Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 1 of 8

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1 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION CRISTOVAL SILVA-TREVINO, ) Petitioner, ) ) v. ) ) MICHAEL A. WATKINS, ) ASSISTANT FIELD OFFICE DIRECTOR ) IMMIGRATION AND CUSTOMS ENFORCEMENT ) MICHAEL MUKASEY, ) UNITED STATES ATTORNEY GENERAL ) MICHAEL CHERTOFF, ) SECRETARY, D.H.S., and ) THE UNITED STATES OF AMERICA, ) RESPONDENTS/DEFENDANTS. ) ) PETITION FOR HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Petitioner, through counsel, files the instant petition for writ of habeas corpus, and complaint for declaratory and injunctive relief. I. INTRODUCTION Since November of 2005, Mr. Silva has been detained by Respondents pursuant to 8 U.S.C. 1226(c)(1), on the basis of a 2004 conviction for indecency with a minor (TPC 22.11, touching the breast of a child under the age of 17). The BIA found that the offense was not categorically one which involved moral turpitude, and that he was eligible for relief in the form of adjustment of status. That determination was overturned by the Attorney General, in a decision which violated Mr. Trevino s Due Process rights, and purports to overrule decades of precedent from, inter alia, the Fifth Circuit. See, Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008). On December 5, 2008, Mr. Trevino filed a motion to reconsider with the Attorney General, 1 which motion is still pending. On December 5, 2008, the BIA remanded the case to the Immigration Judge. On December 8, 2008, The BIA requested that the record be returned for 1 Petitioner s Exhibit A, incorporated by reference. Various legal and immigration groups filed an extensive brief as amici curiae. See, Petitioner s Exhibit B, incorporated by reference.

2 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 2 of 8 consideration of that motion. 2 However, Mr. Silva is scheduled for a hearing before the Immigration Judge on January 6, Mr. Silva is seventy years old, and in very poor health. Through Lisa Luis, AUSA, he requested release on medical parole, which was ultimately denied. Since July 2008, when the Port Isabel Service Processing Center, ("PISPC") in Bayview, Texas, was closed due to Hurricane Dolly, he has been detained at a number of remote locations, including New Mexico, and San Antonio, Texas, which has interfered with counsel s access, and ability to monitor Mr. Silva s health. A few days ago, he was returned to PISPC, in anticipation of his upcoming removal hearing. I. JURISDICTION AND VENUE 1. Jurisdiction is laid under 28 U.S.C (habeas corpus), 1331 (federal question), and 1346(a)(2) (actions against Officers of the United States); 28 U.S.C et seq (Declaratory Judgment Act), and 5 U.S.C. 702 et seq, (Administrative Procedure Act). 2. Petitioner is currently detained by Respondents at PISPC, within the jurisdiction of this Court. He has resided in the U.S. as a lawful permanent resident since 1962, primarily in Hidalgo County, Texas, also within this Court s jurisdiction. II. THE PARTIES 3. Petitioner Cristoval Silva is a native and citizen of Mexico, and a lawful permanent resident of the United States, ("LPR"). He is currently detained by Respondents, without bond, at PISPC, allegedly pursuant to the authority of 8 U.S.C. 1226(c). Respondent Mukasey is the duly appointed Attorney General of the United States. Respondent Chertoff is the duly appointed Secretary of the Department of Homeland Security, ( DHS ), and Respondent Watkins is the Assistant Field Office Director for the Harlingen, Texas, Immigration and Customs Enforcement Office. 2 Petitioner s Exhibit C, incorporated by reference. 2

3 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 3 of 8 III. THE FACTS 4. Petitioner Silva has resided lawfully in the U.S. since at least He has a number of significant equities in the United States, including his LPR wife, and adult U.S. citizen children. He is in ill health, and takes about 5-6 kinds of medication daily, for conditions including high blood pressure and cholesterol levels, ulcers, heart disease, and diabetes. His wife is also in very poor health, having undergone three heart surgeries. His mother passed away six months ago, and he fears that his wife will also die before he can be released. 5. On October 6, 2004, Mr. Silva pled no contest to having touched the breast of a minor under the age of 17. Adjudication was deferred, and Mr. Silva was released on five years probation In November, 2005, Defendants took Mr. Silva into custody, and initiated removal proceedings. He was found removable on the basis of a conviction of an aggravated felony (sexual abuse of a minor), and sought to apply for relief in the form of adjustment of status, arguing that the Texas statute was so broad that, under the categorical approach, the offense was not a crime involving moral turpitude. The Immigration Judge disagreed, and ordered removal. 7. Mr. Silva appealed to the BIA. The Government filed a three paragraph brief, agreeing with the IJ s decision. Neither the IJ, nor the Government, much less Mr. Silva, raised the issue of whether the categorical approach was the correct means of 3 Implicit in the finding of the criminal court that he qualified for deferred adjudication was a determination that his release was in the best interest of the public. See, Vernon's Ann. Texas C.C.P. Art , Sec. 3(a): Sec. 3. (a) A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may suspend the imposition of the sentence and place the defendant on community supervision or impose a fine applicable to the offense and place the defendant on community supervision. 3

