Center 1026 Shawnee College Road Ullin, IL 62991
Decision to Continue Detention Following File Review

A#71674230

.This letter is to inform you that your custody status has been reviewed by the Immigration and Naturalization Service (INS) and that you will not be released from custody at this time.

This decision was based on a review of your file record and consideration of information you submitted to INS' reviewing officials.

You are not being released because (attach additional sheets if necessary):

You have not presented any clear plans on where you would live and how you would support

yourself if you were released. You have also displayed an escalating pattern of violence in your

. criminal activities . You have not demonstrated that you are no longer a threat to society~ ~ ~~

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This concludes all review at the District level. Your case will now be refer.tQd tcRi~

Headquarters Post-Order Detention Unit (HQPDU) in Washington, DC. HQPDU will ~£; CJ

commence a custody review within 30 days of referral or as soon as possible there'tt'ter.c;;'@u

will receive 30-days notice of interview when one is scheduled. It is in your best tiiterest te·

maintain proper behavior while awaiting this review. If you have any questions please contact:

Frank Moore

(Officer Narne)
Room 553 Chica 0 Illinois 60604 (Address)

Signa
(Page I of 2)

esentah e

r Date

I

EXHIBIT
D(3)

,
,/'\

U.S. Department of Jnstice Immigration and Naturalization Service

Maitham Aziz Karim Alzerhrani C/O: U.S. Immigration & Naturalization Service Chicago District Office. 10 West Jackson Blvd Chicago, IL 62991

HQPDU
Washington, DC 20536
A71 674230

Decision to Continue Detention
This letter is to inform you that your custody status has been reviewed and it has been detennined that you will not be released from the custody of the Immigration and Naturalization Service (INS) at this time. This decision has been made based on a review of your file andlor your personal interview and any consideration of the infonnation submitted to INS' reviewing officials in support of your application for release.
Your administrative record shows that you are a native and citizen of Iraq who entered the United States as a refugee on August IS, 1994. You were granted Lawful Pennanent Residence Status on June 16, 1996, Since your entry you have been convicted of Unlawful Restraint, Domestic Battery and Criminal Se~':"1 . 'Rault. Based on your convictions, you were ordered removed by an immigration judge on August :t.J, 2001.
The INS has had some success in securing travel documents for Iraqi nationals, A request for a travel document was sent out to the Iraqi Interest Section on December 14, 2002, This request is currently pending. You have not provided any evidence to show that your removal is not feasible within the foreseeable future,
You are required to assist the INS in its efforts to securea travel document. You must request a Passport on your own behalf for Iraq, The INS will not consider your release until you have satisfied this requirement and provided evidence, The INS recommends that you utilize family members in the United States and Iraq to assist in the issuance of a passport. You may send this evidence to the Headquarters Post Order Unit, SOl 1St, NW, Washington, DC 20536, RoomSOO,

Signature of HQ U irector/Designated Representative

s-&-/arDate

EXHIBIT

Decision to Continue E:~!ltion A71 674230, Maitham 1>._.z Karim Alzehehrani

Page 2

PROOF OF SERVICE

(1) Personal Service (Officer to complete both (a) and (b) below.)

(a) 1_ _ _ _ _ _ _ _ _ _ _ _ _ _ _-,,-.-,_ _ _ _ __

Name of INS Officer

Title

certify that I served ________________________ with a copy of

Name ofdetainee

thisdocumentru ________~~----------on------,at--------

Institution

Date

Time

(b) I certify that I served the custodian _________________

Name of Official

_~----~--------------"at~-----~~~-----------------,on

Title

Institution

____-::-_____ with a copy of this document.

Date
OR

(2)

(Attach copy of receipt)

I _4i-L''-¥-'''''<''wl..!...::..Jc.::.=.~-,--_" 12e 0Fr fP'S-noOn0~ . I(' t;R., certify

that I served

n a IJ. NamejofINS Officer L~tih ANi

Title·
and the custodian _ _ _ _ _ _ _ _--',

:J-- I Name ofdetainee

X .. {l('

(1 NameofOffic~ial

with a copy of this document by certified mail at 0P±te(2SOo L{).

on - -

Institution

Da e

( ) cc: Attorney of Record or Designaled Representative

( ) cc: A-File

.

May 10,2002

Resolving Crisis, Rebuilding Community

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,

liEARrLA#ND~CE

r

TIA/Chicago Connections

The Midwest Immigrant Rights Center

David Venturella Office of Detention & Removal Operations 801 "I" Street NW, Suite 900 Washington, DC 20536 VIA FAX: 202-353-9435

Re: Release of Maitham Alzehrani, 71-674-230, under Zadvydas v. Davis

Dear Mr. Venturella, I am writing on behalfofMaitham Alzehrani to request his release under the Supreme
Court decision, Zadyydas v. Davis. . It is well established that the United States has no diplomatic relations with Iraq, just as it
has no lliplomatic relations with Cuba, Cambodia, Vietnam and Laos. With the United States currently waging a war against terrorism in the Middle East and the fact that the United States has placed severe economic sanctions on Iraq for the past seven years, it is certain that Mr. Alzehrani will not be removed hi the "reasonably foreseeable futnre." The harsh criticism of Iraq in the 2000 Department of State's Country Report for Human Rights Practices on Iraq illustrates the clear lack ofdiplomatic relations between the United States and Iraq. There is no Iraqi consulate in the United States and the U.S. has no embassy in Iraq.
Enclosed is (1) a copy ofthe INS's Decision to Continue Detention, dated October 3, 200 I, (2) the removal order ofthe Immigration Judge, dated August 20, 2001, (3) a letter requesting supervision release from Mr. Alzehrani to the Chicago District, (4) a letter to Officer Frank Moore from Mr. Alzehrani indicating that he will cooperate with INS and a (5) GED Certificate.
I further reiterate my request that Mr. Alzehrani be released by the INS as continuing to hold him violates United States law as decided by the United States Supreme Court.

Thank you for your attention ill this matter.

Sincerely,
((A,vt-i.k. a,t-{~
Anne Relias
Detention Project

.~ .1l OFFIC~AL

D"'

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Postage (..:$:...-_ _ _--\

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g 1--------1 Retum ReceIpt Fee (ErK:!orsement Required)

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Postmark Hero

1-----------1 C Aestrlcted Delivery Fee
C (Endorsement Required)

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Travelers & Immigrants Aid/Chicago Connections· 208 South LaSal1
Phone: (312) 660-1370, Ext o· Fax:
A member ofthe Heartland Alliance for Human Needs & Human Rights in alliance with

D(5)

U.S. Department of Justice

~.

lmmig,ation and Naturalization Service

No / '; of Entry of Appearance

.; An appeataDce shall be 1iled all this fonn by the attorney orrepresentative appearing in each case, Thereafter. substitution may be the written withdrawal ofthe attorney or representative ofrecord or upon notificatioD ofthe new attorney or representative. When
app,earance is made by a person acting in a representative capacity, bis personal appearance or signature shall constitute a representation that lund., the provisions oftbis chapter he is authorized and qualified to represent Further proofof authority to act in a represeotative capacity may be
rreq,uueo. Avallability of Records - During the tim•• case is pending, and except as otlJerwise provided in 8 CFR I03.2(b), a party to a proceeding
lor:his "tto.me;y or repr.~entati~ shall be pennittect to exam.i.oe the record ofproceediDg in a Service office. He may. in confonnity with SCFR
ObtaJ.ncoll!eS ofService records orinforrnation therefrom and copies ofdocuments or transCripts ofevidence fur.olshed by him. Upon
lle/,Sllem.y,in addition. be loaned a copy oithe testimoDY aJld exhibits contained in tlle record of'proceedi.ng upon giving hislherreceipt for aDd pledging that it will be surrendered upon fmal disposition of the case o~ upon demand. Ifextra copies ofexlubits do not exist, they

(State)

(Zip Code)

(State)

Clleck Applicable ltem(s) be/ow:
I¥ 1. I am an attomey and a m.ember in good standing of the barof the Supreme Cowt of the United States or ofthe highest court ofthe following

,::a i s ' . State, territory', insular possession. Of District ofColumbia

Ii y10

~P(0YtQ COI){.J-

, alld am not under a court or adminislJauve agency

!'bile or CDWt

order sus_ding, .njoining, restraining, disbaJring, or otherwise restricting me in prncticing law.

0 2. I am an accredited representative of the following named ~Iigious, charltabl~ social serv1ce, or similar organization established in the

United States and which is so ",cognized by the Board:

.

0 3.1 am associated with

.

the attomey ofrecord previously fLIed a notice ofappearance in this case and my appearance is at his request. (Ifyou checlf, this ilem, also

chec/c ilem J or 2 whichever Is apprtJprlate.)

0 4. Others (Explain Fully.)

I

SIGNATURE
(),wM~ ~04-
NAMI!(T~ 1(eHQ$

COMPLETE ADDRESS
TIA/CHICAGO CONNECTIONS

208 S. LaSalle St, Suite 1818

M, ,

" . ~""'n A

ELBPHO

ER

~12. ,::,::n l,7n

PURSUANT TO THE PRIVACY ACT OF 1974, I HEREBY CONSENTTO THE DISCLOSURE TO THE FOllOWING NAMED·

ATTORNEY OR REPRESENTATJYE OFANYRECORD PERTAINING TO ME WHICH APPEARSINANYIMMIGRATION AND

NATURALIZATION SERVICE SYSTEM OF REf''''n,,~.

TIA.HIHRC

,

(Nmnc or Altom:yot ~taljVC)
THE ABOVE CONSENT TO DISCLOSURE IS IN CONNECTION WITH THE FOllOWING MATTER:

NameofPc"on ConS<tlling
.MJlf11J..tJ.AA;.4L''701!1J~A-AJr

I S~~ofP;;.:J!J C~~ing

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(NOTE: Execution of Ibis box is requiml. under the Privacy Act ~f 1974 where the pers7n being represented. is a citizen ofthc Uni~d States or an alien

lawfully admitted for pttmanent -residence.)

TJUs form rnay net be used to teJtUe5t records under the Freedom of In{0rmatiel1 Act or the Privacy Act. The maruter of requestmg such

records is contained in sen 103.10I1!d 103.20 Et.SEQ.

Fon. G-28 (09126100)Y "

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EXHIBIT
I '0(7)

f~
TO: The Headquartets Post Detention Unit
801 ISt NW Room 800 Washington, 0 C 20536
FR: Maitham Alzehrani A#71674230
JeIIeison County Detention Center 102 W'C'Sl Waurl<a, OK 73573
RE: Release Form Detention
Date: 6fl1OO2
Dear SirlMadam:
I am forwarding this letter to you conceming my review and I would like to know the process of my case.
I am a citizen of Iraq. I entered to the United States as a refugee in 1994. I left Iraq during the Gulf War when I was in the lraqr Army. While Iraq was in a war with the Wond Coalition in 1991 I was among those who surrendered to the United States Troops in the Kuwaiti-Iraqi Borders. I was taken as a PCM/ to a refugee camp in Saudi Arabia and I remained there
from 1991 until 1994. (Please See the record) On Aug. 18, 1994 the United Nation prooessedmy papers and I admitted as a political refugee to the United States.
Upon my arrival, I lived in the State of Maryland for six months with the Catholic Refugee Organization. After that I moved
to Elgin, 111 and I remained there. While I was there I worked in different factories and paid taxes every year from 1995 to
1998. On April 13, 1998 I arrested and charged with a class one felony. The Jury to six years with parole disqualification convicted me. I served three years prison time, on April 13, 2001; I was released to the custody of the INS from Big Muddy
River Correction Center in Ina 111. I was transferred and placed in Sheridan Correction Center until April 13, 2001 and the INS picked me from there and shuttled me through several detentions that I can not remember until I was transferred to
JCDC.
On Aug. 20, 2001, the INS Judge ordered me deported to my country. Three monthe later the INS served me with a review
to continue detention. That was on 10/112001. After that I have not heard from them since.
The reason I am writing you today to infonn you that, I have been in custody for almost one year and
one month, I only had one review. I do not know what is the reason for me to remain in custody as long
as I am not deportable. It is obvious that, I can not be deported to Iraq and there is no way the INS can facilitate travel document for me. I am not going to mention cooperation because there is no sense of
mention that Iraq is a country that has no diplomatic relation with the United States and I have left it as
a POw. Therefore, my deportation to that country is impossible.
I would like to inform you that, my continual incarceration is not serving the public interest since I have paid my dues to society and I acknowledged my guilt. I can not explain why I had to get into trouble with the law other then cuitural differences and my lack of familiarity with the American law. I do not have any excuses regarding my offenses. The only thing I can say, I am sorry for what I have done. I deeply apologize for the inconvenience that I have caused to myself and to the American Justice System. I pray that you understand the huge gep between the two cuitures (The United States and Iraq) and psrdon my misheps and irresponSibility.
I came to this country young and naiVe. Life taught me how to be responsible and law-abiding resident I have leamt from my incarceration so much; I could not have leamt that anywhere else. I worked hard to rehabilitate myself. I took classes for English and other vocational seminars. I attended programs dealing with anger management, life skills and other vocational classes.
I am In Jefferson County Deten1ion Center, WOII<ing haI1I on my rehabilitation. I a1Iend computer classes, seminars, vocational courses and all
other programs available to me. The atmosphere here is very rehabilitative. I have the chance to interact with society
EXHIBIT
I pUt)

• Page2

(~

May 20, 2002

through programs and work assignments, There are counselors who wolk very close with us and prepare us to deal with
today's walk cI1allenges. I am concentrating on recovery as my number one issue. I knew I made a mistake and I have to
prove to you, to myself and to my four·year-old daughter who is in dire need for my presence. I do not want her to grow up
without a father figure in her life. Today she became the center of my attention. I have brought her in this world and I know I am responsible for her up bringing. I do not need to list her needs for you. You must have an idea how hard for the cI1ild to function without support. My daughter (Leila) is at a very critical age and she needs schooling, clothing and other necessary care tha~ nobody will provide her with, if I remain in detention. That is why I believe ~ my incarceration does not serve the public interest
Instead of being a burden on society including my daughter, I want to be released so I can become an active member in my communlly. You can cI1eck my record and see tha~ I am a hard worker. I always supporled my family while I was in
society. As you know my family in Iraq is suffering under the Iraqi regime. Since my arrival in the States, Iraq remained
under intemational sanction, which hurt the oppressed people like my family. I had to support my sisters and brothers from
time to time.
I want to let you know th~ upon my release I have a place to stay and people to support me until I get on my feet My girlfriend (Somput lamp) offered me a place to stay and whatever helps I may need. I also have several mends who vowed to help me upon my release please see the names below.
This is address is where I will live when released:
309 SouIh Highland Ave. RocI<fatI, lB. 61104 (815) 3981341
Those are the names of my mends who will help me upon my release from custody.
(1) HMlid AI basri Telephone #(815) 399 0119 (2) ThaisbAiaboodi Telephone (847) 3736679 Jasim AJsim Telephone (773) 427 0885
Note: I have sent to your office all the documents related to my rehabililation and other supporting letters I gathered from
those who wrote you to attest to my cI1ange. I failed to mention tha~ I have legal assistant by the name of Anne Renas who wrote you several letters in my behaff seeking my release. She is a human right lawyer. I beiieve you can cI1eck my record for more infonnation about her. You also can contact her for more information about me because she got all my
psperwork. Her telephone is (312) 263 0901. The Direct # (312) 660 1359 Please feel free to contact her for infonnation. I
am also forwarding some copies that I have here, which I believe you already have them in your possession, but if not please take a note of them.
Respectfully submitted
Maitham Alzehrani
~

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.......................................................................................................f.'..~ ..~

May 22, 2002

United States hnmigration and Naturalization Service HQPDU . 801 I Street, NW
Suite 800 Washington D.C. 20536

Dear Sir I Madam,
Re: A# 71674230 in the matter orMr. Maitham Al7.ahrani
The American-Arab Anti-Discrimination Committee (ADC) is a civil rights organization committed to defending the rights of people of Arab descent and promoting their rich cultural heritage. ADC, which is non-sectarian and non- partisan, is the largest Arab-American membership organization in the United States. It was founded in 1980 by former Senator James Abourezk and has chapters nationwide. Through its Legal Department, ADC offers counseling in caseS of discrimination and defamation and selected impact litigation in the areas of immigration:
It has come to ADC's attention that Mr. Maitham Al-Zahrani is allegedly being . detained lind was allegedly denied release on his most recent three month review, on the grounds that he has made insufficient effort to obtain travel documents to return to Iraq. It is alleged that the INS is aware that an application for travel documents was
sent to the Iraqi Interest Section on December 14, 200!. This request is currently pending and as ofthis date, there has been no response from the Iraqi Interest Section
The INS should take into account the well-known fact that the United States and Iraq do not currently have diplomatic relations. The possibility that the United States will take military action against Iraq has been widely publicized. It is therefore unlikely that the INS will be able to deport Mr. Al-Zahrani to Iraq in the reasonable foreseeable future.
Continuing to detain this individual violates the Supreme Court decision Zadwdas v. Davis. We request that you investigate Mr. Al Zahrani' s detention and reconsider your decision on this matter.

Sincerely,
e:.ifcun~
. Legal Advisor

EXHIBIT

~. 14!
f~ICAGO
\£ONNECTIONS
A. HEAR'tLAND ALLI ANCE PARTNER

July 17, 2002

Iraqi Interests Section 1801 P Street, NW Washington, DC 20036

Re: Travel documents for Maitham Alzehrani

To Whom It May Concern:

I am writing on behalf of my client, Maitham Alzehrani. Mr. Alzehrani is a native of Iraq who
entered the United States, with the assistance of the United Nations, as a refugee on August 18, 1993. Mr. Alzehrani was ordered removed to Iraq on August 20,2001, and has been in INS
Custody since April 13,2001. I am writing to formally request that you issue Mr. Alzehrani a travel document as he is a native of Iraq. Please respond, in writing, to this request to supply Mr.
Alzehrani with travel documents. Please provide a written explanation as to why Mr. Alzehrani cannot be issued travel documents if that is the case.

Please feel free to call me with any questions: (312) 660-1359.

Thank you for your immediate attention in this matter.

~cerelY'D /1
~~c<--1Anne Relias
Staff Attorney
Midwest Immigrant and Human Rights Center

u.s. Postal Service
CERTIFIED MAIL RECEIPT
(Domestic Mail Only; No Insurance Coverage Pr
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Postage r$----------I

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Providing paths from harm to hope thrOUi

Midwest Immigrant & Human Rights

TIA/Chicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604

/',
U.S. Departm, )f Justice Immigration and Naturalization Service

Maitham Alzehrani
J.C.D.C.
102 "c" St.
Waurika, OK 73573

HQPDU Washington, DC 20536
A 71674230

.We have received your request for review for a custody re-determination. The Immigration and Naturalization Service ("INS'') is in the process of reviewing the likelihood of repatriating you to your home country or country where ordered removed pursuant to a final administrative deportation/removal order. You are advised that in accordance with the Supreme Court's instruction in Zadvvdas v. Davis, 121 S.Ct. 2491 (2001) and INS regulations, 8 C.F.R. § 241.13 (66 FR 56967, November 14,2001), you have the burden to show that there is no signillcant likelihood of repatriating you in the reasonably foreseeable future. In order to undertake the review" in accordance with 8 CFR §241.4 and 8 CFR §241.f3, you mustprovid¢ the following documentation:
• Copies all passports, birth certificates or other nationality documents in your possession
• Copies 9fcorrespondence indicating your good faith efforts to obtain a passport from your country ofnationality or other country indicated on your Order of Removal.
• Copies ofreceipts or responses from Embassies, Consulates or other governmental offices responding to your request for a travel document
Upon receipt of the aboveinformation, this. office will conduct a full review of your case. and make a determination of custody. Until such time as you submit the above information, the removal period defined in 8 CFR §§ 241.4 and 241.13 is held in suspense.
You may submit additional evidence if you believe your removal is not possible in the reasonably foreseeable future. Youmust resubmit evidence previously submitted that your removal is not imminent for reconsideration. You must also prove that you are taking positive measures to facilitate your removal from the United States. You are also advised that the Service may continue to detain you until there has been a determination under 8 CFR §241.13 whether there is a significant likelihood that you can be removed in the reasonably foreseeable future.
All evidence should be sent to the Headquarters Post Order Unit (HQPDU), 801 1St, NW, Washington, DC 20536, Room 800.
EXHIBIT
I T) (II)

.

. ~,

The HQPDU hi - , .osen not to review your case at this L because of:

•

You are not currently in INS custody.

•

Your immigration case is pending review by the Board of Immigration

Appeals and is therefore, not a final order subject to review by the HQPDU.

•

The Removal Period has not yet expired, thus making you ineligible for any

review.

•

You have not been in custody with a final order of removal for the statutory

period of time.

.

•

Your case is pending before a Circuit Court of Appeals and you are not

eligible for a review ofyoUr case.

•

You have a judicially ordered stay of deportation, exclusion or removal.

Once you are eligible for review, the HQPDU will conduct a revit;w of your case and issue a

decision.··

..

.

~\'{\ Signature ofHQPDU DirectorlDesignated Representative

Date

TABLE 65. ALIENS REMOVED BY CRIMINAL STATUS AND REGION AND SELECTED COUNlRY OF NATIONALITY FISCAL YEARS 1993·98

Region and cOuntry ofnationality I

1993

Total

Crimilla1 2

Noncriminal

AD cOliotrieS ........................_ . _ .
Europe ____.._ .______•
Albania ............_........._................_. Andom ..........._..........................._. Austria .........................................._. Belgimu ............................_.•........_. Bulgaria ................._........._.........._.
CzCSelczoelv!coahskloRRveaeppkuuibabl,ilcifcon...n....e....r...........-.·N ...........__........·..._.·.._..·.....
Unknown republic _....N •• ••..• ••_ ••••
- -.-- - - Demnark _......._....................._.......
Estonia .... ... .•........ .......-.~.
Finland' ............~..._................_....~.
France ...._............_.........................
Gcnnany ..._ ................................... Greece _ .....................................__
HlDl8aIY ......... ON .....·_..• .. •• ........ •• .... • Iceland ........................-................... Ireland ._.....,;:............................. lla1y ............................................. Latvia ............_ .............._............ Lithuania ..._.................................... Luxembouq: ...._ ........................ Malta ............._......................._. Monaco ...__.................................... Netherlands ......._............................
Nmway ...........................................
Poland ......................................_. Portugal ....................._.................. Romania ...._ .............._................... Soviet Union. fOmlCf _ ................_
_- ADnenia ......................_...............
Azerbaijan ............................ ..
BeJarus ..............................._ .•• Georgia ....._......................_ ....... KazalchslaD .......................__....... Kyrgyzs/an ................................. Moldova ........_ ..._ .................... Russia ......._..._ ..................._ .... tJlaaine ___.........._...............__..
Uzbekistan ...._ ........................ UIlknown republic ....'................... Spain .............................._ ............. Sweden _.................................._.._. SwilZerland .m................................ Uniled Kingdom ..._..._................... Yugoslavia. former ................_...._. Bosnia-Herzegovina ..._...._......... Croatia ._...................................... Macedonia _ ...................._ ..._....
Slovenia ....................................... Unknown ......_............_........_ ....
See footnotes' at end oftable.

42,469
774 3
3 5 4 11
11
3
4 49 99 26 17 4
6 52
1 3 1
2Z 4 78 46 10 19
9 3
7 17 10 6 248 23
23

21,827 331 1 1 3 4
4 1 3 15
44 13
10 1 4 25
8 3 8 39 3 7
5 10 2 2 115 6
6

14,642
443 2
2 2 3 7
7 2
34
55
13
7 3 2 27 1 2
14 1 70 7 7 12
8 2
2 7 8 4 133 17
17

1994

Total

Criminal 2

Noncrinlinal

45,6Z1 30,158 15,463

9Z5

377

548

15

5

10

4

3

5

4

12

11

12

4

8

3

1

2

9

3

6

7

7

3

3

2

2

52

14

38

101

30

71

24

19

5

10

4

6

4

2

2

13

6

7

57

28

29

1

1

1

1

2

1

15

8

7

4

2

2

81

21

60

53

43

10

30

7

23

44

13

31

3

2

26

9

17

3

3

11

2

9·

24

9

15

7

1

6

9

4

5

283

137

146

50

13

37

6

2

4

44

11

33

1995

Total

Crimina1 2

Noncrinlinal

50,873
934
11
1 3 16 18 5

31,631
398 4
1 5 6 3

19,24Z
536 7 1 2 11 12 2

1

4

2

2

5

5

1

5

5

58

27

31

90

30

60

24

11

13

11

7

4

19

4

15

59

30

29

1

1

2

1

38

20

18

5

1

4

62

18

44

42

32

10

45

6

39

55

16

39

7

5

2

1

30

7

23

10

3

7

7

1

6

34

10

24

9

4

5

19

7

12

25Z

142

110

43

11

32

2

2

1

1

3

3

2

2

35

11

24

71)
4

rl -"

...

EXHIBIT

~

D
"

DU2..)

TABLE 65. AUENS REMOVED BY CRIMINAL STATUS AND REGION AND SELECTED COUNTRY OF NATIONAUTY
FISCAL YEARS 1993-98-Continued

Region and country ofnationality I

Tolal

Asia _
Mghanistan ....•_........................... Bahrain ....................................... Bang\adcsb ................................. Bmma .N•••••••••• _ _· _ · ••••••••• M •••• _ · · · · _ · C8JDbodia •• N ............... _ ••• ·_·.·· .. •••• ..• China, People's Republic ._•.•••••••_. Cyprus .........................................
Hong Kong _.... M ••••··.,........... •••••••..•• loW. ............................................ Indonesia .•. M •••••••••_ ••••••••••••••········_· haD ............................................... IIaq .................._........._.................. Israel .............__....-.....................Japan .•=_...........................- ...._.......
Jordan N . . . . . ._ . . . . . . . ._ · •••••••• ; ••••••••••••. . • Kotea ........._..............._....__.._...... Kuwait ......._•..._..._...._•..•_..._ .......
Laos •.•.. N .........._······.· ••· · · · · · · · · - _ · ·__ • Lebanon _........................._.........._.
Macau .N......._._•••_· ......... _ .. ··N .... _. Malaysia .... N ......•• ............. _ .. •• ...... _· Maldives ...N .........._ ....................._· Mongolia ........._.....................- ...._. Nepal ..._.........................................
PPahkiliisptapDine..s...._........._........................-.............................._...
Q- _ ......_ ............._....-............. Saudi Arabia ........- ..._._............._. Singapore ........_........._................_.
Sri Lanka ......................................_. Syria ..........................,................._.
Taiwan ..................................._....-.
Thailand .........,............................... Tutkcy .................................._....... UnitcdAmb Emimtcs ................_.. VietnaID _..._ ..._........._...._............. YCIDCll ._......._ .............................._.
Africa _ _ _ _ _..
Algeria _..__......._._........._.........._. Angola _ ........._..............._...._......
Benin ..............._...........................Burlcina Faso ... _ ............................. Bunmdi ..........._.........................._. Cameroon ......._ .............................. Cape Verde ................_.......:.......... Cenua1 Afii""" Rcpllblic ................ Chad .........._.._ ............................. Congo, Dcmoc:atic Republic) .._.... Congo, Republic I ........_ ...._ ...._ .•_
Cote d'Ivoirc ....._......._................_. Djibouti ..........._ .........................:..
E8YPt .........- ...............-.:...............
EErqiutraetaori.a-l..G...u..i.n..e..a................_.......................................
Sec footnotes at end offable.

1,247 10
48 2
94 I
22
261 17 58 3 49 44 44 44
I
67
15
3 134 162
3 9 77 13 20 23 15 I 5 2
70s 5 2 1
S 10
8
15
24

1993

Criminall NOllcriminal

357

890

5

5

1

47

2

22

72

1

17

5

22

239

6

11

35

23

I

2

24

25

10

34

21

23

20

24

I

32

35

3

12

3

31

103

63

99

2

I

3

6

2

75

6

7

7

13

13

10

2

13

I

3

2

I

I

398

307

·1

4

2

I

2

3

7

3

4

4

3

12

13

11

Tola\
1,654
\0
1 44
\0
2 448
I 19 216 7 61 4 41 55 37 58 4 12 SS
9 1
2 145 236
3 II 43 14 28 27 33 I 6 10
959 10 I 6 1
8 22
I 4
17
20

1994

Criminal 1

NOlIcriminaJ

385 1,269

4

6

1

4

40

10

2

19

429

1

13

6

22

194

I

6

27

34

I

3

26

15

9

46

19

18

26

32

2

2

12

30

25

2

7

I

2

30

115

85

151

I

2

6

5

3

40

6

8

15

13

17

10

11

22

I

2

4

2

8

600

359

3

7

I

5

3

5

17

5

3

2

15

6

14

Tola\
1,332 17
44 2 14 307
12 167
8 50 2 40 31 29 50 3 9 46
I
12
4 140 193
4 5 49 12 20 30 26
3 2
927 15 I 5
I J3
18
S
19
31

1995

Criminal'

Noncriminal

345

987

10

7

5

39

2

2

12

25

282

3

9

15

152

4

4

30

20

2

15

25

11

20

12

17

20

30

2

1

2

7

28

18

I

S

7

2

2

33

107

82

111

I

3

2

3

5

44

4

8

7

13

8

22

6

20

2 2

516

411

I

14

1

4

I

2

II

17

1

2

3

4

15

12

19

21

TABLE 65. ALIENS REMOVED BY CRIMINAL STATUS AND REGION AND SELECfED COUNTRY OF NATIONALITY FISCAL YEARS 1993-98-Contlnued

Region and country ofnationality I

Total

Elhiopia ....._.... .... ~

N ••• M ••••_ ••••_ ••••_·

12

Gabon .. M ••••__•• __ ._••• ••••• _ _••••_ .......

Gambia, The ...................................

10

Ghana ........_....................................

108

Guinea ......._........._...._...................

3

Guinea-Bissau .M••••_........._•••••........

1

Kenya .............._..._......................_.
Lcsolho _.............._..........-...._.......

6

Liberia ................... _ .. __ .................

31

Libya ............................................

2

Madagascar ................_...._..__.......

1

Malawi ._.........................._...._...._.

Mali ..............................................

2

Mauritania .................._....__.._.......

Mauritius ......._~....~....._........M .......

Morocco ........._..............._..._ ....M.

15

Mozambique ...~...............__...........

NaInibia ...................................._.....

1

_ ...... NNiiggeerria................_.............._..................__..........................

47 335

Rwanda .............................__...._.....

2

Sao Tome & Principe ...... _ .............

1

Senegal _....................._...................

12

SeychcUes .......................................

3

Sima Leone ................................._.

11

Somalia ....._....~...._ .......................

4

South Africa ....................................

15

Sudan ........_....................................

3

Swazi1and ......................................

1

Tanzania ....M· ••• •••••• ..••••• ..•• .... •• ...... _·

__ __ TTougnoisi.a...__........................................._..............................

3 2

Uganda ..........;~.............................

3'

_ _ ...... Zambia ......__
Zimbabwe

~..............._...._.......
.... ......................

1

Oceania _ _.._ _ _ _ 87

Australia ...._..._ ..._......................

16

Fiji ._..............__..............................

9

F=ch Polynesia ..._ ....................

Kiribati .........._ .............................

Marsha111s1ands ............................

2

Micronesia, Fcdcralod Stales ._..._..

16

New Zcaland ........__..._.............
Palau .........__...._.............__...........

2 4

Papua New Guinea .........._ ...._...._

11

Samoa 4 ....................... __................

13

Tonga .............................................

14

Tuvalu .M . . . . . . .: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Nortb America Canada ..........._ ........_................... Mexico ......_ ..._.............................. United States .._ .........~.........._.......
See footnotes at end oftable.

37,56$ 1,262
27,101 1

1993

CriminaJ 2

Non· criminal

7

S

9

21

87

3

2

4

8

23

2

2

8

7

1

28

19

262

73

2

1

4

8

3

8

3

4

4

11

1

2

1

3

2

. 1

2

33

54

4

12

2

7

1

1

3

13

2

1

3

3

8

7

6

10

4

25,306 1,065 19,582

12,259 197
7,519 1

'1994

Total

Crimina1 2

Non· crimina1

22

10

12

12

2

10

127

52

75

10

3

7

21

8

13

1

36

22

14

2

1

1

6

2

4

1

13

6

7

1

1

38

12

26

490

404

86

9

2

7

9

3

6

14

3

11

21

12

9

7

3

4

3

2

1

19

13

6

2

2

2

2

2

2

95

49

46

13

3

10

11

6

5

10

6

4

1

12

9

3

17

5

12

4

4

1

1

13

8

5

13

7

6

Total
20 1
11 In 15
1 8
37 5
2 14
9
1 68 332
2
27
21 11 24 8
1 11 4 3
1 1
90 14 8 6
1 13 21 3
14 10

39,786 1,163
30,082 3

27,200 937
21,869 1

12,586 226
8,213 2

45,354 1,073
34,662

1995

Crimina1 2

Non· criminal

14

6

1

3

8

74

103

6

9

1

2

6

19

18

3

2

2

4

10

7

2

1

26

42

261

71

2

8

19

1

14

7

1

10

13

11

2

6

1

10

1

1

3

1

2

42

48

4

10

3

S

6

13

4

17

2

1

12

2

4

6

28,721
877
22,906

16,633 196
11,756

22

TABLE 65. ALIENS REMOVED BY CRIMINAL STATUS AND REGION AND SELECTED coiJNTRY OF NATIONAUTY FISCAL YEARS 1993-98-Continued

Region and country ofnationaJity I

Total

CarlbbeaD

..---

Anguilla ......................................

Antigua-Barbuda .........................

Aruba .........................._..............

Bahamas. The ·~ .H...

•••• H •• · · _ . · · _ ·•••

Bwbados ............................... _ ...

Bennuda ......................................

British Virgin Islands ._•.._..•._....

C_an Islands ...............,...........

Coba ..................................,........
DOlIlinica ••_.H....·.·_..··_..··_···_·.··

DOIninican Republic ....................

G=ada ......................................

Guadc!oupc •...•......_ .••_----_••.•

HIIili ............................................ Jamaica _...._..•........•.....•..•_.........

Martinique ._..._.••......._•..._ .._ ...

MontseIrat ._.••••••.•_...._•••._.•._••••

Netherlands Anlilles ....................

Puerto Rico ....._...................._ ....

SL Kitts-Nevis _....................._....

SL Lucia ......................................

SL Vincent & Grenadines _..........

Trinidad Tobago ..... &

M ...............

Twks & Caicos Islands ..............

Central America •

Belize .._ ......................................

Costa Rica ............_ .••_..._,,_....

El Salvador .............................. Guatemala •__..................__.......

HOtiduras ......._ .•..__.•_•.._...._ ...

NIcar8jlUa .................................. Panama _.........__............._...__..

- 3,506 19 2 68 28 6 2 1 149 38 1,651
13..
318
1,038.
1
4..
14 14 6 133 1
5,695
129 40 2,104 1,366 1,676 269 III

Soulll America _ ... Azgenlhla ....................................
Bolivia .......................................... Il!azil ........................................_. Chae ............................................._ Colombia ...................._ ................ Ecuador .._ ......_..............._............. Fn:ncli Guiana ................................. Guyana ........................................... Paraguay ........................................ Peru ....._...._..._..............._._...._. Sminmne ........................................; Uruguay .........._........._ ..._ ......... Venezuela ............._............._.........
Stateless .............................................
Unknown and not reported ................
Sec footDotcsat end oftable.

2,060 19 46 101 47
1,303
134.
124
4
210 5 18 49
1
30

1993

Criminall Noncriminal

Total

- 2,497 14 2 45 27 5 1 126 20 1,029
12..
195
871.
1 2 ..
11 12 5 118 1 2,162 83 21 1,023 406
402
130 97
1,388 9 23 14 27
1.028
50.
86 1 108 2
11
29
-
14

1,009
-
5
-
23 1 1 1 1 23 18 622 1 ..
123 167
-
2 .
3 2 1
15..
3,533 46 19
1,081
960 1,274
139 14
672 10 23 87 20 275
84
-
38 3 102 3 7 20
1
16

3,107 2 19 2 61 28 8 3 1 93 39
1,546 9
-
153 980
-
1
2 .
8 13 10 127 2
5,431
98 31 1,890 1,271
1,647
390 104
2,186 31 39 128 46
1,424
122.
107 4
190 2 19 74
..
16

1994

Criminal l

Non-

criminal

Total

2,220 1 12 2
48 27 7
1 -
75 19 958
6 -
124
814.
1
2..
5 7 9
102..
2,173 70 17 933
455 498 III
89
1,538 16 16 34 24
1,146
80.
75 2 86 1 11 47
..
9

887 1 7
-
13 1 1 2 1 18 20 588
3 -
29
166.. ...
-
3 6 1 25 2 3,258 28 14 957 816
1,149
279 15
648
15 23 94 22 278 42
-
32 2 104 1 8 27
.
7

3,427
-
25 1 73 28 9 2 1 60 24
1,618
12 , 2
338 1,043
..
1
-
1 12 13 20 143 1 6,192
71
43 1,927 1,761
1,927
373 90
2,234 30 48 96 61
1,418 166
-
128 1
204
-
7 75
..
2

1995

Criminal 2 Noncriminal

2,649
-
19 1 55 23 8 1 1 52 14 1,170 12
-
245 909
-
1
--
8 6 13 110 1 2,289
54
28 957 498 533 139 80
1,608 16 31 18 29
1,199 85
-
67
-
105..
6 52
..
1

7786 18
5 1
1 -
8 10 448
-
2 93 134
---
1 4 7 '7
33
·
3,903
17 15 970 1,263 1,394
234
10
626 14 17 78 32
219 81
·
61 1
99..
1 23
·
1

23

i\

TABLE 65. ALffiNS REMOVED BY CRIMINAL STATUS AND REGION AND SELECTED COUNTRY OF NATIONALITY FISCAL YEARS 1993-98-Continued

Region and country ofnationality I
AU countries _ _ _ _ _ _ _ _•
Europe .._ ........_ _..._ _...-
Albania ......................................... _. ADdona ...••_ ................................... Austria ............................................. Belgium ........................................... Bulgaria ._....•..._•..•_•.._....••...._...._. C~boslovakia. fomer ..................
Czech Republic •..._...._••.._........•
Slovak Republic ..........................
Unknown republic _..•"................ DenDl8I'k ......................................... Estonia .:••••_ ••.;:..............._.............
_ - Finland _...._ ..._..._...........•...._...._.
France ............ ........._.... .............
GCIlD8IlY ....................H ............••••••• Greece M . . . . . . . . . . . . . . . . . . . . . . . . . . . . _ . . . . . . . . . . . . . Hungary .......................................-. lcelaud ;_...•......_...._.....•.__...._...._. Ireland ._.•....•....•........._•..._.........._. Italy ..•.•••.•••_•.••.•••.__.•_••••••••.•_••••_. Latvia ••_.•••••••••._••_••••_•.•••••••••••.•._. Lithuania ••._....•...._..._...._...._..._. Luxembourg .•..••.._...._•..•_.........._. Malta ..._...•_•.•••..•_.•.•_•..•_...._...._.
Monaco ................_......................... Netherlands •....•....•.•._..•.....•._...•_.
Norway ...........-..............................
Poland ......._.................................... Portugal ••..._._.__..__._•.•._...._.•.•_. Romarua _••_.••.•..._..•._._._ ..•.•...._. Soviet Union. fODDer ...................:.
Armenia ..............._._............__•• Azerbaijan ._................................ Belarus ••••••_._._••.••••••..••••••••••_._. Georgia ........................................ Kazakhstan ••••• M . . . . . . . . . . . . . . . . . . . . . . . . . . .
Kyrgyzstan __•__.._...._...._..._.•.• Moldova ..._•..._.•.._..•._•.•_...._.... Russia ....._.....................__..•.__.. 1Jlaainc __.................................... Uzbekistan _..••_ ..................._ .•.. Ullknown Iepublic _•..._•..._•.._.••. Spain .........-_••••••_••••_•••._••••_•••Sweden ............................................ &wi_land ._._••__•••__....•..._..__. United Kingdom _.__....•.._.........._ Yugoslavia. former ...................... _. Bosnia-HCIZegovina ........._..._.••• Croatia ....._ ................_ .•._......... Macedonia .................._...._......... Slovenia ._............._..•._............... Unknown .._...._...._.....................
See footnotes at end oftable.

Total
69,588
1,052
13
10 9 27 14
1
13
5 1 3 55 116 21 11 2 20 71 2 5
36 2 81 45 36 78
10
1
2
37 11 2 15 42 15 8 280 43 2 5 2
34

1996
Criminnl 1
36,203
450 5
2 5 4 4
4 2 1 1 21 45 15 5 1 8 29 1 1 1
19 1 21 37 7
23
1 1
9 S
6 17 2 3 150 19
3
16

-Non·
33,385
602 8
8 4 23 10
1 9 3
2 34 71 6 6
1 12 42 1 4
17 1
60
8 29 S5 9
28 6 2 9 2S
13
5 130 24
2 2 2
18

1997

Tola!

