UNITED STATES DISTRICT COURT DSICTRICT OF MASSACHUSETTS ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) PETITION FOR WRIT OF HABEAS CORPUS INTRODUCTION

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1 UNITED STATES DISTRICT COURT DSICTRICT OF MASSACHUSETTS BASKARAN BALASUNDARAM, Petitioner v. BRUCE CHADBOURNE, Field Office Director, U.S. Immigration and Customs Enforcement, New England District; ANDREA J. CABRAL., Sheriff of Suffolk County. Respondents. Case No: PETITION FOR WRIT OF HABEAS CORPUS INTRODUCTION 1. Baskaran Balasundaram is a Sri Lankan survivor of torture and persecution who was granted asylum in the United States over one year ago, yet has spent over 21 months in detention under the authority of the Department of Homeland Security ( DHS while the agency appeals the asylum decision a process that has no end in sight. He seeks immediate release from his illegal indefinite detention, or in the alternative, a hearing to determine whether his continued detention is justified. 2. His continued confinement runs in the face of the purpose of the asylum laws to provide protection to the most vulnerable among us. Balasundaram has committed no crime, nor is he a flight risk or a threat to society. Yet DHS continues to 1

2 detain him indefinitely without bond or even a hearing to determine whether his detention is justified. JURSDICTION AND VENUE 3. In this Petition for Writ of Habeas Corpus, Balasundaram challenges his prolonged and indefinite detention of over 21 months. The petition arises under the Immigration and Nationality Act (hereinafter INA and the 5 th and 14 th Amendments to the United States Constitution. 4. This court has subject matter jurisdiction over this matter pursuant to 28 U.S.C (Habeas Corpus, 28 U.S.C (All Writs Act, and the Suspension Clause of Article I of the U.S. Constitution. INS v. St. Cyr, 533 U.S. 289, 304 (2001. This Court also has jurisdiction to hear Petitioner s statutory and constitutional claims under 28 U.S.C. 1331, which confers jurisdiction to consider federal questions. 5. While the federal courts of appeal have jurisdiction to review removal orders directly through petitions for review, see 8 U.S.C. 1252(a(1, the federal district courts have jurisdiction under 28 U.S.C to hear habeas petitions by non-citizens challenging the lawfulness of their detention. See, e.g. Demore v. Kim, 538 U.S. 510, (2003; Aguilar v. ICE, 510 F.3d 1, 11 (1st Cir [W]e have held that district courts retain jurisdiction over challenges to the legality of detention in the immigration context. (citing Hernandez v. Gonzalez, 424 F.3d 42, 42 (1st Cir This Court has jurisdiction to grant declaratory and injunctive relief pursuant to 28 U.S.C and

3 7. Venue is properly established in the District of Massachusetts pursuant to 28 U.S.C. 1391(b(2 because the events and omissions giving rise to Petitioner s claims occurred, and continue to occur, in this district. PARTIES 8. Petitioner Baskaran Balasundaram is a native of Sri Lanka who entered the United States on July 14, 2008 through Logan International Airport in Boston, Massachusetts. He is currently in detention at Suffolk County House of Corrections in Boston. 9. Respondent Bruce Chadbourne is the Field Office Director for Detention and Removal, New England Field Office, Immigration and Customs Enforcement, Department of Homeland Security. As such, he has immediate custody over the Respondent and has discretion to release him. 10. Respondent Andrea J. Cabral is the Sheriff of Suffolk County. Because ICE contracts with county prisons such as the Suffolk County House of Corrections in Boston, Massachusetts to house immigration detainees such as the Petitioner, Sheriff Cabral has immediate custody over the Petitioner. STATEMENT OF FACTS AND PROCEDURAL HISTORY 11. The factual record in this case was developed through testimony, affidavits, and documentary evidence submitted by both Balasundaram and the 3

4 Department of Homeland Security (DHS before the Boston Immigration Court. After a two-day hearing Immigration Judge Eliza Klein found that Balasundaram, presented credible testimony that was, with minor exceptions, consistent with both his statement during his credible fear interview as well as his written statements offered in support of his I-589 application. On both direct and cross examination the Respondent consistently described the details of how the LTTE took him from his home at gunpoint and took him to a training camp. The Court has carefully considered the Respondent s demeanor, candor and responsiveness, as well as the overall consistency of his testimony with the supporting evidence he provided, and, based on the totality of the circumstances, concludes that the Respondent is a credible witness. Immigration Judge Decision, Feb. 24, 2009, attached as Exhibit A at The Judge granted Balasundaram asylum, finding that he had been tortured and persecuted on account of his ethnicity and would continue to face persecution and torture if he were returned to Sri Lanka. DHS has appealed that decision, arguing that by being held captive in an LTTE training camp, Balasundaram provided material support to a terrorist organization and should therefore be barred from receiving asylum. 13. The government s appeal has already taken twice as long as is customary, and is pending indefinitely at the Board of Immigration Appeals, during which time DHS claims that it may continue to detain him without bond or a hearing. DHS has twice summarily denied Balasundaram release on parole pending the outcome of this decision. 4