4 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 4 of 8 4 determining whether the offense involved moral turpitude. On June 6, 2006, the BIA issued its decision, agreeing with Mr. Silva, that, under the categorical approach, the offense did not involve moral turpitude. Consequently, the BIA ordered that the case be remanded to allow him to apply for adjustment of status. 5 The BIA s decision was neither published, nor available on Westlaw. 8. Nonetheless, on August 8, 2007, Mr. Silva s immigration attorney was advised that the Attorney General had sua sponte certified the case unto himself. However, the EOIR file indicates that this decision was made as early as April 2007, when the BIA so informed the IJ, and requested that the file be returned to the Board. 9. Although Mr. Silva s immigration attorney wrote to ask why it had been certified, no response was received. He had no opportunity to submit a brief on the issue which the Attorney General was considering, to wit, the abandonment of the categorical approach to determining whether an offense is a cimt. Nor was the broader community of immigration attorneys given such an opportunity, as has long been traditional when the Attorney General is considering major issues of immigration law. See, Exhibit B at pp On November 7, 2008, the Attorney General issued his decision. In it, he agreed that, under the categorical approach, the offense was not a cimt. He then proceeded to abandon that approach, adopting instead an unlimited inquiry into the facts of the case, in the event that neither the categorical nor modified categorical approach conclusively showed that the offense involved moral turpitude. As summarized therein, Matter of Silva-Trevino, supra: To determine whether a conviction is for a crime involving moral turpitude, immigration judges and the Board of Immigration Appeals should: (1) look to the statute of conviction under the categorical inquiry and 4 5 See, e.g., Hamdan v. INS, 98 F.3d 183 (5 th Cir. 1996). Petitioner s Exhibit D, incorporated herein by reference. 4

5 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 5 of 8 determine whether there is a realistic probability that the State or Federal criminal statute pursuant to which the alien was convicted would be applied to reach conduct that does not involve moral turpitude; (2) if the categorical inquiry does not resolve the question, engage in a modified categorical inquiry and examine the record of conviction, including documents such as the indictment, the judgment of conviction, jury instructions, a signed guilty plea, and the plea transcript; and (3) if the record of conviction is inconclusive, consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question. 11. The breadth of the decision, and the unusual process by which the certification occurred, gave rise to a suspicion that the decision to certify the case resulted from ex parte communications. 12. The Attorney General did not modify the definition of moral turpitude but only the evidence which may be considered in making the determination of whether the conviction is for a crime involving moral turpitude. Mr. Silva submits that to allow the Immigration Judge to consider any additional evidence deemed necessary or appropriate to resolve accurately the moral turpitude question thus constitutes an improper re-determination of what constitutes a conviction. 13. Since the term conviction (unlike moral turpitude ), is not an ambiguous phrase, left by Congress for the agency to flesh out on a case by case basis, Mr. Silva asserts that this is beyond the scope of the Attorney General s authority. 14. Regardless of how the ultimate issue is determined, however, it is already more than clear that the removal proceedings in the 6 instant case will not be brief. As noted in Lawson v. Gerlinski, 332 F.Supp.2d 735, (M.D.Pa. 2004): 6 Mandatory detention lasts for a relatively brief period in the vast majority of cases in which it is applied. Demore v. Kim, 538 U.S. 510, 529 (2003) ("[I]n 85% of the cases in which aliens are detained pursuant to [ 236(c)], removal proceedings are completed in an average time of 47 days and a median of 30 days."). 5