Criminal 1 Non·
criminal

114,292 49,768 64,524

1,640 48

543

1,097

4

44

5

2

3

6

3

3

44

5

39

77

6

71

3

3

12

1

11

62

5

57

9

2

7

6

5

2

72

19

53

HI

40

71

38

25

13

32

4

28

1

41

11

30

117

49

68

2

2

8

3

5

1

1

34

13

21

11

5

6

151

35

116

69

49

20

94

15

79

156

40

116

11

2

9

5

4

5

5

4

4

80

24

56

38

8

30

13

5

8

51

19

32

19

3

16

1I

4

7

345

159

186

79

24

55

2

1

1

20

1

19

7

1

6

1

1

49

21

28

1998

Total

Criminal: Non· Criminal

172,547 55,489 117,058

1,928
74

699

1,229

6

68

9

4

5

12

3

9

79

9

70

166

19

147

4

1

3

10

2

8

152

16

136

8

1

7

S

2

3

5

4

1

77

24

53

148

61

87

28

13

15

38

14

24

4

2

2

45

17

28

98

44

54

3

1

2

14

4

10

1

1

38

21

17

9

2

7

163

42

121

94

79

15

94

18

76

190

46

144

36

4

32

2

2

5

5

2

93

29

64

35

3

32

17

9

8

61

21

40

17

2

15

13

6

7

367

205

162

68

28

40

4

2

2

7

5

2

7

6

3

3

47

20

27

24

TABLE 65. AUENS REMOVED BY CRIMINAL STATUS AND REGION AND SELECTED COUNTRY OF NATIONALITY FISCAL YEARS 1993-98-Continued

Region end COWltIy OfDationality I

Total

Asia _._________

AfghaDistan ....._..........................._.

Bahrain ............_..............................

- - BBUanDgDlaad.e~s.h................~.......-.........................................--..

Cambodia ........_..............................

China, People's Republic ._ ......... _.,

Cyprus .............................................

Hong Kong _.... M ........._ ••••••••••_ •••_.·

India ................- .............................

Indonesia ............._ ......................_.

Irnn .._...............................................

Imq ..................................................

"'ISrael Japan

:::::::::::::::::::~~::::::::::::::::::::

Jordan ..............................................

Kotca ...............................................

K.uwait __........................._.............

Laos ......................__....................-
Lebanon .......................................... Macau .............................................

- - Malaysia ..•._.................................-
Maldives ...~.............. .... .............

Mongolia .....~.._..............................

Nepal ..................._ .....................-

PalciSIaU ..........................................

Philippines ................_ ...._ ........_.

_ Q- ....................................._.......
Saudi Arabia ....................... .........

Singapore ..................._ ...............-

Sri Lanka .........................................

- Syria .......................................- ..-
Taiwan .........................................

ThaUand ..........................................

1'UJ:key ...........................................

UnitedArabEmimtes .....................

Victnanli ...._ ..............._ ..._..........-.

YemCll .................._.........................

1,618 14
35 1 4
517
14 148 12 43
2 53 40 37 79 8 7 41
5
4 166 206
1
13 47 17 17 52 18
8 9

-AfrIea Algeria ............................................ Angola .........................................._ Benin ..................................... _ ....... Burldna Faso ................................... ..........................................

890 24
I 9
I 1

Cameroon ....................._ ................

10

CapcVCIde .....................................

20

Ccmral Afrlcau Rq>ubllc ......_ .......

Chad ..............._ ..............................

COllgO. Democratic Republic) ........

8

Congo. RepubUc J ...........................

1

Cote d'lvoirc ..._..........................._.

17

Djibouti ....._...._..............................

Egypt .............._.............................. 34

- _ - Equatorial Guinea ...........................
Erioea ............. .. ................. .....

See footnotes at end oftable.

1996

Crim.inal 1

Noncrimhu!l

396

1,222

3

11

5

30

1

4

43

474

10

4

20

128

3

9

20

23

2

34

19

11

29

20

17

35

44

5

3

7

20

21

2

3

2

2

29

137

86

120

1

3

10

I

46

5

12

7

10

13

39

8

10

3

5

5

4

487

403

6

18

I

9

1

1

3

7

13

7

1

7

1

3

14

18

16

Total
2,421 9
61 6
10
489 2 22
293 15 61 12 132 93 106 124 7 12 51
18
3 271 411
4 4 47 16 25 48 40 2 11 16
1,183 19 3 12 I 2 14 24 2
21 4 26 1 50

1997

Criminal Z

Noncriminal

652

1~769

3

6

8

53

2

4

10

45

444

1

1

10

12

32

261

7

8

30

31

12

65

67

12

81

44

62

57

67

3

4

2

10

26

2S

8

10

I

2

64

207

171

240

2

2

4

2

45

8

8

12

13

15

33

13

27

I

I

3

8

5

II

508

675

4

IS

I

2

10

2

1

2

4

10

21

3

1

I

7

14

4

5

21

1

IS

35

Total
2,847 16 1 82 2 21
567 I
20 366 33 57
12 87 53 86 ISO
10
6 50
34
4
8
386 502
I 7 7 60 28 24 60 53 3 12 8
1,432 31 3 7 12 3 23 33 I 1 14 5 49 I 64 1 2

1998

Criminal l

Non-

Criminal

750

2,097

5

11

I

12

70

2

2

19

78

489

1

13

7

52

314

2

31

26

31

4

8

36

51

13

40

31

55

53

127

5

5

I

5

25

2S

10

24

1

3

3

5

72

314

227

275

I

5

2

5

2

5

55

11

17

8

16

21

39

14

39

I

2

7

5

2

6

583

849

7

24

3

6

I

1

II

1

2

4

19

27

6

I

I

2

12

1

4

10

39

I

22

42

I

2

2S

!~

TABLE 65. ALIENS REMOVED BY CRIMINAL STATUS AND REGION AND SELECTED COUNTRY OF NATIONALITY FISCAL YEARS 1993·98-C<>ntinued

Region and countzy ofnationality I

1996

1997

1998

Tola!

Criminal l

NODcriminal

Tola!

Criminal Z Noncriminal

Tola!

Crimin.aJ 1 Non-
er;",;"u

Ethiopia .._...._..._ ..._...._...._..._..... Gabon ................_...._.........._.......... Gsmbia, The .•..._ .........•..•.•..•.•...• Ghana ..........._..._................_..._..... Guinea •..._...._...........•.............._..... Guinea-Bissau ..._........__...._...._....
Kenya ........................................... Lesotho ..._...._..._.........._................ Liberia ...._...._..._.........._...._...._....
Libya ............................................. Madagascar .._........._...._.........._....
Malawi •••H ••••_ ••••••••• _ . . . . . . ._ ••• · · · _ · · · · · Mati .........................................._..... Mauritania ...._........._...._...._...._.... Maurithis ......_...,....._...._...._...._.... Moroooo ........................_.............-.
Mozambique _.................................
Namibia ........................................... Niger ............................................... Nigeria ............................................. Rwanda ........_................................. Sao Tome & Principe ...................... Senegal ........_....................._ .........
Seychelles ................................._....
_ SiC1I'8. Leone ._...._...........................
Somalia ........ ................................
Soudt Africa .................................... Sudan ..........._................................. Swaziland..............._...._......·......... Tanzania ......._.._.........._......_ .......
TODgO ....._ ...................._......_._.....
Tunisia ..........................._...._..........
_ ZZUiagmmabnbadiabaw....e...................__............................._..............___.............._....-......__.............
Oceania Australia ...... _ ................................. Fiji ........................................_......_. Fn:nch Polynesia ....._ ..................... Kiribati ........._.............._...._._.... MmshalIlsiands ............_...._...._.... Micronesia, Fcderaicd States '.......... New Zealand _._..._...._........_ ••.
Palau .............................._...._..._..... Papua New Guinea. .......................... Samoa· ........_.............._ ................. Tonga .............................................. Tuvalu .............._ ...._...._...._..._ ....
North America _ .._ _ _ _ _ _
Canada .............._ ........_...._.........
Mexico . . . . . . . . .N . . . . . . . . . . . . . . ._ . . . . M . . . . . . . . . . United Smtcs M ........._ ...._ ......... • ......

19 5
11
147 12
16
I
33 1
I
11 I
25
2 43 314
3
17 2 19 8 32 10
6 12 2 1 2 7
102 14 24 11
1 10 22 5
4 11
63,545 594
50,952

9 2 4 47 6
6
I
15
I
6
12
I
22 244
I
3 2 9
I 11
6
2 10 2
I
6
35 4 7 3
·6 2 3
I
9
33,253 418
27,298

10

40

3

2

7

32

100

167

6

20

10

19

18

44

3

3

5

17

1

2

13

41

:\

1

21

47

70

395

2

3

14

42

10

24

7

22

21

25

4

18

1

4

7

2

11

5

7

1

2

67

150

10

17

17

22

8

19

1

4

II

20

29

2

11

I

3

15

2

25

30,292 176
23,654

104,765 704
86,196
I

18

22

1

1

9

23

44

123

3

17

6

13

20

24

2

I

3

2

15

2

16

25

I

2

27

20

251

144

3

2

40

6

18

2

20

11

14

8

10

I

1

6

3

8

3

2

1

6

1

I

72

78

7

10

10

12

4

15

7

4

8

21

10

I

7

8

18

7

45,840 400
37,699

58,925 304
48,497
I

36

16

33

10

198

56

57

9

21

5

49

35

3

28

4

2

1

I

I

36

13

1

37

17

489

283

3

55

12

22

7

21

I

35

14

10

3

7

2

7

3

11

2

6

3

I

10

2

160

77

37

10

29

13

5

2

8 27 10
I
7 35
I
161,884 889
139,135
I

7 6
9 I
5 24
51,275 508
42,789

20
23 142 48
16
14 2
I
24
I
23
I
20 206
3
43
15 20 21 7
5 4 9 6 2 8
83 27 16 3
I
21
2 11
I
110,609 381
96,346 1

26

TABLE 65. ALIENS REMOVED BY CRIMINAL STATUS AND REGION AND SELECTED COUNTRY OF NATIONALITY FISCAL YEARS 1993·98-Contlnued

Region and counll'y ofnationality J

Total

1996

Criminal 2

Noncriminal

Total

1997 Criminal Z Non-
criminal

Total

1998 Criminal' Non·
Crimmal

Caribbean _ _.._ _....__
Anguilla .M .................................... Antigua-Barbuda ................_....... Aruba ........................................ Bahamas, The ... _ ........................
Barbados ...................................... Beonuda ...................................... British Virgin Wands ....."........_. Cayman Islands ........................_. Cuba ••__.••_.•.•..•.•.••••••.••..•••..••••. Dmninica ........................_........_. Dominican Republic _....M ............ Gn:nada .•.._.............................. Guadeloupe .................................. Haiti ..:..........................._............. Jamaica ...............................:..•.._
Martinique •.._...._..............._..._.
Montserrat .........._....................._ Nelbc::rlands AnliDcs _........._....... Puerto Rico .._.............................. SL Kitts-Nevis ........._...._...~...._. SL Lucia ._...._ .........~..._.........._.
SL Vincent & Grenad.incs ..._....... Trinidad & Tobago ............._....... TuIks & Cucos Islands ............... Central AmerJea ___.__-..:_
Belize ......................._..............._. Costa Rica .........._...._..._.........._. EJ Salvador .................................. Guatcmala _....................._•.•..•. Honduras ..................................._. Nicaragua ................................. Panama .._..........__......._...._ ..._.

3,952 1
17
2 76
37 8 2 1
68 28 1,952 12
·
330 1,187
2 3 2
·
13 12 12 186
1
8~O41
106 73 2,491 2,105 2,760 421 91

3,103
·
15 2 67
33 7
1 1 62 16 1,475 12
·
216 999
1 2
2 -
9 12 12 158
1 2,434
74 31 1,045 487 579 139
79

849
1
2
·
9
4
1
1
·
6 12
477
· ·
114 188
1
1
· ·
4
· ·
28
·
5,613
32 42
1,446 1,618
2,181 282
12

5,578
·
26
3 59
50 8
6 2 75 38
2,689 16 2
486 1,794
1
·
3
·
22 21 24 251 2 12,286 129 151
3,884 3,516 3,869
598 139

3,904
·
18 3 48 43
5 3
2 66 23 1,967 9
2 263 1,230
1
-
1
·
17 13
19 170
1
3,837 89 38
1,540 798
1,101 170
101

1,674
·
8
·
11
7
3
3
·
9
15
722
7
·
223 564
· ·
2
·
5 8 5
81
1
8,449
40
113
2,344
2,718
2,768 428
38

5,441 4
38 3 82
51 6 2 2 33 26 2,498 22 1 486 1.844 1 1 6
.
20 27 21 261
6 16,418
181 157 5,315 5.120 5,105 396 144

3,674 2
27 3 68 45 3 1 1 27 17
1,690
15
·
312 1,216
1 1 4
·
15 22 13 186 5 4,304 112 41 1,711 974 1,146 210 110

1,767
2 11
·
14
6 3 1
1 6 9 808 7
1 174 628
· ·
2
·
5 5 8 75 1 12,114 69 116 3,604 4,146 3)959 186 34

Soutb America _ "
rug- ................................
Bo1ivia.••••••.••_••••_ •••••••.••••••••••••••• Bra:zil ..........................._......... Chile ._.........................__......_........ Colombia _..__................................. Ecuador •.•.•••.._ .•._ ................_
- -.......•....•.... Fn:nch Guiana __............................
Guyi1D8. ...................._._.......__._..... Paraguay .................................Peru ......................................._
..............
Uruguay .._ ........................._ .......... Venezuela ........................................
Stateless ..............................................
Unknown and not reported ._..........._

2,373 31 54 126 62
1,323 247
·
140 6
224 2 16
142
2
6

1,578 19 22 29 27
1,108 101
·
73
·
112
·
12 75
1
3

795

4,128

2,151

1,977

4,279

2,201

2,178

12

67

27

40

71

43

28

32

153

21

132

187

25

162

97

329

35

294

342

48

294

35

101

44

57

111

51

60

215

2,035

1,509

526

1,793

1,350

443

146

508

141

367

650

143

507

·

·

·

·

1

1

·

67

221

125

96

248

143

105

6

10

1

9

7

1

6

112

447

153

294

589

172

417

2

8

3

5

5

2

3

4

16

12

4

30

11

19

67

233

80

153

245

111

134

1

1

·

1

1

·

1

3

4

2

2

16

4

12

I Country is deflllcd as nationality for sovereign states and counby ofbirtb for dependencies. 2 Criminal status includes those cases in which INS has evidence of a cooviction. l In May 1997 Zaire was fonnally reoosnizcd as Ihe Democratic Republic of the Congo; Ihc Congo is refened to by its conventional name. the Republic of the Congo. 4 In August 1997 Westem Samoa was founally recognized as Samoa (lndcpendcnt State).
.. Represents zero.

27

TABLE 64. ALIENS REMOVED BY TYPE OF REMOVAL AND REGION AND COUNTRY OF NATIONALITY FISCAL YEAR 1998

Region and country ofnatiOJUility I
AD conntm.__......._ ....._ _ __
Europe __.__....___.._ _ __
Albania ........_._....................................... Austria ..................................................... 8dgium ••..••••••••.•...•••••.•..••...•...••••.•.•.•. Bulgaria ..........................._...................... Czechoslovakia, fonner ...........................
Czech Republic ...."...._...._...._.........~. Slovak Republic ................................... Unknown republic _....M •••• _ •••••• _ .......... DClllD.8l"k ..............._.•......._...................... Estonia ._........._...._................................. Finland .•...•••.••..••.•••••••••••••••••••••••••••••• France: ....................................N ••••_ .......... Gennany ···_.... N ........................... N ........ .. Greece ............. N ..._ ....• .. ••..•• •• N .............. ••
HWlgaIY ......_.._ ..._........._...._ ........._....
lcelmld .:••••••••••••••••••....•••.•.....••.••.•,_,. Ircland ..•....•...••.,..•....•,..•••..•,............. Italy •••.••,._,..•....•....•...•.•..•....•...••..• Latvia .................._ •••••••.•.••.•••••••••••••••• Uthuania .........N ............... _ ...................... Mona.co ....._.........._...._........................... Netherlands .•..••.•••..•••••••,••••••••••••••••••• Norway _........._ ........._....................._.... Poland ._......................_..._...................... Ponugal .•....•........•.........•.•.,...............,. Romania ...._.........._........._.........._..._ .... Soviet Union, fonner ......._ ..._.........__.
.Anncnia ............................._.................. B<IaJus .,••••••••••_ ••••..•.••••••••••••••••••. Georgia _._........................._..............._. Kyrgyzstan •....•...•..•....•..•.••••..••...•, Russia ...................................................
Ukraine ..................................._ ........... Unknown :republic .................._..._....... Spain ........._...._...._..............._...._.......... Swcdc::n ......._........................................... Switzerland ....._ ...................................... UnitcdKingdom .................................... .. Yugoslavia. former .................................. Bosnia-Herzegovina ..............._............
Croatia ••.•••••••••.•••.••••••••._ ••,_••••••
Macedonia ._......................................... Slovenia ..........._.._ .........................._ Unknown ••.•...•,.._ ..••......•....•.•.•..•_.
Asia ~:--_. Afghani_ ..•_,..•...,•..••••..••..•....••_ Bahrain ......,•••"••••••••.•••••_ ••••••••_ •• Bang1adcsh •••,•••••••••••••.••••••,••••••.••.••• 1!UIma •••••••,.,•••••••••••••••••••••".,_........ Cambodia ._••••••••••••••,_.••••••••••••••..: ChiDa, Peop1e's Republic ••••••••.•.•••••••. Cyprus ••..••..•_ .•.....•.•.•.•..•....•....•.•..
Hong Kong ...•.•,.•.,........................... In<tia •••••••_ •••.•..•.•.•••••••••••••••.•..•.•_ Indonesia .._................_..............._....~.... Iran .....................,............................ Iraq .•....•.............•...••,.....•..•..........,.••,... Israel ••..••,•...••.•.••.••.••,........................

Total
172,547
1,982
74 9 12 79
166 4 10
152
8 5 5
85 148 28 38
4
45 98 3 14
1 47 9 163 94 94 190 36 2 5
2
93 35 17 61 17
13 404
68
4 7 .7 3
47
2,831
16 1 82 2 21 .
569 1 2
366 33
57 12 87

Deportation 1
16,215
403 5 3
1
23 9
1 1 7 1 2
8 26 7 6
I
5 13
2
9 2 40 38 37 55 19
1 I 20 8 6 9 1
79 21
I 2 2
16
539
4
24
1 57
73 3 17 2 17

Excrusion i 956 40 2 2
6 2 1
2
2 2
12 6
5 143
2 7 1 42 43 2 2

Inadmissability 1
125,836
616 57 3
43 78 2 5 71
I 1 2 17 24 9 21 1 2 17 2 6
11
86 14 38 73 11 1 4
38 16 3 14 4 2 67 23 1 2 4 3 13
1,477 8 1
41 1 17
398 1 2
202 15 28 8 40

D~ty'
29,54tl
923 10 3 9
13
79 I 4 74 6 2 3 54 96 11 11 2 37 67 1 6 1 25 7 36 42 17 60 6 1
35 11 7 38 12 11 246 18 2 3
13
672 2
10 1 2 72
48 15 10
30

17

TABLE 64. ALIENS REMOVED BY TYPE OF REMOVAL AND REGION AND SELECTED COUNTRY OF NATIONALITY FISCAL YEAR 1998-Continued

Region and cotmtry ofnationality I
Japan ... M . . . . . . . . . . . . . . . . . . . . .• . . . . . . . . . . . . . . . . . . . . . . ._· ••• lonlan ...................................................... !Corea ....................................................... Kuwait ......_......................................__.... Laos .........._............................................. Lebanon ................................................... Malaysia .................................................. Mongolia ................................................. Nepal ....................................................... Pakistan ................................................... Philippines .................._........................... Qatar ......................................__.....___....
Saudi Ambia ............................................ Singapore ........................._..........N .......... Sri Lanka ........................._..........N .......... Syria .........................................................
Taiwan .N..........................................._....
Thailand ............................................_ ...• Turlcoy .:.............................................- ..•• United Arab Emirates .......__._................ Viecnarn ..........__..................._...._...._ ... YenlCJl .....................................................
Afrlca ____._••_ .......___•
Algeria ..................................................... Angola ..............................................._ ••• Benin ........_............................................ Burkina Faso .................".............N .......... Burundi ......................................._ .......... Cameroon ......._....................................... Cape Verde .............................................. CenllIIl Afiican Republic ....._.........._ ..... Chad •••_ ................_........._ ..................... Congo, Ocmocmlic Republic ..........._..... Congo, Republic ..................................... Cote d'lvoirc ............................................ Djibouti _ .............._........._.........._..........
~~;W·G~;;--:=::::=:::=::::::::::;:::.~
Eri_ ......................._............................. Ethiopia _.__........................................... Gambia.- The ......................................__.. GhaDa ........................._ ........................... Gumea ......_................__...................__..
Kenya .................................._...................
Liberia ....................................._............. Libya ............................................_ ........ Malawi ..........._................................._.... Mali ........._ •...__................................... Mauritania .............................................. . Mamitius ........_....................................... Morocco ................_....H ........................... Namibia ......................................_ ....-_..
~::;.:::::::::::::::=::::::::=::::=::::::::::::::
Rwanda .............._.................................... Senegal .................................................... SiClI'8. Leone ............................................ Somalia .................................................... South Afrlca ......................................-.... Sudan .............._............_......................... Tanzania ..............._..........................._....

Tola!
53 86 180 10 6 50
34 4
8 386 502
I 7 7
60
28
24 60
53 3 12 8
1,432 31 3 7 12 3 23
33 1 1
14 5 49 1
64 I 2
36 33 198 57 21 49 3
1 28
2 I
36 1 37
489
3 55
22 21 35 10 7

~onl
4
30 17 2 4 20
7
I
48 153
1 I 2 8 13 2 10 9
2 7
392 4
I 3
11
18
I
2
17
17
19 12 40
5 5
22 1
4 I
11
14 148
II 3 2 6 3

Exclusion 2 I
I 4
21
5
9 I I
67
I I
3 3
20
2 1 3
4 18 I 3 1

Inadmissability 1
20 24 70 4
I
18 20
7
258
161
1 2 42 5 17 29 29 1 5
I
631 20 2 5 5 2 7
I
1 7 5 23 1 28
1 2 7 110 40 6 11 2
20
I I
13 1 11 191 3 36 14 14 17 4 3

Deportability'
28 31 89 4 1 12 7 4
59 183
5 3 1 9 4 21 14 2 5
342
6
1
4 I
4 13
5
6
16 1 1 15 14 28 10 9 13
1 3
11
8 132
8 4 2 11 3 3

18

(\

TABLE 64. ALIENS REMOVED BY TYPE OF REMOVAL AND REGION AND SELECTED COUNTRY OF NATIONALITY FISCAL YEAR 1998-Contlnued

R.egion and COllDtIy ofnationality I

Total

Deportation 1

Excrusion 2

~i;'~~:::=:::=:::::::::=::::::::::::::::::::::

7 II

4 3

Uganda ............_ ......................................

6

Zambia .... ...... ~

M ••••_ •••• _ •••_ •••• _ •••• __ ··_· •••

3

Zimbabwe ......._..............._.........._..........

10

3

Oceania ._ _ _ _ _.._ _""

155

41

Australia ........._.......................................

37

4

Fiji .............................................._ ..........

29

17

Micronesia, Fedcrntcd Stales ._................

8

2

New Zealand ............................................

27

2

Palau .... M .......................... _ •••••••• • .....• ... ••••

10

2

Papua New Guinea .....M ...........................

I

I

Smnoa ...........__.........._........................._

7

3

Tonga ..............................._......................

35

10

Tuvalu ......._...._ .............._...._................

I

North America ..._._ _ _ _.._ .._

161,852

14,086

614

Canada ~_..........._.._........._.........._..........

889

58

23

Mexico ............_.......................................

139.135

9,729

402

CUnaritiebdbSetaante.s._ ....._ ......_ ......_ .....,._ ......_ ....._...........

I 5,409

1,580

153

Antigua·Barbuda .._................_ ...........

38

12

Bahamas, The ............................_ .......

82

29

Bwbados ...................._ .......................

51

20

Cuba ....................................................

33

2

16

DOJUinica .............._......_........_............

26

12

I

Dmuinican Republic ._........................

2.498

692

31

G=ada ...................................._ ........

22

7

Haiti ............................_ .......................

486

126

58

lBIDaica ............_........_........................

1,844

567

42

SL Kitts-Nevis .................................__

20

II

1

St. Lucia ...._..._................................_

27

9

2

St. Vmccnt & Grenadines ....._.._.........

21

4

Trinidad & Tobago ..........................._

261

89

1

CeDtral America _ ._ _ __

16,418

2,719

36

Belize ............._ ..................................

181

36

Costa Rica ......._...................................

157

17

El Salvador ............................__._.._.

5,315

991

10

GuaIeIlIaIa ...................................:........

5,120

929

12

Honduras .__.........................................

5,105

598

7

Nicaragua ....................... _....................

396

102

4

Panama ......................._.......................

144

46

3

SoutbAmerica _ _ _ _ _.._

4,278

751

91

AIRen"" ................................................

71

12

Bolivia ............_..._ ................................

187

19

2

Brazil .............._............._ .........._ .........

342

55

3

Chile ............................................_.........

III

19

Colombia ..................._ ...................._ ....

1,793

350

65

Eouador ............................._._...............

650

87

5

Guyana ...............................................__..

248

69

5

Panguay ........._ ......................................

7

I

Peru ................._ .........................._.........,

589

104.

Suriruuuc ......................................_ .........

5

1

Uruguay .........__......._ ...........................

30

5

Venezuela ._................_...........................

245

30

10

Stateless ................_ .._ ....~._~...................

Unknown and not reported ...._ ..................

16

3

I Country is defUled as natiaoalicy for sove:cign states and countay ofbirth for depen.dcncies.

Z Deportalioos and cocciusioos arc removals charged UDder provisions oflaw in eff'ect before April I. 1997.

) lnadmisSJ'bility and deportability arc mnovals c~ lmdcr provisions oflaw in effect after April I. 1997.

- Represcots zero.

. ..

~dmissability ,
2 4 5 2 3
36 12 3
II 2
I
7
120,788 568
108,111
I 1,925
10 23 6 14 4 852 7 202 714 2 4 II 76 10,183 86 96 2,972 3,309 3,495 189 36
2,278 17
156 242 55 695 468 108
6 373
2 10 146
9

Deportability ,
I
3
I
4
78 21 9 6 14 6
3 18 I
26,364 240
20,893
1.751 16 29 25 I 9
923 8
100 521
6 12 6 95 3,480 59 44 1,342 870 1,005 101 59
1,158 42 10 42 37 683 90 66
112 2 IS 59
3

19

,

:: ,-~

I
... EXHIBIT E

.u.S. Department of Justice
Immigration and NaturaJiza~ion Service

Notice to Appear

Iri removal proceedings under section 240 of the Immigration and Nl,ltionality Act File No: A27307 112

lJ;!. the Matter of:

Respondent: ~Nb~a~t~Du~c______________________________~TRA~N~____________~R~cg~.#~1~33~6~34~2~4~________________

clo USINS, 10 W. Jackson Blvd. Chicago

(Number, street, city, state and ZIP code)

IL' 60604

(Area code and phone number)

o 1. You are an arriving alien. o 2. You are an alien present in the United States who has not been admitted or paroled.
~ .3. You have been admitted to the United States, but are deportable for the reasons stated below.
The Service alleges that you:
1.You are not a citizen or national of the United States; 2.You are a native of Vietnam and a citizen of Vietnam; 3.You were admitted to the United States at Seattle, Washington on or about March 20, 1984 as a Refugee; 4.Your statils was adjusted to that of a lawful permanent resident on December 13, 1985 under section 245 of the Act; 5.You were, on June 01, 2001, convicted in the United States District Court, Northern District of lllinois Eastern Division, for the
offense of Theft Embezzlement by Bank Officer in violation of 18 USC 656; Case #DOCR 1036 6.You were, on March 13, 1997, convicted in the Circuit Court of Cook County, minois, for the offense of Retail Theft in violation.of
720 ILCS 5J16A-3; Case #97-1251667-01 7:These crimes did not arise out of a single scheme of criminal misconduct.

On the basis of the foregoing, it is charged that you are subject to removal from the United States pursuant to the following provision(s) of law: Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (Act), as amended, in that, at any time after admission, you have been convicted of an aggravated felony as defmed in section 101(a)(43)(M) of the Act, a law relating to Fraud..
Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act, as amended, in that, at any time after admission, you have been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.

o This notice is being issued after an asylum officer has found that the respondent has demonstrated a credible fear of persecution. o Section 235(b)(1) order was vacated pursuant to: 0 8 CFR 208.30(f)(2) 0 8 CFR 235.3(b)(5)(iv)

YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at:

55 E. Monroe St., Ste. '1900, Chicago, Illinois

on

to be set

at

(Date)

charge(s) set forth above:

(Complete Addrcs.s or Imm1aratlon Court, Includlna Room Numbct. if iny)

to be set

to show why you should not be removed from the United States based on the

erl"",)

~.-/ .,.e' .~":;Ar?-t:==~

Acting Assistant District Director, Investigations

(Slgrwure and Title ot Juulna OfrlCCr)

Date: __---"1.1..-.""15"-.{)"'1'--_

Chica 0, Illinois
(City and Stile)

EXHIBIT

See reverse for important information
Form

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p~e"'.~..-".t"-"'."..l..". "''-(..{.~

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R,~'3_}"~·~~,~~f:~·:.·~·:~ 0.p}:;li.9dti\)!l fvs -'!o·,,-'1l'i..l"!J.t.f~·1.?~EU.r? ¥'in~ g!'B.ntN l1:ntu _______ "L-q:-II.:(Q. rro.J!3ti!!g

8. C::·G~~ 7.:1 '~.::; a!:lcr~m.! ::f5'___.__. 'I,vit.~ an alt?mate ord~J:"ofI"~mo,-aJ. to ___.____.~.

Rti:>P\:'''l\(~(~i!_~',~ (J.ppH~~ation for t1S:,.'lUI"Il ~~,,.&.s () granted () dellied () 'i;:.jthdra"~ll.

t<CsT<'12d~n!!,'~' application f()r .,.vithhokiing ofremov:d 'vas () grantf..~d () denied i:')'~ iUl:lr~r',\

.R.6~1)("1l(k1j:-;; :~rt)t)ii(:.at10n fOf can.ceilatiofi (1f rern;)V~l utlder Section 2..tOA(a.·i "Xfl.~ \.....·,i ~,F"~d:.h.·,J

.'.

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( ,) dot i"i.l{: d·:" ',: ~A ·itll.Jrfiv-/tl,

F~~,;'·;lr..',~::·:}~·.n1 '1 i:~pr"irQ~tion fo!' ~mlt;i?-Jlatlon C)f!,@!110\et~1 und~r Sl?~riofl ;jO~~(t:) tnH~ \,) 1inH!!'::':'.~
:1r. \.. ,~: \'h:.'i'!l~-(; > ~: ··.:;.·It.hdlt<.~,.;.,.·~}, If gri:lirt~d!- it was- order\7d that t.il\: rt;sp'-:~i1d~'fit til';' ~;;,s:.t;'d

,'lpr~r.~',T~-'::'f:i:_"i· )'-=":?·J.ll1.~nt:; ::~i:~@~'B{\ry k~ gi"\~ @ff~~t to t11i~ Crdi'f,
.R·"'W(,n:.;"";(\ " .:;"rioll wr a <'<Ii""r lInd"r ~~~ti()n _______ or thQ INA ,,,,'s () £[(,m(,,,rj

('~ d,-:lt:'~'l~ ;" ~ "\';;'li..U.dr.I\:\;i1 ('1 oth€:r. R~Hi>:~;i.;..j~!:~\ f!ppEcatk'tl f~f adjUS""lli1:fflt (\f !-'ta.Uh11ll1cief Se~ti()tl __~., ____ (lfthe TN.A. ~;i;'f!g (;

rrniHi$(:i
'-'

{" j:; ~\n.i" !,7d ! ) \vithdnl\\'TI,

if .Q1·.*Il.t.Qd.~ .it .tva,·s.()rd~red that .res.l..londent be issu~d aU

_0 ..IUS It ~r.I:·'T{·f.'I:'·"~~~e O("';'lJm~!lt,3 n~~.t;ssary t ~:.v~ f;"rr".~~ ...t) t"

Qr<~J~r,

Rt'!itx..!.!dtt!.f:~ :.:Thi'.w \Y"flS rescinded under Section 246.

R~~jX'1Kio>m is admitt~ t() the United Stab~s as a _

until _______'

A. ~ fi (;('rij.jJl'j{lf1 of ~di:t1iss10ii. fe~OOtldL··iit is: tt) -oust a $

"i:xjtld,

.

"

.1

.&.

.-----.

F.rf;P~)f.!...jcf!1 ktl('I\V.t!"!.::;ly flIed d,f.~vololli' fH;yh.l!:1'1 &:pplicatiotl !lftet ptctpt!' !lotk·t:.

R..,~p()lJ(kml·',vas advi~>cl of til", limitation on discretionary reii",f for t'iiillre to 3p~ar as ordured "

in ih~ hr@iJi,Iatje)!l JUdit:iS {'nil de~isi0n,
Oih~r-R~ ~ l ~ &_ )~~ V~ W Pro(,rt'ciir~~ W"ft 1"rm.trlElt"d.

I . W"1 I \I\fl._'_-,.

\I;n"""!~ __
f u.llt'"...........·...
l.n)J'Jlj gni r.H)i} .iiidit-.\

EXHIBIT
j ~(d-)

r", U.S. Departmc of Justice Immigration and Naturalization Service

Nhat Duc TRAN
Cia Tri-County Jail
1026 Shawnee College Ullin, IL 62992

lOW, Jacksoll Blvd Chicago, IL 60604
A#27307112

Notice to Alien of File Custody Review

You are detained in the custody of the Immigration and Naturalization Service (INS) and you are required to cooperate with the INS in effecting your removal from the United States, If the INS has not removed you from the United States within the removal period as set forth in INA 241(a) (normally 90.days) of either: I) your entering INS custody with a final order of removal, deportation or exclusion, or 2) the date of any fmal order you receive while you are in INS custody, the INS District Director will review your case for consideration of release on an Order of Supervision. Release, however, is dependent on your demonstrating by "clear and convincing evidence" that you will not pose a danger to the community and will not be a significant flight risk
Your custody status will be reviewed on or about: (04/18/2002), The District Director may consider, but is not limited to considering the following:
1. The nature and seriousness of your criminal convictions; 2, Other criminal history; 3, Sentence(s) imposed and time actually served; 4, History of escapes, faiiures to appear for judicial or other proceedings, and other defaults; 5, Probation history; 6, Disciplinary problems while incarcerated; 7, Evidence of rehabilitative effort or recidivism; g, Equities in the United States;
9, Prior immigration violations and history; and
10, Cooperation in obtaining your travel document

You may submit any documentation you wish to be reviewed in support of your release, prior to the date listed
above, to the attention of the Officer and address below, English translations must be provided pursuant to 8 CFR
103.2(b)(3), An attorney or other person may submit materials on your behalf.

U,S, Department of Justice
Immigration and Naturalization Service

Attn: (John Koren, Deportation Officer)

10 WJackson Blvd.

Chicago,IL 60604

\ .../

METHOD OF SERVICE

I certify that this form was provided to the alien by :Fedex
( ) CC: Attorney of Record or Designated Representative ( x) CC: A-file

(Hand)

(Institution Mail)

Signature of Officer
(Finat 10/18/99)

~ntName of Officer

.

EXHIBIT
Ec~)

'"~--"';7'
,;\~~~r
EXHIBITF

U.S. Department of Justice Immigration and Naturalization Service

Warrant for Arrest of Alien
File No. A25 257 043
Date: 11-9-2001

To any officer of the Immigration and Naturalization Service delegated authority pursuant to section 287 of the Immigration and Nationality Act:

From evidence submitted to me, "it appears that:

Keovongsack

PONGPHRACHANXAY
(Full name of alien)

an alien who entered the United States at or near ______________~S~an~F~ran~cl~·sC~o~,~C~a~li~fu~rn~l~·a~----~------ 0
(POrt)

8-29-1981
(Date)

is within the country in violation of the immigration laws and i

therefore liable to being taken into custody as authorized by section 236 of the Immigration and

Nationality Act.

By the virtue of the authority vested in me by the immigration laws of the United States and the regulations issued pursuant thereto, I command you to take the above-named alien into custody for proceedings in accordance with the applicable provisions of the immigration laws and regulations.

William Riley
(Print name of official)
Acting Assistant District Director, Inv.
(Title)

Certificate of Service

o,""w='",. a A'/ (/?~~ Served by meat

on

//- 9'-&/

at /:$0 P'.r¥

I certify that following such service, the alien was advised concerning his or her right to counsel and was

fum""",. "'P'

~

(S;'''''t"re o~~ sd'·""IH)
_II ____ k -__________________________________________________~(T~itI~e~or~om~"~er~sc~"~;n~g_w~"'~'n~t)

EXHIBIT

,,,,fMMIGRATION COURT
' E . MonrO<;!. St""t, Suite 1900
Chicago, IIliHois 60603

In thc IVlatter of:

FileNo:,A 7r-ZS-7-D'fJ

; /,,[ () 1/ c) rv (\ ,)/1 C (.

"
'i:JN~ PI"'~11.1N'IA"1

-'--'--:-':--, Ri':i<p()i;':l~~nt

IN REMOVAL PROCEEDINGS

a-.'r-t--E--d-m..-.l-f-o...-f-t-i-l-e-R,0t;":,'o- _ nde_ nt

,'.

(

f"' ~_') )(:

On Behalfofthe Immigration Serv'lc,e

9RDER OF THE IMMIGRATION JUDGE
On basi.; (,fn;;spondt'lrt's admissions, I have determined that the respondent ill subjoot to removal on the cllMge(s) in L'M Notice to Appear,

Respondent has roade no application for relief from removel.

It is HEREBY ORD.ERED that the reSJl<lndent be removed from the United States to

'___ L~).s _

on the cha.rge(s) contained in,the Notice to Appear,

It is FVRTHJ!:R ORDERED that ifthe aforenemed country advises the Attorney Gene~l that it

is unwiiling to a"cepi the respondent into its territOI}', or fails to advise the Attorney General

withlti ,thi'ee 1liC>llili" fnllowins orisJillllin<ftltly whether! will Of will flot accept tespoodent into

1W temmry, responoom shall be removed to

tv'L3-

,

I

If you fai1to appear l.<)f removal at the time and place ordered by the INS, other than because of e~:ceptional ciIcUIIlfli:mces beyond your control (such as serious illness of the alien or death ofan iIrunediate relative ol'!he alien, but not including less compelling circUllJJltances), you will nct be eligible for the following fOIDl!! of relieffor It period often (10) yelllll lifter the date you were required t<1 appear for removal.

1) Volunta'1' de,pBrture I1S provided for in Section 240B ofthe Immigration ond Nationality

Act:

2) Ollicelllltioll ·)fremove1 as provided for ill Section 240A of the Itnmigretion and

Nationality Act;

.

3'i Adjustment ofstatus or change of status as provided for mSection 245, 248 or 249 oftlw

"

, .. lrumigration and Nationality Act.

Date:

Immigration Judge

.. ," C'".-~-

_----- ,.-"PPEAL DUE BY _._- •.. -

.. ."....,.,......,.,....-

EXHIBIT

("-
U.S. Department of Justice Immigration and Naturalization Service

Keovongsack PO,NGPHRACHANXAY C/O Tri-County Jail 1026 Shawnee ColIege Ullin, lL 62992

10 W. Jackson Blvd Chicago, IL 60604

A#25257043

Notice to Alien of File Custody Review
You are detained in the custody of the Innnigration and Naturalization Service (INS) and you are required to cooperate with the INS in effecting your removal from the United States. If the INS has not removed you from the United States within the removal period as set forth in INA 241(a)(normally 90-days) of either: 1) your entering INS custody with a fmal order ofremoval, deportation or exclusion, or 2) the date of any fmal order you receive while you are in INS custody, the INS District Director will review your case for consideration of release on an Order of Supervision. Release, however, is dependent on your demonstrating by "clear and convincing evidence" that you will not pose a danger to the community and will not be a significant flight risk. .
Your custody status will be reviewed on or about: (04/18/2002). The District Director may consider, but is not limited to considering the following:
I. The nature and seriousness of your criminal convictions; 2. Other criminal.history; 3. Sentence(s) imposed and time actually served; 4. History of escapes, failures to appear for judicial or other proceedings, and other defaults; 5. Probation history; 6. Discipliriary problems while incarcerated; 7. Evidence of rehabilitative effort or recidivism; 8. Equities in the United States; 9. Prior immigration violations and history; and 10. Cooperation in obtaining your travel document.
You may submit any documentation you wi~h to be reviewed in support of your release, prior to the date listed above, to the attention of the Officer and address below. English translations must be provided pursuant to 8 CFR 103.2(b)(3). An attorney or other person may submit materials on your behalf.
U.S. Department of Justice Immigration and Naturalization Service Attn: (John Koren, Deportation Officer) 10 W.Jackson Blvd. Chicago,IL 60604

METHOD OF SERVICE

I certify that this form was provided to the alien by :Fedex

(Hand)

( ) CC:. Attorney of Record or Designated Representative

( x) CC: A-file

-o 0 ~ Q {<-or fr1

Print Name of Officer

(Final 1011 R/9C)

(Institution Mail)

Dat

EXHIBIT

r u.s. Departmem Justice
Immigration and Naturalization Service

Keovongsack Pongphrachanxay 1026 Shawnee College Rd Ullin, IL 62992

HQPDU
Washington, DC 20536
A25 257 043

We have received your request for review for a custody re-detennination. The Immigration and Naturalization Service ("INS") is in the process of reviewing the likelihllod of repatriating you to your home country or country where ordered removed pursuant to a final administrative deportation/removal order. You are advised that in accordance with the Supreme Court's instruction in Zadvydas v, Davis, 121 S.C!. 2491 (2001) and INS regulations, 8 C,F.R. § 241.13 (66 FR 56967, November 14,2001), you have the burden to show that there is no significant likelihood-of repatriating you in the reasonably foreseeable future, In order to undertake the review" in accordance with 8 CFR §241.4 and 8 CFR §241.13, you must provide the following documentation:
• Copies all passports, birth certificates or other nationality documents in your possession
• Copies of correspondence indicating your good faith efforts to obtain a passport from your country of nationality or other country indicated on your Order of Removal.
• Copies of receipts or responses from Embassies, Consulates or other governmental offices responding to your request for a travel document
Upon receipt of the above infonnation, this office will conduct a full review of your. case and make a detennination of custody. Until such time as you submit the above infonnation, the removal period defined in 8 CFR §§ 241.4 and 241.13 is held in suspense.
You may· submit additional evidence if you believe your removal is not possible in the reasonably foreseeable future. You must resubmit evidence previously submitted that your removal is not illlll1inent for reconsideration. You must also prove that you are taking positive measures to facilitate your removal from the United States. You are also advis~cl 'fuat !he Service. may continue to detain you until there has been a dete~ination under 8 CFR §241.13 whether there is a significant likelihood that you can be removed in the reasonably foreseeable future.
All evidence should be sent to the Headquarters Post Order Unit (HQPDU), 801 1St, NW, Washington, DC 20536, Room 800.