5 A. Balasundaram is a survivor of torture and persecution who fled to the United States because his life was in danger. 14. Baskaran Balasundaram is a 27-year-old farmer from Jaffna, a city in the Northern Province of Sri Lanka. Ex. A at 2. He belongs to the Tamil ethnic group and practices Hinduism. Id. at 2. He completed an advanced level of education and worked as a farmer on his father s land. Id. at The Sri Lankan government has been engaged in a twenty-five year armed conflict with the Liberation Tigers of Tamil Eelam (LTTE, or Tamil Tigers. Dep t of State, County Conditions, Sri Lanka 2008, available at Both the Sri Lankan government and the LTTE have been responsible for extensive human rights abuses, including torture, arbitrary arrest, conscription of child soldiers, killings and disappearances. Id. According to the State Department, the overwhelming majority of victims of human rights violations, such as killings and disappearances, were young male Tamils, while Tamils were only 16 percent of the overall population. Id. 16. The United States designated the LTTE as a terrorist organization on October 8, 1997 and re-designated on October 8, 1999 and October 5, See Report of Congressional Research Service, Feb. 6, 2004, RL32223, Foreign Terrorist Organizations, available at The Immigration Judge found that Balasundaram is not and has never been a member of the LTTE and does not support the LTTE. Ex. A at 3. In fact, at no point in his asylum proceedings did the U.S. government allege that Balasundaram was a 5

6 member of the LTTE or espoused their views. Instead, Balasundaram always refused the LTTE s attempts to recruit him, even when such refusal put his life in danger. See Ex. A. 18. Because he is of Tamil ethnicity, Balasumdaram was susceptible to persecution by both the LTTE and the Sri Lankan government. Ex. A at 8. In March of 2007, four armed men from the LTTE arrived at Balasundaram s family s home, pointed a gun to his head, forced him into a car and drove away with him. Ex. A at 3. His family watched as he was taken away, but were powerless to stop the armed men. Id. at 3. This was the last time Balasundaram saw most of his family members, and to this day, he does not know where many of them are, or even if they are alive. 19. Balasundaram was taken captive to an LTTE training camp along with other young men from the region. Id. at 3-4. The Tigers made it clear to all of the captives that if they did not do what they were told, they would be killed. Id. at 4, At the camp, Balasundaram was forced to work in the kitchen. Id. at 4. He was also forced to listen to lectures on the plight of the Tamil people and to watch demonstrations on things such as going through barbed wire, avoiding the Sri Lankan army and strapping a bomb to one s chest. Id. at 4. Balasundaram has never used any of the techniques that were shown to him. Id. at Instead, Balasundaram constantly thought about ways to escape and attempted to do so but he was unsuccessful because there were armed LTTE members watching everywhere. Id. at 4. He was prohibited from having contact with his family or anybody on the outside. Id. at On August 26, 2007, the LTTE moved Balasundaram to a different camp, where he was forced to do physical exercise and watch videos about the war. Id. at 4. 6

7 23. Late at night on October 5, 2007, Balasundaram and another man successfully escaped from the second camp by jumping over a fence. Id. at 4. Balasundaram knew that he could not return to his family home, because the LTTE would find him there. Id. at Balasundaram also knew that he could not contact the authorities because being an ethnic Tamil, the authorities would arrest him or torture him. Id. at 4. Instead, Balasundaram took refuge in a friend s house, but this refuge did not last long. Id. at This time, the government forces came for him. On five occasions following his escape from the LTTE camp, the Sri Lankan authorities captured Balasundaram, tortured him for days at a time and interrogated him about the Tigers and their activities. Id. at The first time was on November 25, 2007, when the Sri Lankan army conducted a roundup in Vavuniya, where they arrested many Tamils and took them for questioning. Id. at 4. When Balasundaram realized that the army was coming for Tamils, he hid underneath the bed in his friend s house, but the army found both him and his friend and took them to an army camp. Id. at At the camp, the army officers beat Balasundaram, hung him upside down, hit his back with barbed wire and put a bag doused with gasoline on his face until he could no longer breathe. Id. at 5. After five days of torture and interrogations, Balasundaram s cousin was able to bribe an army official and Balasundaram was released. Id. at A few months later, on January 25, 2008, the Sri Lankan army again raided the village where Balasundaram was staying and took all of the Tamil youth, 7