6 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 6 of 8 The Supreme Court, in sustaining the authority of Congress to mandate detention of criminal aliens during administrative removal proceedings stressed that such detention would be only "for the brief period necessary for their removal proceedings." Demore v. Kim, 538 U.S. 510, 513, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Justice Kennedy, whose concurring opinion provided the fifth vote for the majority opinion in Demore, recognized that "a lawful permanent resident alien... could be entitled to an individualized determination as to his risk of flight and dangerousness if the continued detention became unreasonable or unjustified." Id. at 532, 123 S.Ct (Kennedy, J. concurring). 15. Consequently, Mr. Silva submits that his detention has already passed the brief period authorized by the majority of the Supreme Court in Demore v. Kim that he be mandatorily detained, 7 and that his continued detention is both unreasonable and unjustified, in light of the determination by the criminal court that he merited deferred adjudication, coupled with his age, failing health, three years in detention, and the fact that the Attorney General undertook to use his case to re-write the law with respect to the use of the categorical approach, which fact will undoubtedly cause his case to drag out for many more months, if not years. 8 IV. THE CAUSES OF ACTION 7 See, Hussain v. Mukasey, 510 F.3d 739, 743 (7 th Cir. 2007): This is not to say that an alien never has a right to release from immigration custody before he is subjected to a final order of removal. Inordinate delay before the order was entered might well justify relief, Ly v. Hansen, 351 F.3d 263, (6th Cir.2003), with habeas corpus the appropriate vehicle for obtaining it, as we know from Zadvydas and Kim. See also, Tijani v. Willis, 430 F.3d 1241 (9 th Cir. 2005). 8 Mr. Silva submits that there are untold cases which do not involve LPRs held under mandatory detention which could have been used as a vehicle for the Attorney General to challenge the longstanding principle that the nature of an offense is determined by the categorical approach, and that it was an egregious abuse of prosecutorial discretion to choose his case for this purpose. 6

7 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 7 of 8 1. HABEAS CORPUS Petitioner asserts that his three year detention, with no end in sight, violates the laws and Constitution of the United States, as interpreted by the majority of the Supreme Court in Demore v. Kim, supra, as well as international law and treaty obligations with his native country of Mexico, which claims are cognizable in habeas corpus under 28 U.S.C Mr. Silva therefore requests that his habeas petition be granted, and that a preliminary and permanent injunction issue, requiring that Respondents grant him a prompt bond hearing, at which his right to bond is adjudicated on the basis of whether he presents a flight risk, or constitutes a threat or danger to the community, particularly in light of the determination of the criminal court that adjudication should be deferred and he be released on community supervision, and that Respondents abide by the results of said hearing, without regard to 8 U.S.C. 1226(c). 2. DECLARATORY JUDGMENT Petitioner seeks a Declaratory Judgment, declaring that, as applied to him, to be held without bond pursuant to 8 U.S.C. 1226(c)(1) for three years during pendency of removal proceedings, with no end in sight, violates both Substantive and Procedural Due Process. 3. INJUNCTIVE RELIEF Petitioner further seeks a preliminary and permanent injunction, restraining and enjoining Respondents from holding him as a "mandatory detainee" under 8 U.S.C. 1226(c)(1), and from not affording him a bond hearing before an Immigration Judge, at which his entitlement to bond during the pendency of removal proceedings is adjudicated on the basis of whether, in light of the determination of the criminal court that adjudication should be deferred and he be released on community supervision, he presents a flight risk, or constitutes a threat or danger to the community. 4. OTHER AND FURTHER RELIEF 7

8 Case 1:09-cv Document 1 Filed in TXSD on 01/01/2009 Page 8 of 8 Finally, Petitioner seeks such other and further relief, including costs and attorneys fees, as this Honorable Court may find to be just and appropriate under all of the circumstances. Respectfully Submitted, s/ Lisa S. Brodyaga, Attorney REFUGIO DEL RIO GRANDE Landrum Park Road San Benito, TX Fed. ID (956) Texas Bar (956) (fax) VERIFICATION I, Cristoval Silva-Trevino, hereby declare that I am the Petitioner herein, that the foregoing was read and translated into Spanish for me by Attorney Lisa Brodyaga, and that the facts as stated therein are true and correct to the best of my knowledge and belief. Cristoval Silva-Trevino VERIFICATION OF COUNSEL I, Lisa S. Brodyaga, hereby certify that I am familiar with the procedural history as stated above, and that they are true and correct to the best of my knowledge and belief. S/ Lisa S. Brodyaga CERTIFICATE OF SERVICE I certify that a copy of the foregoing, with Exhibits A through D, was electronically served on Victor Rodriguez, AUSA, this IS~day of January, S/ Lisa S. Brodyaga 8