EXHIBIT
I EeL()
/

The HQPDU has chosen not to review your case at this time because of:

•

You are not currently in INS custody.

•

Your immigration case is pending review by the Board of Immigration

Appeals and is therefore, not a final order subject to review by the HQPDU.

•

The Removal Period has not yet expired, thus making you ineligible for any

review.

•

You have not been in custody with a final order of removal for the statutory

period of time.

•

Your case is pending before a Circuit Court of Appeals and you are not

eligible for a review of your case.

•

You have a judicially ordered stay of deportation, exclusion or removal.

•

Records indicate that you are statutorily ineligible for a custody review

pursuant to 8 CFR 241.13

Once you are eligible for review, the HQPDU will conduct a review of your case and issue a
d·~cision.

Date

EXHIBITG

U.S. Department of Justice
Immigration and Naturalization Service ~

Orr....\to Show Cause and Notice of Hearing

ORDER TO SHOW CAUSE AND NOTICE OF HE:ARING
(ORDEN DE PRESENTAR MOTIVOS .JUSTIFICANTES YAVISO DE AUDIENC1A)

In Deportation Proceedings under section 2.42 of the Immigration and Nationality Act.

.

(En los tramites de deportf!.gi6n a tenor de la seecion 242 de la Ley de Inmigraci6n y Nacionafidad.)

United States of America:
(Estados Unidos de America:)

File No. _ _~ _ _ _ _'--_ _ (No. de registro)

Dated May 25. 1993 (Fe.chp, da)

In the'matter of

..,5"'0..0.........n..."'-':n':--:-_ _~_~::--_ _ _ _ _ _ _ _ _ _ _ _ (Respondent)

Orhram !I(AEtnldreellalssunto de)

-6tauv;Ule Correctiotlal Center

(Demandado)

-'Et;.o.l.O.......B.."'Q.x....1u1"',2______-..,,.-_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

'. ·(Direceion)
~' ;'

.Toliet. Illinois 60434

Telephone No•. (Area Code)
(NO.\ C/e. ./e,/efono·y c6digo de area)

I ; i., Upon inquiry conducted by the Immigration and Naturalization SeNice, it is alleged that:
, ;' (Segun las indagaciones realizadas por el Servicio de Inmlgraclon y Naluralizacion, se alega que:)

f 1,)i' :v.ou, are not a citizen or ~ational of the United States;

rr , ;' iI/d. no es ciudadano 0 nacional de los Estados Unidos)

2) You are a native of'

Vietnam

and a citizen of

fA-r.l.~ . ~ ../.J
Vie tnam

(Ud. es nativo de)

(y ciudadano de) - - - - - - - - - - -

~ 3) You entered the United states at or near Se.att1e, Washington

on or about May 23, 1991

(Ud. entro a los Estados Unidos en 0 cerca de)

(el,dia a hacia esa fecha)

(4) You entered the, United states as an immigrant;

(Ud. entro a los Estados Unidos un inmigrante;)

-'

5) You were convicted on January 22, 1992'in the Circuit Court Tenth Judicial

at Peoria County .. Illinois for the offense of Home Invasion committed on

S~pteItlber 9, 1991;

•

(Ud. resulto convicto el 22 de enero de 1992 en del Diez Tribunal de Circuito Judicial Corte del Condado dePeeria del delito Invasion de Hogar cometido e~ 9 de septieItlbre de 1991;)
~ 6) For this offense you, were sentenced to confinement in Illinois Department
cf Corrections, for a period of twenty (20) years.

(Por este delito,' Ud. fue sentenciado a reclusion en el Departmento de Coreccionnes del Estado de Illinois per un plazo de veinte (20) anosl.

" Form 1'221 (Rev. 611m2) N
.....

EXHIBIT
I GO)

n u.s. Department of Justice
Immigration and Naturalization Service

Ordrl Show Cause and Notice of Hearing

NOTIce OF RIGHTS AND CONSEQUENCES

AVISO DE DERECHOS Y CONSECUENCIAS

The Immigration and Naturalization Service believes that you are an alien not lawfully entitled to be in or to remain In the _United States. Read this notice carefully and ask questions abo.ut anything in this notice you do not understand. This notice identifies your. rights as an alien in deportation proceedings, and your obligations and the conditions with which you must comply in order to protect your eligibility to
be considered for certain benefits. ,

El Servicio de Inmigraclon y Naturalizacion opina que Ud. es un extranjero' sin derecho legal a estar 0 perrnanecer en los Estados Uriidos. Lea este aviso cuidadosamente y pregunte acerca de cualquier parte del mismo que no entienda. Este aviso Ie explica los derechos que tiene como extranJero en los tllimites de deportacion, y las obligaeiones y condiciones que debe cumplir con el fin de proteger su derecho a que sa Ie considere para reeibir ciertos benelicios. '

Any statement you. make before an Immigration bfficer may be used against you in any immigration or administrative proceeding.
You may be represented, at no' expense to the United
States government, by an attorney or other individual who is authorized and qualIfied to represent persons in these proceedings. You will be given a. list of organizations, attorneys and' pther persons who have indicated their availability to represenl aliens in these proceedings. Some of these persons may represent you free of charge or for a nominal fee. You may also. be represented by a friend, relative, or other person having a pre·eltisting relationship with you, provided his or her appearance is permitted by the immigration judge.

Las declaraciones que haga ~nle un funcionario del Servicio de lnmigracian podrilO usarse en 5u contra en cualquier tramite adrninistrativo 0 de inmigracion.
Ud. puede ser representado, sin costo alguoo para el gobierno de los Estados Unldos, por un abogado 0 otra persona autorizada y calitjc.a~a para representar personas en estos tramites. Ud. recibira una lisla de las entidades, abogados y demas personas dispuestas a representar a extranjeros en estos \ramites. Algunas de esas personas pueden representarle gratuitamente 0 por honorarios nominales. Tambien puede representarle un amigo, familiar 0 otra persona con la que tenga una ·relaeion establecida, siempre que el juez de inmlgraci6n permita su eompareeencia.

You will have a hearing before an immigration judge, scheduled no sooner than 14 days from the date you are served with· this Order to Show Cause (unless you request In Writing an earlier hearing date). The fourteen·day periOd is to -allow you to seek an attorney or representative, If you desire to be represented. At your hearing, you will be given the opportunity to admit or deny any or all of the allegations in this Order to Show Cause, and whether you are deportable on the charges set forth herein. You will have an opportunity to present evidence
andior witnesses On your own behalf, to examine evidence presented by the government, to object. on proper legal
grounds, to the receipt of evidence and to cross elCamine any witnesses presented by the government. Any
document that you present that is in a foreign language must be accompanied by a certified English translation. It is 'your' responsibility to ensure that any witnesses you wish to present on your own behalf be present at the hearing.

Ud. tendra una audiencia enteun juez de inmigracion, !ijada con un minirno de 14 dias a partir de la fecha
que se Ie expidio esta Orden (a menos que Ud. solicite por escrito. una audiencia en plazo aun menor). EI plazo de catoree dias Ie permitire. conseguir los servicios de 'un abogado 0 representante, si 10 des ea. En la audiencia se Ie dara la oportunidad de admitir 0 negar cualquiera de los 'alegatos de esta Orden 0 todos , ellos, y se Ie informara si esta sujeto a deportacion por los
cargos expresados en la misma. Ud. tendrei la oportunidad de presentar pruebas y testigos a favor suyo, de examinar las pruebas presentadas por el gobierno, de oponerse, cori base en los razonamientos legales pertinentes, a la admisi6n de pruebas y de interrogar a cualquier testigo del gobierno. Todo documento que presente en un idioma extranjero debe ir aeompaiiado de uria traduccion certificada al ingles. Sera responsabilidae suya asegurarse de que cu~lquier ·testigo suye comparesca a la audiencia.

The immigration judge will advise you 'regarding relief from deportation for which you may be eligible. You will be given a reasonable opportunity to make 'an application for
any such relief. If you are not satisfied wIth the decision of the immigration judge, you have the right 10 appeal. The immigration judge will provide you with your appeal rights.

EI juez de inmigracion Ie informara sobre los recursos dl
deportaci6n a los, que tenga derecho y se Ie dara un. oportunidad adecuada para sOlicitarlos. Si no esta d, acuerdo con la decision del juez, puede apelarla. EI jue de inmigracion Ie informara acerca de sus derechos d, apelacion.

Form "~2' IRav. 6/12192) N

u',s. Department of Justice
Immigration and Naturalization Service ."1
Respondent . SON • Den"-= (Demandado)

Ord(----' Show Cause and Notiea of Hearing

CoMnuaUcn Sheet
(Hoja COITIPlemantaria)

Dated

May 25, 1993

(Fechada)

File No. . (No. de registro)

AND on the basis of the foregoing allegations, it is charged that you are subject to deportation purSuant to the
following provision(s) Q)f law: (Y segun los a1egatos anteriores, se Ie aeusa de estar sujeto a deportacion de aeuerdo con la(s) siguiente(s)
disposicion(es) de la ley:)

f)~ ection 24~(a) (2) (A) (iii) of the Immigration and Nationality Act (Act), as amended, ,in that, at any time after entry, you have been convioted of an I aggravated felony as defined in section ~O~(a) (43) of the Act, to wit: a
crime of violenoe (as defined in section ~6 of title ~8, United States Code, not including a purely political offense), for which a te~ of imprisonment imposed was five years or more. To wit: Home Invasion.

(Secci,On .241 (a) (.2) (A) (:iii) (Ie 1a .t.ey de IzIm:igraddn y.Nac::.ionaJ..idad (INA), segd.n enrnendada,

E!Il que, ell algan momento despue.s de SU ellt:rada, O'd. ba reSUltado C::O.tlv:i.cto de una :feloma agra.....da, segan se de:fme en 1a secci6n 101 (a) (43) de 1a IWl.. a saber: un del.ito de

v:i.01encia (segi1n se de£ine en la secd6n 16 del titulo 18, C6di.go de los Escadcs unidcs, que

.120 inc:luye WI deHto puramente pol:!ti.co), par el cua1 fue ilIpuesto WI te2':m.ino de

ccm£i.nam:iento de ci.tlco aiIos 0 mas.} A saber: I%l'l>as:ion de Hagar.

,

•

WHEREFORE, YOU ARE ORDERED to appear for a hearing before an Immigration Judge of the Executive.Office for

Immigration Review of the United States Department of Justice at:

(POR LO CUAL, SE LE ORDENA comparecer ante un juez de inmigracion de la Olicina Ejecutiva de Revision de

Inmigraci6n del Departamento de Justicia de los Estados Unidos en:)

. .

IO BE CALENDARED AND NOTICE PROVIDED BY tHE OFFICE OF THE IMMIGRATION JUDGE.

Address NOTICE WILL BE MAILED TO THE ADDRESS PROVIDED BY THE RESPONDENT.

(Direccion) (LA OFlCIN! DEL JUEZ .DE INMIGRACION ENVIARA UN AVISO A LA DIRECCION FACILlTADA

(FecRs; POR EL DEMANDADO CON LA nCH! DE LA AUDIENCIA). (HOr~j

.m.

and show cause why you should not be deported from the United States on the· charge(s) set forth above.'

(y mostrar motivos justificantes por c.ual no deberia ser deportado de los Estados Unidos por los carp

anleriormente.)

..

Dated May 25. 1993 (Fechada)

. I

Signature of Issuing Officer ~~~~~':f:1.~~~~::::~_
(Firma del (uncionario que la expide)

City and State of Issuance _C~H= I:=CA= :;-GO; ,;':. . .=I:.;: L:.;: LI; .;No.;O:.:J: : S,­
.(Ciudad y Estado donde se expide)

Title of Issuing Officer ASSISTANT DISTRICT DIRECTOR, {Ti/u/o del (uncionario que la expide) INVESTIGA.'rIONS

Farm '·221 (Rev. Sf12J92) N

page 3

.1'"'\

.

You are required to be present at Jr deportatIon

hearing prepared to proceed. If you-tail to appear at

any hearing after having been given written notice of the

date, time and location of your hearing, you will .be

ordered deported in your absence, if it is established that

you are deportable and you have been provided the

appropriate notice of the hearing.

You are required by law tci"prollide immediately in writing an address (and telephone number, if any) where you can be contacted. You are required to provide written notice, within five (S) days, of any change in your address or telephone number to the office of the Immigration Judge listed in this notice. My notices will be mailed only to. the
last address provided by you. If you are represented,
notice will be sent to your representative. If you fail to
appear at the scheduled deportation hearing, you will be
ordered deported in your absence if it is established that
you are deportable and you have been provided the
appropriate notice of the hearing.

f" Esta obligado a Q .ir a la audiencia de deportaci6n y de estar preparado .para ella. Si no asiste a cualquiera de las audiencias despues de haber sido notificado por escrito de' la fecha, hora y lugar de la aupiencia, se ordenara su deportaci6n en su ausencia, si se establec!l que puede ser deportado y que recibi6 los avisos correspondientes.
La ley Ie obliga a informar inmediatamente por escrito de su damicilio (y numero de telafono, de haberlo) donde pueda ser localizado. Tiene la obligacion de notiticar por escrito, en el plaza de cinco (S) dias, cualquier cambia de domicilio 0 de telefono a la oficina del juez de inmigraeion
qua aparece en este aviso. Los avisos se enviaran
solamente a la ultima direccion taeilitada por Ud. . Si ha
decidido tener Un representante, se enviaran los avisos a
dicha persona. Si no asiste a cualquiera de las audiencias despues de haber sido notificado por escrito de la techa, hora y lugar de las mismas, se ordenara su deportacion en su ausencla,· si se establece que puede ser deportado y que recibio el aviso de la audiencia.

If you are ordered deported in your absence, you cannot
seek to have that order rescinded except that: (a) you may file a motion to reopen the hearing within 180 days
after the date of the order if you are able to show that your failure to appear. was because of exceptional circumstances, or (b) you may file a motion to reopen at any time after the date of the order if you can show that you did not receive written notice of your hearing and you had provided your address and telephone number (or any changes of your address or telephone number) as required, or that you were incarcerated and did not appear at your hearing through no fault of your own. If you
choose. to seek judicial review of a deportation order entered in your absence, you must file the petition for
review within 60 days (30 days if you are convicted of an aggravated felony) after the date of the final order, and the
review shall be confined to the issues 01 validity of. the
notice provided to you, the reasons for your failure to appear at your hearing, and whether the government established that you are deportable.
In addition to the above, if you are ordered deported in
your absence, you are ineligible for five (S) years from the date, of the final order for, the following relief from deportation: voluntary departure under section 242 (b) of the Immigration and Nationality Act (INA); suspension of deportation or voluntary departure under section 244 of the INA; and adjustment of stetus under sections 245, 248, and 249 of the INA:

Si se ordena su deportaeion en su ausencia, no podra solicitar la anulacion de esa orden salvo que: a) pueda presentar un pedimenta para tener otra audiencia en el plazo de 180 dias despues de la techa de la orden si puede demOSlrar que· no comparecio debido a circunstanoias excepcionales, 0 b) puede presentar un pedimento para tener otra audiencia en cualquier momento despues de la fecha de la orden si puede demostrar qua no recibio el aviso de la audiencia por escrito y que habia facilitado su direocion y numero de telefono (0 notlficado los cambios de direccion 0 numero de telelono) segun 10 prSIJisto, a que estaba encarcelado y no compareoio a la audiencia por motivos ajenos a su
voluntad. 5i decide solicltar una reviSion judicial de la
orden de deportacion en su auseneia, debe presentar la solicitud de revisi6n en el pla;zo de 60 dias (30 dias si ha
sida condenado por un delito grave con agravantes) a
partir de la feche de la orden definitiva, y la revision se Iimitara a decidir si el aviso que recibi6 es valido, las razones por laS cuales no comparecio a la audiencia y si el gobierno demostr6 que puede ser deportado.
Ademas de 10 anterior, si S6 .ordena su deportacion en su ausencia, no podra, en el plaza de cinco anos despues de la fecha de la orden definitiva, tener derecho a los siguientes reOUrsOS: salida voluntaria segun la secoion 242 (b) de la ley de Inmigracion y Nacionalidad (INA); suspenSion de la deportacion a de la salida voluntatia segun la seccion 244 de la INA. y ajuste de condici6n segun las seccion~s 245, 248, Y 249 de la INA.

The copy of this Order to Show Cause serveei upon you Is evidence of your alien registration while you are under deportation proceedings. The law requires that you carry it with you at all times.

Esta copla de la Orden de Presentar Motivos Justlflcantes que Ie ha sido notiflcada constituye la prueba de su re9i5tro de extranjero mientras se lIevan a cabo los tramites para su deportaci6n. La ley Ie exige que la lIeve consigo en todo momento.

Form 1·221 (R ..... 6112192) N

... _'.. ~_ ............. "" .... v I,.IUUW \,.1C:f.~::'C .::111.4<'. ... .1.
the Immigration Judge of the:

J:~J.ea. 'W'l.t.o
~utive Offioe

for Immigration Review at the ~~ess provided

below. You roust repo,t any chan~s of your

address or telephone number in ~iting to ~his

office:

scestra~• Orerdge,lnstdread.P u,n1caarOMfl'oct~,ivnaosEJjuesctuiftJiv.'ac-.d~etes
IteVJ'.Sl..1on de I nm~'a. cJ' .on en 1a sigulente. di:recei6'I)' Debe ••.Jtificar c~alquier cambio de .
SU domicil~io a numero de te+~fono por .~sc, rito ,

The offioe of ,he Immigration Judge

536 SOUTH CLARK STREET, CHICAGO, ILLINOIS 60605

CertifIcate qf Translation ane;! Oral Notice
ihis Order to S.how Causa 0 was ~ was not read to the name" d alien in the
which is hismer native language 'or a Ian uage which he/she undersl~ds. '

language, '

Dala

Prinled Name anc! Tille 01 Translator

Address 01 Translator (II other !ban INS employee) or office location and division QIINS employee)

(If orel no lice was not provided please explain)

Manner 01 Service
o Personal SaNies 10 Alien ~:;:'':"' Roo... RoO""" ,

Alien's Right Th"mb Prinl

o Counsel of Record

Certificate 01 Service

b -.3 1993

/ /(0(';

Omcer's Sig

Printed Nama

Tille

CER:rIFIED MAIL UP 047 759 765
Alien's Signature (acknowledgrnenVreceipt of this form).
(Filma de extranjero(acuse de reoibo) .

Chicago, Illinois Cfrice

,

,

Request for Prompt Hearing and Waiver of 14.0ay Minimum PerIod

(So/iei/uri de avdiencia inmediala y renuneia .a/ plazo minima de 14 dias)

To e~pedile determination o(my casa, I request ::In immedhite he~ing: and waive my right to the 14 day notice. (Para agil[zar la decision sobre mi caso, solicito una aud/encia inmediata y renuncio a mi defecho a un plazo minima

de 14 ores.)

SiQna!ure of Respondent (rrrma cie demandado)

Date (Feche)

U.S. Department of Justice Immigration and NatuIalization Service

Notice of Entry ofAppearance ~ton~eyor~~!;~~

- AIl. appearance

. , . o..ulS fom} by the attorney or representative appearing.in eaCh '£38e: Thereafter. substi!lltionrnay b.e

upon the written withdrawal ofthe attorney or lepre~eDtative ofrecord or upon notification of the new attorney or representative. When.

a I~::~~:~'~iii;s'im:~a'd~'f~by~a It

pcehrSaOptDera'lice~i~gaitnithaornezpere,fs"e!nbtdatqiuvae1~cea'pda·~fiot"yr.ehprisespeenrts.oFnuarltahpePreparroaonfcoe (oarilstihgonralttujrteo,s'alicatllirci'':oi"nrsetpitruetseentraellpvree'sceanptaactTiotyn

that
may

be'

.

During the time a case is p,ndi.ng. and 'Keept as otherwise provided in, 8 CFR 101.2(b). a party to a proceeding shall be penni.tted to examine the record ofproceeding in a Service office.•He may. in conformity with 8 CFR

or infonnation therefrom and copies ofdocuments or transcripts ofevidence flJl'llished by .him, Upon

, "

" " arid eic!iIoiiS'i:Ontillrieo in the r"oroofpriiceedi.njfupoiigivliig'.hisiherreceipt far '

of the case or upon demand. If extra copies of exluoi~ do Dot exist. they

(Apt No.),

...,\;.... ,

,

---"iC=-;:;;;;:---~-- and am not UlIder a court or administrative ~gency

-

Name orCDurt

religious,

orreeonl pIeviously flied a notice ofappeatance in this case andmy appearance is at his request (Jfytltl check tM.s l1en,' also

TIA/CHICAGO CONNECTIONS 208 S. IaSal1e St, Suite 1818
,'1,.,

PURSUANT TO THE PRIYACYACT OF 1974; 1HEREBY CONSENTTO THE DISCLOSURE TO THEFOLLOWING NAMED

fb ATTORNEYORREPRESENTATIVE OF.ANYRECORD PERTAINING TO ME WHICH APPEARSJN.ANYIMMIGRATJONAND

NATUIWJZA.TJON SERYICE SYSTEM OF RECORDS:

~

'H'/Q.

OS

THE ABOYE CONSENT TO DISCLOSURE ISIN CONNECTiON WiTH THE FOLLOWING MATTER:

under
and 103.20 ELSEQ.

citizen ofthc ¥Ili!cd States,0:.""Jj"" , '
such 1'""" G,2& (09f26100)Y

f""'\,
U.S. Department of u ~stice Immigration and Naturalization Service

.September 22,2001

SaNDEN
cia WAUKESHA County Jail
Waukesha,WI53186

lOWest Jackson Blvd. Chicago, Illinois 60604
A#42 522 435

Notice to Alien of l?i.!~ Custody Review

You are detained in the custody of the Immigration and Naturalization Service (INS) and you are required to cooperate with the INS in effecting your removal from the United States. If the INS has not removed you from the United States within the' removal period as set forth in INA 241 (a) (normally 90 days) of either:' I) your entering INS custody with a final order of removal. deportation, or exclusion, or 2) the date of any final order you receive while you are in INS custody. the District Director will review your case for consideration ofrelease on an Order of Supervision. Release, however, is dependent on your demonstrating by "clear and convincing evidence" that you will not pose a danger to the community and you will not be a significant flight risk.

Your custody status will be reviewed on or about: September 22, 200 I. The District Director may consider, but' is not

limited to considering, the following:

.

1. The nature and seriousness of your criminal convictions: 2. Other cririlinal history; 3. Sentence(s) imposed and time actually served; 4. History of escape, failures to appear for judicial or other proceedings, and other defaults; 5. Probation history; 6. Disciplinary problems while incarcerated; 7. Evidence of rehabilitative effort or recidivism; 8. Equities in the United States; 9. Prior immigration violations and history; and 10. Cooperation in obtaining your travel document.
You may sub~it any documentation you wish to be reviewed in support of you,r release, prior to the date listed 8:pove, to the Officer and address below. English !ranshitions must be provided pursuant to 8 CFR I03.2(b)(3). Anattomey or any other person may submit materials on your behait'.

U.S. Department of Justice Immigration and Naturalization Service Attn: Officer Figueroa 10 West Jackson Blvd. Chicago, IL 60604
Method'of Service

I certify that. this fonn was provided to the alien by:
( )CC: Attorney ofRecord or Designated Representative . () C: A~fil

HAND

INSTITUTION MAlL

Signature of Officer

_Anthony Figneroa,_ _ _ _ _ __ Print Name ofOfficer

~{?2(@J D~a~te. . . .~~~~~. . . ., . EXHIBIT
I G(l-)

fi~ t"IUf.IICAGO
~ONNECTIONS
A HEAkr~AND ALLIANCE pARTNEk
June 28, 2002
Embassy of Vietnam 1233 20lh Street,NW, Suite 400 Washington, DC 20036
RE:TRAVELDOCUMENTSFORDENSON
To Whom It May Concern,
I am writing to request travel documents for Den Son, a citizen of Vietnam. Mr. Son was ordered removed to Vietnam on February 22, 1995 and his appeal was dismissed by the Board of Immigration Appeals on August 3, 1995. He bas been in INS Custody since June 8,2001. Therefore, he has been in INS Custody for over a year after a final removal order.
If you cannot issue my client travel documents please respond, in writing, as to why. Please contact me with any questions regarding this case.
"Thank you for your immediate attention to this matter.
. '
Sincerely,

Anne Relias Staff Attorney· Midwest Immigrant and Human Rights Center
T: (312) 660-1359

SENDER: COMPLETE THIS SECT/ON

• Complete items 1, 2, and 3. Also complete

item 4 if Restricted Delivery is desired.

.'

name and address on the reVerSe

we can return the card to you.

•

card to the back of the mailpiece,

front jf space permits.

D. fs delivery address different from item 1? If YES, enter delivery address be/ow:

"f~iv~ Cl~~---, pc""''" I;\efe

~rv?Type lQ'Certified Mail
o Registered o fnsured Mail

o Express Maii

;;Zr;;~-···"··-·····"·;;;·::

o ~ Return Receipt for Merchandise o C.O.D.

EXHIBIT

_ _",;·.' ._"Art;::;ic:;;,e;-;N~umi1b1e_Ir~CO;::py~,,;;;ro;;;m:-se_rv_;c_e_la_be_o_~=7~Q=a:1=1::"l:4:0==:O:a:a~a=1:8:2=D~4~4~3~2;...

I1Iinois 60604

iGlJ;t
f~(C~HICAGO
\£ONNECTIONS
A HEARTLAND ALLIANCE PARTNER
June 28, 2002
Officer Randell INS-Deportation Branch lOWest Jackson Chicago, Illinois 60604 RE: RELEASE OF DEN SON A 42-523-905
Dear Officer Randell,
I am writing to request the release of Den Son. Mr. Son was ordered removed on February 22,
1995 and his appeal was dismissed by the Board of Immigration Appeals on August 3, 1995. He has been in INS Custody since June 8, 2001. Therefore, he has been in INS Custody for over a year after a final removal order and to my knowledge he has had no post order custody review. On June 7, 2002 I spoke with Officer Ramos who could not find any file on this individual. I
asked why he had not had a review date and Officer Ramos did not. Mr. Son is a citizen of
Vietnam and as of now, the United States cannot remove immigrants to Vietnam. Therefore, he should be immediately released under supervision. Please contact me with any questions regarding this case.
Thank you for your immediate attention to this matter.
Sincerely,
Anne Relias Staff Attorney Midwest Immigrant and Human Rights Center T: (312) 660-1359
cc: Deborah Walton, Louie Zamora, Terri Bretz

Providing paths from harm to hope through human services Midwest Immigrant & Human Rights Center
TINChicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, lIlinois 60604 phone 3 I2-660-1300 fax 312-660-1505 website: www.heartland-alliance.org

EXHIBIT
G-(.Lf)

June 28, 2002 ".,

,~/f
f~IICAGO
~ONNECTIONS.
A IIEARTtAND ALLIANCE PAR.TNER

Headquarters Post Order Unit 801 I Street, NW, Room 800 Washington, DC 20536

RE: RELEASE OF DEN SON A 42-523-905 under Zadyydas v. Davis Dear Officer Rozas,

I am writing to request the release ofDen Son. Mr. Son was ordered removed on February 22, 1995 and his appeal was dismissed by the Board ofImmigration Appeals on AUgust 3, 1995. He has bei;)n in INS Custody since June 8, 200 L Therefore, he has been in INS Custody for over a year after a final removal order and to my knowledge he has had no post order custody review.
Mr. Son is a citizen of Vietnam and as of now, the United States cannot remove immigrants to Vietnam. Therefore, he should be immediately released under the United State Supreme Court decision, Zadvvdas v. Davis. Please contact me with any questions regarding this case.
Thank you for your immediate attention to this matter.
Sincerely,

Anne Relias Staff Attorney
Midwest Immigrant and Human Rights Center T: (312) 660-1359

U.S. Postal Service
CERTIFIED MAIL RECEIPT
(Domestic Mall Only; No Insurance Coverage PrOVided

Attached: Letter to the Vietnamese Embassy

I0 F F I C i A l U S E

Postage $

Certified Fee
Return Receipt Fee (Endorsement Required) Aestrlcted Dellv81}' Fee (Endorsement Required)
$ Total Postage & Fees

....P~Slm"'"
' .,

_ ~::~~~_. i1.Q._ _ _ _ _ ~_~_ _ _blW12

Streef, Apt. No.;
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CIty. State, ZIP+ 4

Providingpathsfrom harm to hope throug PS Form 3800 January 2001 Midwest Immigrant & Human Rights Center

.L
EXHIBIT

TINChicago Connections, 208 South LaSalle Street, Suite 1818, Chicago, Illinois 60604

j

hone 312·660-1 00

\ l;.; •••

6-(5)

JS 44 (Rev. 12/96)

,. ' \ ~

.

CIVIL COVER SHEET

The JS-44 civil cover sheet and the information con~ined herein nei!r~r rf~Rlac:e'r'\~r ,supplement the filing ,and selVic~ of pleadings or oth,er papers as requR
by law excep1 as provided by local rules 01 court. l"hlS form. approved by·~..bucr.dlaH~;onference of the United States In September 1974, IS required tor the \

of the Cieri< of Court for lhe purpose of initialinglh. civil dockef shee\. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS
JcMaA HMcJclO-lIl

&

<Y-t0.2D,iJsU1LFII8T1pi':ri'E~~~E~l~1~!raMANTtcSroPt-1 /Srj(Ul PU(YW1CtR] ltV:

:::=--IlltlfCK1~~n ~iJDGE ZAGEl (b) COUNTY OF RESIDENCE OF FIRST uSTED PLAINTIFF . (EXCEPT IN U.S. PLAINTIFF CASES)

COuNTY OF RESIDENCE OF FIRST LISTED DEFENDANT ~
(IN U.S. PLAINTIFF CAS':;E:;S:-;O:;:N-::~::Y):------­

JUL 2 2 ZOO NOTE: IN LAND CONDEMNATION CASES, USE THl: LOCATION OF THE TRACT OF LAND INVOLVED.

A'MiZ: rl'~3R\lVti(~ 0~A.J<:. S ( e)

AnORNEYS

(FIR(M'}

NA•M.E.

ADDRESSI.LA.N.D

1'£I.EPHONE NUMBER)
0'_11.'

Ii ioLwellf- \ r . ' K::g,l,I-~ Q5

AnORNEYS (IF KNOWN)
\.I'!M;'I"'"
0-' •

Lor- S. l8'l&, lC! S~, Sft"

cLU('Q 0';

-::';;,.'.....,....

-

II. BASIS OF JURISDICTION

(PLACE AN 'X"IN ONE BOX ONLy) III. CITIZENSHIP OF PRINCIPAL PARTIES IPlACE AN 'X. '" ONE 6OXFORPlAlN'

(For Oiverstty Cases Only)

AND ONE BOX FC)F\ OEt=ENDANl)

PTF DEF

PTF DI

Z1 ,S. Govemmem Plainlifl
2 U.S. Government Defendant

o 3 Federal Question
(U.S. Govemrnenf No1 e Party)
o 4 Dlve",1fy (Indlca1e Citizenship 01 Parties In I1em III)

citizen 01 This SIal.

01 01

CHizen 01 Another State [J 2 02

Citizen or Subjec1 01 a 0 3 0 3 Foreign Counfry

Incorpereled or Principal Place 04 o
of Business In This Slate

Incorporated and Principal Place 0 S o
01 Business In Another SIaIe

Foreign Nation

Oe o

IV.?RIGIN
tIJ4' Qriginal Proceeding

0 • Removed from S1a1e Court

(pLACE AN 'X" IN ONE BOX ONLy)

0 • Remanded from o 4 Reinstated or

Appellale Court

Reopened

Transferred 1tom o 5 another district
(specify)

o • Multidislric1
litigation

Appeal 10 DisO

o

,

JUdQefrom Magistrate

Judgmen1

.V. NATURE OF SUIT

CON1RACT

o l1G InSUrance

r:J 1" MarIne
oo 1)0 MHIer Id. 1<10 ~1aDIe IMtNmfl'nt

o 150 Recovtry or o...erpayment a Enroreemenl 01 Judgment

o 151 o 152

RMeecdtlwUrIe[

Act Of Oefauhed

Sludent OIns IExcI, v.lerans)

o 153 Recovery or CNerpaymenl 01 ~,ran's BenefItS
o 110 Qoc:t;hoIde",'SUt15 o ,10 OIher Contfae1 o 115 ConlreCi Proclud Llabllny

REAL PROPERTY
o 210 Land conoemnallon
Cl 220 FotedOSUlt Cl 230 Renl Least & E)ectmtnl
o 240 Torts 10 Land o 245 Ton Product UabUfty o 110 iii Otntr Real Property

(PLACE AN "X" IN ONE BOX ONLy) lORTS

fERSONAllNJUhY
o 310 Airplane o 31$ Airplane Prod~
IJIl>IIiIY
o 320 ,AsNuh. Ubel &
SIB""r
o ~30 Feeleral Employel5' I,IabiIny
0,..0 MISIne o 34$ Manne ProdUct
I,IabiIny
o 350 Motor VehICle o 35$ Motor Veh~1e
Prod~ LIability
o 3fO Other PMsonalll'lJury

fERSONAllNJURV
o 352 Personal InJury Med, MaipraCiIce
o :itS Pel$OfWl,llnJu~. Product Llabfl
o " I AsbeStos Per$onaI fnj'ury Producf tJabfffly
PERSONAL PROPERTY Cl ~70 Other FraUd
oCl 371 TI\I1h In Lending mOther PefSOMI Property Damage
o 315 Property Daf1l&ge ProdUCIllabliny

CIVIL RIGHTS
0 " ' _ o 0441 voting
o 442 EmplOyment
N;cCrnmodatlons
0 ..4.. wenve
o 440 Otller CMI Rlglll5

PRISONER PElITIONS
o 510 MotIOns to Vatale Sel'ltente HABEAS CORPUS:
Cl $" General
o 535 Dealh Penalty o " ' Manoamus & Other
O ... CMIRIgh1S Cl US Prison CondtllOn

FORFEITURE/PENALTY BANKRUPTCY

OlHER SlA1UTES

o .10 A9nculture o0'20 Oltter Food & Drug
or '2& Drug Relaled Seizure
Property 21 USC 881 o e30 Liquor laws
oo '40 R.A. a 'l'1\ICk 8$0 Airline Regs,
o NO OCcupallonal Salety/Heatlh o e90 OIher
LABOR
o 710 Fair labOr Slandards Act o 720 LabOr/Mgml. Flela1ions
o 730 18bOr/Mgmt. Reponing & DJselosure ACI o 740 RailWay Labor Act

D 422 Appeal 28 usc 158 o 423 Wllhdrawa!
28 USC 157

,r:;:o , 0 400 Qa!e ReapponlOnmen1 410 AnttI"", o UO BarNes and Banking COmmerce/ICC Rat..,..:

PROPERTY RIGHTS
o 120 Copyrights o0130 Patent
140 Trademark
SOCIAL SECURITY
o 1&1 HIA 11395ft) o 882 Black Lung (923) o 883 OIWCIDfWW (4051;)) o IU SSIO TIt.. XVI o 1'5 RSI140S(9n
fEDERAL lAX SUITS

"" OepoltatlOn "0 RactI~ Influ.nc.d and
COnvpI: OtganllallOrl$
o 110 SeIectIw SeNk;e>
""'...... o 150 SecultileslCommodltlMl
o 171 CUSlOIMr ChaU_nge 12 USC 3410
o It1' AgrICUltural Acts o 112 Economic Stabilization ACI o IU Envlronmenlll M.tt.rt. o I... EJ\efV)' AhocaJ}on Ac1 o itS FfMCIom Of
information Ad
o 100 Appeal 01 Fee DelermlnaUt Unoer Equal Acce&!> 10 JU$'

o 790 OIher LabOr Lltlgallon

o 170 18.)1;8$ (U.S, Plaln"n

C 110 CQns.UIUlIanaIIty at
S1ale $1.1",,,,

o 711 Empl. ReI. InC. SeCurtty N:A

o -""ro_ or Defendant) .71 IRS 26 USC 7IlOO

C 110 On"" S1atUiory Ac110ns

VI CAUSE OF ACTION IC"" T><E u.s. CIVil STATUTE UNDER WHICH YOU ARE FlUNG AND WRITE BRIEF STATEMENT OF CAUSE.

•

DO NOT CTTE JURISOICTlONAL STATUTES UNLESS 0IVEASm'.)

~ Ctlrea S ~ 11 0 n

VII. REQUESTED IN

CHECK IF THIS IS A CLASS ACTION

COMPLAINT

o UNDER F.R.C.P. 23

DEMAND $

CHECK YES only ~ demanded In comptair

JURY DEMAND: 0 YES

0 NO

VIII.

This case

is not 8 refiling of p previously dismissed action.

o is a refiling of case number

• previously dismissed by Judge _ _ _ _ __

DATE
7/I~J () L

SIGNATURE OF AITORNEY F RECORD

In the Matter of

Ul\~'ED STATES DISTRICT co"n
NORTHERN DISTRICT OF ILLINOIS
Eastern Division

DOCKETED

Jalal Hmaidan, et al
J{o5buil ~hcro-Pt-) B(,<V<.. PeaYIt1.Ml., //•\IJS

JUL 2 2 2002

Case

.Nflu')mIlllIe1r:

I

()
U

Pil I~: 2j

(:LL\~(\
u.s. DISIFIiCT COURT

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNW!~

Jalal Hmaidan, et al

.. V ' l;

509'1

JUDGEZAGEL MAGISTRATE JUDGE urv iN

(A)
1J/ /Zrj(f SIGNATURY

NAME ~'-"'.
Charles Roth
FIRM
Midwest Immigrant and Human Rights Center
STREET ADDRESS
208 South LaSalle Suite 1818
CClTh:$lTcAaTEgIZoIP, Illinois

(3Li2r435~4550

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
nla

MEMBER OFTRJAL BAR?

0 YES

TRIAL ATTORNEY?

D YES

0 NO
NO [2]

SIGNATURE NAME

(B)

FIRM

STREET ADDRESS

CITY/STATE/ZIP

TELEPHONE NUMBER

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OFTRIAL BAR? TRIAL ATTORNEY? DESIGNATED AS LOCAL COUNSEL?

0 YES D YES 0 YES

D NO D NO D NO

(C)

sCZ'W-1f2 ;£ehcvl

NAME
Anne ReHas

FIRM
Midwest Immigrant and Human Rights Center

STREET ADDRESS
208 South LaSalle, Suite 1818

CITY/STATE/ZIP
Chicago, Illinois 60604

TELEPHONE NUMBER
(312) 660-1359

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
6276258

MEMBER OF TRIAL BAR?

0 YES

0 NO

TRIAL ATTORNEY?

0 YES

NO [2]

DESIGNATED AS LOCAL COUNSEL?

0 YES

NO [~J

SIGNATURE

(D)

NAME

FIRM

STREET ADDRESS

CITY/STATE/ZIP

TELEPHONE NUMBER

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)

MEMBER OF TRIAL BAR? TRIAL ATIORNEY? DESIGNATED AS LOCAL COUNSEL?

0 YES

D NO

0 YES

D NO

? - P 0 YES
I ".,';J

 
 ,.,'

IN THE UNITED THE UNITED STb;Tr;S tJl~~JllCtt;®RT
FOR THE NORTHERN r:lis~f o¥'i:t:t:~bt~'3
EASTERN DI~ZSS~ 10 PM 4: 30

JALAL HMAIDAN, et aI.,

)

CLERK

) U.S. DISTRICT COURT.

Petitioners,

)

J

)

vs.

)

)

JOHN ASHCROFT, ATTORNEY GENERAL OF THE)

JUDGE JAMES B. ZAGEL

5091 2 No. 02 C

~!ailai:

UNITED STATES, et aI.,

)

c:::r

)

!-'e .lI.D.o

Respondents.

)

Q'" i;;~

)

~o

-------------,N""O=T""IC""E"'"OF FILING To: SEE ATTACHED SERVICE LIST

-0
f"C'Ii"""",
«t~
c...

PLEASE TAKE NOTICE that on this 10th day of September, 2002, we filed

PETITIONERS AMENDED PETITION FOR A WRIT OF HABEAS CORPUS, BOTH

INDIVIDUALLY AND ON BEHALF OF A CLASS, AND AMENDED CLASS ACTION

COMPLAINT, in the United States District for the Northern District of Illinois, Eastern

Division, copies of which are attached and served upon you.

SEP 1 2 2002

Respectfully submitted, JALAL HMAIDAN, MURAD AL-HNITIN, MOHAMMED AIDOUNI, MAITHAM ALZEHRANI, NHATTRAN, KEOVONGSACK PONGPHRACHANXAYAND DENSON

011.1096625.1

DOUGLAS M. HAGERMAN THOMAS P. KREBS JEFFREY A. SOBLE FOLEY & LARDNER One IBM Plaza 330 North Wabash Avenue Chicago, Illinois 60611-3608 312.755.1900 312.755.1925 (fax)

CHARLES ROTH ANNERELIAS MIDWEST IMMIGRANT AND HUMAN RIGHTS CENTER 208 South LaSalle Street Suite #1818 Chicago, Illinois 60604 (312) 660-1613 (312) 660-1505 (fax)

011.1096625.1

-'

CERTIFICATE OF SERVICE I, Jeffrey A. Soble, an attorney, certify that I served a copy of PETITIONERS AMENDED PETITION FOR A WRIT OF HABEAS CORPUS, BOTH INDIVIDUALLY AND ON BEHALF OF A CLASS, AND AMENDED CLASS ACTION COMPLAINT, via Hand Delivery to:

Sheila M. Entenrnan Assistant District Counsel United States Department of Justice, Immigration & Naturalization Service 219 South Dearborn Street 5th Floor Chicago, Illinois 60604 (312) 353-8788 Fax: (312) 353-2067

Craig A. Oswald Assistant United States Attorney United States Department of Justice 219 South Dearborn Street 5th Floor Chicago, Illinois 60604 (312) 886-9080 Fax (312) 353-2067

on September 10, 2002, before the hour of 5:00 p.m.

~soble

011.1096625.1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JALAL HMAIDAN, MOHAMMED AIDOUNI,

)

MAITHAM ALZEHRANI, KEOVONGSACK

)

PONGPHRACHANXAY AND DEN SON,

)

INDIVIDUALLY AND ON BEHALF OF ALL OTHERS )

SIMILARLY SITUATED,

)

)

Petitioners,

)

)

vs.

)

)

JOHN ASHCROFT, ATTORNEY GENERAL

)

OF THE UNITED STATES, BRIAN

)

PERRYMAN, AS CHICAGO DISTRICT

)

DIRECTOR, IMMIGRATION AND

)

NATURALIZATION SERVICE,

)

IMMIGRATION AND NATURALIZATION

)

SERVICE, UNITED STATES DEPARTMENT

)

OF JUSTICE,

)

)

Respondents.

)

)

.~..

::>:ra:

JUDGE JAMES B. ZAGEL
No. 02 C 5097

'1;-

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SEP 1 .2 2002

PETITIONERS AMENDED PETITION FOR A WRIT OF HABEAS CORPUS, BOTH INDIVIDUALLY AND ON
BEHALF OF A CLASS, AND AMENDED CLASS ACTION COMPLAINT

Petitioners, Jalal Hmaidan, Mohammed Aidouni, Maitham Alzehrani,

Keovongsack Pongphrachanxay and Den Son (collectively hereinafter referred to as "Petitioners"

or "Plaintiffs"), by their attorneys, and for their Amended Petition for a Writ of Habeas Corpus,

Both Individually and on Behalf of a Class ofIndividuals Similarly Situated, and Amended C~~.~

s.,.fa~:·· 1.~ ~ Action Complaint against Respondents, John Ashcroft, Attorney General of the United

'ff; .

,

~t') ,,; ~, ,_~.

l Brian Perryman, as Chicago District Director, Immigration and Naturalization Se~~, ~o "",,>'0':,

.~ ~-() f:::.'»i.~ . ._
Immigration and Naturalization Service, United States Department of Justice (collectiv~ .-;j.f>?>' ".>"

$"

011.1096766.3

1

\l

hereinafter referred to as the "Government", "Respondents" or "Defendants"), state as follows: STATEMENT OF THE CASE
1. This action is brought by the Petitioners individually and also on behalf of a class of individuals similarly situated. Pursuant to 28 U.S.C. § 2241 et seq., the Petitioners individually petition this Court for a Writ of Habeas Corpus because they are currently being held in contravention of the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678,121 S.Ct. 2491 (2001).
2. Pursuant to 28 U.S.C. § 2241 et seq., the Petitioners, on behalf of themselves and a class of all others similarly situated, petition this Court for a Writ of Habeas Corpus because they are currently being held pursuant to rules and regulations of the INS that violate the Petitioners Substantive and Procedural Due Process granted in the Fifth Amendment. U.S. CONST. amend. V ("No person shall ... be deprived of life, liberty, or property without due process of law...")
3. Additionally, the Petitioners seek declaratory and injunctive relief, on behalf of themselves and a class of all others similarly situated, to rectify the unconstitutional rules and regulations under which the Immigration and Naturalization Service (the "INS") reviews the detention of individuals subject to final orders of removal. The INS' rules and regulations violate both the substantive and procedural due process rights of the class members, both as written and as applied.
4. Finally, the INS' rules and regulations also violate the Administrative Procedures Act, because, among other things, the INS' action are arbitrary, capricious, and not in accordance with the law. 5 U.S.C. §701, et seq.
2
011.1096766.3

5. The Petitioners are detained by the INS. The INS ordered them removed

from the United States; but the INS is unable to remove them to their countries of origin. Each

Petitioner has been detained for longer than six months after entry of the final order of removal.

Zadvydas, 533 U.S. at 701, 121 S.C!. at 2505 (six-month detention is presumptively reasonable).

6. The Supreme Court has held that the Attorney General and the INS have

no statutory authority to detain aliens where there is no reasonable likelihood of removing them

from the United States. Zadvydas, 533 U.S. at 689,121 S.Ct. at 2498.

7. Subsequent to the Zadvydas decision, the Attorney General and INS

adopted procedures that delay, ignore, or hinder the release of individuals whom the INS has no

authority to detain, practically forcing detainees to bring suit in Federal Court in order to obtain

their liberty. The Attorney General's procedures place decisions to continue detention in the

hands of a faceless bureaucracy, without setting any deadlines, providing for any hearing,

ordaining any review by an impartial adjudicator, permitting any administrative appeal of a

negative decision, or instituting any other procedures designed to safeguard the liberty interests

ofindefinite detainees.

JURISDICTION

8. This Court has jurisdiction pursuant to 28 U.S.C. §2241, the general grant

of habeas authority to the District Courts; Art. I, §9, cl. 2 of the United States Constitution, 28 ·S~

."S -& --: ~
U.S.C. § 1361 (mandamus authority), 28 U.S.c. § 1331(a) (federal action), and 5 U.S.C. ~"@.f.l.

1..~

706 (Administrative Procedures Act).

This

Court

has

jurisdiction

to

grant

declaiaf;y'Nt,~~~l)i.~~t""-,,v~'..b

~:'.Q ,~.;.."" ,~'>",

~

pursuant to 28 U.S.C. §§ 2201 and 2202 and FED. R. CIv. P. 57 and 65.

Petitioners are ~1h.g~

~'(}~)
cr.§) 0;

~..::)

indefinitely, ifnot permanently, detained under or by color of the authority of the United ~tes

3
011.1096766.3

and such detention is not only without express authority of any law, but also in violation ofthe Constitution of the United States.
9. Statutory limitations on the Court's ability to grant injunctive relief, 8 U.S.C. §1252(f)(1), are inapplicable to this claim. Petitioners do not seek to restrain the "operation ofthe provisions of part IV" of the INA, but rather, to limit the Attorney General's ability to continue a form of detention that the Supreme Court held is not authorized by statute. Petitioners do not contest the INS' start of removal proceedings against them, the adjudication of those proceedings, or the INS' execution of removal orders against them. Petitioners contest their continued detention and the rules and regulations under which the INS operates.
VENUE
10. Venue lies in the United States District Court for the Northern District of Illinois, Eastern Division pursuant to 28 U.S.C. 1391(e) in that this is a civil action commenced against an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority and this is a judicial district in which the Respondent in the action resides. The Northern District of Illinois is also the District where the proceedings against Petitioners occurred and where the INS will attempt to remove petitioners should it ever attempt to do so. This district is also where the continuing decision to detain Petitioners is being made. This district is also where Petitioners' custodian, Brian Perryman, Chicago District Director of the Immigration and Naturalization Service, resides and has his place of business.
4
011.1096766.3

THE PARTIES 11. Petitioner Jalal Hmaidan, is a native of Kuwait City, Kuwait, and of Palestinian descent. He is detained by and under the authority ofthe INS Chicago District Director, Brian Perryman, and the Attorney General of the United States. 12. Petitioner Mohammed Aidouni is a native and citizen of Algeria. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States. 13. Petitioner Maitham Alzehrani, is a native and citizen ofIraq. He is detained by and under the authority ofthe INS Chicago District Director, Brian Perryman, and the Attorney General ofthe United States. 14. Petitioner Keovongsack Pongphrachanxay, is a native and citizen of Laos. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States. 15. Petitioner Den Son is a native and citizen of Vietnam. He is detained by and under the authority of the INS Chicago District Director, Brian Perryman, and the Attorney General of the United States. 16. Respondent John Ashcroft is the Attorney General of the United States. He has implemented regulations that have the effect of obstructing and hindering the Supreme Court's decision in Zadvydas. His agents continue to detain the Petitioners; Petitioners are detained under authority of the Attorney General. 17. Respondent Brian Perryman is the Chicago District Director for the Immigration and Naturalization Service. He is the legal custodian of the Petitioners.
5
011.1096766.3

18. Respondent Immigration and Naturalization Service is an agency of the United States Department of Justice and is the agency responsible for enforcing the immigration laws.
19. Respondent United States Department of Justice is a department of the executive branch of the United States govermnent and is responsible for enforcing the immigration laws.
FACTS COMMON TO ALL COUNTS 20. The Attorney General is authorized by statute to detain individuals ordered removed during the 90 day period after the final removal order, which is called the "removal period." 8 U.S.C. §1231(a)(1). The length of the removal period may be extended if the detainee refuses to cooperate in securing his or her travel documents. 8 U.S.C. § 1231(a)(I)(C). 21. Prior to 2001, the INS interpreted 8 U.S.C. §1231(a) (a.k.a. INA § 241 (a», enacted in 1996, as permitting the indefinite detention of any immigrant whom it could not remove from the country. 8 C.F.R. §241.4(b) (1997). By regulation, the INS created a presumption of detention for individuals ordered removed on certain criminal grounds. 8 C.F.R. §241.4(a) (1997). See, 62 Fed. Reg. 10312, 10378 (March 6, 1997). This presumption could only be disproved by "clear and convincing evidence that the release would not pose a danger to the community or a significant flight risk." 8 C.F.R. §241.4(a) (1997). 22. This regulation created a class of individuals known as 'lifers' who were unable to meet this standard of proof. Consequently, the INS detained these individuals until death or deportation, whichever came first. It was not uncommon for the INS to detain people for years. See e.g. Zadvydas, 533 U.S. at 684, 121 S.Ct. at 2496 (petitioner Zadvydas detained
6
011.1096766.3

r·
since 1994; petitioner Ma detained since 1997). 23. Numerous lawsuits followed. Many detainees argued that the statute and
regulations violated the Due Process Clause ofthe Fifth Amendment. The circuits split on the issue. Compare, Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999) (finding Due Process not violated because deportation was not "impossible") and Kim Ho Ma v. Reno, 208 F.3d 815 (9th Cir. 2000) (holding statute did not authorize detention past a "reasonable time" after 90 day removal period).
24. The Supreme Court granted certiorari to resolve the split and in rejecting the Government's argument, held that the statute does not authorize indefinite detention. Zadvydas, 533 U.S. at 689, 121 S.Ct. 2498 ("the statute, read in light ofthe Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention.") The Court held that 8 U.S.C. §1231(a)(l) does not grant the Government authority to detain individuals longer than reasonably necessary to secure deportation or removal. !d. The Supreme Court held that a six month period of detention was presumptively reasonable. [d., 533 U.S. at 701, 121 S.Ct. 2505. The Court further held that the statute does not authorize detention where there is no reasonable likelihood of removal in the foreseeable future or a compelling state interest. [d., 533 U.S. at 689, 121 S.Ct. 2498.
25. The Petitioners and all class members have been detained longer than six months since the INS issued their final order and removal. The INS is unable to remove the Petitioners and all class members to their countries of origin.
7
011.1096766.3

26. The Attorney General publicly attacked the Supreme Court's decision.
"Absent prompt action on our part, the [Zadvydas1decision could result in the release of
thousands of dangerous criminal aliens onto the streets of America over the next several months...The result of the Supreme Court's ruling is that criminal aliens will be released from detention onto the streets of America." Attorney General Prepared Remarks, Long-term INS Detainees/Colorado Safe Neighborhoods Event, July 19, 2001, http://www.usdoj.gov/ ag/speeches/2001l071901insdetaineescoloradosafe.htm. "The Supreme Court's ruling will inevitably result in anomalies in which individuals who have committed violent crimes will be released from detention simply because their country of origin refuses to live up to its obligations under international law." 66 Fed. Reg. 38433-38434 (July 24,2001).
27. On November 14, 2001, the Respondents published post-Zadrydas regulations governing the continued detention of individuals ordered removed. 66 Fed. Reg. 56967 (Nov. 14,2001), codified at 8 C.F.R. §§ 241.4, 241.13, 241.14.
28. Under these regulations, the initial determination to continue to detain an individual ordered removed is made by the INS District Office at the end of the statutory 90 day removal period. 8 U.S.C. § 1231(a)(I). For this initial determination, it is not enough to show that removal is not likely in the reasonably foreseeable future; a detainee must show all of a number of other factors, including that he or she is a "non-violent person." 8 C.F.R. § 241.4(e).
29. Ifrelease is not ordered in the initial review stage, the "Headquarters Postorder Detention Unit" ("HQPDU") conducts a second level of custody review. See 8 C.F.R. §241.13. Only the HQPDU can consider release under Zadvydas - though the custodian of given detainees remains the various District Directors. 8 C.F.R. §241.4(c)(2).
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30. The HQPDU has "discretion" to wait until the expiration of the removal period before considering release. 8 C.F.R. § 241.13(d)(3). On information and belief, the HQPDU generally does not decide to release a detainee until they have been detained six months after their final order of removal.
31. Under the current procedures, there is no evidentiary hearing regarding the individual case of an individual whom the INS determines to detain due to the possibility ofthat individual being removed to their country of citizenship; nor is there a hearing where an individual has allegedly failed to cooperate with efforts to secure removal.
32. The current procedures permit a role for an impartial adjudicator only in cases involving "special circumstances," where the INS acknowledges that a given individual cannot be removed from the United States, but believes that release into the community should not be permitted. See, 8 C.F.R. § 241.13(e)(6) (2000) (providing for "special circumstances" of continued detention); 241.14(a) (2002) (providing limited jurisdiction for Immigration Judges and the Board of Immigration Appeals to exercise a review function). However, these special circumstances do not apply to the Petitioners or the class. 8 C.F.R. § 241.14(1) ("This section [241.14] does not apply to aliens who are not subject to the special review provisions under § 241.13.") Thus, no impartial adjudicator issues any determination in a case involving an individual in the class.
33. The regulations provide for no appeal, administrative or otherwise of an INS agent's determination (1) that an individual has not cooperated in securing their own return, or (2) that there is still a possibility of removal.
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34. The regulations provide no timeframe within which an INS agent's determinations are to be made. At no point does an INS failure to make a determination trigger review by any other impartial or review body, or trigger release.
35. Although required by regulation to give 30 days notice to the detainee of any review by the HQPDU, 8 C.F.R. §241.4(k)(2)(i) and (ii), such notice is not meaningfully given. Indeed, it is routinely not given. Alternatively, in the rare case where such notice is given, it does not comport with the regulatory requirements.
36. The INS pattern and practice is to take in excess of six months to determine whether to release a given individual from detention.
37. The HQPDU had a pattern and practice of sending letters to detainees, stating that it was "suspending" their removal period until they could show additional efforts to secure their own removal, even where that individual has never failed to cooperate with removal efforts. The INS has now stated that it intends to abandon that practice. See Aff. of Michael Rozos, ~ 5, attached hereto as Exhibit F..
38. The INS habitually misstates to detainees when it will engage in a file review of a detainee's case.
39. The HQPDU has a pattern and practice of requiring members of the Plaintiff class to make an affirmative showing of "cooperation". However, detainees have often made that same showing during the 90-day removal period and that information has already been given to the INS. The HQPDU also requires an affirmative showing of "cooperation" even when it knows that any efforts by the detainee or the INS would clearly be futile. This is common in cases where the detainee is a citizen of a country for which the Respondents know it
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is impossible to obtain travel documents. 40. These procedures have prompted a flood of Petitions for a Writ of Habeas
Corpus brought pro se by detainees and through pro bono counsel. On information and belief, there are currently pending more than 80 such Petitions for a Writ of Habeas Corpus pending just in the United States District Court For The Northern District Of Illinois Eastern Division.
41. Since the INS provides detainees almost no information except form letters, if that, detainees have no information with respect to the status of their requests for release. Since the class has by definition been detained at least six months - many have been detained for 12 months or longer - there is a high rate of indigence for the plaintiff class. These individual pro se habeas actions have not resulted in resolution of the Plaintiff class's procedural claims.
42. None of the Petitioners or class members have been granted any kind of administrative hearing in which an impartial adjudicator has determined that there is any likelihood of their being removed or deported in the foreseeable future.
43. All of the Petitioners and class members have effectuated an "entry" into the United States. An entry is defined as (1) physical presence within the United States, (2) either inspection and authorization by a government official, or actual and intentional evasion of inspection, and (3) freedom from restraint within this country. Matter ofPierre, 14 I&N Dec. 467 (BIA 1973).
44. The INS actions with regard to each of these cases have been arbitrary and capnclOus.
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EXHAUSTION 45. There is no formal administrative review of Petitioners' requests for release. Petitioners' only course of action is to seek release informally by letter(s) to the INS. Petitioners have done this. These letters ask Respondents to release Petitioners pursuant to the United States Supreme Court decision in Zadvydas. These attempts have not yet been successful; several were not answered until litigation was initiated. 46. The United States Supreme Court has stated that "[section] 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention." Zadvydas, 533 U.S. at 689, 121 S.Ct. at 2498. 47. Petitioners cannot undertake any additional steps prior to judicial review because the rules and regulations of the INS provide no further review of the INS' decision to continue to detain Petitioners or class members. 48. It would also be unreasonable to expect any further exhaustion, in light of the Government's habitual failure to conduct these reviews as required by regulation. For example, Mr. Hmaidan was detained for 10 months without any decision to continue detention being made in his case (though one was required within three months); in Aidouni's and Pongphrachanxay's case, the "three month review" took place after seven months. Son has never received a "three month review," because the INS lost his file for a year.
CLASS ALLEGATIONS 49. Pursuant to FED. R. Cry. P. 23(a) and 23(b)(l) and (b)(2), Petitioners seek relief on behalf of themselves and all other similarly situated individuals. The class consists of:
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Individuals who have "entered" the United States, other than those detained pursuant to 8 C.F.R. § 241.14 (2002), or any other regulation or law relating to terrorism or national security, who have been or will have been detained by and under the authority of the Chicago District ofthe INS for more than six months after the entry of an administratively final order ofremoval. 50. The class is so numerous that joinder of all members is impracticable. The number of individuals within the Chicago District who are detained by the INS more than six months after a final order of removal is not known with precision, and is believed to fluctuate. However, there are currently pending, on information and belief, more than 80 separate habeas actions in the Northern District of Illinois, brought by individuals who are, or claim to be, class members. In addition, Plaintiffs seek to define the class to include future class members, so that the actual number will continue to increase. 51. There are a number of common questions of law and fact, including (1) whether the procedures employed by the INS for class members are facially violative of Procedural or Substantive Due Process; (2) whether Due Process is violated as applied to the Plaintiff class; and (3) whether INS sub-regulatory agency actions, in administering these regulations are arbitrary and capricious actions violative ofthe Administrative Procedures Act. The rules, regulations and procedures are identical for each class member. 52. The claims of the Petitioners are typical of the class. Each named Petitioner is a non-citizen with an administratively final order of removal, who has been detained for more than six months after that order was entered. Each has been detained unreasonably and without lawful justification by the Defendants, and each has either failed to receive a timely decision whether to continue or cease detention, or received a decision which is unreasonable and incorrect. Respondents have applied their unlawful practices to each named Petitioner.
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53. Petitioners know of no conflict between their interests and those of the class they seek to represent. In defending their own rights, the individual Petitioners will defend the rights of all proposed class members.
54. The individual Petitioners are adequate representatives ofthe class because they have been adversely affected by Respondents' statutory and constitutional violations.
55. Petitioners' attorneys from the Midwest Immigrant and Human Rights Center and Foley and Lardner are experienced attorneys who have the resources to represent the class as a whole. The Midwest Immigrant and Human Rights Center is the only agency which actively visits the jails in the Chicago District in which the INS detains individuals. Foley and Lardner, appearing here in a pro bono capacity, is a well-known and respected law firm with both the resources and expertise to represent Petitioners.
56. Defendants have acted on grounds generally applicable to each member of the class, insofar as they have failed to release the Petitioners despite their inability to remove them to any other country, and have applied statutorily and constitutionally inadequate procedural protections to each.
COUNT ONE
(PETITION FOR WRIT OF HABEAS CORPUS FOR JALAL HMAIDAN)
57. Hmaidan adopts and realleges Paragraphs 1 through 48 as iffully set forth herein.
58. This Count One is brought individually by Petitioner Hmaidan.
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59. Hmaidan entered the United States in 1976 after the death of his mother. Ex. A(I). His aunt, a United States citizen, adopted him in 1978, at the age of twelve. He is of Palestinian ethnicity. He was born in Kuwait, but is not a citizen of Kuwait. He has had a Jordanian passport, but this passport does not make him a citizen of Jordan. Ex. A(2) at p. 11 and A(3) at p. 2. He is effectively stateless.
60. As Hmaidan was permitted by the Respondents to enter and to reside in the United States, he effectuated an "entry" into the United States.
61. Due to a January 1998 conviction for possession with intent to deliver, Ex. A(I), he was placed into removal proceedings. Id.
62. On October 5,2000, while Hmaidan was still in state custody, an Immigration Judge ordered him removed. Ex. A(4). The Board ofImmigration Appeals denied Petitioner's appeal on August 8, 2001. Ex. A(5) at p. 5. The Board's decision constitutes an administratively final order ofremoval.
63. Hmaidan was then released from his criminal jail sentence. Respondents have detained him since September 28, 2001.
64. Hmaidan has a mother, brother, and grandmother living in the United States, all of whom are United States Citizens or Lawful Permanent Residents. His eleven-yearold daughter is a United States Citizen. He has been living in the United States for over 25 years.
65. Hmaidan has diligently requested travel documents from both the Jordanian and Kuwaiti consulates. His counsel sent letters requesting travel documents to both consulates by certified mail on February 4,2002. Ex. A(6) and A(7). Hmaidan followed up with handwritten letters on February 18, 2002. Ex. A(8) and A(9). Neither responded.
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66. The Government has also requested travel documents on several occaSIOns. Ex. A(17) and A(18). The Government has not requested travel documents from the consular general of Jordan since October 29,2001. Ex. A(17). On information and belief, there has been no response.
67. On March 22, 2002, Hmaidan's Attorney requested his release from the HQPDU, with supporting documents. Ex. A(ll) at pp. 1-33.
68. On April 29, 2002, Hmaidan was served, by hand-delivery, a Notice to Alien of File Review, to be conducted by the Chicago District Office on May 30, 2002. Ex. A(12). A copy was also mailed to counsel. He was invited to submit documents in support of his release, pursuant to 8 C.F.R. §241.4.
69. This local custody review was scheduled for seven months after Hmaidan's final order of removal. This is four months later than the regulations provide for such a custody review. 8 C.F.R. §241.4(h)(1).
70. Through counsel, Hmaidan replied to the INS's invitation to submit documentation in support of release. On May 3, 2002, he again submitted this documentation, as well as additional documentation. Ex. A(13) at pp. 4-8.
71. On May 8, 2002, the HQPDU replied to Hmaidan's request for release, asking Hmaidan to provide copies of correspondence and other documentation to show his good faith effort to secure his own removal. Ex. A(14). As stated above, Hmaidan had previously submitted this information.
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72. The May 8, 2002, letter also informed Hmaidan that the removal period would be "held in suspense" until such period as he provides this information. Id. No statute, rule or regulation supports such a position by the INS.
73. On May 24,2002, Hmaidan responded to the INS's letter of May 8, 2002, including - for the third time - proof that he was cooperating with attempts to secure his own removal. Ex. A(l5).
74. Hmaidan has been in Respondents' custody for eleven months and they have been unable to effectuate his removal. Respondents are unable to remove Petitioner to Kuwait, his country of origin, or Jordan, which issued him a passport.
75. Subsequent to the filing of this lawsuit, the INS Chicago District Office decided to continue the detention of Hmaidan. Ex. A(16). The decision included no indication that the INS based its decision on a purported ability to effectuate Hmaidan's removal.
76. The HQPDU has yet to issue any decision regarding Hmaidan's detention, though he has been detained for eleven months after his administratively final removal order.
77. Under Zadvydas, after the end of the six month "presumptively reasonable" period of post-order detention, Zadvydas, 533 U.S. at 701,121 S.C!. at 2504-05, Hmaidan may obtain review of his detention ifhe provides the Court with "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." /d. Once Hmaidan provides "good reason" to believe removal unlikely, the Government must then respond "with evidence sufficient to rebut that showing." /d. As the length of post-order detention increases, removal must be likely within a correspondingly briefer period, "for the detention to remain reasonable." Id.
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/-,
78. Hmaidan has been detained in excess of six months since his final administrative order.
79. There is good reason to believe that removal is unlikely in the reasonably foreseeable future. Hmaidan has been detained by the INS for nearly one year without any travel documents being issued in his case. Hmaidan has not delayed the issuance of such travel documents by failing to cooperate. The difficulty or impossibility of arranging for removal is occasioned by Hmaidan's status as a stateless Palestinian. Ex. A(2) at p. 11 and A(3) at p. 2.
80. Hmaidan is not a citizen of either Jordan or Kuwait. Id. It is substantially unlikely that either country will accept his removal to within their borders.
81. Because Hmaidan can show that he has been detained for a significant length of time without travel documents being issued, that this is not due to his failure to cooperate, and that the explanation for this failure is his stateless status, a status unlikely to be altered in the near future, he has shown "good reason to believe" that he will not be removed in the reasonably foreseeable future.
82. Because Hmaidan has given the Court "reason to believe" that he cannot be removed in the reasonably foreseeable future, his detention is not authorized by statute unless the Government can rebut that showing.
83. A writ of habeas corpus should therefore issue, requiring the Defendants Brian Perryman and John Ashcroft, to show cause why there is a significant likelihood that the Petitioner Jalal Hmaidan can be removed in the reasonably foreseeable future, such that his detention remains reasonable and authorized by statute; and to show cause why he should not be released from detention immediately, subject to appropriate conditions.
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WHEREFORE, Petitioner, Jalal Hmaidan, requests that this Court grant his Petition for a Writ of Habeas Corpus and order Respondents, John Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, to release Jalai Hmaidan from his unlawful custody immediately and for such further and other relief as this Court deems just and appropriate.
COUNT TWO
(PETITION FOR WRIT OF HABEAS CORPUS FOR MOHAMMED AIDOUNI)
84. Aidouni adopts and realleges Paragraphs 1 through 48 as if fully set forth herein.
85. This Count Two is brought individually by Petitioner Mohammed Aidouni.
86. Aidouni entered the United States as a stowaway in 1991, fleeing from Algeria. Ex. B(I).
87. Because Aidouni successfully entered and resided in the United States, he effectuated an "entry" into the United States, under the legal meaning of that term, despite the fact that he entered as a stowaway. Matter ofA-, 9 I&N Dec. 356, 358 (BIA 1961).
88. Some years after his entry, Aidouni was convicted of retail theft, and sentenced to incarceration for one year. Ex. B(I). The INS then began proceedings to remove Aidouni from the country with a Notice ofIntent to Issue a Final Administrative Removal Order, on June 10, 1999. [d. The INS alleged that Aidouni had been convicted of an aggravated felony, and had entered the United States as a stowaway on or about September 26, 1991. Since
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Aidouni did not contest the facts therein, the INS issued a Final Administrative Removal Order against Aidouni on August 10, 1999. Ex. B(2).
89. Because Aidouni was afraid to return to Algeria, he sought "Withholding of Removal" to Algeria, and protection under the Convention Against Torture. The INS did not act on Aidouni's case for 10 months before finally holding a hearing June 26,2000. Ex. B(3). At the hearing, Aidouni testified before an Asylum Officer regarding his fear of returning to Algeria. The Asylum Officer determined that there was a "reasonable possibility" that Aidouni would be tortured or persecuted if returned to Algeria, and referred his case to an Immigration Judge for adjudication of his application. Id. at p. 5.
90. The Immigration Judge determined that Aidouni could not show that it was "more likely than not" that Aidouni would be tortured or persecuted if returned. He therefore denied Aidouni's application for Withholding of Removal or Deferral of Removal under the Convention Against Torture. Aidouni appealed the Judge's decision, to the Board of Immigration Appeals, which finally denied his claim on October 11,2001. Ex. B(4) at p. 4. This is the final decision in Aidouni's case.
91. Aidouni has had an administratively final order of removal since August 10, 1999, and the Government has sought to remove him since that date. Ex. B(5), B(6), B(7), B(8) and B(13). Aidouni was seeking protection under the Convention Against Torture, and the Respondents were legally prevented from removing him; this definitively ceased with the final administrative order of October II, 2001, denying that protection.
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92. The INS has detained Aidouni for nearly three years since the entry of an administratively final order of removal. The INS has detained Aidouni for almost ten months since the Board's order denying relief under the Convention Against Torture removed all obstacles to his removal from the U.S.
93. The Government has been seeking travel documents for Mr. Aidouni for approximately three years, without success. Ex. B(5), B(6), B(7) and B(8). The reason for this appears to be Mr. Aidouni's lack of identity documents. Ex. B(7) and B(8).
94. The INS had previously told Aidouni that a file review would be conducted on January 28, 2000. Ex. B(9). On February 4, 2000, Perryman informed Aidouni that "the issuance ofa travel document is still pending." Ex. B(lO). On November 6, 2001, the INS again informed Aidouni that it would conduct a file review in his case on December 6, 2001. Ex. B(ll).
95. Over five months later, on May 16, 2002, the INS finally decided to continue to detain Aidouni, stating "[ylou were convicted of robbery and possession of a weapon." Ex. B(12)
96. Under Zadvydas, after the end of the six month "presumptively reasonable" period of post-order detention, Zadvydas, 533 U.S. at 701, 121 S.C!. at 2504-05, Aidouni may obtain review of his detention ifhe provides the Court with "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. Once Aidouni provides "good reason" to believe removal unlikely, the Government must then respond "with evidence sufficient to rebut that showing." Id. As the length of post-order detention increases, removal must be likely within a correspondingly briefer period, "for the detention to remain reasonable." Id.
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97. Aidouni has been detained in excess of six months since his final administrative order.
9S. There is not a significant likelihood that Aidouni can be removed from the United States in the reasonably foreseeable future.
99. Although it has been more than ten months since the final administrative decision in his case, the INS HQPDU has yet to correspond with Aidouni or to issue any decision regarding his detention.
100. Aidouni has cooperated and is cooperating with efforts to secure his removal from the country. His removal is difficult because he lacks identity documents, and cannot prove his Algerian nationality to the satisfaction of that country's embassy.
101. There is good reason to believe that removal is unlikely in the reasonably foreseeable future. Aidouni has been detained by the INS for three years without any travel documents being issued in his case, despite the government's efforts over the past three years. Ex. B(5), B(6), B(7), B(S) and B(13). While Aidouni is a citizen of Algeria, that country has shown itself unlikely to accept his return.
102. Given the Government's inability to obtain travel documents for the past three years, and the reason for the Algerian government's unwillingness to issue travel documents, it is unlikely that the situation will change in the reasonably foreseeable future. Moreover, in light ofthe length of time since his order of removal, and the length oftime that the Government has been seeking travel documents, his removal would have to be irnminent for his continued detention to remain reasonable. Since his removal is not imminent, Aidouni has shown "good reason to believe" that he will not be removed in the reasonably foreseeable future.
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103. Because Aidouni has given the Court "reason to believe" that he cannot be removed in the reasonably foreseeable future, his detention is not authorized by statute unless the Government can rebut that showing.
104. A writ of habeas corpus should therefore issue, requiring the Defendants Brian Perryman and John Ashcroft, to show cause why there is a significant likelihood that the Petitioner Mohammed Aidouni can be removed in the reasonably foreseeable future, such that his detention remains reasonable and authorized by statute; and to show cause why he should not be released from detention immediately, subject to appropriate conditions.
WHEREFORE, Petitioner, Mohannned Aidouni, requests that this Court grant his Petition for a Writ of Habeas Corpus and order Respondents, John Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, to release Mohammed Aidouni from his unlawful custody immediately and for such further and other relief as this Court deems just and appropriate.
COUNT THREE
(PETITION FOR WRIT OF HABEAS CORPUS FOR MAITHAM ALZEHRANI)
105. Alzehrani adopts and realleges Paragraphs I through 48 as iffully set forth herein.
106. This Count Three is brought individually by Petitioner Maitham Alzehrani.
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107. Alzehrani entered the United States on August 18, 1993, as a refugee, fleeing persecution in Iraq. Ex. C(I). He thereafter became a Lawful Permanent Resident, on June 16, 1996. Id.
108. Because Alzehrani was permitted by the Respondents to enter and to reside in the United States, he effectuated a legal "entry" into the United States.
109. On December 15,2000, the Respondents issued a Notice to Appear against Petitioner. Ex. C(I). The Respondents alleged that Alzehrani was removable for committing crimes involving moral turpitude, for committing an aggravated felony, and under 8 U.s.C. §I 227(a)(2)(E)(i) for a crime involving domestic violence. The bases for these charges were convictions for unlawful restraint and domestic battery in 1997, and criminal sexual assault in 1998. Id. Pursuant to these charges, Alzehrani was ordered removed on August 20, 2001. Ex. C(2). He did not appeal and the order thus became a final administrative order of removal.
110. Alzehrani has been detained by the Respondents since April 13, 200 I. At this point, the INS has detained him for fourteen months, more than a year of which is subsequent to the entry of the order of removal against him.
111. On October 3, 2001, shortly after the Supreme Court's Zadvydas decision, Respondents issued a decision to continue to detain Alzehrani. Ex. C(3). The INS said that it was continuing to detain him because (I) he hadn't presented clear plans on where to live and how to support himself once released, (2) he had displayed an "escalating pattern of violence," and (3) he had not demonstrated that he is "no longer a threat to society." Id.
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r·
112. The Government's own findings at the time of the October 2001 decision to continue detention were that it was "extremely unlikely" that travel documents could be obtained for Mr. Alzehrani. Ex. C(4) at pp. I and 5, C(5) and C(6).
113. On May 2,2002, the HQPDU issued a decision to continue to detention of Alzehrani. This time, the INS HQPDU denied release because "[t]he INS has had some success in securing travel documents for Iraqi nationals. A request for a travel document was sent out to the Iraqi Interest Section on December 14,2002 [sic]. It is currently pending." Ex. C(7).
114. On May 10, 2002, Alzehrani, through counsel, renewed his request for release under Zadvydas with the HQPDU with supporting documentation. Ex. C(8) at pp. 1-9.
115. On June 6, 2002, the HQPDU responded by informing Alzehrani that it was holding his removal period "in suspense" pending submission - again - of evidence that he was cooperating in securing his own deportation. Ex. C(9) and C(1 0).
116. Alzehrani has cooperated, and is willing to cooperate with efforts to secure his removal. Ex. C(10). Through counsel, Alzehrani has contacted the Iraqi Interests Section, but without success or response. Ex. C(II).
117. Respondents are unable to remove Alzehrani to his country of origin, Iraq. Ex. C(12) and C(13) at pp. 2, 6 and 9. The United States does not have diplomatic relations with Iraq; removing an Iraqi is as difficult as removing an individual from Cambodia, Cuba, Vietnam and other countries. Ex. C(13) at pp. 2, 6 and 9. Respondents have been unable to remove Alzehrani for the past year, and will be unable remove him to Iraq for the foreseeable future.
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118. In the past year, the INS sent a letter to the Iraqi Interest Section on August 22, 200 I, over one year ago. The letter requested the Iraqi government's "prompt attention," explaining that he was detained at government expense. Ex. C(5). The INS has failed to repeat its request to the Iraqi Interest Section.
119. It appears that the Government also requested a travel document from the Algerian government, though this would appear to be in error. Ex. C(6).
120. As explained above, Alzehrani, has cooperated and is cooperating with efforts to secure his removal from the country. His removal is difficult, for obvious reasons; his native country ofIraq has extremely hostile relations with the United States, and generally refuses to accept repatriated individuals.
121. Because Alzehrani cannot be removed from the United States in the reasonably foreseeable future, his detention is not authorized by statute.
122. Under Zadvydas, after the end ofthe six month "presumptively reasonable" period of post-order detention, Zadvydas, 533 U.S. at 701,121 S.C!. at 2504-05, Alzehrani may obtain review of his detention ifhe provides the Court with "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. Once Alzehrani provides "good reason" to believe removal unlikely, the Government must then respond "with evidence sufficient to rebut that showing." !d. As the length of post-order detention increases, removal must be likely within a correspondingly briefer period, "for the detention to remain reasonable." Id.
123. Alzehrani has been detained in excess of six months since his final administrative order.
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124. There is good reason to believe that removal is unlikely in the reasonably foreseeable future. Alzehrani has been detained by the INS for over a year without any travel documents being issued in his case. Alzehrani has not delayed the issuance of such travel documents by failing to cooperate. Indeed, through counsel, Alzehrani has contacted the Iraqi Interests Section, but has not received a response. The difficulty or impossibility of arranging for removal thus is occasioned by Alzehrani's country of origin, Iraq, not by his lack of cooperation. Ex. C(4), C(12) and C(13) at pp. 2,6 and 9.
125. It is substantially unlikely that Iraq will accept his removal in the reasonably foreseeable future. Indeed, the INS itself concluded that it is "extremely unlikely" that travel documents can be obtained for Mr. Alzehrani.
126. Because Alzehrani can show that he has been detained for a significant length of time without travel documents being issued, that this is not due to his failure to cooperate, and that the explanation for this failure is due to the Iraqi government's poor relations with the United States, a fact unlikely to be altered in the near future, he has shown "good reason to believe" that he wiI! not be removed in the reasonably foreseeable future.
127. Because Alzehrani has given the Court "reason to believe" that he cannot be removed in the reasonably foreseeable future, his detention is not authorized by statute unless the Government can rebut that showing.
128. A writ of habeas corpus should therefore issue, requiring the Defendants Brian Perryman and John Ashcroft, to show cause why there is a significant likelihood that the Petitioner Jalal Alzehrani can be removed in the reasonably foreseeable future, such that his detention remains reasonable and authorized by statute; and to show cause why he should not be
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released from detention immediately, subject to appropriate conditions. WHEREFORE, Petitioner, Maitham Alzehrani, requests that this Court grant his
Petition for a Writ of Habeas Corpus and order Respondents, John Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, to release Maitham Alzehrani from his unlawful custody immediately and for such further and other relief as this Court deems just and appropriate.
COUNT FOUR
(PETITION FOR WRIT OF HABEAS CORPUS FOR KEOVONGSACK PONGPHRACHANXAY)
129. Pongphrachanxay adopts and realleges Paragraphs I through 48 as if fully set forth herein.
130. This Count Four is brought individually by Petitioner Pongphrachanxay. 131. Pongphrachanxay entered the United States as an immigrant on August 29, 1981. Ex. D(I). He was born in Laos, but entered the United States through Thailand, where his family and he were living in a refugee camp. Ex. D(2). 132. The INS began removal proceedings against Pongphrachanxayon November 9, 2001, because ofPongphrachanxay's 1997 conviction for Armed Robbery and his 1995 conviction for Robbery. 133. Pongphrachanxay did not contest the charges of removability against him, and was ordered removed on December 20,2001. Ex. D(3). This decision was not appealed, and became an administratively final order of removal.
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134. Because Laos does not accept deportees back into Laos, Pongphrachanxay cannot be physically removed to Laos.
135. On March 18,2002, the Chicago District of the INS notified Pongphrachanxay that it would review his custody on April 18, 2002. Ex. D(4). It invited him to submit documents and other evidence, showing why he is not a danger to the community, and should be released.
136. Pongphrachanxay's request was apparently denied, though he was not notified ofthis fact.
137. The next communication received by Pongphrachanxay was a letter from the HQPDU, informing him that his removal period was being "suspended" until he submitted evidence that he was cooperating in securing his own removal to Laos. Ex. D(5). This letter was sent on May 21, 2002.
138. As the INS knows, it is impossible for individuals to be removed to Laos. Any efforts that Pongphrachanxay would make would clearly be futile.
139. Subsequent to this suit being filed, the HQPDU informed Pongphrachanxay by mail that it had concluded that his removal "does not appear reasonably foreseeable at this time." Ex. D(6).
140. However, in the same "Release Notification" letter, the INS stated that Pongphrachanxay would be released only after paying a bond of$20,000. Ex. D(6).
141. Pongphrachanxay cannot pay the bond imposed, and the INS apparently will not release him without payment ofthat bond. This results in his continued detention.
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142. Pongphrachanxay has not been informed ofthe manner in which the bond amount was arrived at, nor of any means of appealing the bond. The bond was set without notice or reason. There is no reason, compelling or otherwise, for the INS to require a bond. Moreover, the INS has not stated if, when or how Pongphrachanxay may redeem the bond.
143. Pongphrachanxay has cooperated and is cooperating with efforts to secure his removal from the country. His removal is impossible because Laos refuses to accept repatriated individuals.
144. Under Zadvydas, after the end ofthe six month "presumptively reasonable" period of post-order detention, Zadvydas, 533 U.S. at 701,121 S.Ct. at 2504-05, Pongphrachanxay may obtain review of his detention ifhe provides the Court with "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. Once Pongphrachanxay provides "good reason" to believe removal unlikely, the Government must then respond "with evidence sufficient to rebut that showing." Id. As the length of post-order detention increases, removal must be likely within a correspondingly briefer period, "for the detention to remain reasonable." !d.
145. Pongphrachanxay has been detained in excess of six months since his final administrative order.
146. There is good reason to believe that removal is unlikely in the reasonably foreseeable future. Indeed, the INS has already determined that Pongphrachanxay cannot be removed in the reasonably foreseeable future. Ex. D(6).
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147. A writ of habeas corpus should therefore issue, requiring the Defendants Brian Perryman and John Ashcroft, to show cause there is a significant likelihood that the Petitioner Keovongsack Pongphrachanxay can be removed in the reasonably foreseeable future, such that his detention remains reasonable and authorized by statute; and to show cause why he should not be released from detention immediately, subject to appropriate conditions.
14S. Once the Govermnent concluded, in litigation, that Pongphrachanxay could not be removed in the reasonably foreseeable future, the Govermnent proceeded to order him released on payment of a bond of $20,000.
149. The Govermnent's current position can find support in neither the case law, nor the statute, nor the regulations.
150. In Shrode v. Rowoldt, 213 F.2d SIO (Sth Cir. 1954), the United States Court of Appeals for the Eighth Circuit addressed a similar statutory question. In Shrode, a postfinal removal order alien, who apparently could not be deported during what was then a sixmonth removal period (as compared to S U.S.C. §1231(a)(I)'s present ninety-day removal period), sought to enjoin the INS from requiring him to post a bond to secure his release, and sought to have the bond posted returned/invalidated. The court in Shrode noted that under the statutory structure in place at that time, the Attorney General had six months to effect an order of deportation, and during that period could require an alien to post bond to secure his release. However, at the end ofthat six months, the alien was subject to supervision upon release, but Congress did not authorize bond. Id. at Sl4 The court therefore held that the Attorney General could not require an alien to post bond as a condition of release following expiration of the sixmonth removal period. Id.
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151. The Board of Immigration Appeals concurred with the Eight Circuit's
analysis above in Matter of Toscano-Rivas, 14 I&N Dec. 523, 527 (B.I.A.1972), on reconsideration, 141&N Dec. 538, 539-41 (B.I.A.1973), ajJ'd on other grounds, 14 I&N Dec.
550,555 (A.G.1974) (Toscano-Rivas). The Board considered the INS's bond authority pursuant
to then § 242(d) of the Immigration and Nationality Act, 8 U.S.C. § 1252(d) (1952) (as compared
to the current 8 U.S.C. § 1231(a)(3», holding that statutory authority to require bond as a condition of release ends upon expiration ofthe six-month removal period.! !d. at 541. The
Board likened a district director's exercise ofthe power to prescribe bond, as delegated by the
Attorney General, to simultaneous application of the detention power conveyed by statute.
Accordingly, the Board concluded that "[w]here the power to detain ceases by time limitation, as
is the case under section 242(d) of the Act, the power to require bond as a condition of
enlargement ceases, too, Shrode v. Rowoldt, 213 F.2d 810 (C.A. 8, 1954)." Id.
152. Finally, while the Zadvydas Court permitted supervision under conditions, such that "the alien's release may and should be conditioned on any of the various forms of
supervised release that are appropriate in the circumstances, and the alien may no doubt be
returned to custody upon a violation of those conditions," Zadvydas, 533 U.S. at 701, 121 S.Ct.
at 2504, the Court's analysis implies that the individual would be released and then returned to
detention if the conditions were violated. An individual could not be "returned" to custody if never released.
Former INA § 242(d), 8 U.S.C. § 1252(d) (1952), is similar to 8 U.S.c. § 1231(a)(3). Section 1252(d) allowed the Attorney General to require an alien: "(1) to appear from time to time before an immigration officer for identification; (2) to submit, if necessary, to medical and psychiatric examination at the expense of the United States; (3) to give information under oath as to his nationality, circumstances, habits, associations, and activities, and such other infonnation, whether or not related to the foregoing, as the Attorney General may deem fit and proper; and (4) to conform to such reasonable written restrictions on his conduct or activities as are prescribed by the Attorney General in his case."
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153. The statute is likewise unhelpful to the Government. Section 1231(a) of
Title 8 ofthe United States Code deals with detention of aliens ordered removed, and states, in
relevant part:
(3) Supervision after 90-day period
If the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General. The regulations shall include provisions requiring the alien -
(A) to appear before an immigration judge periodically for identification;
(B) to submit, if necessary, to a medical and physical examination at the expense of the United States government;
(C) to give infonnation under oath about the alien's nationality, circumstances, habits, associations, and activities, and other infonnation the Attorney General considers appropriate;
(D) to obey reasonable written restrictions on the alien's conduct or activities that the Attorney General prescribes for the alien.
Section 1231(a)(6) provides that an alien who has been ordered removed due to a conviction for
an aggravated felony "may be detained beyond the removal period and, if released [from INS
custody], shall be subject to the tenns of supervision in paragraph (3) [above]." Thus, according
to the plain language ofthe statute, and consistent with the Supreme Court's holding in
Zadvydas, a non-removable alien is subject to supervision under the conditions set out in §1231(a)(3). See also Ma, 257 F.3d 1095 (9th Cir. 2001) (enunciating supervisory conditions
pennissible under § 1231(a)(3». Those conditions say nothing about giving the Attorney
General or the INS the authority to impose a bond before releasing a non-removable alien. Cf. 8
U.S.C. §§ 1231 (c)(2)(C)(i)-(iii) (provides for bond and conditions of release in separate
subsections for alien who has a final order of deportation, but receives a stay of removal).
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011.1096766.3

154. The absence of any bond provision in the statute is strongly indicative that requiring a bond is not permitted. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion." INS v. CardozaFonseca, 480 U.S. 421, 432 (1987). Congress's failure to explicitly permit the use of bond in 8 U.S.C. § l23l(a)(3) is strong evidence that it simply chose not to permit the use of bond in that provision. Cf 8 U.S.C. § l226(a)(2)(A) (permitting INS to set bond as a condition of release for aliens in deportation proceedings, pending final order of removal); 8 U.S.C. §123l(c)(2)(C) (bond authorized as a condition of release for aliens who received a final order of deportation, but then received a stay of removal).
155. Moreover, the power to impose a bond is the power to detain indefinitely. This was the conclusion of the Shrode Court: "When a party is required to post bail his sureties in effect become his jailers and the power to require bail connotes the power to imprison in the absence of such bail." !d.; see also United States ex rei. Heikkinen v. Gordon, 190 F.2d 16 (8th Cir. 1951) ("The rules and rights ofthe parties in criminal and civil bail are similar in many respects. The accused or principle in either case is released from custody of the law and placed in the custody oJkeepers of his own selection..." (emphasis added». Thus, the Shrode Court concluded that upon expiration of the six-month removal period, "[the Attorney General] may not detain, he may not imprison, and hence, it is illogical to hold that he may nevertheless require the posting of bail." Shrode, 213 F.2d at 814.
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156. The bond imposed in the case ofMr. Pongphrachanxay goes beyond the statutory and regulatory authorization, is unreasonable, and constitutes the continued detention of Mr. Pongphrachanxay by other means.
WHEREFORE, Petitioner, Keovongsack Pongphrachanxay, requests that this Court grant his Petition for a Writ of Habeas Corpus and order Respondents, John Ashcroft, Attorney General ofthe United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, to release Keovongsack Pongphrachanxay from his unlawful custody immediately and for such further and other relief as this Court deems just and appropriate.
COUNT FIVE
(PETITION FOR WRIT OF HABEAS CORPUS FOR DEN SON)
157. Son adopts and realleges Paragraphs 1 through 48 as iffully set forth herein.
158. This Count Five is brought individually by Petitioner Son. 159. Son entered the United States as an immigrant on May 23,1991. Ex. E(I). He came to the United States to look for his father, whom he believes to have been a soldier in Vietnam. Son is a native and citizen of Vietnam, but is Amerasian by ethnicity. 160. Because Son was permitted by the Respondents to enter and to reside in the United States, he effectuated a legal "entry" into the United States. 161. In January 1992, Son was convicted of home invasion and was sentenced to a prison. Ex. E(1) at p. 1.
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162. While incarcerated, the INS began deportation proceedings against Son. Id. He was ordered deported on February 22, 1995, and the Board ofImmigration Appeals dismissed his appeal on August 3,1995. This is the final administrative removal order.
163. Son was then released from his state sentence and transferred to INS custody on June 8, 2001. He has been in INS custody since - 15 months.
164. On September 22,2001, he was sent a notice, by "institutional mail," that his 90 day file review would be conducted that very day. Ex. E(2). INS Officer Anthony Figueroa signed a certificate of service to that effect on September 22,2001. Consequently, the INS did not give Son notice of his 90 day file review.
165. The INS has detained Son for over 15 months, all of which has been after the entry of the final order of deportation.
166. On information and belief, the INS misplaced Son's file. 167. Son has cooperated, and is willing to cooperate with efforts to secure his removal. Ex. E(3). Through counsel, Son requested travel documents from his Embassy in Vietnam. Ex. E(3). 168. Son has sought release both from the Chicago INS Office and from the HQPDU. Ex. E(4) and E(5). 169. There is no reasonable likelihood that the Son can be removed from the United States in the reasonably foreseeable future as the United States has no repatriation agreement with Vietnam. Ex. C(13) at p. 10. 170. Subsequent to this suit being filed, the HQPDU informed Son that it had concluded that his removal "does not appear reasonably foreseeable at this time." Ex. E(7).
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171. However, in the same "Release Notification" letter, the lNS stated that Son would be released only after paying a bond of $25,000. Id.
172. Son has not been able to pay the bond imposed, and the INS apparently will not release him without payment of that bond. This results in his continued detention.
173. Son has not been informed ofthe manner in which the bond amount was arrived at, nor of any means of appealing this bond amount. The bond was set without notice or reason. There is no reason, compelling or otherwise, for the lNS to require a bond. Moreover, the lNS has not stated if, when or how Son may redeem the bond.
174. Because Den Son cannot be removed from the United States in the reasonably foreseeable futnre, his detention is not authorized by statute. A writ of habeas corpus should therefore issue, requiring the Defendants Brian Perryman and John Ashcroft, to show cause why the Petitioner Den Son's detention is authorized by statute, and why he should not be released from detention immediately, subject to appropriate conditions.
175. Under Zadvydas, after the end of the six month "presumptively reasonable" period of post-order detention, Zadvydas, 533 U.S. at 701, 121 S.Ct. at 2504-05, Son may obtain review of his detention ifhe provides the Court with "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable futnre." Id. Once Son provides "good reason" to believe removal unlikely, the Government must then respond "with evidence sufficient to rebut that showing." Id. As the length of post-order detention increases, removal must be likely within a correspondingly briefer period, "for the detention to remain reasonable." Id.
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176. Son has been detained in excess of six months since his final administrative order.
177. There is good reason to believe that removal is unlikely in the reasonably foreseeable future. Indeed, the INS has already determined that Son cannot be removed in the reasonably foreseeable future. Ex. E(6).
178. A writ of habeas corpus should therefore issue, requiring the Defendants Brian Perryman and John Ashcroft, to show cause there is a significant likelihood that the Petitioner Son can be removed in the reasonably foreseeable future, such that his detention remains reasonable and authorized by statute; and to show cause why he should not be released from detention immediately, subject to appropriate conditions.
179. Once the Govemment concluded, in litigation, that Son could not be removed in the reasonably foreseeable future (a conclusion barely disputable), the Government proceeded to order him released on payment of a bond of $25,000.
180. The Government's current position can find support in neither the case law, nor the statute, nor the regulations.
181. In Shrode v. Rowoldt, 213 F.2d 810 (8th Cir. 1954), the United States Court of Appeals for the Eighth Circuit addressed a similar statutory question. In Shrode, a postfinal removal order alien, who apparently could not be deported during what was then a sixmonth removal period (as compared to 8 U.S.C. §1231(a)(l)'s present ninety-day removal period), sought to enjoin the INS from requiring him to post a bond to secure his release, and sought to have the bond posted returned/invalidated. The court in Shrode noted that under the statutory structure in place at that time, the Attorney General had six months to effect an order of
38
011.1096766.3

deportation, and during that period could require an alien to post bond to secure his release. However, at the end of that six months, the alien was subject to supervision upon release, but Congress did not authorize bond. !d. at 814 The court therefore held that the Attorney General could not require an alien to post bond as a condition of release following expiration of the sixmonth removal period. !d.
182. The Board ofImmigration Appeals concurred with the Eight Circuit's analysis above in Matter a/Toscano-Rivas, 14 I&N Dec. 523, 527 (B.I.A.1972), on reconsideration, 14 I&N Dec. 538, 539-41 (B.I.A1973), affd on other grounds, 14 I&N Dec. 550,555 (AG.1974) (Toscano-Rivas). The Board considered the INS's bond authority pursuant to then § 242(d) of the Immigration and Nationality Act, 8 U.S.C. § 1252(d) (1952) (as compared to the current 8 U.S.C. § 1231(a)(3)), holding that statutory authority to require bond as a condition of release ends upon expiration of the six-month removal period.2 ld. at 541. The Board likened a district director's exercise of the power to prescribe bond, as delegated by the Attorney General, to simultaneous application ofthe detention power conveyed by statute. Accordingly, the Board concluded that "[w]here the power to detain ceases by time limitation, as is the case under section 242(d) ofthe Act, the power to require bond as a condition of enlargement ceases, too, Shrode v. Rowoldt, 213 F.2d 810 (C.A 8, 1954)." ld.

2

Former INA § 242(d). 8 U.S.C. § 1252(d) (1952), is similar to 8 U.S.c. § 1231(a)(3).

Section 1252(d) allowed the Attorney General to require an alien: "(I) to appear from time to time before

an inunigration officer for identification; (2) to submit, if necessary, to medical and psychiatric

examination at the expense of the United States; (3) to give information under oath as to his nationality,

circumstances, habits, associations, and activities, and such other information, whether or not related to

the foregoing, as the Attorney General may deem fit and proper; and (4) to conform to such reasonable

written restrictions on his conduct or activities as are prescribed by the Attorney General in his case."

39
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183. Finally, while the Zadvydas Court permitted supervision under conditions,
such that "the alien's release may and should be conditioned on any ofthe various forms of
supervised release that are appropriate in the circumstances, and the alien may no doubt be
returned to custody upon a violation of those conditions," Zadvydas, 533 U.S. at 701, 121 S.Ct.
at 2504, the Court's analysis implies that the individual would be released and then returned to
detention if the conditions were violated. An individual could not be "returned" to custody if
never released. 184. The statute is likewise unhelpful to the Government. Section 1231(a) of
Title 8 of the United States Code deals with detention of aliens ordered removed, and states, in
relevant part:
(3) Supervision after 90-day period
If the alien does not leave or is not removed within the removal period, the alien, pending removal, shall be subject to supervision under regulations prescribed by the Attorney General. The regulations shall include provisions requiring the alien -
(A) to appear before an immigration judge periodically for identification;
(B) to submit, if necessary, to a medical and physical examination at the expense of the United States government;
(C) to give information under oath about the alien's nationality, circumstances, habits, associations, and activities, and other information the Attorney General considers appropriate;
(D) to obey reasonable written restrictions on the alien's conduct or activities that the Attorney General prescribes for the alien.
Section 1231(a)(6) provides that an alien who has been ordered removed due to a conviction for
an aggravated felony "may be detained beyond the removal period and, if released [from INS
custody], shall be subject to the terms of supervision in paragraph (3) [above]." Thus, according
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to the plain language of the statute, and consistent with the Supreme Court's holding in Zadvydas, a non-removable alien is subject to supervision under the conditions set out in §1231(a)(3). See also Ma, 257 F.3d 1095 (9'h Cir. 2000) (enunciating supervisory conditions permissible under § l231(a)(3)). Those conditions say nothing about giving the Attorney General or the INS the authority to impose a bond before releasing a non-removable alien. Cf. 8 U.S.C. §§ 1231 (c)(2)(C)(i)-(iii) (provides for bond and conditions of release in separate subsections for alien who has a final order of deportation, but receives a stay of removal).
185. The absence of any bond provision in the statute is strongly indicative that requiring a bond is not permitted. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion." INS v. CardozaFonseca, 480 U.S. 421, 432,107 S.Ct. 1207,1212 (1987). Congress's failure to explicitly permit the use ofbond in 8 U.S.C. § 1231(a)(3) is strong evidence that it simply chose not to permit the use ofbond in that provision. Cf. 8 U.S.C. § 1226(a)(2)(A) (permitting INS to set bond as a condition of release for aliens in deportation proceedings, pending final order of removal); 8 U.S.C. §1231(c)(2)(C) (bond authorized as a condition of release for aliens who received a final order of deportation, but then received a stay of removal).
186. Moreover, the power to impose a bond is the power to detain indefinitely. This was the conclusion ofthe Shrode Court: "When a party is required to post bail his sureties in effect become his jailers and the power to require bail connotes the power to imprison in the absence of such bail." Id.; see also United States ex re!. Heikkinen v. Gordon, 190 F.2d 16 (8th Cir. 1951) ("The rules and rights ofthe parties in criminal and civil bail are similar in many
41
011.1096766.3

respects. The accused or principle in either case is released from custody of the law and placed in the custody o/keepers of his own selection..." (emphasis added». Thus, the Shrode Court concluded that upon expiration of the six-month removal period, "[the Attorney General] may not detain, he may not imprison, and hence, it is illogical to hold that he may nevertheless require the posting of bail." Shrode, 213 F.2d at 814.
187. The bond imposed in the case of Mr. Son goes beyond the statutory and regulatory authorization, is unreasonable, and constitutes the continued detention ofMr. Son by other means.
WHEREFORE, Petitioner, Den Son, requests that this Court grant his Petition for a Writ of Habeas Corpus and order Respondents, John Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, to release Den Son from his unlawful custody immediately and for such further and other relief as this Court deems just and appropriate.
COUNT SIX
(PETITION FOR WRIT OF HABEAS CORPUS ON BEHALF OF PETITIONERS AND A CLASS OF ALL OTHERS SIMILARLY SITUATED - VIOLATION OF DUE PROCESS RIGHTS (CLASS ACTION»
188. Petitioners adopt and reallege Paragraphs 1 through 187 as though fully set forth herein.
189. The INS' rules and regulations as written violate the class members' substantive and procedural Due Process rights.
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190. The regulatory scheme promulgated by the Government at 8 C.F.R. §§241.4, 241.5, 241.13, and 241.14, as described in detail above in paragraphs 26-38, permits the continued detention of individuals when there is no substantial likelihood that they can be removed or deported from the United States in the reasonably foreseeable future.
191. This regulatory scheme provides inadequate procedural safeguards to prevent individuals from being wrongfully detained past a point that would be reasonable and legal. Such safeguards might include review by an independent fact finder, an enforceable timeframe for decision making, or appellate review at the administrative level.
192. This regulatory scheme improperly shifts the burden of proof onto detainees to disprove a negative by requiring detainees to affirmatively show their cooperation with the removal process. While the Supreme Court requires (in the habeas context) an individual to offer some showing that they are unlikely to be removed in the reasonably foreseeable future, this does not justify requiring unnecessary and burdensome administrative acts.
193. The regulatory scheme promulgated by the Government at 8 C.F.R. §§241.4, 241.5, 241.13, and 241.14, as described above in paragraphs 26-38, improperly fails to take into account the Zadvydas Court's ruling that "as the period of post-removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink." Zadvydas, 533 U.S. at 701,112 S.Ct. at 2505.
194. The regulatory scheme promulgated by the Government at 8 C.F.R. §§241.4, 241.5, 241.13, and 241.14, as described above in paragraphs 27-38, improperly fails to account for the Zadvydas factors during the INS's initial determination to continue detention, which is supposed to take place at the 90 days after the final order of removal. 8 C.F.R.
43
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§241.4(e), (t), (h). Particularly where the initial review takes place after an individual has been detained for six months since their order of removal, it is improper that the regulations require continued detention of individuals who must be released under Zadvydas, solely because they cannot satisfy the other requirements of8 C.F.R. §241.4(e).
195. The consistent and foreseeable detention of individuals not authorized by statute to be detained is - even if not intended by the framers of these regulations - a clear and unavoidable consequence of their structure.
196. Where the government provides itself with no set time frame within which to decide whether to release individuals, and when such time frame may extend into months or years, such detention may fairly be said to be indefinite.
197. The above factors, taken together, create a pattern whereby individuals are consistently and regularly detained for periods of time after the end of the "presumptively reasonable" six month period after entry of a removal order, even where there is clearly no possibility of removal from the United States. This additional, unnecessary detention is not authorized by statute.
198. It is clear that non-citizens are protected by the Due Process clause. Yamataya v. Fisher, 189 U.S. 86,23 S.Ct. 611 (1903), Plyler v. Doe, 457 U.s. 202,102 S.Ct. 2382 (1987). It is just as clear that lawful permanent residents have an even stronger claims to Constitutional protections. Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321 (1982); Kwang Rai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472 (1953). Due Process includes both procedural and substantive Due Process.
44
011.1096766.3

A. Procedural Due Process. 199. Procedural due process requires a person to be allowed a hearing of some
kind. Mathews v. Eldridge, 424 U.S. 319, 332-333, 96 S.Ct. 893,901-902 (1976). The process due depends on three factors:
[fJirst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. !d. 424 U.S. at 335,96 S.Ct. at 903. 200. The private interest affected in this case is liberty. This interest is the personal, physical liberty of individuals who have entered and formed ties with the community of the United States. There can be no more important interest of a person than liberty. 20l. There is a significant risk of the erroneous deprivation of rights in this case, particularly as delay in release implicates a continuing deprivation of rights. 202. The procedures adopted by regulation do not incorporate safeguards to ensure that erroneous deprivation does not occur; indeed, these regulations practically assure that erroneous deprivation will occur. There would be some cost associated with safeguarding detainees' liberty interests, but it would be fairly minimal, as the Immigration Court infrastructure already exists and is capable of weighing these matters. 203. Considered as a whole, the risk of deprivation is so great, and the procedures here so absent in any concern for that risk, that these procedures are constitutionally insufficient, and violate the Procedural Due Process prong of the Fifth Amendment.
45
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204. The imposition of a bond also violates Procedural Due Process. The private interest affected in this case is liberty. These interests are the personal, physical liberty of individuals who have entered and formed ties with the community of the United States. There can be no more important interest of a person than liberty.
205. There is a significant risk of the erroneous deprivation of rights in this case. Bond decisions are made by individual district directors, with no involvement by an immigration judge or other impartial decision maker. "This structural situation creates a powerful potential for bias against aliens in the INS's parole determinations." St. John v. McElroy, 917 F. Supp. 243, 251 (S.D.N.Y. 1996). "Due to political and community pressure, the INS, an executive agency, has every incentive3 to continue to detain aliens with aggravated felony convictions, even though they have served their sentences, on the suspicion that they may continue to pose a danger to the community." Id. Accord, Morisath v. Smith, 988 F. Supp. 1333, 1340 (W.D. Wash. 1997); Ehekhor v. Aljets, 979 F. Supp. 640, 643-44 (N.D. Ill. 1997); CruzTaveras v. McElroy, 1996 WL 455012 at *18 (S.D.N.Y.) (decrying "evidence of 'cookie cutter' parole adjudication at the INS").
206. The bond procedures do not incorporate safeguards to ensure that erroneous deprivation does not occur; indeed, these regulations practically assure that erroneous deprivation will occur. There would be some cost associated with safeguarding detainees' liberty interests, but it would be fairly minimal, as the Immigration Court infrastructure already exists and is capable of weighing these matters.

3

For an extensive discussion afINS incentives to continue to detain aliens in custody,

rather than to consider them individually for release, see "Justice Delayed is Justice Denied: A Proposal

for Ending the Unnecessary Detention of Asylum Seekers," 12 Harv. Hum. Rts. J. 197,239-246 (1999).

Among the incentives discussed are bureaucratic performance concerns, bureaucratic ease and individual

officers' instinct for self-preservation. Id.

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207. Moreover, the imposition of a bond violates due process by inviting arbitrary enforcement. See Foucha v. Louisiana, 504 U.S. 71, 80 (1992) ("[fJreedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action."). There is no guidance to immigration officials regarding their decision to impose a bond condition or what amount of bond is appropriate in particular cases.
208. Considered as a whole, the risk of deprivation is so great, and the procedures here so absent in any concern for that risk, that these procedures are constitutionally insufficient, and violate the Procedural Due Process prong of the Fifth Amendment. B. Substantive Due Process.
209. Under substantive due process, the government cannot deprive a person of his liberty "unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 1447 (1993). There is no relation between continued detention and the INS' goal of removing detainees from the United States. Zadvydas, 533 U.S. at 690,121 S.Ct. at 2499, quoting in part, Jackson v. Indiana, 406 U.S. 715, 738,92 S.Ct. 1845, ("...the first justification - preventing flight risk - is weak or nonexistent where removal seems a remote possibility at best...where detention's goal is no longer practically attainable, detention no longer 'bear[s] [a] reasonable relation to the purpose for which the individual [was] committed."')
210. The Supreme Court held in Zadvydas that the government interests at stake here were not compelling. The Court considered two interests asserted by the government: ensuring the alien's appearance at future proceedings, and preventing danger to the community. The first interest was held to be "weak or nonexistent" when an individual cannot be deported in
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the reasonably foreseeable future. Zadvydas, 533 U.S. at 690,121 S.Ct. at 2499. The second interest, preventative detention, could only be upheld where "limited to special1y dangerous individuals and subject to strong procedural protections." Id., 533 U.s. at 690-691, 121 S.Ct. at 2499. Such protections, as the Supreme Court held in Zadvydas, are not incorporated here. Id., 533 U.S. at 691,121 S.Ct. at 2499-2500.
211. These regulations are not narrowly tailored, given the paucity of safeguards to protect liberty interests, as noted above.
212. The regulations, including the requirement ofa bond, are also not narrowly tailored, in that the delays inherent in the current system makes inevitable that individuals not properly subject to continued detention fail to be released in a timely manner.
213. Even if the interests involved here are not fundamental, these regulations are not "rationally related" to a legitimate government interest. There is no legitimate interest in punishing these non-citizens; if immigration detention were punishment, the double jeopardy clause would be implicated. The only legitimate interest involved here is the government's ability to effectuate deportation, and these regulations are not rationally related to that objective, since these individuals carmot be removed from the United States.
214. As discussed, the INS' imposition of a bond bars a detainee's 'release'. See Shrode, 213 F.2d at 813-14; Matter o/Toscano-Rivas, 14 I & N Dec. 523, 527 (B.I.A.1972), on reconsideration, 14 I & N Dec. 538, 539-41 (B.I.A.1973), affd on other grounds, 14 I & N Dec. 550, 555 (A.G.1974) (distinguishing between detention and bond release conditions). The ability to impose bond is the ability to detain.
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215. The imposition of a bond violates Substantive Due Process. Individuals who have entered the United States have a protected liberty interest in not being detained, which cannot be infringed "unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301-302,113 S.Ct. 1439, 1447 (1993).
216. The Govermnent can show no compelling interest here. The Supreme Court in Zadvydas rejected both ofthe regulatory goals - "ensuring the appearance of aliens at future immigration proceedings and preventing danger to the community" - proffered by the INS in support of detention. Zadvydas, 121 S.Ct. at 2499-2500. "[B]y definition the first justification--preventing flight--is weak or nonexistent where removal seems a remote possibility at best. As this Court said in Jackson v. Indiana, 406 U.S. 715[, 738] (1972), where detention's goal is no longer practically attainable, detention no longer 'bears a reasonable relation to the purpose for which the individual was committed.'" Zadvydas, 121 S.Ct. at 2499.
217. The second justification - protecting the community - too, must fail according to Zadvydas. The alien's risk of committing further crimes and posing a danger to the community should be measured by the civil confinement standard espoused by the Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072,138 L.Ed.2d 501 (1997). Zadvydas, 121 S.Ct. at 2499. Zadvydas, like Hendricks, involved proceedings that were civil, not criminal, and were non-punitive in purpose and effect. Id. The Zadvydas Court also stated that the duration of an alien's indefinite detention, like civil confinement, "is not limited, but potentially permanent. Id. Where the duration of civil confinement is not limited, but potentially permanent or indefinite, "[the Supreme Court] ha[s] ...demanded that the dangerousness rationale be accompanied by some other special circumstance, such as mental illness, that helps to create
49
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the danger." Id., citing, Hendricks, 521 U.S. at 358,356. 218. Even if the Court finds the Govenunent's interest compelling, the means
employed to promote and secure its interests are not narrowly tailored in order to meet strict scrutiny: "there is no question that the protection of the community could be accomplished by means that do not unduly hinder [Petitioners'] liberty [other than detention]." Duong v. INS, 118 F.Supp.2d 1059, 1066 (S.D. Cal. 2000). For example, the requirement that Petitioners appear in person periodically at a time and place specified, upon each and every request of the Service, is a more narrowly tailored method that serves the INS's interests while respecting Petitioners' fundamental right to liberty. See 8 U.S.C. § 1231(a)(3). This requirement appears to be sufficient to ensure Petitioners' appearances as the INS has not alleged that Petitioners have failed to meet this condition or violated any other conditions of release.
WHEREFORE, Petitioners, for themselves and for others similarly situated, request that this Court grant their Petition for a Writ of Habeas Corpus and order Respondents, John Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, to release them from unlawful custody immediately and for such further and other relief as this Court deems just and appropriate.
COUNT SEVEN
(PETITION FOR WRIT OF HABEAS CORPUS ON BEHALF OF PETITIONERS AND A CLASS OF ALL OTHERS SIMILARLY SITUATED - VIOLATION OF DUE PROCESS RIGHTS (CLASS ACTION»
219. Petitioners adopt and reallege Paragraphs I through 218 as though fully set forth herein.
220. Even if the regulatory scheme promulgated by the Govenunent at 8 C.F.R.
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§§241.4, 241.5, 241.13, and 241.14, as described above in paragraphs 27-38, does not violate the Due Process clause as written, it violates the class members' substantive and procedural Due Process rights as applied by the INS.
221. As applied, the Govermnent does not consider release of individuals who cannot be deported until well after the end of a presumptively reasonable period for removal. By regulation, the INS claims for itself a right to delay "in the exercise of its discretion" even initial consideration of release until the end of the removal period. 8 C.F.R. §241.13(d)(3). In practice, this delay is habitual, and results in individuals systematically being detained long after it is clear that they cannot be removed from the United States, and long after the end ofthe six month presumptively reasonable post-order period.
222. In practice, detainees are given no reasonable opportunity to be heard prior to an INS determination regarding their cooperation with efforts to secure removal, a determination that delays their release. Even if the absence of a pre-determination right to be heard is not aper se violation of Due Process, Due Process is offended when the INS ordinarily and consistently refuses to consider release of individuals due to alleged failure to cooperate with efforts to secure removal when (I) such efforts either would clearly have been futile or (2) evidence of reasonable efforts was already in possession of the Defendants.
223. The opportunity for a detainee to submit more evidence after an INS determination does not obviate or reduce the original Due Process problem. Forcing detainees to go through this futile post-determination process results in unreasonable and uunecessary delay in the release of detainees.
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224. Even if it is not a per se Due Process violation that the INS grants no right of administrative appeal or oversight regarding this crucial determination, Due Process is offended when (I) the Defendants apply this provision to individuals after the expiration of the six month presumptively reasonable period to secure removal and (2) the Defendants apply this provision to individuals from countries which habitually refuse to accept the return of deported individuals.
225. Under the currently employed regulatory scheme at 8 C.F.R. §§241.4, 241.5,241.13, and 241.14, as described above in paragraphs 27-38, members of the Plaintiff class are detained for unreasonable time periods even after it is clear that they cannot be removed from the United States. In such circumstances, their continued detention is without statutory authorization, and is therefore violative of Due Process.
226. Assuming arguendo that the absence of a fixed time frame does not constitute a per se Due Process violation, Due Process is offended where the INS ordinarily and persistently fails to release individuals whom it knows cannot be removed from the country in a timely manner.
227. With respect to bonds, the facts of the individuals before this Court amply demonstrate the arbitrary nature of the Goverrnnent's bond power. The Goverrnnent has given no explanation for the bonds of$20,000 and $25,000 bonds in the cases ofMr. Pongphrachanxay and Mr. Son. It has not explained its rationale in setting those bonds; why it felt such bonds were necessary; whether those individuals could take any other actions to make the bonds unnecessary; whether they could seek some reduction in the bond amounts; or what those individuals are to do if they are unable to pay the bonds.
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228. The regulations, including the imposition of a bond, as currently implemented, are "excessive in relation to the regulatory goal Congress sought to achieve... " United States v. Salerno, 481 U.S. 739, 747,107 S.Ct. 2095, 2101 (1987). As applied, they are not narrowly tailored to serve a compelling governmental interest.
229. Considered as a whole, the facts of these cases demonstrate that the risk of erroneous deprivation is so great, and the procedures here so absent in any concern for that risk, that these procedures are constitutionally insufficient, and violate the Procedural Due Process prong of the Fifth Amendment.
WHEREFORE, Petitioners, for themselves and for others similarly situated, request that this Court grant their Petition for a Writ of Habeas Corpus and order Respondents, John Ashcroft, Attorney General ofthe United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, to release them from unlawful custody immediately and for such further and other relief as this Court deems just and appropriate.
COUNT EIGHT
(COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ON BEHALF OF PETITIONERS AND A CLASS OF ALL OTHERS SIMILARLY SITUATED - VIOLATION OF DUE PROCESS RIGHTS (CLASS ACTION))
230. Petitioners adopt and reallege Paragraphs I through 229 as though fully set forth herein.
231. Pursuant to 28 U.S.C. §§ 2201 and 2202 and FED. R. CIv. P. 57 and 65, Petitioners, on behalf of themselves and all a class of all others similarly situated seek a declaration that the INS' rules and regulations discussed above violate the class members
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procedural and substantive Due Process rights. 232. An actual and substantial controversy having arisen between the parties,
and that controversy continuing to exist regarding their respective rights and duties, including without limitation the legality and constitutionality of the procedures currently employed by the Defendants, and whether the Defendants' practices and policies are arbitrary and capricious, Plaintiffs ask the Court to issue a decision regarding the respective rights and obligations ofthe parties.
233. Declaratory relief is necessary in that Defendants' practices go beyond the grant of statutory authority and violate the Constitution, and further, that Defendants' subregulatory practices are arbitrary and capricious.
234. The relief available in law is insufficient to cure the injury complained of herein, namely, continued detention without sanction oflaw.
235. Plaintiffs ask the Court to grant preliminary and permanent injunctive relief, ordering the Defendants to cease and desist from detaining members of the Plaintiff class after the end of the presumptively reasonable six month period after a final order of removal, pursuant to the current regulations; and ordering the Defendants to cease and desist from the subregulatory practices outlined above, which are arbitrary and capricious.
236. Plaintiffs ask the Court to grant Declaratory relief to the Plaintiff class, finding that the continued detention of the Plaintiff class after the end of a presumptively reasonable six month period is unauthorized by statute under the current regulatory scheme, because that scheme is violative of Due Process norms; that the Defendants' regulations and procedures are facially violative of the Due Process Clause of the Fifth Amendment; and that the
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Defendants sub-regulatory policies and practices are arbitrary and capricious.
WHEREFORE, Plaintiffs, on behalf ofthemselves and all others similarly
situated, request that this Court enter a judgment in its favor and against Defendants, John
Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director,
Immigration and Naturalization Service, Immigration and Naturalization Service, United States
Department of Justice, granting them the following relief:
A. Declaring that the continued detention of individuals past the six month "presumptively reasonable" period is beyond the authority granted to the Attorney General by statute, in the absence of constitutionally sufficient procedures;
B. Declaring that the Defendants' regulations and procedures are facially violative of the Due Process Clause of the Fifth Amendment;
C. Granting temporary and permanent injunctive relief ordering the Respondents to cease and desist from detaining members of the Plaintiff class after the end ofthe presumptively reasonable six month period after a final order of removal, pursuant to the rules and regulations currently enacted by the Defendants;
D. Grant preliminary and permanent injunctive relief, enjoining the Respondents from (1) failing to make a determination whether to continue detention before the expiration of 180 days after entry of the order of removal; (2) "suspending" the removal period for members of the Plaintiff class where efforts to secure removal would be futile, or where the detainee's file shows no evidence of non-cooperation; (3) refusing to consider the likelihood of removal in the reasonably foreseeable future at the first stage ofthe postorder detention process; (4) requiring members ofthe Plaintiff class to prove cooperation, where there is no evidence or indication of non-cooperation in securing removal; and (5) failing to consider the length of post-order detention in evaluating the possibility that removal can be effectuated or the effect of any purported noncooperation in securing removal; and
E. Grant such further and other relief as this Court deems just and appropriate.
55
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COUNT NINE (COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF ON BEHALF OF PETITIONERS AND
A CLASS OF ALL OTHERS SIMILARLY SITUATED - VIOLATION OF DUE PROCESS RIGHTS (CLASS ACTION»
237. Petitioners adopt and reallege Paragraphs I through 236 as though fully set forth herein.
238. Pursuant to 28 U.S.C. §2241, Petitioners seek a declaration that Defendants' regulations and procedures violate of the Due Process Clause as applied to the Plaintiff class.
239. An actual and substantial controversy having arisen between the parties, and that controversy continuing to exist regarding their respective rights and duties, including without limitation the legality and constitutionality of the procedures currently employed by the Defendants, and whether the Defendants' practices and policies are arbitrary and capricious, Plaintiffs ask the Court to issue a decision regarding the respective rights and obligations of the parties.
240. Declaratory relief is necessary in that Defendants' practices go beyond the grant of statutory authority and violate the Constitution, and further, that Defendants' subregulatory practices are arbitrary and capricious.
241. The relief available in law is insufficient to cure the injury complained of herein, namely, continued detention without sanction oflaw.
242. Plaintiffs ask the Court to grant preliminary and permanent injunctive relief, ordering the Defendants to cease and desist from detaining members of the Plaintiff class after the end ofthe presumptively reasonable six month period after a final order ofremoval,
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pursuant to the current regulations; and ordering the Defendants to cease and desist from the subregulatory practices outlined above, which are arbitrary and capricious.
243. Plaintiffs ask the Court to grant Declaratory relief to the Plaintiff class, finding that the continued detention of the Plaintiff class after the end of a presumptively reasonable six month period is unauthorized by statute under the current regulatory scheme, because that scheme is violative of Due Process norms; that the Defendants' regulations and procedures are violative of the Due Process Clause of the Fifth Amendment as applied; and that the Defendants sub-regulatory policies and practices are arbitrary and capricious.
WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, request that this Court enter a judgment in its favor and against Defendants, John Ashcroft, Attorney General of the United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, granting them the following relief:
A. Declaring that the continued detention of individuals past the six month "presumptively reasonable" period is beyond the authority granted to the Attorney General by statute, in the absence of constitutionally sufficient procedures;
B. Declaring that the Defendants' regulations and procedures are facially violative of the Due Process Clause of the Fifth Amendment;
C. Granting temporary and permanent injunctive relief ordering the Respondents to cease and desist from detaining members of the Plaintiff class after the end ofthe presumptively reasonable six month period after a final order of removal, pursuant to the rules and regulations currently enacted by the Defendants;
57
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D. Grant preliminary and permanent injunctive relief, enjoining the Respondents from (I) failing to make a determination whether to continue detention before the expiration of 180 days after entry of the order of removal; (2) "suspending" the removal period for members ofthe Plaintiff class where efforts to secure removal would be futile, or where the detainee's file shows no evidence of non-cooperation; (3) refusing to consider the likelihood of removal in the reasonably foreseeable future at the first stage of the postorder detention process; (4) requiring members ofthe Plaintiff class to prove cooperation, where there is no evidence or indication of non-cooperation in securing removal; and (5) failing to consider the length of post-order detention in evaluating the possibility that removal can be effectuated or the effect of any purported noncooperation in securing removal; and
E. Grant such further and other relief as this Court deems just and appropriate.
COUNT TEN
(ADMINISTRATIVE PROCEDURES ACT ON BEHALF OF PETITIONERS AND A CLASS OF ALL OTHERS SIMILARLY SITUATED (CLASS ACTION))
244. Petitioners adopt and reallege Paragraphs 1 through 243 as though fully set
forth herein.
245. The Defendants have adopted the following sub-regulatory policies or
procedures
(a) failing to adjudicate requests for release under Zadvydas in a timely manner;
(b) "suspending" or purporting to suspend removal periods and postponing release of individuals who allegedly have not shown sufficient efforts to secure their own removals, where those individuals have in fact performed all acts reasonably to be expected by Defendants;
(c) requiring detainees to submit evidence of their cooperation in securing their removal from the United States, while refusing to consider facts within the files of detainees, despite regulations authorizing review of the file; 8 C.F.R. §§241.4(i)(7), 241.13(f);
58
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(d) requiring clearly futile efforts by individuals to secure their removal from the U.S., even where the Defendants know that the detainee's country of origin will not accept their removal; and
(e) fruling to consider the length ofpost-order detention in evaluating the possibility that removal can be effectuated or that effect of any purported non-cooperation in securing removal.
246. These actions are, and will remain, agency actions which are arbitrary, capricious, and not in accordance with the law. Administrative Procedure Act, 5 U.S.C. §§ 701, et seq.
247. The INS and its district and subdistrict offices are "agencies" as defined in the Administrative Procedure Act. See 5 U.S.C. § 701(b)(1).
248. As a direct and proximate result ofthe Defendants' policies and procedures, members ofthe Plaintiff class have suffered the injury of continued detention, even where detention is not authorized by statute since there is no reasonable likelihood of removal in the foreseeable future. The Plaintiff class will continue to suffer said injury while the current policies, procedures, and regulations are in place.
WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, request that this Court enter a judgment in its favor and against Defendants, John Ashcroft, Attorney General ofthe United States, Brian Perryman, as Chicago District Director, Immigration and Naturalization Service, Immigration and Naturalization Service, United States Department of Justice, granting them the following relief:
A. Declaring that the Defendants have engaged in behavior which is arbitrary, capricious, and not in accordance with law;
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B. Grant preliminary and permanent injunctive relief, enjoining the Respondents from (1) failing to make a determination whether to continue detention before the expiration of 180 days after entry of the order of removal; (2) "suspending" the removal period for members of the Plaintiff class where efforts to secure removal would be futile, or where the detainee's file shows no evidence of non-cooperation; (3) refusing to consider the likelihood of removal in the reasonably foreseeable future at the first stage ofthe postorder detention process; (4) requiring members of the Plaintiff class to prove cooperation, where there is no evidence or indication of non-cooperation in securing removal; and (5) failing to consider the length of post-order detention in evaluating the possibility that removal can be effectuated or the effect of any purported noncooperation in securing removal; and
E. Grant such further and other relief as this Court deems just and appropriate.
Respectfully submitted, JALAL HMAIDAN, MOHAMMED AIDOUNI, MAITHAM ALZEHRANI, KEOVONGSACK PONGPHRACHANXA Y AND DEN SON

DOUGLAS M. HAGERMAN THOMAS P. KREBS JEFFREY A. SOBLE FOLEY & LARDNER One IBM Plaza 330 North Wabash Avenue Chicago, Illinois 60611-3608 312.755.1900 312.755.1925 (fax)

By:
CHARLES ROTH ANNEREuAS MIDWEST IMMIGRANT AND HUMAN RIGHTS CENTER 208 South LaSalle Street Suite #1818 Chicago, Illinois 60604 (312) 660-1613 (312) 660-1505 (fax)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JALAL HMAIDAN, MOHAMMED AIDOUNI,

)

MAITHAM ALZEHRANI, KEOVONGSACK

)

PONGPHRACHANXAY AND DEN SON,

)

INDIVIDUALL Y AND ON BEHALF OF ALL OTHERS )

SIMILARLY SITUATED,

)

)

Petitioners,

)

)

vs.

)

)

JOHN ASHCROFT, ATTORNEY GENERAL

)

OF THE UNITED STATES, BRIAN

)

PERRYMAN, AS CHICAGO DISTRICT

)

DIRECTOR, IMMIGRATION AND

)

NATURALIZATION SERVICE,

)

IMMIGRATION AND NATURALIZATION

)

SERVICE, UNITED STATES

)

DEPARTMENT OF JUSTICE,

)

)

Respondents.

)

)

JUDGE JAMES B. ZAGEL
No. 02 C 509

INDEX OF EXHIBITS

011.1098048.1

EXHIBIT A PERTAINING TO PETITIONER JAMAL HMAIDAN
1) January 31,2000, Notice to Appear 2) U.S. Department of State Human Rights Report for Jordan, 2001 3) Worldwide Refugee Information, Jordan, 2002 4) October 25, 2000, Order of Removal from the Immigration Judge 5) August 8, 2001, Written Order of the Board ofImrnigration
Appeals denying Petitioner's appeal of his order of removal 6) February 4, 2002 Letter from Petitioner's Attorney to the Jordanian
Consulate requesting travel documents on behalf of Petitioner 7) February 4,2002 Letter from Petitioner's Attorney to the Embassy
of Kuwait requesting travel documents on behalf of Petitioner 8) February 18, 2002 Letter from Petitioner to the Jordanian
Consulate requesting travel documents 9) February 18,2002 Letter from Petitioner to the Kuwaiti Embassy
requesting travel documents 10) October 29,2001 INS Request for Travel Documents to the
Consulate General ofJordan 11) March 22,2002 Letter from Petitioner's Attorney to the Post Order
Detention Unit of the INS in Washington, DC requesting Petitioner's release from INS Custody and Attached Supporting Documentation 12) April 29, 2002 Notice of Custody Review from INS Chicago District 13) May 3,2002 Letter from Petitioner's Attorney to the INS Chicago District in response to their Review Letter (and additional documentation for which see also Exhibit A(4» 14) May 8, 2002 Letter from the Post Order Detention Unit indicating that the removal period is "suspended" until Petitioner supplies evidence that he cannot be removed to Jordan. 15) May 24, 2002 Letter from Petitioner's Attorney to the Post Order Detention Unit of the INS in Washington, DC in response to their May 8, 2002 letter 16) August 6, 2002, Decision to Continue Detention 17) Post Order Custody Review Worksheet for File Review and/or Interview 18) February 4,2002 fax from Valencia L. Ahmad to Jack Parks.
011.1098048.1

EXHIBIT B PERTAINING TO PETITIONER MOHAMMAD AIDOUNI 1) June 30,1999, Notice ofIntent to Issue an Administrative Final Removal Order & Final Administrative Removal Order 2) August 10, 1999, Final Administrative Removal Order 3) Undated Notice of Referral to Immigration Judge, Reasonable Fear Determination Worksheet and Record of DeterminationlReasonable Fear Worksheet 4) October 11,2001, Board ofImmigration Appeals Decision 5) January 10, 2000, INS Request for Travel Documents to the Embassy of Algeria 6) January 24, 2000, INS Request for Travel Documents to the Embassy of Algeria 7) Undated fax to the Embassy of Algeria, Algiers, requesting assistance in the issuance of travel documents 8) November 28, 2000, Post Order Review Worksheet File Review And/or Interview 9) December 28, 1999, Notice to Alien of File Custody Review 10) February 4, 2000, Letter from Brian Perryman, District Director of the INS Chicago District II) November 6,2001, Notice to Alien of File Custody Review 12) May 16, 2002, Decision to Continue Detention Following Review 13) March 20, 2002 letter to Algeria from INS.
011.1098048.1

EXHIBIT C PERTAINING TO PETITIONER MAITHAM ALZEHRANI
1) December 15, 2000, Notice to Appear before an Immigration Judge
2) August 20, 2001 Order of Removal from the Immigration Judge 3) October 3,2001 Decision to Continue Detention 4) September 27,2001, Post Order Review Worksheet File Review
And/or Interview 5) August 22,2001, INS Request for Travel Documents to the Iraqi
Interests Section 6) March 20, 2002 INS Request for Travel Documents to the
Democratic and Popular Republic of Algeria 7) May 2, 2002 Decision to Continue Detention 8) May 10, 2002 Letter from Petitioner's Attorney to the Post Order
Detention Unit of the INS in Washington, DC, including a December 28,2001 Notice of Entry of Appearance as Attorney or Representative, (INS Form G-28) 9) June 6, 2002, Letter from the Headquarters Post Order Detention Unit, indicating that the removal period is "suspended" until Petitioner supplies evidence that he cannot be removed to Iraq. 10) November 5, 2001 Letter to Frank Moore, Chicago INS Officer from Petitioner indicating his willingness to cooperate 11) Letter from Petitioner's Attorney to the Iraqi Interests Section requesting travel documents for Petitioner 12) May 22, 2002 Letter from the American-Arab Anti-Discrimination Committee to the Post Order Detention Unit of the INS in Washington, DC 13) Fiscal Years 1993-1998 Chart: Aliens Removed by Criminal Status and Region and Selected Country of Nationality
011.1098048.1

EXHIBIT D PERTAINING TO PETITIONER KEOVONGSACK PONGPHRACHANXAY 1) November 9,2001, Warrant for Arrest of Alien 2) February 14, 1981, INS Registration for Classification as Refugee Status 3) December 20, 2001, Order of Removal from the Immigration Judge 4) March 18,2002, Notice to Alien of File Custody Review 5) May 21, 2002, Letter from Post Order Detention Unit, indicating that the removal period is "suspended" until Petitioner supplies evidence that he cannot be removed to Vietnam. 6) August 20, 2002, Release Notification upon posting of a $20,000 bond
011.1098048.1

EXHIBIT E PERTAINING TO PETITIONER DEN SON 1) May 25, 1993, Order to Show Cause 2) September 22, 2001, Notice to Alien of File Custody Review 3) June 28, 2002, Petitioner's Attorney's Letter to Embassy of Vietnam Requesting Travel Documents 4) June 28, 2002, Letter to INS Chicago District requesting release from custody 5) June 28, 2002, Letter to INS HQPDU requesting release from custody under Zadvydas v. Davis and including an April 8, 2002, Notice of Entry of Appearance as Attorney or Representative (INS Form G-28) 6) August 6, 2002, Decision to Continue Detention 7) August 20, 2002, Release Notification upon posting of a $25,000 bond
011.1098048.1

EXHIBIT F DECLARATION OF MIKE ROZOS, CHIEF OF THE LONG TERM REVIEW BRANCH IN THE REMOVALS DIVISION OF THE OFFICE OF DETENTION AND REMOVAL IN INS
011.1098048.1

~EE

E

FILE F R

E HIBIT""""

 
 258 F.Supp.2d 832 (2003)
Jalal HMAIDAN, Mohammed Aidouni, Maithan Alzehrani, Keovongsack Pongphra Chanxay, and Den Son, Petitioners, v.
John ASHCROFT, Attorney General, Brian R. Perryman, as District Director of the Immigration & Naturalization Service, Immigration & Naturalization Service, United States
Department of Justice, Respondents.
No. 02 C 5097.
United States District Court, N.D. Illinois, Eastern Division.
April 18, 2003.
834 *834 Douglas M. Hagerman, Thomas Paul Krebs, Jeffrey Andrew Soble, Foley & Lardner, Chicago, IL, Charles G. Roth, Anne G. Relias, Chicago, IL, Christopher J. Werner, Foley & Lardner, Chicago, IL, for Petitioners.
Sheila McNulty Entenman, United States Attorney's Office, Chicago, IL, for Respondents.

MEMORANDUM OPINION AND ORDER

ZAGEL, District Judge.

A group of alien persons in the custody of the Immigration and Naturalization Service seek the writ of habeas corpus on behalf of themselves and on behalf of a class of similarly situated persons. The claim here is not that the INS is acting outside the scope of its regulations; rather, the regulations themselves are attacked as violating the due process clause of our Constitution on their face and as applied. Also, it is contended that the rules and regulations are arbitrary, capricious and outside the ambit of the law, and so stand in conflict with the Administrative Procedures Act ("APA").

The petitioners have all been ordered removed from this country, but the INS is unable to remove them to their countries of origin. In Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court said a six-month period of detention was presumptively reasonable. All the petitioners are detained for more than six months. Zadvydas also said that indefinite detention where there is no reasonable likelihood of removing them from the country is beyond the statutory power of the INS or the Attorney General. The Court said:

"[I]nterpreting the statute to avoid a serious constitutional threat, we conclude that once removal is

no longer reasonably foreseeable, continued detention is no longer authorized by statute.... [In

habeas cases the] court must ask whether the detention in question exceeds a period reasonably

necessary to secure removal. It should measure reasonableness primarily in terms of the statute's

basic purpose, name assuring the alien's presence at the moment of removal. Thus, if removal is

835

not reasonably foreseeable, the court *835 should hold continued detention unreasonable and no

longer authorized by statute. In that case, of course, the alien's release may and should be

conditioned on any of the various forms of supervised release that are appropriate in the

circumstances, and the alien may no doubt be returned to custody upon a violation of those

conditions ... And if removal is reasonably foreseeable, the habeas court should consider the risk

of the alien's committing further crimes as a factor potentially justifying confinement within that

reasonable removal period."

533 U.S. at 699-700, 121 S.Ct. 2491. It is fair to say that the Attorney General was dismayed by the decision of
the Supreme Court, which had resolved a split among the Court of Appeals. He expressed concerns for public safety because the detainees are those who have been convicted of crimes in this country.[1]

In response to the decision of the Supreme Court, petitioners say the Executive Branch adopted procedures which forfend the release of those whom it has no authority to detain by delaying the decision to release. The decision is made by a "faceless bureaucracy," deadlines are not set, hearings are not provided, impartial review is absent and decisions are not administratively appealable.
The standard for release is that the detainee must show (I simplify here) that he or she is unlikely to be removed in the foreseeable future, and also that he or she is a "non-violent" person. The District Office makes ayes or no determination. If the answer is no, the alien may have the Headquarters Post-order Detention Unit consider these questions again. It has no deadline, and petitioners allege that it rarely decides until six months of detention has passed. There is no evidentiary hearing. In cases where the inability to remove is conceded by INS, but no other cases, the decision to detain may be presented to an Immigration Judge, subject to review by the Board of Immigration Appeals. Where the decision by the INS is based on the finding that there is still a possibility of removal, or that the detainee has not cooperated in securing his own return (for example, by refusing to provide information which would allow the country of origin to determine that the detainee is their citizen or subject), then that is the end of the matter.
This system is alleged in practice to compound problems. Detainees are not given adequate notice required by regulations, file review dates are misstated and failure to cooperate disqualifies persons for release even when 836 the country of origin is one for which it is impossible to obtain travel documents. A class action is said to *836 be justified by the high proportion of indigent detainees whose individual petitions for a writ cannot be effectively prosecuted, and there is no formal administrative review which a pro se detainee can exhaust which might give timely relief. Judging solely by the docket in this Court, the class would be numerous.
I.
The Petitioners
The individual petitioners were and are:
1. A stateless Palestinian, Jalal Hmaidan, born in Eoxwait and holding a Jordanian passport, but now said to be a subject of neither nation. He has been living here as a lawful resident for over 25 years and has family here. He was convicted of aggravated discharge of a firearm and possession of a controlled substance with intent to deliver. He received multiple year sentences for both offenses. He has ten arrests and five convictions. Preferring Jordan or Kuwait to jail, he says he has tried to get travel documents, but the INS says he never identified himself as a stateless person, but rather, as a Jordanian. From the INS's perspective, he did a slapdash job of filling out the Jordanian request form for travel documents and little else. In any event, the INS was apparently right about his removal, because he now has papers to go to Jordan, and he is dismissed from the case.
2. An Algerian, Mohammed Aidouni, who came here as a stowaway and remained illegally. He was convicted of robbery and weapons charges and detained for a period of years, in part because of the time it took to adjudicate his unsuccessful attempt to avoid return to Algeria under the Convention Against Torture. While Algeria is not readily issuing travel documents these days, the INS says he failed to tell an Algerian official that he had a mother and three brothers living in Algeria (at least initially), and said he had no family in that country. The INS says that he has not cooperated to secure his removal.
3. An Iraqi, Maithan Alzehrani, who entered this country in 1993 as a refugee fearing persecution. He became a Lawful Permanent Resident. He was convicted in 1997 for unlawful restraint and domestic battery and again in 1998 for criminal sexual assault. He was the subject of an explicit decision to detain him on grounds that he had no plan on where to live or how to support himself, he had displayed an escalating pattern of violence, and he failed to demonstrate he is no longer a threat to society. Iraq is, and has been for a while, a very difficult country to which to remove a detainee, so the INS granted release on bond conditioned on his being in a sexual offender treatment program and living with a family member or friend in Chicago. The INS has now removed the bond requirement, and he too is effectively gone from this case.

4. A Laotian, Keovongsack Pongphrachanxay, who entered from a refugee camp in Thailand in 1981. By 1997, he had acquired one conviction for Armed Robbery and another for Robbery and sentences of multiple years duration. Laos does not accept deportees. He has been offered release, but only upon posting a $20,000 bond, which he cannot do. The power of the government to require a bond is denied by petitioner.
5. A Vietnamese, Den Son, who is Amerasian by ethnicity who entered this country in 1991 to look for his father whom he believes to have been a soldier in Vietnam. Less than a year after his entry, he was convicted of Home Invasion and served a good part of his twenty years in the U.S. in prison. The INS has had him since mid-2001. He cannot be returned to Vietnam, and he too was given release upon the posting of a bond of $25,000.
837 *837 The respondents say that the conclusions of the INS are valid under regulations which are consistent with the law.
After Zadvydas, the Attorney General issued regulations which, triggered by the end of the six-month period, allow the detainee to petition the INS for release on the ground that there is no significant likelihood of repatriation. The detainee has to show this, usually by documentation, and he or she also must show that he or she has cooperated in the process of obtaining travel documents. According to Zadvydas, "once the alien provides good reason to believe that there is no significant likelihood of removal in the foreseeable future, the Government must respond with evidence sufficient to rebut that showing." 533 U.S. at 701, 121 S.Ct. 2491.
Turning to the individual cases, I consider the standard of review for overturning the determinations made by the INS. There is one deferential test which approves "facially legitimate and bona fide" bases for decision. Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). Another less deferential test is "abuse of discretion." INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). The context of both of these decisions leads me to doubt that the Zadvydas Court had either in mind. A third standard is whether the decision is supported by substantial evidence (sometimes thought of as a kind of directed verdict standard in which the judgment stands unless no reasonable factfinder would have reached that judgment). INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Reading what can be no more than runes in Zadvydas,[2] I think this last standard applies if one substitutes the phrase "reasonable person possessing immigration-related expertise" for "reasonable factfinder."
The INS says that Aidouni did not cooperate with the Algerian counselor official who interviewed him. All he would provide is his name and the name of his attorney which, if true (and it is not denied), would make it difficult for Algeria to verify his identity and approve his repatriation, which became an issue in October 2001, when the removal order became final. INS has undertaken its own efforts at repatriation by asking this nation's embassy in Algiers to assist in establishing Aidouni's identity. Aidouni correctly notes that the Algerian counselor's interview took place after the filing of his petition here and well after the six-month period of presumptively reasonable detention passed. It is difficult to infer unwillingness to cooperate when a detainee, who has filed a petition over 838 repatriation and is represented by counsel, tells anyone to *838 talk to his lawyer about repatriation. Some of the information he could provide was in the INS files since they wrote to his mother in Algeria in 1999, and immigration hearing transcripts indicated that he had three brothers in Algeria and this is, in fact, part of the material that the Embassy in Algeria is using to help get Aidouni into Algeria. The other part was provided by Aidouni's attorney in October 2002, which is the current whereabouts of his mother and the name of his brother. What is left for the INS, argues Aidouni, is that Algeria has not actually said they will not take him, and this is not enough.
I do not agree that this is all that is left for Aidouni. On the facts before the INS and me, there is evidence which could lead a reasonable fact finder to believe that (1) Aidouni has a far greater desire to remain here undetained than he does to return to Algeria; (2) his actions show that he is not cooperating as fully as he could to procure his repatriation; and (3) the lack of such cooperation is significant. And, in turn, the INS is making significant efforts to assist his repatriation, and nothing in the response of Algeria supports the conclusion today that his repatriation is not in the reasonably foreseeable future.
A court can consider ongoing efforts by INS or others to repatriate an individual in reviewing the question of whether removal is likely in the reasonably foreseeable future. Khan v. Fasano, 194 F.Supp.2d 1134, 1135

(S.D.Cal.2001). There is no evidence here or before the INS that shows that such efforts will be futile. Were it shown that Algeria has steadfastly refused travel documents in all, or almost all, cases, which might be known to the INS, but not referred to in the record before me, the outcome might be different. I agree that efforts to repatriate Aidouni could have been more vigorous and seem only to have become more vigorous after he filed the petition. And I must bear in mind that "as the period of prior post-removal confinement grows, what counts as the `reasonably foreseeable future' conversely would have to shrink." Zadvydas 533 U.S. at 701, 121 S.Ct. 2491. But I am unable to conclude that respondents could not decide, on these facts, that there is a significant likelihood of removal in the reasonably foreseeable future. Were a new petition filed just a bit later, with some additional data on removals to Algeria, the result here or before the INS might be different.
Applying a standard of review to the record is not what is needed to resolve the disputes involving Pongphrachanxay and Den Son. They assert that a bond requirement is beyond the authority of the INS, and they do argue that petitioners are clearly the kinds of individual for whom a lawfully authorized bond could never reasonably be required. They also assert that the INS, if it has the power to require bond, lacks the power to require a bond of the sort it did in these cases. The regulation authorizes the requirement to post a bond. 8 C.F.R. § 241.5(b) (2002). Zadvydas seems quite clearly to permit the imposition of supervision with conditions, but says nothing about whether posting a bond is an appropriate condition. And there is some reason to think that bonds are not what the Court had in mind because it spoke of the power of the Government to "incarcerate [those under removal orders]... for violations of those conditions." 533 U.S. at 695, 121 S.Ct. 2491. Posting a money bond is, for the most part, a precondition to release and not a command to do or not do something in the future which, if not obeyed, may result in jailing.
The statute in question, 8 U.S.C. § 1231(a)(3), does not contain an explicit authorization of a money bond. It 839 simply says that aliens like petitioners shall be subject to supervision under regulations *839 prescribed by the
Attorney General, and then it mandates that three specific provisions (none of which mention money bonds) for these regulations and adds a kind of "catchall" which requires the alien "to obey reasonable written restrictions on the alien's conduct or activities that the Attorney General prescribes for the alien."
The Attorney General is entitled to deference in his interpretation of the statute, particularly where the interpretation fills a gap in the statute. Chevron U.S.A, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). It is true that there are provisions for money bonds scattered throughout the statutes governing aliens, but it is too hard for me to read the statutory provision here as manifesting a deliberate exclusion of money bonds. It is almost always true, and it is true here, that catch-all provisions are implicit recognitions that gaps have been left and are explicit grants of authority to fill those gaps. Yet, the explicit authority extends to "restrictions on ... conduct," a phrase that does not easily cover the posting of money bonds. Nevertheless, posting a money bond is a "conduct or activit[y]" within the lexical ambit of the statute, and I do not think the Attorney General exceeded his lawful reach in interpreting the statute, his interpretation being reasonable and plainly, neither arbitrary nor capricious.[3]
The setting of the bonds in these cases is said to be the functional equivalent of authorizing indefinite detention. Technically, the bonds have a one-year duration but that limitation takes effect only if the money is posted. Bonds in criminal cases often are the functional equivalent of detention too, but in the criminal case, pretrial detention ends (one way or the other) after trial which the defendant has a right to demand and receive within a fairly short time. Here, there is no way for the detainee to take any action which will finally resolve the question of his custody. He simply has to wait until the day, if that day ever comes, that another nation decides to accept him or her. For this reason, I agree it is inconsistent with Zadvydas to hold that the INS has the power to set a bond that the detainee is unable to post.[4]
The position of the INS is that neither petitioner can challenge the amount of the bond at this time because they have not proven that they cannot post the bond, to wit, there is no evidence of indigence or of efforts to raise the money from others. This, despite the fact that the INS told them they could assert inability to post bond and submit financial documents in support of this. It has also told them that compliance with conditions of supervision for one year will result in the return of the bond money. Essentially, the petitioners have not taken the opportunity given them to show inability to post the bond and therefore, have failed to exhaust administrative remedies which is usually required in habeas cases filed by aliens in the custody of the INS. Arias v. Rogers, 676 F.2d 1139 (7th

Cir.1982). The exhaustion requirement, which does not appear in the statute, is a judicial graft, the sound 840 purpose of which is to allow the consideration *840 of habeas relief on a more developed factual record without
burdening the habeas court with the task of presiding over the development of that record.
The petitioners question whether there is an administrative remedy to exhaust and, if there is one, they say it is one recently rigged up in reaction to judicial challenges to the setting of bonds. I accept the representation of the Attorney General that there is an administrative remedy. I also agree with petitioners that it has been hastily devised to meet the challenges of cases like this, but I do not think the petitioners are excused from using it. The national perspective on control of aliens within our borders was profoundly altered in recent months, and the legal landscape changed too with Zadvydas. It is not an indicia of bad-faith that the Attorney General has had to scramble to meet legal and policy requirements that neither he nor his predecessors had anticipated. In another context, the claim of an adequate administrative remedy made here would be unconvincing. In this context, it is not. Under Zadvydas, however, the administrative determination of the reasonableness of the amount of bond must, in the circumstances here, be made quite quickly. A court faced with such a question can usually decide the matter within a week or two.
II.
The Class
A purported class action is part of the petition before me. No motion for class certification has been filed, but the government seeks to have the petition dismissed. Today denial of certification would occur for the very reason that petitioners, having no present right to the writ them selves, are inadequate class representatives.
The class action habeas corpus is a rare thing. Apart from the obvious reason that habeas determinations are quintessentially individual in nature, there is the fact that class habeas cases, running as they do against governments, are always vulnerable to the ability of the plaintiff to moot the case of every class representative by releasing them. This is in contrast to a small stakes consumer fraud case where a representative plaintiff can always refuse settlement. What the petitioners (perhaps more precisely, their attorneys) want is the chance to have a court declare that the INS must comply, regularly, with the time limits embodied in Zadvydas, and they suspect that doing these cases one at a time will not work.
There may be other barriers as well to class certification, but I cross those bridges when I come to them.
I do not dismiss on the grounds that no claim has been stated. While the individual petitioners here fall short of being able to press their claims today, the allegations of undue delay and inadequate hearing procedures do present due process claims. Jurisdiction is claimed to lie under the APA. This is a dicey claim in light of Ardestani v. INS, 502 U.S. 129, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991), and Lalani v. Perryman, 105 F.3d 334 (7th Cir.1997). One could argue that these post-removal order operations are not deportation or removal proceedings and thus, outside the exemption from the APA which Congress gave to the INS, but one could argue that they are.
841 At this stage, and on the issues as briefed,[5] I decline to dismiss Counts Six *841 through Ten. Upon a request by the defendants, I will enter a scheduling order under Fed. R. Civ. Proc. 16, which will set a deadline for the filing of a motion for class relief.
I dismiss Counts One and Three for mootness. I decline to issue the writ on Counts Two, Four and Five. I deny the motion to dismiss Counts Six through Ten.
[1] One could argue that the practice required by Zadvydas is perverse. If an alien is likely to be removed, one can consider the fact that he or she is a repeat offender in deciding to confine an habitual thief until removal. If the alien won't be removed, then he or she has to be released no matter how likely to offend, as long as that alien is likely to show up if his or her native country eventually decides to let the wanderer return. Yet the law has many such provisions-a patent repeat offender citizen felon has to be released when his sentence is completed no

matter what harm is likely to ensue. Essentially, this is the kind of argument made by petitioners who, wisely, do not attempt to glorify the petitioners as ornaments to this nation. Their position is quite akin to saying "regardless of whether the convict will certainly con widows out of their life savings, the sentence is expired and the cell doors have to be opened." I note too that these petitioners (and the putative class) do not include those whose detention is said to be justified under regulations which permit detention for aliens who have highly contagious diseases, who are "especially dangerous," whose release would have serious adverse foreign policy consequences or whose release would create risks of terrorism or breach national security.
[2] Zadvydas said, "We recognize, as the Government points out, that review must take appropriate account of the greater immigration-related expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute and the Nation's need to `speak with one voice' in immigration matters . .. But we believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien's continued detention." 533 U.S. at 700, 121 S.Ct. 2491. I call these words "runes" because they can be interpreted to mean that taking "appropriate account" refers to a generalized deference to the determination that detention may be important as a matter of policy-and not any deference to the decision in any particular case. Support for the idea that no deference is owed to any particular decision is found in other language, e.g. "the habeas court must ask whether the detention . . . exceeds a period reasonably necessary ... [i]t should measure reasonableness... the habeas court should consider the risk . .." 533 U.S. at 699-700, 121 S.Ct. 2491. Looking at the structure of the opinion, my best guess is that taking account of expertise means that decisions about individuals are entitled to some deference.
[3] I am not presented here with the more difficult question of the requirement that one who will never be repatriated must post a money bond which then stands for the rest of his or her life. It is not presented on the facts of this case because the bonds are remitted after twelve months of compliance with conditions.
[4] I do not know whether it would be unconstitutional for Congress to confer precisely this power upon the Executive Branch, although Zadvydas suggests that it might be. 533 U.S. at 690, 121 S.Ct. 2491. I have no reason to decide that question here.
[5] Briefing by both sides was, correctly, conducted on the premise that the individual claims would or might survive. That premise may no longer be valid and the parties may wish to recast their arguments. Moreover, the three petitioners whose claims are denied may, fairly soon or even now, find themselves in a position where the barriers to their claims no longer exist. Both petitioners and respondents are entitled to a chance to determine from their own perspectives what they ought to do now because, while these petitioners may or may not leave this legal scene, the issues will not.
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 Kazarov v. Achim, Not Reported in F.Supp.2d (2003)

2003 WL 22956006 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
Vadim KAZAROV and Voeuth Long, Individually and on Behalf of all Others Similarly Situated, Petitioners, v. Deborah ACHIM, Interim Field Operations Director for the Chicago District of the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement, Respondent.
No. 02 C 5097. | Dec. 12, 2003.
Attorneys and Law Firms
Douglas M. Hagerman, Thomas Paul Krebs, Jeffrey Andrew Soble, Christopher J. Werner, Foley & Lardner, Charles G. Roth, Anne G. Relias, Midwest Immigrant & Human Rights Center, Chicago, IL, for Plaintiffs/Petitioners.
AUSA, Sheila McNulty Entenman, United States Attorney’s Office, Chicago, IL, for Respondents.
Opinion

MEMORANDUM OPINION AND ORDER

ZAGEL, J.
*1 Petitioner Vadim Kazarov, pursuant to Federal Rule of Civil Procedure 23, moves for class certification, or, in the alternative, allowing the action to proceed as a representative action, or both.1 Respondent Deborah Achim, Interim Field Operations Director for the Chicago District of the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (“ICE”), opposes the motion and further moves to dismiss Counts I and II, which pertain to the two named petitioners, Vadim Kazarov and Voeuth Long.2

1

Petitioner no longer relies upon Voeuth Long as a class

representative.

2

In his Third Amended Petition, Petitioner identifies

numerous government officials and entities as

respondents to this habeas action. The only proper

respondent to a petition for writ of habeas corpus, however, is Petitioner’s immediate custodian, in this case Achim. See Roman v. Ashcroft, 340 F.3d 314 (6th Cir.2003). Accordingly, I am substituting Achim as the sole respondent to this petition.

Factual Background This action was originally filed on July 18, 2002, when the Midwest Immigration and Human Rights Center (“the Center”) filed its original “Class Action for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief.” The Center soon filed an amended petition, in which it named the following four aliens as class representatives: Jalal Hmaidan, a native of Kuwait and citizen of Jordan; Mohammed Aidouni, a native and citizen of Algeria; Maitham Alzehrani, a native and citizen of Iraq; Keovongsack Pongphrachanxay, a native and citizen of Laos; and Den Son, a native and citizen of Vietnam. The Amended Petition alleged that these individuals were representative of a class of aliens who were being detained without statutory authority, in contravention of the Supreme Court’s decision in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), because more than six months had elapsed since their final removal orders, and there was no significant likelihood of their repatriation within the reasonably foreseeable future.3

3

The Supreme Court’s decision in Zadvydas largely

resolved the legal question of when post-order

detention of admitted aliens is authorized by the

Immigration and Nationality Act. Zadvydas held that,

with certain exceptions not pertinent here, § 241(a) of

the INA, as amended, does not authorize the indefinite

detention of an admitted alien subject to a final removal

order beyond that period “reasonably necessary” to

secure the alien’s removal from the United States. 533

U.S. at 700. For these purposes, the Supreme Court

found that post-order detention for a period of six

months is “presumptively reasonable,” after which time

the alien may be subject to release “once the alien

provides good reason to believe that there is no

significant likelihood of removal in the reasonably

foreseeable future,” and the Government has been

afforded an opportunity to rebut that showing. Id. at

701. However, release after expiration of the

presumptively reasonable six-month period is not

automatic: “This 6–month presumption, of course, does

not mean that every alien not removed must be released

after six months. To the contrary, an alien may be held

in confinement until it has been determined that there is

no significant likelihood of removal in the reasonably

foreseeable future.” Id.

1

Kazarov v. Achim, Not Reported in F.Supp.2d (2003)
Notwithstanding these allegations, Hmaidan was removed from the United States and repatriated to Jordan on October 31, 2002. Similarly, Aidouni was removed to his native Algeria on April 4, 2003. The remaining petitioners were released from immigration custody after the former Immigration and Naturalization Service (“INS”) concluded that there was no significant likelihood of their repatriation in the reasonably foreseeable future, based upon custody reviews conducted pursuant to the so-called “Zadvydas” regulations at 8 C.F.R. § 241.13. On April 16, 2003, on Respondent’s motion, I dismissed the individual habeas counts of the First Amended Petition but let stand the class action counts.
The Center made a second attempt to identify aliens who could serve as representatives for the putative class on March 8, 2003, when it filed a Second Amended Petition naming five new representative petitioners: Tayseer Yousef, a native of Isreal and citizen of Jordan; Sothea Bun, a native and citizen of Cambodia; Khan Nguyen, a native and citizen of Vietnam; Touy Prasoeuthsy, a native and citizen of Cambodia; and Alla Aburwaished, a native of Iraq of Palestinian ethnicity, who entered the United States using a Jordanian passport. On June 21, 2003, Respondent moved to dismiss the individual counts of the Second Amended Petition, because all of the named petitioners had been released from ICE custody. At an August 19, 2003, status hearing, Petitioner’s counsel agreed that the individual counts were no longer viable. However, I gave the Center an opportunity to file a third amended petition and to move for class certification.
*2 On August 25, 2003, the Center filed a Third Amended Petition in which it named Vadim Kazarov and Voeuth Long, as named petitioner representatives. In the instant motion for class certification, Petitioner does not rely upon Voeuth Long as a class representative because Long was released from ICE custody on September 30, 2003. As of the Center’s September 16, 2003 filing of this instant motion, Kazarov was still detained because ICE was making substantial progress in obtaining travel documents for him from the Georgian government. ICE’s optimism was justified, as the travel documents were issued, and, on October 21, 2003, Kazarov was removed from the United States to Georgia. Thus, since July 2002, the Center has named no less than twelve aliens as potential representatives of the class it seeks to have me certify. Of these twelve aliens, three—Hmaidan, Aidouni, and Kazarov—have been removed from the United States, and the remaining nine have all been released from ICE custody following repatriation reviews conducted in accordance with agency regulations.
On May 27, 2003, the Center served Respondent with written discovery requests on class certification issues. At a status conference two days later, I declined to order discovery but requested that Respondent disclose the number of aliens currently being detained by ICE’s

Chicago District who had been subject to final removal orders for more than 180 days. At a June 9, 2003, status conference, Respondent disclosed that, by the most recent count, there were seventeen aliens within the jurisdiction of ICE’s Chicago District who had final removal orders and had been in ICE custody for longer than 180 days. Respondent expressly denied that any of these seventeen aliens were being detained unlawfully, under either the regulations or the Zadvydas rule. I then asked Respondent to provide Petitioner with a declaration from the ICE deportation officer who compiled the data underlying the number, and to make that officer available for an interview by Petitioner if they had questions concerning his methodology, or what the number purported to represent. On June 16, 2003, Respondent provided the requested declaration by the deportation officer, Officer Jose Louis Zamora, and on June 20, 2003, Petitioner interviewed him. Respondent also allowed Petitioner an opportunity to test the veracity of the information compiled by Zamora by conducting a survey of aliens detained at a detention center, the Tri–County Jail in Ullin, Illinois. After Respondent proposed parameters for the visit, which were necessary to meet the facility’s security requirements, Petitioner orally informed Respondent that he no longer wished to visit the Tri–County Jail. Petitioner has made no other requests of Respondent in his efforts to identify putative members of the class he seeks to have certified.

Motion to Dismiss Because both Petitioners are no longer in ICE custody, their challenges to their continued detention are now moot. See Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Riley v. INS, 310 F.3d 1253, 1257 (10th Cir.2002); Kasza v. Browner, 133 F.3d 1159, 1172 (9th Cir.1998); Camara v. Comfort, 235 F.Supp.2d 1174, 1175 (D.Colo.2002). There no longer exists any case of controversy with respect to those detentions, and a case or controversy is required. See Arizonans for Official English v. Arizona, 520 U.S. 43, 45, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); Chicago & North Western Transp. Co. Railway Labor Executives’ Ass’n, 908 F.2d 144 (7th Cir.1990); Wisconsin Winnebago Bus v. Koberstein, 762 F.2d 613 (7th Cir.1985).4 Accordingly, I must dismiss Counts I and II of the Third Amended Petition, which exclusively raise detention claims relating to the named petitioners.5 See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

4

Certain exceptions to the mootness doctrine exist, but

none apply here. For example, jurisdiction may still lie

where the petitioner would suffer collateral

consequences after resolution of the primary injury, or

the respondent has voluntarily ceased an allegedly

illegal practice but is free to resume it at any time. See

2

Kazarov v. Achim, Not Reported in F.Supp.2d (2003)
Riley v. INS, 310 F.3d 1253, 1257 (10th Cir.2002). However, Kazarov and Long, who were seeking only release from detention, will suffer no collateral consequences from their past immigration detention. Moreover, Respondent has not ceased any illegal practice but has removed Kazarov pursuant to his final removal order, and has determined that Long met his burden of proving that his repatriation to Cambodia is not significantly likely in the reasonably foreseeable future, after completing the post-order custody review. Finally, while an exception to mootness may exist where the plaintiff is a representative of a certified class, that exception does not apply here because no class was certified prior to expiration of Kazarov’s and Long’s individual claims. Holstein v. City of Chicago, 29 F.3d at 1147 (7th Cir.1994).

5

Although the reasons for which I dismiss these Counts

have been raised and addressed in prior motions to

dismiss filed by Respondent, I recognize that

Petitioners have not been afforded the opportunity to

respond to the instant motion. Accordingly, I hereby

grant Petitioners leave to file a motion for

reconsideration should they desire.

Mootness of Class Allegations *3 Respondent argues that I need not reach the issue of class certification if I grant its Motion to Dismiss because the class allegations in the Third Amended Petition cannot be adjudicated absent class representatives. See Kifer v. Ellsworth, 346 F.3d 1155, 1156 (7th Cir.2003). However, “the mooting of the class representative’s personal claim does not bar him from continuing to represent the class.” Id. There may be times when a proposed named plaintiff’s claims become moot before “the district court can reasonably be expected to rule on a certification motion.” Sosna v. Iowa, 419 U.S. 393, 402 n. 11, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). There are cases in which “state officials will undoubtedly continue to enforce the challenged statute” or continue to utilize a challenged procedure, but “because of the passage of time, no single challenger will remain subject to its restrictions for the period necessary to see such a lawsuit to its conclusion.” Id. at 400. In such cases involving claims that are “capable of repetition, yet evading review,” Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), I should examine “the circumstances of the particular case and especially the reality of the claim that otherwise the issue would evade review” in deciding whether to “relate back” the certification to the filing of the complaint and thus avoid mootness, Sosna, 419 U.S. at 402 n. 11. Courts have found various situations where it is appropriate for mooted named plaintiffs to continue to serve as class representatives.6

6

See, e.g., Sosna, 419 U.S. at 402 (challenge to state’s

one-year divorce residency requirement); Gerstein, 420

U.S. at 111 (challenge to state procedure whereby

person arrested without warrant and charged by

information could be jailed without opportunity for

probable cause determination); Dixon v. Quern, 537

F.Supp. 990, 993 (N.D.Ill.1982), vacated on other

grounds, 559 F.Supp. 395 (N.D.Ill.1984) (challenge to

Social Security Administration’s failure to notify

rejected applicants for supplemental security income of

basis for determination of nondisability and failure to

provide applicants found nondisabled with a hearing

and decision within six months of timely request for

such hearing); Green v. Johnson, 513 F.Supp. 965, 975

(D.Mass.1981) (challenge to state’s delivery of special

education services to inmates under age of 22

incarcerated at county houses of correction).

The present case involves claims that are “capable of repetition, yet evading review.” As in Gerstein, it cannot be determined at the outset how long any particular class member will be detained. 420 U.S. at 111. To become a member of the class, an individual must have already been detained by the government for six months after a final order of deportation. The length of time a detainee will be kept beyond that point is only speculation. In addition, as in Dixon, Respondent has complete control over the release of these individuals. 537 F.Supp. at 993. At any time, a named petitioner could be released by the government, making the claims of that individual moot.
I express no settled view as to whether a government respondent can lawfully moot cases in this way. Although it seems to me that ordinarily it can do this,7 this case does not seem to present the issue. For one thing, there is no hint that the government has followed such a strategy here. For another, by the time the six months of custody has run, ICE is likely to have made sufficient progress in efforts at repatriation such that it will be able to repatriate or release from custody well before a decision can be reached. Rather, the system as it now exists seems to mean all cases will perpetually escape review. Accordingly, I hold that this class action is not moot.

7

This may give the government the ability to choose

venue, if not to foreclose a lawsuit. The government

might release all representative plaintiffs in one district

while leaving the issue alive in another.

Motion for Class Certification A party seeking leave to proceed on a representative basis in a habeas case, bears the burden of proving that the Federal Rule of Civil Procedure 23 factors are met and that a representative action is appropriate.8 See General
3

Kazarov v. Achim, Not Reported in F.Supp.2d (2003)

Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); Retired Chicago Police Ass’n v.. City of Chicago, 7 F.3d 584, 596 (7th Cir.1993). I have broad discretion in determining whether or not to allow a representative action. See General Tel. Co., 457 U.S. at 161; Chavez v. Illinois State Police, 251 F.3d 612, 629 (7th Cir.2001). Most importantly, each case must be judged on its own facts because each case “involves intensely practical considerations.” See Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988). In short, the motion must be denied, unless I am satisfied, “after a rigorous analysis,” that the party seeking such certification has met the prerequisites of Rule 23. See General Tel. Co., 457 U.S. at 161. Furthermore, I have a continuing duty to ensure compliance with Rule 23 and may decertify or modify the class, as appropriate. See Fed.R.Civ.P. 23(c)(1) and (4); General Tel. Co., 457 U.S. at 160; Eggleston v. Chicago Journeyman Plumbers’ Local Union No. 130, U.A., 657 F.2d 890, 896 (7th Cir.1981).

8

Although Federal Rule of Civil Procedure 23 does not

technically apply to habeas corpus proceedings,

“representative actions for habeas” are permitted in

“unusual circumstances,” and I may look to Rule 23

“for guidance in determining whether a representative

action is appropriate.” Bijeol v. Benson, 513 F.2d 965,

967–68 (7th Cir.1975); see also United States ex rel.

Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir.1974).

Rule 23(a)
*4 Under Rule 23(a), a party seeking class certification must show that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of those of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Failure to satisfy any one of the requirements of Rule 23(a) requires denial of class certification. See Retired Chicago Police Ass’n, 7 F.3d at 956. Respondent does not dispute that the named Petitioner’s factual allegations are typical of the proposed class, but she does argue that Petitioner fails to satisfy the remaining three elements.
Numerosity and Impracticability of Joinder “While no magic number satisfies this element, the plaintiff must show that it is extremely difficult or inconvenient to join all of the class members in the suit.” See Young v. Magnequench Int’l Inc., 188 F.R.D. 504, 506 (S.D.Ind.1999). Although less than 21 individuals is generally in sufficient to demonstrate numerosity,9 Evans

v. Evans, 818 F.Supp. 1215, 1219 (N.D.Ind.1993), I may certify classes of less than 21 members in “special circumstances.”10 Danis v. USN Communications, Inc., 189 F.R.D. 391, 399 (N.D.Ill.1999). Such “special circumstances” may take into account the following factors: (1) the nature of relief sought;11 (2) the ability of class members to institute individual suits;12 (3) judicial economy;13 and (4) administrative difficulties involved in interpretation and joinder14 such as whether the names and existence of potential members are unknown15 or the geographical dispersion of potential members.16 However, as to all these factors, “[c]onclusory allegations do not overcome the numerosity requirement.” Danis, 189 F.R.D. at 400.

9

See, e.g., Danis v. USN Communications, Inc., 189

F.R.D. 391, 399 (N.D.Ill.1999) (15 members

insufficient); Lyne v. Arthur Anderson & Co., No. 91 C

1885, 1991 WL 247576, at *2 (N.D.Ill.1991) (18

members insufficient); CL–Alexanders Laing &

Cruickshank v. Goldfeld, 127 F.R.D. 454, 455–57

(S.D.N.Y.1989) (25 members insufficient); State Sec.

Ins. Co. v. Frank B. Hall & Co., Inc., 95 F.R.D. 496,

498 (N.D.Ill.1982) (18 members insufficient)

10

See, e.g., Cypress v. Newport News Gen. &

Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th

Cir.1967) (18 members sufficient in employment

discrimination case when the number of applications to

positions was small because of the hospital’s “notorious

discriminatory policy” and when individuals feared

“possible reprisals should they seek to attain their

rights”); Gaspar v. Linvatec Corp., 167 F.R.D. 51, 56

(N.D.Ill.1996) (18 members sufficient when damages

flowed from resolution of single question and when

potential class members were geographically

dispersed); Rosario v. Cook County, 101 F.R.D. 659,

661 (N.D.Ill.1983) (20 members sufficient when the

“administrative difficulty, delay and distraction

involved in requiring” each of the class members to

“intervene, join, or initiate a separate suit” was great

and unwarranted and when future class members would

be afforded injunctive relief sought by plaintiffs); Allen

v. Isaac, 99 F.R.D. 45, 49, 53 (N.D.Ill.1983) (17

members sufficient when class members were

“scattered throughout the United States” and feared

retaliation from employer if they sued individually);

Davy v. Sullivant, 354 F.Supp. 1320, 1325

(M.D.Ala.1973) (10 identified members sufficient

when injunctive relief sought would benefit individuals

other than the plaintiff class); Dale Elecs., Inc. v. R.C.L.

Elecs., Inc., 53 F.R.D. 531, 534 (D.N.H.1971) (13

members sufficient when class members were dispersed

over a large geographic area).

11

See Rosario, 110 F.R.D. at 661; Davy, 354 F.Supp. at

1325.

4

Kazarov v. Achim, Not Reported in F.Supp.2d (2003)

12

See Gaspar, 167 F.R.D. at 56; Evans, 818 F.Supp. at

1219; Rosario, 110 F.R.D. at 661; Allen, 99 F.R.D. at

53.

13

See Gaspar, 167 F.R.D. at 56; Evans, 818 F.Supp. at

1219; Rosario, 110 F.R.D. at 661; Allen, 99 F.R.D. at

53.

14

See Rosario, 110 F.R.D. at 661; Allen, 99 F.R.D. at 53.

15

See Danis, 189 F.R.D. at 400; Davy, 354 F.Supp. at

1325.

16

See Gaspar, 167 F.R.D. at 56; Allen, 99 F.R.D. at 53;

Davy, 354 F.Supp. at 1325; Dale, 53 F.R.D. at 534.

For the purposes of this motion, both parties agreed that the number of individuals who are potentially members of the putative class is approximately 13 individuals, and the number may be between 10 and 17 individuals. Therefore, the number (at least for purposes of this motion) is within the range in which classes have been certified in special circumstances. Accordingly, I must examine the special circumstances of this class.
Regarding the nature of relief sought, Petitioner is seeking declaratory and injunctive relief which, if granted, will affect unascertainable individuals, such as potential future members. Accordingly, the future impacts of the relief requested weighs in favor of certifying a class. Several administrative difficulties also weigh in favor of certification. First, although the parties have agreed for the purposes of this motion that the number of individuals who are potentially members of the putative class is approximately 13 individuals (and may be between 10 and 17 individuals), the identity of any actual member is unknown. In addition, since the challenged ICE practice continues, the class may grow and change as more individuals are detained by the Chicago District in excess of six months after a final order of removal has been issued. Furthermore, potential class members are immigrants, incarcerated, likely indigent, and many do not speak English, thus hindering their ability to join this lawsuit. See Fernandez–Roque v. Smith, 539 F.Supp. 925, 946–47 (N.D.Ga.1982) (“plaintiffs’ indigency, incarceration, and inability to speak English” supported class certification). Finally, Petitioner alleges that class members are geographically dispersed in various jails throughout Illinois and adjoining states. Because of these

administrative difficulties, it is extremely difficult or inconvenient to join all of the class members in the suit. In sum, therefore, these administrative difficulties along with the nature of relief sought lead me to conclude that joinder is impracticable for this case.17

17

Petitioner additionally asserts that potential members

are unlikely to institute individual suits because they

lack the resources and the access to counsel necessary.

Respondent, pointing to this Court’s “extensive docket”

of habeas actions and Kazarov’s individual petition in

particular, argues that unnamed petitioners face no

significant impediment to bringing individual habeas

actions. At best, this factor is a close class, neither

supporting nor opposing certification. As for whether

judicial economy is served by certification, Petitioner

claims that it is because this case centers around the

single issue of the lawfulness of the ICE’s detainment

procedures. Respondent counters that the relief

requested will necessitate case-by-case determinations

and thus not increase judicial economy. Once again,

this is a close call. Ultimately, however, these factors

are irrelevant because two factors support certification,

and Petitioner need not demonstrate that all factors do.

Commonality *5 For class certification, only “one question of law or fact common to the class” is required. In re VMS Sec. Litig., 136 F.R.D. 466, 473 (N.D.Ill.1991). However, “some factual variations among class members’ experiences will not defeat class certification” when the legal issues are the same for all. McKenzie v. City of Chicago, 175 F.R.D. 280, 286 (N.D.Ill.1997) (citing Rosario, 963 F.2d at 1017). The central issue is the same for all when defendants have “engaged in standardized conduct toward members of the proposed class.” Id. Accordingly, “[c]lass actions ... cannot be defeated on commonality grounds solely because there are some factual variations among the claims of individual members.” Evans, 818 F.Supp. at 1219. For example, in Tonya K. by Diane K. v. Chicago Bd. of Educ., 551 F.Supp. 1107, 1108 (N.D.Ill.1982), plaintiffs challenged the process by which educational placements of handicapped children were made. The Court found that the question of whether placement was completed in a timely manner was an appropriate one for class action. Id. at 1111. In doing so, the Court stated that “it is irrelevant for commonality purposes that class members are variously disabled or need either day or residential placement” because the Court was not evaluating the appropriateness of individual placement decisions; it was reviewing the process by which those decisions were made. Id. Similarly, in Evans, the Court stated:
the issue presented by the Plaintiffs, whether the Process violated IDEA
5

Kazarov v. Achim, Not Reported in F.Supp.2d (2003)

insofar as it imposes lengthy delays

after development of an IEP,

clearly presents a question of law

common to all class members. The

Plaintiffs’ challenge does not

require this Court to make

individual

determinations

concerning the necessity of a

residential placement. Rather, the

question is simply whether the

Process, which is common to all

class members, violates IDEA.

818 F.Supp. at 1219.
Respondent argues that a representative action is inappropriate because material factual differences are pervasive throughout the proposed class. However, Petitioner is not challenging the highly individual and inherently factually based decisions the Government eventually makes as to whether continuing detainment for each class member. Instead, Petitioner challenges the process used by ICE in making those decisions. Accordingly, the common question is whether ICE has appropriate procedures in place for ensuring that individuals are not detained outside of the rule set in Zadvydas. More specifically and for purposes of this representative action, I find that the specific common questions for which certification is appropriate are (1) whether Respondent has a practice of delaying adjudication of repatriation likelihood reviews for class members and/or (2) a practice of failing to give class members a meaningful opportunity to be heard on the repatriation likelihood issue.18 However, whether Respondent has a practice of justifying continued detention on non-existing failures to cooperate or possibilities of return to home countries is not an appropriate question for class certification because it very clearly challenges the highly individual and inherently factually based decisions the Government eventually makes for each individual as to whether to continue detainment, and is thus outside the scope of Petitioner’s proposed class.

18

Respondent argues that Petitioner has not pointed to a

single class member who is currently being detained

because Respondent has delayed in completing his

repatriation likelihood review or who has been denied a

meaningful opportunity to be heard on the repatriation

likelihood issue. While this is true and while Petitioner

may eventually be unable to point to any class member

who fits these categories, that seems to be an issue for

summary judgment rather than class certification.

*6 Respondent further argues that a representative action is inappropriate because I cannot grant the injunctive relief Petitioner seeks on a class-wide basis—to

immediately release all class members from immigration custody and to cease and desist from detaining members of the class after the end of the presumptively reasonable six month period after a final order of removal, pursuant to the rules and regulations currently enacted by Respondent—without ignoring Zadvydas’ s explicit recognition that release of an alien after the presumptively reasonable six month period is not automatic. 533 U.S. at 701. Respondent cites Wang v. Reno, 862 F.Supp. 801, 811 (E.D.N.Y.1994), for the proposition that class certification is inappropriate in a case in which injunctive habeas relief is requested. In Wang, the Court noted that “[t]o the extent that plaintiffs are seeking more than declaratory [relief], the habeas relief sought must be considered on an individual basis” and that “judicial efficiency would not be increased by class certification.” Id. While individual habeas relief here may have to be determined on a case-by-case basis, which will hinder judicial economy, this in no way compels denial of class certification. To hold that it does would be inconsistent with both Bijeol and Sero, which have expressly permitted representative habeas actions in which petitioners sought and received some sort of injunctive habeas relief. In fact, in Sero, while the Second Circuit remanded part of the case back to the District Court for further determinations and disposition, one part of the case affirmed was the District Court’s granting of bifurcated injunctive relief in terms of ordering release of certain incarcerated petitioners and ordering resentencing of others. This relief was certainly time-intensive, necessitated at least some case-by-case disposition for those for whom resentencing was ordered, and certainly did not serve judicial economy. Nonetheless, neither the District Court nor the Second Circuit held that this relief necessitated denying class certification. Indeed, class certification has been granted when there are questions common to the class, despite the need for individual remedies for class members. Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir.1980) (“The fact that individuals may also seek relief on the basis of facts peculiar to their individual cases does not deflect the thrust of this lawsuit.”) Accordingly, the relief requested here does not require denying certification. While Respondent may be correct that the requested relief may be contrary to Zadvydas, I will cross that bridge if and when that becomes an issue.
Adequacy of Representation In evaluating adequacy of representation, courts look at both the adequacy of the named plaintiffs in protecting the interests of the class members and the adequacy of plaintiffs’ named counsel. Retired Chicago Police Ass’n, 7 F.3d at 598. A representative petitioner must be able to represent the interests of the class adequately. See Gaspar, 167 F.R.D. at 58. Class representatives must share interest and injury with class members in order to adequately
6

Kazarov v. Achim, Not Reported in F.Supp.2d (2003)
protect their interests. See Uhl v. Thoroughbred Tech. & Tel., Inc., 309 F.3d 978, 985 (7th Cir.2002).
*7 Respondent does not dispute the capabilities of Petitioner’s counsel here, but she does argue that Kazarov is not an adequate class representative petitioner because he is no longer a member of the proposed class. However, courts have found that a mooted plaintiff can satisfy the requirement of adequate representation necessary for class certification. See Tonya K., 551 F.Supp. at1112–13; Dixon, 537 F.Supp. at 992; Green, 513 F.Supp. at 975. In determining whether to grant certification, I must decide whether Kazarov “will adequately protect the interests of the class .” Sosna, 419 U.S. at 403. A mooted petitioner will adequately represent the interests of the class where it is “unlikely” that members of the proposed class “would have interests conflicting” with those advanced by the named plaintiff and “where the interests of that class have been competently urged at each level of the proceeding.” Id. The first prong of this test (which is the prong at issue) assures that “the named plaintiffs’ interests are not antagonistic to those of the class.” Tonya K., 551 F.Supp. at 1112. Here, Kazarov does not have interests adverse to those of the other class members. Both he and class members have allegedly been harmed by the unconstitutional government procedures and have the same interest in stopping the practices and procedures currently in place by the ICE. Accordingly, Kazarov can serve as an adequate representative for the class.
Rule 23(b)(2)
Having found that the proposed class satisfied the requirements of Rule 23(a), I must next determine whether it satisfies Rule 23(b)(2). See Ellis v. Elgin

Riverboat Resort, 217 F.R.D. 415, 419 (N.D.Ill.2003). To proceed under Rule 23(b)(2), Petitioner must establish that “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” This rule does not require that all members of the class be aggrieved by the challenged conduct, but proponents of a Rule 23(b)(2) class must be able to demonstrate that the “conduct or lack of it which is subject to challenge be premised on a ground that is applicable to the entire class,” and that the entry of declaratory or injunctive relief would remove a barrier or impediment common to the class. See Jones v. Diamond, 519 F.2d 1090, 1100 (5th Cir.1975).
Respondent argues that Petitioner’s dues process and APA challenges to the regulations at issue here do not involve a question which, if resolved, would remove a common barrier to the putative class members’ quest for release from ICE custody, because each class member’s detention status still would have to be determined on a case-by-case basis. Once again, however, Petitioner does not challenge individual detention decisions, but rather the procedures used by Respondent toward the class as a whole. Respondent has applied these same procedures to each class member and because injunctive and declaratory relief is sought, this class is maintainable as a class action under Rule 23(b)(2).
*8 For the reasons above, Respondent’s Motion to Dismiss Count I and II is GRANTED, and Petitioner’s Motion for Class Certification is GRANTED subject to the modifications and limitations described above.
	  

7

 
 Kazarov v. Achim, Not Reported in F.Supp.2d (2007)
2007 WL 647453 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division. Vadim KAZAROV, on behalf of himself and all others similarly situated, Petitioner,
v. Deborah ACHIM, Field Operations Director, Chicago District, Immigration and Customs Enforcement, Department of Homeland Security,
Respondent. No. 02 C 5097. | Feb. 27, 2007.
Attorneys and Law Firms Andrea Kathleen Zollett, John Donovan Lien, Foley & Lardner, Christopher J. Werner, Smith & Bent, PC, Chicago, IL, for Petitioner. Opinion
MEMORANDUM OPINION AND ORDER
ZAGEL, J.

Findings of Fact
*1 1. This action was originally filed on July 18, 2002 when the Midwest Immigration and Human Rights Center filed its “Class Action for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief.”
2. Members of this class consist of aliens in the Chicago District who have been detained for over six months after a final order of deportation.
3. By statute, aliens who are convicted of certain crimes must be deported,1 and regulations require the government to take those aliens into custody pending removal.2

1

8 U.S.C.A. § 1226 (2005).

2

8 C.F.R. § 241.3 (2005).

4. The Bureau of Immigration and Customs Enforcement

(“ICE”) has the responsibility to apprehend, detain and remove aliens under a final order of removal. ICE is a division within the Department of Homeland Security.
5. Statute authorizes the Attorney General to detain in custody beyond the ninety day removal period those aliens considered a flight risk or a threat to the community.3 ICE is divided into several “Field Office” districts. Chicago is one of the Field Offices, and the Chicago Field Office Director has responsibility for ICE activities in several states. For the past two years the Chicago Field Office Director has been Deborah Achim.

3

8 U.S.C.A. § 1231(a)(6) (2005); 8 C.F.R. § 241.4

(2005).

6. Once an alien becomes subject to a final removal order, and has exhausted all appeals and stays, the vast majority of aliens are deported within ninety days of the final order. While the Chicago Field Office-with jurisdiction over several states-takes approximately 700 to 800 aliens into custody every month, only 40 to 50 of those cases reach the 90-day review.
7. Within the Chicago Field Office, three levels of administration exist under the Field Office Director with respect to detention and removal activity following a final order of removal. These three levels comprise the Post Order Custody Review unit (“POCR unit”).
8. At the lowest level within the Chicago POCR unit are two or three Deportation Officers. Next in the chain of command is the Supervising POCR Detention Officer. Above that official is the Deputy Chicago Field Office Director, and then comes the Chicago Field Office Director.
9. The POCR Deportation Officers have the responsibility to maintain the file (called the “A-File”) for each alien in the process of removal, to obtain travel documents for the alien, to communicate with the alien, and sometimes even to escort the alien to the country to which the alien is being removed.
10. Deportable Alien Control System (“DACS”) is the name of the computer software system used by the Chicago Field Office to keep track of alien information.
11. The term “travel document” includes a passport or some other piece of paper that will allow the alien to enter the country to which he is being deported.
12. If an alien does not have a travel document, the Chicago POCR unit will communicate with the embassy of the country to which the alien is to be deported in order
1

Kazarov v. Achim, Not Reported in F.Supp.2d (2007)

to obtain a travel document.
13. An alien is required to assist and cooperate in the effort to obtain a travel document.4

4

8 C.F.R. § 241.4(g)(5) (2005).

*2 14. ICE has difficulties obtaining travel documents from some countries, and ICE encounters delays from other countries. Individual detainees may also encounter difficulties simply because a country may claim (truthfully or not) that inadequate information exists to establish that the alien is a citizen of that country.
15. The purpose of the POCR Review is to determine whether the alien should be released under supervision or continued in detention. If the alien is released, the alien continues to be subject to removal and ICE will continue in its efforts to obtain travel documents.5

5

8 C.F.R. § 241.4 (2005).

16. At approximately forty-five days after a Final Order, the Deportation Officers send an alien in custody three documents. All are “form” documents:
(1) A Notice To Alien of File Custody Review;
(2) Instruction Sheet to Detainee Regarding Requirement to Assist in Removal;
(3) Warning for Failure to Depart.
17. The Notice To Alien of File Custody Review invites the alien to communicate with the Deportation Officer on any of ten subjects, but those subjects do not include, explicitly, the likelihood of obtaining travel documents in the reasonably foreseeable future. The Notice form does not inform the alien of the nature or status of Deportation Officer efforts to obtain travel documents.
18. At approximately ninety days from the Order of Final Removal, the Deportation Officer completes a POCR worksheet. The POCR worksheet is a form that contains basic information about the alien. The Deportation Officer completes the form using information from the alien’s A-File.
19. The POCR worksheet does contain a block of space for the Deportation Officer to fill in the history of the effort to obtain travel documents.
20. The POCR worksheet also contains a block of space for the Deportation Officer to check a box for a “Custody

Recommendation.” There are three boxes to select from:
(1) “Release from Custody / Order of Supervision;”
(2) “Continue in Custody / Retain Custody Jurisdiction;”
(3) “Continue in Custody / Refer to [Headquarters Post-Order Detention Unit]”
21. Although the POCR Worksheet, Regulations, and Field Office Manual give ICE officials discretion to interview aliens in custody during the Post Order Custody Review process,6 the Supervising Deportation Officer of the Chicago Field Office testified that aliens in custody are not interviewed very often, and he did not know of any interviews within the last year. The Supervisor of the Headquarters Post-Order Detention Unit (“HQPDU”) unit testified that he did not think an alien in custody could send anything useful that was not already in the file, and that interviews seldom occurred.

6

8 C.F.R. § 241.4(h)(i) (2005);

22. The Deportation Officer also prepares either a “Release Notification” or “Decision to Continue Detention” form letter for signature by the Chicago Field Office Director.
23. HQPDU had issued a “Step-By-Step Checklist” to field office Deportation Officers that instructed Deportation Officers to deny release at the 90 day POCR review based upon “danger to the community and flight risk,” and not to give “availability of a travel document as a reason for continued detention.” Moreover, the memorandum directed the Headquarters Deportation Officers to include “negative history” in the decision to continue the alien in detention in order to show the court that the alien was a “bad person,” even though that information may be irrelevant under current precedent.
*3 24. The Deportation Officer sends the POCR worksheet, the A-File, and either the Release or Continued Detention form letter to the Chicago Supervising Deportation Officer for review. If the Supervising Deportation Officer agrees with the recommendation of the Deportation Officer, the Supervising Deportation Officer signs the POCR worksheet, and passes it and the rest of the file to the Chicago Field Office Director or Deputy Director, who makes the final decision whether to continue detention of the alien.
25. The current Chicago Field Office Director receives the POCR worksheet and either a completed “continued detention” or “release” letter for her signature. The Field
2

Kazarov v. Achim, Not Reported in F.Supp.2d (2007)
Office Director signs (or refuses to sign) the letter submitted to her, and then that letter is sent to the alien. Deportation Officer Ahmad of the Chicago Field Office testified that no supervisor had ever disagreed with her recommendation to release an alien or to continue an alien in custody.
26. The Decision To Continue Detention letter is a “form,” but it contains spaces for the date, the detainee’s name, “Detention Location Address,” and a line for the signature of the Field Office Director. The form letter also contains two “instructions” for the Field Office Director:
(1) “Add case history, criminal history summary and specific reasons for continued detention pursuant to 8 CFR 241.4 (threat/flight risk).”
(2) “To be served after the 90-day POCR Review in the case of an alien whose removal will be affected in the foreseeable future....”
The same form letter also informs the alien:
If you have not been released or removed from the United States by [Add Date of Day 180], jurisdiction of the custody decision in your case will be transferred to Headquarters Post Order Unit (HQPDU) ... HQPDU will make a final determination regarding your custody.
27. The Decision to Continue Detention form letter is intended to tell the alien why the agency decided the alien should be detained. Since that is its sole purpose, it does not inform the alien of collateral, but important, issues, to wit, the status of the government’s efforts to obtain travel documents or what response, if any, the government has received from the country to which the government wants to remove the alien. Nor does the form letter advise the alien that, after 180 days from the date of a final order of removal, the government has the burden of producing evidence to rebut an alien’s proffered reasons to believe that there is no significant likelihood of removal in the reasonably foreseeable future.
28. Between 90 and 180 days from the date of a final order of removal, the Chicago Post Order Custody Review Unit does not conduct another formal POCR evaluation, or prepare a new Post Order Custody Review Worksheet.
29. At or about the 180th day, the Chicago Field Office Director has a final opportunity to order an alien released before jurisdiction over custody determination automatically passes to HQPDU (now HQCDU) in

Washington, D.C.7

7

8 C.F.R. §§ 241.4(c)(2); 241.4(k)(l)(ii); 241.4(k)(z)(ii)

(2005).

*4 30. During the final review at the Chicago Office, just before the 180 days from the date of the final order of removal, the Chicago Field Office does not notify the alien that the Chicago Field Office is about to make a final custody review before custody decision jurisdiction transfers to HQPDU.
31. Only HQPDU can release an alien because of a determination that no significant likelihood exists that an alien will be released in the reasonably foreseeable future.8

8

8 C.F.R. §§ 241.4(i)(7); 241.4(k)(l)(ii) (2005).

32. After 180 days from a Final Order of Removal, the Chicago Field Office does not have to make another formal review of the alien’s file for one year.
33. At the 181st day, when jurisdiction over custody decisions transfers to HQPDU, the Chicago Field Office transfers the POCR review sheet and a cover memorandum to HQPDU. Although the POCR worksheet is transferred to HQPDU, the A-File remains in the Chicago Field Office.
34. At HQPDU, the custody determination comes under the Office of Detention and Removal Operations, and the custody determination is made by the supervisor of Detention and Removal Operations, based upon a recommendation of a HQPDU Deportation Officer.

35. HQPDU strives to issue a custody decision within 30 days of receiving the POCR worksheet. Absent the “special circumstances” contained in 8 C.F.R. § 241.14, the decision to release or retain an alien in custody after 180 days depends solely upon whether a significant likelihood exists that removal can be accomplished in the reasonably foreseeable future.9

9

8 C.F.R. § 241.14 (2005).

36. If HQPDU has assumed jurisdiction over an alien’s file, the Chicago Field Office Deportation Officer only notifies “Headquarters” if the Deportation Officer knows or believes that a travel document will or will not be forthcoming. If a travel document is pending, the Deportation Officer does not notify Headquarters.
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Kazarov v. Achim, Not Reported in F.Supp.2d (2007)

37. The Chicago Field Office Deportation Officer “[retains] responsibility of docket control, case management, completion of future reviews, and will continue appropriate follow-up efforts to remove the alien.”
38. Furthermore, “The HQPDU shall consider all the facts of the case including but not limited to, the ... history of the [ICE’s] efforts to remove aliens to the country in question ... including the ongoing nature of the [ICE’s] efforts to remove the alien ... [and] the reasonably foreseeable results of those efforts....”10

10

8 C.F.R. § 241.13(f) (2005).

39. A Deportation Officer at HQPDU considers the POCR Review Sheet, communicates with the Chicago Field Office Deportation Officers as necessary, and prepares a recommendation to the Supervisor of the Detention and Deportation Unit that a “180 days plus” alien be released or continued in detention. The Supervisor rarely disagrees with the recommendation of the Deportation Officer, and the present Headquarters Supervisor could not remember it ever happening.
40. The regulations require that HQPDU issue a “written decision based on the administrative record ... regarding the likelihood of removal and whether there is a significant likelihood that the alien will be removed in the reasonably foreseeable future under the circumstances.”11

11

8 C.F.R. § 241.13(g) (2005).

*5 41. In the third quarter of 2004, HQPDU imposed a monthly reporting requirement on the Field Offices, including the Chicago Field Office, on the status of the “180-day plus” cases. The report requires updates on, among other things: 1) the date travel documents were requested; 2) the date of the last follow-up on travel documents; 3) the date of the last POCR review and the decision; and 4) “current case status/comments.” Although the Chicago Field Office has received ratings of “no deficiencies,” the Chicago Field Office Director did not know precisely what would constitute a deficiency. The reviews initiated by HQPDU in the fall of 2004 involved a sampling of Field Office cases. For instance, 0-90 day cases are checked to see if travel documents have been requested and the notices issued to the alien; 90-180 day cases are checked to verify that a 90-day POCR decision was issued and the decision letter delivered; and “180 days plus” cases are checked to verify that the case was sent to Headquarters and that there were periodic follow-ups on travel documents.

42. The HQPDU instituted a monthly “report” from all Field Offices regarding the status of all “180 day plus” cases. The supervisor of HQPDU testified 1) there are no set dates for HQPDU reviews; 2) there are no records kept to show how quickly “180 day reviews” are made; 3) there is no time limit after HQPDU has made a “decision to detain” within which the next review must occur; and 4) there are no records of what the average length of a “180 day review” is.
43. HQPDU relies upon the Chicago Field Office to send memoranda that trigger new custody reviews. Headquarters only follows up on the “comments” if “need be.” In the absence of a request for review by an alien, the regulations only require an annual review following a decision by HQPDU to continue detention.12

12

8 C.F.R. § 241.4(k)(2)(iii) (2005).

44. The HQPDU Supervisor testified that once a “continued detention” letter is issued at the initial “180 day plus” review, there is no time limit for the next review.
45. The regulations, like most judicial opinions and executive regulations, do not define the terms “significant likelihood” or “reasonably foreseeable future,” except where the regulations state, “where the [ICE] is continuing its efforts to remove the alien, there is no presumptive period of time within which the alien’s removal must be accomplished, but the prospects for the timeliness of removal must be reasonable under the circumstances.”13

13

8 C.F.R. § 241.13(f) (2005).

46. The Detention and Deportation Officer’s Field Manual states that “the longer an alien remains in [ICE] custody after being ordered removed, the higher the burden on the government to establish that the alien’s removal is going to occur in the reasonably foreseeable future.”
47. If HQPDU issues a continue in detention decision at the first review after 180 days, the Deportation Officer at the Chicago Field Office “will continue appropriate follow up efforts to remove the alien.” If the alien is not removed within a reasonable time, “the local field office is to inform HQPDU by way of a memorandum (which is also to include any updates to the POCR package) so that a new custody decision under 8 CFR 241.13 may be made.” The field officer is responsible for the review of the alien’s file, and “each case officer is to review every long-term final order case and update DACS at the
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Kazarov v. Achim, Not Reported in F.Supp.2d (2007)

minimum every 30 days.” In June 2003, Immigration and Customs Enforcement issued a policy statement entitled, “Endgame, Office of Detention and Removal Strategic Plan, 2003-2012.”14

14

PX 500.

*6 48. The Chicago Field Office and HQPDU have the Endgame Strategic Plan and know its contents, including its goal of 100% removal of all removable aliens.
49. The Endgame Strategic Plan contains the following ICE policy statements:
“Throughout the next ten years, DRO will implement and execute a series of strategies that will develop the capacity and capability to execute all final orders of removal.”
“Over the next ten years, Endgame will lay the groundwork for developing the capacity and capability to remove all removable aliens.”

“Removing all removable aliens is in fact, DRO’s mission.”

“The

‘endgame’

of

immigration law enforcement

is the removal of individuals

who have received final orders

of removal. This is the essence

of DRO’s mission.”

“Key elements in exercising these responsibilities include ... developing and maintaining a robust removal program with the capacity to remove all final order cases issued annually, thus precluding growth in the illegal alien absconder population.”

“DRO will increase its overall number of removals annually in order to thwart and deter continued growth in illegal alien population.”

“Moving toward a 100% rate of removal for all removable

aliens is critical to allow the ICE to provide the level of immigration enforcement necessary to keep America secure.”
“DRO Goal One-Removals”
“The key success factors are: Percent of removals related to final orders issued.”
50. “Endgame” recognizes that releasing an alien who is under a final order of removal substantially reduces the probability of ever removing that alien: “The Detention and Removal Program does not have a program to effectively manage its non-detained docket. The appearance rate of individuals released from ICE custody is estimated to be 15 percent and the program does not have the resources to identify, locate, apprehend and process the remaining 85%.” The Chicago Field Office Director agreed with this statement.
51. “Endgame” also recognizes that institutional issues degrade ICE’s ability to achieve its stated goal of removing 100% of all removable aliens:
“... the [DRO] program does not have reliable modes to determine what the true workload-to-personnel ratio should be.”
“The current field structure, coupled with a lack of unified national operations, plans, has resulted in diversified and inconsistent interpretations of policy and guidance within and between regions and districts.”
“The Deportable Alien Control system no longer responds to the demands placed on it in today’s operational environment.”
52. The General Accounting Office has reported the shortcomings of the DACS computer software system because of, among other things, its inability to automatically prompt a reminder of dates for the 90 day review, the 180 day review, or any subsequent review.15 ICE has acknowledged this problem and has a new software system under development, but the date for the system’s implementation remains uncertain. Accordingly, at this time each Deportation Officer maintains a personal “docket system” for when custody reviews must be made. In the Chicago Field Office, Deportation Officer Ahmad uses a system of colored “sticky notes” on files kept in separate piles in her office to remind her when reviews are due.
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Kazarov v. Achim, Not Reported in F.Supp.2d (2007)

15

Id. at p. 3, 12.

*7 53. All ICE witnesses agreed they were not provided any additional guidelines for determining the meaning or application of “reasonably foreseeable future.”
54. The Supervisor of HQPDU considered “significant likelihood of removal in the reasonably foreseeable future” to mean “feasibility” of removal in the reasonably foreseeable future.
55. At HQPDU, the Deportation Officers do not follow a standard system for keeping track of “180 day plus” cases.
56. The regulations contemplate that aliens might make efforts to assist in the removal process. ICE takes a “pro-active” position and does things “on behalf” of the alien, because ICE does not rely on the alien, at least partly because aliens may have no true incentive to assist beyond their legal obligation to do so.
57. HQPDU does not currently inform the alien that a “180 day plus” review is about to take place, though HQPDU used to do so.

Further Findings of Fact and Opinion
In this case, injunctive relief is sought on the grounds that ICE unlawfully delays reviews of the likelihood of repatriation and prevents detainees from supplying information which might show that repatriation is unlikely and, by so showing, secure release from custody.16

16

This is not an instance in which the Supreme Court

announced a change in operating rules for government

agencies that caused the government to scramble to

change its procedures and find the resources to execute

them. The seminal case, decided on statutory

construction grounds, was Zadvydas v. Davis, 533 U.S.

678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The

Zadvydas Court found limits on the government’s

power to keep aliens under final orders of removal in

custody. The Court said that, implicit in the statute, was

a limit of 180 days of custody unless the government

could show there was “a significant likelihood of

removal within the reasonably foreseeable future.” Id.

at 701. In Clark v. Martinez, 543 U.S. 371, 378, 125

S.Ct. 716, 160 L.Ed.2d 734 (2005), the time limit was

found to be applicable to aliens detained at the border

as well as those who, like Zadvydas, had entered the

country and only later became subject to removal.

Enough time has passed for the government to comply

with these statutory provisions. The government does not argue that it needs time to do so. It asserts that it is acting in compliance with the statutes as construed by the Court.
The class argument in favor of relief is based on the state of mind of those who administer the detention process and on the leeway that the applicable regulations give them. The Supreme Court did not itself define what might be the “reasonably foreseeable future,” except to say that the longer one is in custody, the shorter the period of reasonably foreseeability ought to be. Different officials give their definitions in non-uniform language, e.g., (a) no significant likelihood means removal is not going to happen; (b) significant likelihood means removal is imminent; (c) significant likelihood is dependent on the facts of each case rather than upon a set standard.
The policies of ICE itself encourage continued detention by setting a goal of 100% removal of all removable aliens. ICE regards itself, in part, as a law enforcement agency that rounds up wrongdoers. It displays its bias with a checklist that instructs deportation officers how to find that removal is likely. And if removal is found likely (which means continued detention), the regulations require only an annual review and the alien can request a review only once every six months. The timing of this practice results in many aliens (even those who, like the majority, are ultimately released) remaining in custody for more than the half-year that the Supreme Court allows.
Apart from the ICE’s policies, its procedures fail to inform the aliens about how they might help their own cause. Aliens are not asked to give reasons why their chances of removal are unlikely. Aliens are not told what evidence the ICE will rely on in deciding whether to keep them locked up. Aliens are not told that the law requires ICE to offer evidence to rebut any good reason the alien happens to give for believing there is no reasonable likelihood of removal.
*8 Nevertheless, none of these reasons, on their face, mandates a decision in favor of the class. The vague nature of the standard is the product of the Court’s language, which has never been clarified. The standard, however, is no more vague than many used in the law. It is true that the consequences of an erroneous decision are serious, but the law allows courts to imprison people for long periods based on randomly selected jurors’ understanding of “reasonable doubt.”
Administrative agencies often give detailed regulatory content to phrases in legislation and rulings; “reasonable likelihood” is no more amenable to detailed content than is reasonable doubt. So rulings will be inconsistent as verdicts are inconsistent and it is permissible to rely, in
6

Kazarov v. Achim, Not Reported in F.Supp.2d (2007)
situations like these, upon the expertise of those charged with securing removal. There was testimony that, as time went on, deportation officers did acquire knowledge about which nations would repatriate which aliens, which would not, and about building relationships with consular officials of those nations in order to facilitate removal. None of this is surprising since the Zadvydas Court itself declined to give any guidance on “reasonable likelihood” or “reasonably foreseeable.” Writing for the Court, Justice Breyer said:
Ordinary principles of judicial review ... recognize Executive Branch primacy in foreign policy matters. And they consequently require courts to listen with care when the Government’s foreign policy judgments, including, for example the status of repatriation negotiations, are at issue, and to give the Government appropriate leeway when its judgments rest upon foreign policy expertise.
Zadvydas, 553 U.S. at 700.
Nor is it damning that ICE sees itself as a law enforcement agency. Many of the aliens are subject to removal because they have been convicted of crimes and all are in this country without legal right. It is not discrediting for an agency to seek to remove 100% of those who are under final order of removal. In reality, 100% success is unattainable. That said, one would question the wisdom of an agency administrator who set a goal of 90% and implicitly adopted a policy that the agency did not care that 10% of the orders of removal go unenforced.
ICE’s failure to seek the aliens’ deeper involvement in the process of securing removal, that is to say, persuading the native nation to take the alien back, is not necessarily significant. It is clear from the evidence that removal is achieved when a reluctant nation is persuaded to take the alien back. This process is one which involves negotiation between deportation officers and consular officials against a backdrop of several or many cases over the years. The alien usually contributes information about family and status within the nation to which he is to be removed. In that process, the alien is not only asked to cooperate, he is required by law to do so. The law requires this because, in some case, the alien has no desire to return. Indeed, there was no showing of what kind of assistance the alien could offer. It is reasonable to assume that some information that would show unlikelihood of removal might be personally damning to the alien and not eagerly offered. Also, some information might properly be raised in an asylum proceeding.

*9 So none of the arguments are compelling. This does not mean they are without weight. The 100% removal goal is not facially inappropriate but quotas do tend to cause government employees to be slanted or bias judgments to please their superiors, particularly where, as here, these officers have heavy caseloads. The vagueness of “reasonable likelihood” gives them leeway to do so. While most aliens have little chance of contributing something useful to the process of removal, it does not follow that none or almost none of them do. In the end, the decision here must be made on the evidence of what is actually done in the Chicago District Office and on my judgment of the credibility of the witnesses I heard and the reasonableness of their testimony in light of the circumstances before me.
At the outset, I reject the argument that the announced 100% removal policy creates a big incentive to detain. Over 70% of class member detainees are released. This large a number suggests that the 100% goal is traditional chest-thumping by government agencies that does not affect decisions made in the field. Moreover, I heard the testimony of some of the decision-makers, and I do not believe that any of them felt compelled to extend detainment in order to make some kind of showing that ICE was serious about meeting the aspirational and impossible 100% goal.17

17

The step-by-step checklist is apparently new to the

deportation officers here and its use was not proven. Its

provenance is unclear.

The government concedes, as it must, that while some individual cases will be badly handled, the process is not itself in need of change mandated by court order. It is, in large part, the practices of the Chicago District Office that are at issue here. Determinations about the likelihood of removal are the province of a small number of deportation officers who do nothing but that work, most of which consists of trying to get travel documents from foreign governments. The practice in Chicago is to make an initial determination (required by regulation) and to conduct a second review of the case (which is not required by regulation) a few days before the 180 day deadline. The Field Operations Director, Deborah Achim, may conclude that there is no significant likelihood of repatriation within the reasonably foreseeable future and order the release of the alien, subject to exceptions for aliens who are flight risks or a danger to the community. If she reaches the opposite conclusion, the matter transfers to ICE headquarters which does a second, formal, post-order custody review. The deportation officers learn which countries are most reluctant to accept their citizens back and the ways in which this reluctance can be overcome by calling on specific consular personnel and using
7

Kazarov v. Achim, Not Reported in F.Supp.2d (2007)

accumulated data about the approaches that might work with a particular foreign nation.
There are not all that many deportation officers who do this work. There is some room for individual practices. One officer used both a computer and post-it notes to keep track of the cases on her docket. A supervisor checks his database every day, and if a deadline has passed without action, he reminds the officer. Such reminders are not generally required. A large number of detained aliens, who come into the system at the rate of about 800 a month, are, in fact, routinely removed without difficulty. The routine is to release those unlikely to be removed within 90 days (the government is permitted a minimum of 90 days for its process). By the time the 180 day period has passed there are relatively few aliens left in detention. At the time of trial, the number of detained aliens, whose cases have been sent to headquarters after 180 days, were in the low single digits.

*10 One focus of any case governed by Zadvydas is what happens after 180 days. These are the cases that are transferred from Chicago to headquarters. It appears that Chicago does not now retain (by design or accident) any of these cases past 180 days. The second review at headquarters is performed by a small staff of three or four officers and a supervisor who endeavors to complete it within 14 days and no more than thirty days. In effect, this extends the 180 limit by several days but nobody makes anything of this here.18 The supervisor opined that the routine cases are easy and promptly decided. It is the cases in which even long-term detention is permitted that take time, e.g., persons detained as dangers to the community. Headquarters also reviews the District Offices and it has found the Chicago office to have no deficiencies. More importantly, only twelve aliens had been detained for more than 180 days in 2005. In the month before trial, the number was nine, but only three of them could fall within the class defined in this case.

18

Some flexibility is inevitable because removal is

dependent on the conduct of foreign nations whose

actions are outside our government’s control. An

Embassy that says that it will deliver travel documents

or will give an answer in thirty days properly causes

ICE to wait to see if that occurs, even if the thirty days

is tacked on to the end of the 180 day period. The

foreign nation may not keep its promised deadline but

our government still holds out hope for travel papers in

the future.

This is not to say that no aliens were detained beyond when they should have been released. No doubt some were, but this demonstrates only that a wrong decision was made. To draw an appropriate-if sometimes uncomfortable-comparison, there is no evidence of an error rate by ICE that exceeds the error rate of American

trial judges as calculated by appellate reversals. Indeed, there was no attempt to prove that any decision with respect to a particular class member was wrong. Nor was there proof that timely hearings were not held.
What the petitioners have is statistics showing that the mean number of days in detention of some 68 detainees is about 282 and the median is 263. This is a lot longer than intuition would lead one to expect but intuition is often unreliable. The limit of 180 days is a guideline and it is possible that ICE honestly, but mistakenly, believed that removal was likely under Zadvydas. Then there are those, who for valid reasons, do not have to be released from detention for many months. The list of 68 includes aliens from countries that do not resist repatriation; it is fair to infer that these aliens are not the victims of ICE processing. Detention is expensive and the government has no interest in extending it by keeping aliens whose native lands are usually willing to accept them back.
I find that ICE makes a reasonable and appropriate effort to comply with Zadvydas. I find this effort is what is required by law. For mistakes and failures, which will inevitably occur in a certain number of cases, the law provides an adequate remedy by use of a petition for a writ of habeas corpus.
The aliens subject to detention could be given more written information-in formal notices-about how to prove that removal is not a significant likelihood in the reasonably foreseeable future. The question in this case is whether the alien is given enough information so that the alien has a meaningful opportunity to be heard on the question of his or her repatriation. There is a practice of deportation officers to visit detention sites and make themselves available to detainees who have questions. A private organization prepares a “know your rights” packet that is available to all detainees and which describes the kind of paperwork that would help the alien get out of jail. One deportation officer testified, credibly, that she is frequently contacted by detainees who have questions (which she answers) and who offer information which she documents in her file. This is in addition to communications from attorneys for the aliens.
*11 There was no instance presented to me in which an alien testified that he or she did not know what could be done to assist his or her cause and that this ignorance led to excessive detention. Persons in custody have an obvious incentive to offer every bit of information that they think will help gain their freedom. In light of this incentive, it is difficult to believe that any significant number of unrepresented detained aliens capable of assisting their cause would be, in the circumstances of this case, at a loss to know what to submit to help themselves. I would infer that aliens’ filings would be much like the kitchen sink habeas corpus petitions which state prisoners file in our courts. There was no evidence offered to show
8

Kazarov v. Achim, Not Reported in F.Supp.2d (2007)
that any particular alien did not know what could be done to help and, for this reason, was harmed by an overlong detention.
Finally, it is not disputed that ICE, not alone among federal agencies, has a computer system that could be better both at flagging the need for post-order custody reviews and monitoring the process. But this is not shown to have a real world effect on the members of this class. Computer support makes it easier to track and comply with deadlines and schedules, but it is not necessary to achieve that end. Lawyers have done a decent job of this for years before the computer age; if post-it notes work, and they seem to, then the flawed computer system imposes unnecessary burdens on government workers to do as the law requires. It is not proven that these workers fail in their mission simply because the computer system is not as good as it ought to be.
Injunctions requiring changes in rules and procedures of the government agencies as well as their practices are not common. Indeed they are not common even in civil cases because of justified concern over the ability of judges to make management decisions, the cost of oversight and the appropriateness of their doing so even when competent. See Graham v. Medical Mut. of Ohio, 130 F.3d 293 (7th

Cir.1997); Original Great American Chocolate Chip Cookie Co. v. River Valley Cookies, 970 F.2d 273 (7th Cir.1992). This is particularly true when no specific wrongful injury has been shown to occur to specific persons as a result of the conduct challenged, even if one assumes there are class members with standing to complain. Proof that government processes could be improved, even substantially improved, does not make the case for relief here. The requirements of due process have been met here and that is all that is required. Landon v. Plasencia, 459 U.S. 21, 34-45, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982)
Conclusion of Law
1. The Court has jurisdiction over the parties and the subject matter.
2. Neither the class nor any of its individual members are entitled to injunctive relief against the respondent.
	  

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 CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?698334132130196-L_3...
CLOSED, HABEAS, LEVIN, REOPEN
United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 3.0 (Chicago)
CIVIL DOCKET FOR CASE #: 1:02-cv-05097

Kazarov, et al v. Ashcroft, et al Assigned to: Hon. James B. Zagel Demand: $0 Cause: 28:2241 Petition for Writ of Habeas Corpus

Date Filed: 07/18/2002 Date Terminated: 02/27/2007 Jury Demand: None Nature of Suit: 460 Deportation Jurisdiction: U.S. Government Defendant

Plaintiff
Murah Al-Hnitin TERMINATED: 09/10/2002

represented by Charles Roth Midwest Immigrant & Human Rights Center 208 South LaSalle Suite 1818 Chicago, IL 60604 312-629-1960 Email: croth@heartlandalliance.org TERMINATED: 09/10/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne G Relias Scott D. Pollock & Associates 105 West Madison Street Suite 2200 Chicago, IL 60602 312-444-1940 TERMINATED: 09/10/2002

Douglas M. Hagerman Rockwell Automation, Inc. 777 E. Wisconsin Avenue Suite 1400 Milwaukee, WI 53202 (414)212-5270 TERMINATED: 09/10/2002

Jeffrey Andrew Soble Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610-4714 (312)832-4500 TERMINATED: 09/10/2002

1 of 15

8/3/2007 10:26 AM

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Plaintiff Mohammed Aidouni
2 of 15

Thomas Paul Krebs Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610-4714 (312)832-4500 TERMINATED: 09/10/2002

represented by Charles Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne G Relias Scott D. Pollock & Associates 105 West Madison Street Suite 2200 Chicago, IL 60602 312-444-1940 Email: arelias@lawfirm1.com ATTORNEY TO BE NOTICED

Christopher J Werner Smith & Bent, PC 53 West Jackson Blvd. Suite 402 Chicago, IL 60604 (312) 339-4984 Email: cwerner@foley.com ATTORNEY TO BE NOTICED

Douglas M. Hagerman (See above for address)

Jeffrey Andrew Soble Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610-4714 (312)832-4500 Email: jsoble@foley.com ATTORNEY TO BE NOTICED

Thomas Paul Krebs Foley & Lardner 321 North Clark Suite 2800 Chicago, IL 60610-4714 (312)832-4500 Email: tkrebs@foley.com

8/3/2007 10:26 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?698334132130196-L_3...

Plaintiff Keovongsack Pongphrachanxay
Plaintiff Den Son and others similarly situated
Petitioner Maitham Alzehrani
3 of 15

Email: tkrebs@foley.com ATTORNEY TO BE NOTICED

represented by Charles Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne G Relias (See above for address) ATTORNEY TO BE NOTICED
Christopher J Werner (See above for address) ATTORNEY TO BE NOTICED

represented by Charles Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne G Relias (See above for address) ATTORNEY TO BE NOTICED
Christopher J Werner (See above for address) ATTORNEY TO BE NOTICED
Douglas M. Hagerman (See above for address)
Jeffrey Andrew Soble (See above for address) ATTORNEY TO BE NOTICED
Thomas Paul Krebs (See above for address) ATTORNEY TO BE NOTICED

represented by Charles Roth (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne G Relias (See above for address) ATTORNEY TO BE NOTICED

8/3/2007 10:26 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?698334132130196-L_3...

Petitioner Nhat Tran TERMINATED: 09/10/2002
Petitioner Vadim R Kazarov
Petitioner

ATTORNEY TO BE NOTICED
Christopher J Werner (See above for address) ATTORNEY TO BE NOTICED
Douglas M. Hagerman (See above for address)
Jeffrey Andrew Soble (See above for address) ATTORNEY TO BE NOTICED
Thomas Paul Krebs (See above for address) ATTORNEY TO BE NOTICED
represented by Charles Roth (See above for address) TERMINATED: 09/10/2002 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne G Relias (See above for address) TERMINATED: 09/10/2002
represented by Andrea Kathleen Zollett Foley & Lardner 321 North Clark Street Suite 2800 Chicago, IL 60610 (312)832-4500 Email: azollett@foley.com
Christopher J Werner (See above for address) ATTORNEY TO BE NOTICED
John Donovan Lien Foley & Lardner 321 North Clark Street Suite 2800 Chicago, IL 60610 (312)832-4500 Email: jlien@foley.com

4 of 15

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Voeuth Long individually and on behalf of all others similarly situated.

represented by Christopher J Werner (See above for address) ATTORNEY TO BE NOTICED

V. Respondent John Ashcroft Attorney General of the United States
Respondent Brian Perryman as Chicago District Director, Immigration and Naturalization Service
Respondent Immigration and Naturalization Service
Respondent U.S. Department of Justice
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represented by AUSA United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353-5300 Email: USAILN.ECFAUSA@usdoj.gov TERMINATED: 07/29/2002
Sheila McNulty United States Attorney's Office (NDIL) 219 South Dearborn Street Suite 500 Chicago, IL 60604 (312) 353-5300 Email: sheila.mcnulty@usdoj.gov ATTORNEY TO BE NOTICED

represented by AUSA (See above for address) TERMINATED: 07/29/2002
Sheila McNulty (See above for address) ATTORNEY TO BE NOTICED

represented by AUSA (See above for address) TERMINATED: 07/29/2002
Sheila McNulty (See above for address) ATTORNEY TO BE NOTICED

represented by AUSA (See above for address) TERMINATED: 07/29/2002
Sheila McNulty (See above for address)

8/3/2007 10:26 AM

CM/ECF LIVE, Ver 3.0 - U.S. District Court, Northern Illinois - Docke... https://ecf.ilnd.uscourts.gov/cgi-bin/DktRpt.pl?698334132130196-L_3...

Respondent Deborah Achim

(See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/18/2002
07/18/2002 07/18/2002 07/29/2002 08/02/2002 08/09/2002 08/09/2002 08/12/2002 08/13/2002 08/13/2002
08/13/2002 08/13/2002
08/13/2002 08/21/2002
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#

Docket Text

1 CLASS ACTION PETITION FOR WRIT OF HABEAS CORPUS (Attachments); Civil cover sheet Appearance of Charles Roth, Anne Relias as attorneys for petitioners; Certificate of Service (Documents 1-1 through 1-3) (hp) (Entered: 07/22/2002)
RECEIPT regarding payment of filing fee paid; on 7/18/02 in the amount of $5.00, receipt #1072165. (hp) (Entered: 07/22/2002)
FORWARDED copy of habeas corpus petition to U.S. Attorney's Office. (hp) (Entered: 07/22/2002)
2 DESIGNATION OF ATTORNEY Sheila McNulty Entenman as US Attorney. (fce) (Entered: 07/30/2002)
3 APPLICATION by plaintiffs for temporary restraining order (Attachment). (fce) Modified on 09/03/2002 (Entered: 08/13/2002)
4 MOTION by petitioners for leave to conduct limited discovery and memorandum in support (Attachments); Notice. (mw) (Entered: 08/19/2002)
5 MOTION by petitioners for temporary restraining order , and for preliminary injunction ; Memorandum of law in support (Attachments); Notice. (mw) Modified on 09/03/2002 (Entered: 08/19/2002)
6 MOTION by petitioners for leave to file statement regarding discovery consultation ; Notice. (mw) (Entered: 08/19/2002)
SCHEDULE set on 8/13/02 by Hon. James B. Zagel : Status hearing set to 10:00 8/22/02 . No notice (drw) (Entered: 08/14/2002)
7 MINUTE ORDER of 8/13/02 by Hon. James B. Zagel : Plaintiff's motion for leave to file statement regarding discovery [6-1] granted. No notice (mw) (Entered: 08/19/2002)
8 STATEMENT by petitioners regarding discovery consultations. (mw) (Entered: 08/19/2002)
9 MINUTE ORDER of 8/13/02 by Hon. James B. Zagel : Plaintiff's motion for temporary restraining order [5-1] and preliminary injunction [5-2] denied. No notice (mw) (Entered: 08/19/2002)
10 MINUTE ORDER of 8/13/02 by Hon. James B. Zagel : Plaintiff's motion for leave to conduct limited discovery [4-1] denied. No notice (mw) (Entered: 08/19/2002)
11 ATTORNEY APPEARANCE for Jalal Hmaidan, Murah Al-Hnitin, Mohammed Aidouni, Maitham Alzehrani, Den Son by Douglas M. Hagerman, Jeffrey Andrew
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08/22/2002 08/22/2002
08/26/2002 08/30/2002 09/04/2002 09/10/2002 09/10/2002
09/11/2002
10/09/2002 10/25/2002 10/30/2002 11/12/2002 11/13/2002 11/18/2002 11/18/2002
7 of 15

Aidouni, Maitham Alzehrani, Den Son by Douglas M. Hagerman, Jeffrey Andrew Soble, Thomas Paul Krebs. (fce) Modified on 08/23/2002 (Entered: 08/22/2002)
12 OPPOSITION by respondents to petitioner's motion for temporary restraining order [3-1] and preliminary injunction (Attachments). (mw) (Entered: 08/23/2002)
13 MINUTE ORDER of 8/22/02 by Hon. James B. Zagel : Status hearing held and continued to 09/11/02 at 10:00 a.m. Answer to petitioner's motion for temporary restraining order [3-1] due 09/05/02. Defendants answer to the petition/complaint due 09/18/02. Mailed notice (mw) (Entered: 08/23/2002)
14 MEMORANDUM by respondents in opposition to petitioner's motion for temporary restraining order [5-1], motion for preliminary injunction [5-2] (Attachments). (fce) (Entered: 08/27/2002)
15 NOTICE by petitioners of withdrawal of petitioners' motion for temporary restraining order [5-1] and preliminary injunction [5-2]; Notice. (cem) (Entered: 09/03/2002)
16 MINUTE ORDER of 9/4/02 by Hon. James B. Zagel: Plaintiff's motion [3-1] for temporary restraining order is denied as moot. Mailed notice (gcy) (Entered: 09/09/2002)
17 AMENDED PETITION by petitioners for a writ of habeas corpus, both individually and on behalf of a class, with amended class action complaint [1-1] (Attachments); Notice. (fce) Modified on 09/12/2002 (Entered: 09/12/2002)
17 AMENDED CLASS ACTION COMPLAINT by petitioners, terminating petitioner Nhat Tran and plaintiff Murah Al-Hnitin with amended petition for a writ of habeas corpus, both individually and on behalf of a class (Attachments); Notice. (fce) (Entered: 09/12/2002)
SCHEDULE set on 9/11/02 by Hon. James B. Zagel : Status hearing held and continued to 10:00 10/30/02 . Answers to the amended complaint due 10/9/02 and 11/16/02. Leave is given to serve limited interrogatories. No Notice (drw) (Entered: 09/11/2002)
18 RESPONSE by respondents return to counts one through five relating to the individual petitioners of the amended petition for a writ of habeas corpus [17-1] (Attachments). (gcy) (Entered: 10/11/2002)
19 NOTICE by respondents' of intent to remove (hmb) (Entered: 11/05/2002)
SCHEDULE set on 10/30/02 by Hon. James B. Zagel : Status hearing held. Oral argument on habeas petition hearing set for 11:00 11/20/02 . Date of 11/19/02 set in open court is stricken by the court. Mailed notice (drw) (Entered: 10/30/2002)
20 SUPPLEMENTAL RESPONSE to your discovery request by responden (Attachments). (gcy) (Entered: 11/13/2002)
21 REPLY by petitioner in further support of their petition for writ of habeas corpus (Attachments). (gcy) (Entered: 11/14/2002)
22 RESPONDENTS return to counts six through ten of the amended petition with Motion to dismiss. (gcy) (Entered: 11/19/2002)
22 MOTION by respondents to dismiss counts six through ten of the amended petition with respondents return to counts six through ten of the amended petition.
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11/19/2002 11/20/2002 12/03/2002 02/03/2003 02/26/2003 02/26/2003
03/04/2003 03/04/2003 03/31/2003 04/16/2003
04/16/2003 04/30/2003 05/08/2003 05/08/2003 05/08/2003
05/29/2003

petition with respondents return to counts six through ten of the amended petition. (gcy) (Entered: 11/19/2002)
23 SUR-REPLY by respondents to petitioners reply in further support of their petition for writ of habeas corpus. (gcy) (Entered: 11/20/2002)
SCHEDULE set on 11/20/02 by Hon. James B. Zagel : Rule to show cause hearing held. No notice (drw) (Entered: 11/25/2002)
24 CITATION by respondents of additional authority. (lc) (Entered: 12/09/2002)
25 RESPONSE by petitioners to respondents' return to, and motion to dismiss count six through ten of their petition for writ of habeas corpus (Attachments); Notice. (gcy) (Entered: 02/04/2003)
26 ATTORNEY APPEARANCE for petitioners by Christopher J Werner. (gcy) (Entered: 02/28/2003)
28 MOTION by petitioners for leave to amend clerical errors in their response to respondents' return to, and motion to dismiss counts six through ten of their petition for writ of habeas corpus instanter (Attachments); Notice. (gcy) Modified on 03/11/2003 (Entered: 03/11/2003)
27 STATUS REPORT by respondent and Reply brief (Attachments). (gcy) (Entered: 03/05/2003)
29 MINUTE ORDER of 3/4/03 by Hon. James B. Zagel: Petitioner's motion for leave to amend clerical errors in their response is granted [28-1]. Telephoned notice (gcy) (Entered: 03/11/2003)
30 NOTICE by respondent of intent to remove petitioner Aidouni from the United States. (gcy) (Entered: 04/01/2003)
31 MINUTE ORDER of 4/16/03 by Hon. James B. Zagel: Defendant's motion to dismiss is granted [22-1]. The petition for writ of habeas corpus is denied [1-1]. Entered Memorandum Opinion and Order. terminating case. Mailed notice (gcy) (Entered: 04/18/2003)
32 ENTERED JUDGMENT (gcy) (Entered: 04/18/2003)
34 MOTION by respondents to clarify the record and for a Rule 16 scheduling order (Attachments); Notice. (gcy) (Entered: 05/22/2003)
33 SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS, both individually and on behalf of a class, and amended class action complaint (Attachments); Notice. (gcy) (Entered: 05/13/2003)
SCHEDULE set on 5/8/03 by Hon. James B. Zagel : Status hearing set to 10:00 5/29/03 . No notice (drw) (Entered: 05/14/2003)
35 MINUTE ORDER of 5/8/03 by Hon. James B. Zagel : Respondent's motion to clarify the record and for a Rule 16 scheduling order is granted [34-1]. The judgment [32-1] entered 04/16/03 is vacated and this case is reinstated. Case reopened. No notice (gcy) (Entered: 05/22/2003)
SCHEDULE set on 5/29/03 by Hon. James B. Zagel : Status hearing held and continued to 10:00 6/9/03 . No notice (drw) (Entered: 05/29/2003)

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06/09/2003 06/16/2003 06/23/2003 07/21/2003 07/28/2003 08/19/2003
08/19/2003
08/25/2003 09/16/2003 09/29/2003
10/30/2003 10/30/2003 10/30/2003 10/30/2003 11/06/2003 11/10/2003
9 of 15

SCHEDULE set on 6/9/03 by Hon. James B. Zagel : Status hearing held and continued to 10:00 6/23/03 . No notice (drw) (Entered: 06/09/2003)
36 NOTICE of filing by the Government of declaration of Jose Luis Zamora. (gcy) (Entered: 06/17/2003)
SCHEDULE set on 6/23/03 by Hon. James B. Zagel : Status hearing held and continued to 10:00 7/28/03 . No notice (drw) (Entered: 07/28/2003)
37 RETURN to petitoners' individual claims in the second amended petition for a writ of habeas corpus (Attachments). (gcy) (Entered: 07/22/2003)
SCHEDULE set on 7/28/03 by Hon. James B. Zagel : Status hearing held and continued to 10:00 8/19/03 . No notice (drw) (Entered: 07/29/2003)
SCHEDULE set on 8/19/03 by Hon. James B. Zagel : Status hearing held and continued to 10:00 10/30/03 . Plaintiff's oral motion for leave to file an amended complaint is granted. Motion for class certification is due 5:00 9/16/03 . Answer brief due 9/30/03. Reply to answer brief due 10/14/03. No notice (drw) (Entered: 08/20/2003)
38 MINUTE ORDER of 8/19/03 by Hon. James B. Zagel : Status hearing held anc continued to 10/30/03 at 10:00 a.m. Class certification motion is due 09/16/03. Answer brief due 09/30/03. Reply to answer brief due 10/14/03. Plaintiff is given leave to file an amended complaint. Mailed notice (gcy) (Entered: 08/25/2003)
39 THIRD AMENDED [33-1] PETITION FOR WRIT OF HABEAS CORPUS, Both individually and on behalf of a class, and and amended class action complaint (Attachments); Notice. (gcy) (Entered: 08/26/2003)
40 MOTION by petitiioner Vadim Kazrov and Voeuth Long for class certification (Attachments); Notice. (gcy) (Entered: 09/18/2003)
41 MINUTE ORDER of 9/29/03 by Hon. James B. Zagel : Respondents agreed motion to extend time in which to file a response to petitioners' motion (40-1) for class certification is granted. Answer brief to motion (40-1) for class certification extended to 10/30/03. Reply to answer brief due 11/13/03. Status set for 10/30/03 is reset for 12/04/03 at 10:00 a.m. Mailed notice (gcy) (Entered: 09/30/2003)
42 AGREED MOTION by respondents to file briefs in excess of fifteen pages ; Notice (hp) (Entered: 11/03/2003)
43 MEMORANDUM by respondents in opposition to petitioners' motion for class certification (Attachments). (hp) (Entered: 11/03/2003)
44 RETURN by respondents to Counts one through five of the third amended petition for a writ of habeas corpus relating to the individual petitioners [39-1] (Attachments) with motion (hp) (Entered: 11/03/2003)
44 MOTION by respondents to dismiss Counts one and two (Attachments); with return (hp) (Entered: 11/03/2003)
45 MINUTE ORDER of 11/6/03 by Hon. James B. Zagel : Respondent's motion [42-1] for leave to file memorandum in excess of fifteen pages is granted. Mailed notice (gcy) (Entered: 11/07/2003)
46 AGREED MOTION by petitioner for extension of time to file petitioners' reply to
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11/10/2003
11/13/2003
11/18/2003 12/03/2003 12/15/2003
01/07/2004 01/08/2004 01/21/2004 01/21/2004 05/18/2004 06/23/2004 07/15/2004 07/19/2004 08/04/2004
10/04/2004 10/25/2004 11/22/2004
02/18/2005

46 AGREED MOTION by petitioner for extension of time to file petitioners' reply to respondents' memorandum in opposition to petitoners' motion for class certification ; Notice. (gcy) (Entered: 11/12/2003)
47 MINUTE ORDER of 11/13/03 by Hon. James B. Zagel : Motion [46-1] for extension of time to file reply is granted. Telephoned notice (gcy) (Entered: 11/14/2003)
48 REPLY by petitioners to respondent's memorandum in opposition to petitioners' motion for class certification. (gcy) (Entered: 11/19/2003)
SCHEDULE set on 12/3/03 by Hon. James B. Zagel : Status hearing reset to 10:00 1/7/04 from 12/4/03. Mailed notice (drw) (Entered: 12/03/2003)
49 MINUTE ORDER of 12/15/03 by Hon. James B. Zagel : Plaintiff's motion for class certification is granted subject to modifications [40-1]. Motion [44-1] to dismiss is granted/denied in part. Counts I and II are dismissed. Entered Memorandum Opinion and Order. Mailed notice (gcy) (Entered: 12/16/2003)
SCHEDULE set on 1/7/04 by Hon. James B. Zagel : Status hearing held and continued to 10:00 1/21/04 . No notice (drw) (Entered: 01/07/2004)
50 ATTORNEY APPEARANCE for petitioners by Amy P. Purcell. (gcy) (Entered: 01/09/2004)
SCHEDULE set on 1/21/04 by Hon. James B. Zagel : Status hearing held and continued to 10:00 5/19/04 . No notice (drw) (Entered: 01/21/2004)
51 ATTORNEY APPEARANCE for Deborah Achim by Efthimia Spridoula Pilitsis. (gcy) (Entered: 01/23/2004)
SCHEDULE set on 5/18/04 by Hon. James B. Zagel : Status hearing stricken on request of defendants. Telephone notice (drw) (Entered: 05/18/2004)
SCHEDULE set on 6/23/04 by Hon. James B. Zagel : Status hearing set to 10:00 7/15/04 . Mailed notice (drw) (Entered: 06/23/2004)
SCHEDULE set on 7/15/04 by Hon. James B. Zagel : Status hearing reset to 10:00 8/4/04 . Mailed notice (drw) (Entered: 07/19/2004)
52 MINUTE ORDER of 7/19/04 by Hon. James B. Zagel : (Entered Stipuated Protective Order). No notice (gcy) (Entered: 07/21/2004)
SCHEDULE set on 8/4/04 by Hon. James B. Zagel : Status hearing held and continued to 10:00 10/20/04 . Discovery ongoing. No notice (drw) (Entered: 08/04/2004)
SCHEDULE set on 10/4/04 by Hon. James B. Zagel : Status hearing reset to 10:00 10/25/04 from 10-20-04. Mailed notice (drw) (Entered: 10/04/2004)
SCHEDULE set on 10/25/04 by Hon. James B. Zagel : Status hearing reset to 10:00 11/22/04 . No notice (drw) (Entered: 11/08/2004)
SCHEDULE set on 11/22/04 by Hon. James B. Zagel : Status hearing held and continued to 10:00 2/18/05 . Dispositive motions to be filed by 2-18-05. No notice (drw) (Entered: 11/22/2004)
53 MINUTE entry before Judge James B. Zagel : Status hearing set for 2/18/2005 at 10:00 AM. Motion for summary judgment deadline extended from 2/18/2005 to

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02/18/2005 03/11/2005 03/11/2005
03/17/2005
03/25/2005 03/25/2005
03/25/2005 03/25/2005 03/25/2005 03/28/2005 03/29/2005
03/30/2005 03/30/2005 04/06/2005 04/06/2005

10:00 AM. Motion for summary judgment deadline extended from 2/18/2005 to 3/11/2005. Mailed notice. (drw, ) (Entered: 02/22/2005)
54 STIPULATION extending the time period in which parties may file motions for summary judgment. (gcy, ) (Entered: 02/28/2005)
55 UNOPPOSED MOTION by Petitioners Vadim R Kazarov, Voeuth Long for extension of time in which parties may file motions for summary judgment. (rbf, ) (Entered: 03/14/2005)
56 NOTICE of Motion by Thomas Paul Krebs for presentment of unopposed motion for extension of time in which parties may file motion for summary judgment 55 before Honorable James B. Zagel on 3/17/2005 at 10:15 AM. (rbf, ) (Entered: 03/14/2005)
57 MINUTE entry before Judge James B. Zagel : Motion hearing held on 3/17/2005 regarding motion for extension of time55, S MOTION by Petitioners Vadim R Kazarov, Voeuth Long for extension of time55 to file motions for summary judgment until 3/25/2005 is granted. Telephoned notice (drw, ) (Entered: 03/17/2005)
58 MOTION by Petitioners Vadim R Kazarov, Voeuth Long for extension of time to file motion for summary judgment (gma, ) (Entered: 03/25/2005)
59 NOTICE of Motion by Thomas Paul Krebs for presentment of MOTION by Petitioners Vadim R Kazarov, Voeuth Long for extension of time to file motion for summary judgment 58 before Honorable James B. Zagel on 3/29/2005 at 10:15 AM. (gma, ) (Entered: 03/25/2005)
61 MOTION for summary judgment by respondents. (gcy, ) (Entered: 03/29/2005)
62 AGREED MOTION by Respondent Deborah Achim to exceed page limit.(gcy, ) (Entered: 03/30/2005)
63 MOTION by Respondent Deborah Achim for summary judgment. (gcy, ) (Entered: 03/30/2005)
64 MEMORANDUM of law by Deborah Achim in Support of motion for summary judgment63 (gcy, ) Modified on 10/13/2006 (mjc, ). (Entered: 03/30/2005)
60 MINUTE entry before Judge James B. Zagel : Motion for extension of time 58 is granted. Motion for summary judgment answer brief due 4/20/2005. Discovery ordered closed by 3/30/2005. Status hearing set for 6/1/2005 at 10:00 AM. Mailed notice (drw, ) (Entered: 03/29/2005)
65 MOTION by Petitioner Vadim R Kazarov for summary judgment. (gcy, ) . Modified on 10/19/2006 (cdy, ). (Entered: 04/01/2005)
66 STATEMENT pursuant to LR56.1 of material facts as to which there is no genuine issue. (gcy, ) (Entered: 04/01/2005)
67 MOTION by Respondent Deborah Achim to file 56.1 statement instanter.(rbf, ) Additional attachment(s) added on 4/7/2005 (rbf, ). (Entered: 04/07/2005)
68 NOTICE of Motion by Sheila McNulty for presentment of motion to file 56.1 statement instanter 67 before Honorable James B. Zagel on 4/12/2005 at 10:15 AM. (rbf, ) (Entered: 04/07/2005)

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04/12/2005 04/20/2005 04/20/2005
04/26/2005 04/27/2005 04/27/2005 04/27/2005 04/27/2005 05/20/2005 05/20/2005
05/26/2005
06/15/2005 07/12/2005
08/03/2005 08/04/2005
12 of 15

69 MINUTE entry before Judge James B. Zagel : Motion for leave to file 67 56.1 statement instanter and statement of material facts is granted. Mailed notice (drw, ) (Entered: 04/12/2005)
70 JOINT MOTION by Petitioners Vadim R Kazarov, Voeuth Long for extension of time to file response to motions for summary judgment (rbf, ) (Entered: 04/20/2005)
71 NOTICE of Motion by Vadim R Kazarov, Voeuth Long for presentment of motion for extension of time to file response to motions for summary judgment 70 before Honorable James B. Zagel on 4/26/2005 at 10:15 AM. (rbf, ) (Entered: 04/20/2005)
72 MINUTE entry before Judge James B. Zagel : Motion for extension of time to file response/reply to motion for summary judgment is granted. Responses due by 4/27/2005 No notice (drw, ) (Entered: 04/26/2005)
73 RESPONSE by Deborah Achim to MOTION by Petitioner Vadim R Kazarov for summary judgment65 (lxs, ) (Entered: 04/29/2005)
74 RESPONSE by Respondent Deborah Achim to petitioners statement of material facts 66 (lxs, ) (Entered: 04/29/2005)
75 OPPOSITION by Deborah Achim to petitioners motion for summary judgment65 (lxs, ) (Entered: 04/29/2005)
76 MEMORANDUM by petitioner's in opposition to respondent's motion for summary judgment 65. (cdy, ) (Entered: 05/02/2005)
77 MOTION by Petitioners Vadim R Kazarov, Voeuth Long for leave to file reply in further support of petitioners' motion for summary judgment (gma, ) (Entered: 05/23/2005)
78 NOTICE of Motion by Vadim R Kazarov, Voeuth Long for presentment of MOTION by Petitioners Vadim R Kazarov, Voeuth Long for leave to file reply in further support of petitioners' motion for summary judgment 77 before Honorable James B. Zagel on 5/26/2005 at 10:15 AM. (gma, ) (Entered: 05/23/2005)
79 MINUTE entry before Judge James B. Zagel : MOTION by Petitioners Vadim R Kazarov, Voeuth Long for leave to file77 reply instanter is granted. Status hearing reset for 7/12/2005 at 10:00 AM. Judicial staff mailed notice (drw, ) (Entered: 05/26/2005)
80 MINUTE entry before Judge James B. Zagel : MOTION for summary judgment 61 is denied. MOTION for summary judgment 63 is denied. MOTION for summary judgment 65 is denied. Mailed notice (drw, ) (Entered: 06/15/2005)
81 MINUTE entry before Judge James B. Zagel : Status hearing held on 7/12/2005. Pretrial Order due by 8/15/2005. Final Pretrial Conference set for 9/7/2005 at 04:30 PM. Jury Trial set for 9/12/2005 at 10:30 AM. Mailed notice (drw, ) (Entered: 07/12/2005)
82 MINUTE entry before Judge James B. Zagel : Bench trial set for 9/12/2005 at 10:30 AM. Jury trial stricken. Mailed notice (drw, ) (Entered: 08/03/2005)
83 ATTORNEY Appearance for Petitioner Vadim R Kazarov by John Donovan Lien. (gcy, ) (Entered: 08/08/2005)
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08/15/2005 08/15/2005 08/17/2005 08/25/2005 08/26/2005
08/29/2005 09/01/2005 09/01/2005
09/06/2005 09/06/2005
09/07/2005 09/08/2005 09/08/2005 09/08/2005 09/09/2005 09/09/2005
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Lien. (gcy, ) (Entered: 08/08/2005)
84 PROPOSED Pretrial Order by Respondent. (gcy, ) (Entered: 08/17/2005)
85 PROPOSED Pretrial Order by Petitioner. (gcy, ) (Entered: 08/17/2005)
86 ATTORNEY Appearance for Petitioner Vadim R Kazarov by Andrea Kathleen Greisberger. (gcy, ) (Entered: 08/19/2005)
87 MOTION by Respondent Deborah Achim to exclude witnesses and suppress evidence (gma, ) (Entered: 08/26/2005)
88 NOTICE of Motion by Sheila McNulty for presentment of MOTION by Respondent Deborah Achim to exclude witnesses and suppress evidence 87 before Honorable James B. Zagel on 9/1/2005 at 10:15 AM. (gma, ) (Entered: 08/26/2005)
89 RESPONSE by Vadim R Kazarov in Opposition to MOTION by Respondent Deborah Achim87 To Exclude Witnesses and Suppress Evidence (Lien, John) (Entered: 08/29/2005)
90 RESPONSE to Motions in Limine Contained in Respondent's Pre-Trial Order (Attachments: # 1)(Lien, John) (Entered: 09/01/2005)
98 MINUTE entry before Judge James B. Zagel : Motion hearing held on 9/1/2005. MOTION by Respondent Deborah Achim 87 to exclude witnesses and suppress evidence is granted in part and denied in part. Final Pretrial Conference set for 9/7/2005 at 04:30 PM. No notice, advised in open court (drw, ) (Entered: 09/21/2005)
91 MOTION by Respondent Deborah Achim to supplement the pre-trial order (gma, ) (Entered: 09/06/2005)
92 NOTICE of Motion by Sheila McNulty for presentment of MOTION by Respondent Deborah Achim to supplement the pre-trial order 91 before Honorable James B. Zagel on 9/13/2005 at 10:15 AM. (gma, ) (Entered: 09/06/2005)
99 MINUTE entry before Judge James B. Zagel : Final pretrial conference held on 9/7/2005. No notice (drw, ) (Entered: 09/21/2005)
93 RESPONSE by Vadim R Kazarov in Opposition to MOTION by Respondent Deborah Achim to supplement91 (Lien, John) (Entered: 09/08/2005)
94 MOTION by Petitioner Vadim R Kazarov to supplement Exhibit List (Lien, John) (Entered: 09/08/2005)
95 NOTICE of Motion by John Donovan Lien for presentment of motion to supplement94 before Honorable James B. Zagel on 9/12/2005 at 10:30 AM. (Lien, John) (Entered: 09/08/2005)
96 MOTION by Respondent Deborah Achim to supplement the pre-trial order(gma, ) Modified on 9/12/2005 (gma, ). (Entered: 09/12/2005)
97 NOTICE of Motion by Sheila McNulty for presentment of MOTION by Respondent Deborah Achim to supplement the pre-trial order 96 before Honorable James B. Zagel on 9/13/2005 at 10:15 AM. (gma, ) (Entered: 09/12/2005)
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09/12/2005
09/13/2005
10/25/2005 10/25/2005 11/01/2005 11/01/2005 11/03/2005 11/08/2005
12/07/2005 12/07/2005 12/12/2005 06/15/2006 06/15/2006 06/21/2006 06/22/2006
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09/12/2005)
100 MINUTE entry before Judge James B. Zagel : Motion to supplement 91 is granted. Motion to supplement 94 is granted. Motion to supplement 96 is granted. Bench trial held on 9/12/2005. Bench trial set for 9/13/2005 at 9:00 a.m. (drw, ) (Entered: 10/04/2005)
101 MINUTE entry before Judge James B. Zagel : Bench trial completed on 9/13/2005. Proposed findings of fact and conclusions of law due 10/25/2005. Final arguments hearing date to be determined after receipt of the aforementioned. (drw, ) (Entered: 10/07/2005)
102 Petitioner's Post-Trial Brief by Vadim R Kazarov (Lien, John) Modified on 10/26/2005 (rbf, ). (Entered: 10/25/2005)
103 Respondents' Post Trial Brief by Deborah Achim (McNulty, Sheila) Modified on 10/26/2005 (rbf, ). (Entered: 10/25/2005)
104 TRIAL Brief Motion to Strike Petitioners'Post-Trial Brief by Deborah Achim (Attachments: # 1 Notice of Filing Notice of Motion to Strike Petitioners' Post-Trial Brief)(McNulty, Sheila) (Entered: 11/01/2005)
105 Motion to Strike Petitioners' Post-Trial Brief NOTICE of Motion by Sheila McNulty for presentment of before Honorable James B. Zagel on 11/8/2005 at 10:15 AM. (McNulty, Sheila) (Entered: 11/01/2005)
106 RESPONSE TO RESPONDENT'S MOTION TO STRIKE POST-TRIAL BRIEF (Attachments: # 1 Exhibit Exhibits A and B to Petitioners' Response to Motion to Strike Post-Trial Brief)(Lien, John) (Entered: 11/03/2005)
107 MINUTE entry before Judge James B. Zagel : Motion to strike petitioner's post trial brief is taken under advisement. Answer brief to motion to strike is entered and continued. Hearing date on post trial briefs to be determined. (drw, ) (Entered: 11/08/2005)
108 MOTION by Petitioner Vadim R Kazarov for leave to file Supplemental Authority (Lien, John) (Entered: 12/07/2005)
109 NOTICE of Motion by John Donovan Lien for presentment of motion for leave to file108 before Honorable James B. Zagel on 12/13/2005 at 10:15 AM. (Lien, John) (Entered: 12/07/2005)
110 MINUTE entry before Judge James B. Zagel : MOTION by Petitioner Vadim R Kazarov for leave to file Supplemental Authority 108 is granted. (drw, ) (Entered: 12/12/2005)
111 MOTION by Petitioner Vadim R Kazarov for hearing / Motion to Set a Hearing Date for Oral Argument (Lien, John) (Entered: 06/15/2006)
112 NOTICE of Motion by John Donovan Lien for presentment of motion for hearing111 before Honorable James B. Zagel on 6/22/2005 at 10:15 AM. (Lien, John) (Entered: 06/15/2006)
113 [Corrected] NOTICE of Motion by John Donovan Lien for presentment of motion for hearing111 before Honorable James B. Zagel on 6/22/2006 at 10:15 AM. (Lien, John) (Entered: 06/21/2006)
114 MINUTE entry before Judge James B. Zagel : Status hearing held on 6/22/2006.
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114 MINUTE entry before Judge James B. Zagel : Status hearing held on 6/22/2006. In Court hearing on post-trial motions set for 7/17/2006 at 11:00 AM. (drw, ) (Entered: 07/17/2006)
115 MINUTE entry before Judge James B. Zagel : In court hearing (closing arguments) held on 7/17/2006. (drw, ) (Entered: 07/31/2006)
116 MINUTE entry before Judge James B. Zagel dated 2/27/07: Enter Memorandum Opinion and Order: The Court has jurisdiction over the parties and the subject matter. Neither the class nor any of the individual members are entitled to injunctive relief against the respondent. Judicial staff mailed notice (gl, ) (Entered: 02/28/2007)
117 Enter MEMORANDUM Opinion and Order Signed by Judge James B. Zagel on 2/27/2007 Judicial staff mailed notice(gl, ) (Entered: 02/28/2007)
118 Case Terminated. ENTERED JUDGMENT Signed by Courtroom Deputy on 2/27/2007:Mailed notice(drw, ) (Entered: 03/01/2007)

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