8 blindfolded, to a camp in Bobanya. Id. at 5. Once again, the army beat and tortured Balasundaram, this time beating him on his back and legs with a baton. Id. at 5. They put him face down on his back while four officers stood on top of him. Id. at 5. Unable to breathe, Balasundaram passed out, only to be woken when army officers threw cold water on him to open his eyes. Id. at The next morning the army officers locked him in a room where he stayed for three days without food. Id. at 5. When he asked for something to eat, the officers spat in his face. Id. at 5. After eight days of torture and interrogations about the Tigers, the army released Balasundaram. Id. at Balasundaram fled to Colombo. Id. at 5. On March 29, 2008, the army once again arrested him and tortured him, asking what he was doing in Colombo since he was from Jaffna. Id. at 5. The officers beat him on his back and legs with a cane, and again put a bag doused with gasoline on his face until he passed out. Id. at 5. He was held for 19 days. Id. at 5. Twice more, he was arrested by the Sri Lankan police and held for days at a time before being released. Id. at Balasundaram s experience is consistent with a tragic pattern of abuse and persecution that has been documented by the U.S. Department of State and human rights organizations. See Dep t of State, County Conditions, Sri Lanka 2008, available at Amnesty International, Sri Lanka Human Rights Abuses, available at Human Rights Watch s most recent report states that the LTTE continues to forcibly recruit civilians and that the government continues to illegally detain thousands of Tamils on suspicion of being members of the LTTE. 8

9 Human Rights Watch, Country Summary, Sri Lanka, 2010, Jan. 2010, available at During the last months of the civil war both sides committed such serious violations of humanitarian law that a United Nations official described the situation as a bloodbath. Id. 32. Realizing that if he stayed in Sri Lanka, his life was in danger because he could be captured at any moment by either the LTTE or the Sri Lankan government, Balasundaram made arrangements to flee his native country and leave behind his life and family. He got a passport through a company in the city of Bammpalapitya and fled. Ex. A at 7. He arrived at Boston s Logan airport on July 14, 2008 and asked for asylum. Id. at 1. B. Government delay already has caused Balasundaram s case to take an extraordinary amount of time to be heard 33. Depite the facts that Balasundaram requested asylum immediately upon entering the United States and then timely filed an application for asylum and accompanying documentation, government stalling already has caused his case to take an extraordinary amount of time to make its way through the system 21 months in total and 13 months pending at the BIA. 34. On July 25, 2008, ten days after Balasundaram arrived at Logan airport, an Asylum Officer conducted a credible fear interview and determined that he had a credible fear of persecution based on his race and political opinion if he were to be returned to his native Sri Lanka. Ex. A at 1. 9

10 35. Three months later, on October 24, 2008 the Boston Immigration Court continued Balasundaram s case in order to give DHS an opportunity to determine whether it would parole Balasundaram into the U.S. and agree to a grant of withholding of removal under INA 241(B(3. Id. at A month later, on November 20, 2008, DHS indicated that it would not parole Balasundaram, and would not agree to withholding of removal. Instead, DHS requested a hearing on the merits of Balasundaram s asylum application. Id. at The hearing took place a month after that, on December 18 th 2008 and January 6, Id. at During the asylum hearing, the U.S. government raised a claim that under INA 208(b(2(A(v (the material support bar, Balasundaram was ineligible for asylum because he provided material support to a terrorist organization during the time that he was held captive in the LTTE camp. Id. at The Immigration Judge found that there was no evidence that the Respondent provided funds, transportation, a safe house, or anything else constituting material support to the LTTE and was therefore not barred by that provision of the statute. Id. at The government also raised a claim that under INA 237(a(4(B, Balasundaram was ineligible for asylum and withholding of removal because he received military-type training from a terrorist organization. Id. at The Immigration Judge found that Balasundaram s limited exposure was neither willing nor participatory, and that such exposure was not sufficient to establish that he received military-type training from LTTE. Id. at

11 42. On February 24, 2009, the Immigration Judge granted asylum. See Ex. A. 43. A month later, on March 19, 2009, the United States appealed the Immigration Judge s decision, and the matter has been pending at the BIA ever since. 44. According to the BIA s practice manual, it normally takes approximately six months for the BIA to rule on an appeal when the person is in detention. U.S. Dep t of Justice, Questions and Answers Regarding Proceedings before the Board, at 18 (Part 1, No.40, available at pracmanual/q%2bas/q%2ba.pdf. Balasundaram s case has now been pending at the BIA for over thirteen months more than twice as long as is customary. 45. During this extraordinary delay in proceedings, DHS has refused to release Balasundaram on parole. DHS first considered and rejected release on parole at the prompting of the Immigration Court in November A year later, after 16 months of detention, Balasundaram again requested parole. Exhibit B. Despite the fact that Balasundaram had a legal permanent resident sponsor in New York, and had never been accused of being a danger to society or a flight risk, ICE constructively denied the parole without even a written decision. 47. These denials are contrary to ICE s own December 8, 2009 policy directive in which it established a procedure for granting parole to aliens like Balasundaram who have been determined to have a credible fear of persecution or torture. Exhibit D. The policy states that [w]hen an arriving alien found to have a credible fear establishes to the satisfaction of DRO [Detention and Removal Office of ICE] his or her identity and that he or she presents neither a flight risk nor danger to the 11

12 community, DRO should, absent additional factors parole the alien on the basis that his or her continued detention is not in the public interest. Ex. D at In addition, the directive states that DRO shall provide every alien subject to this directive with written notification of the parole decision, including a brief explanation of the reasons for any decision to deny parole. Ex. D at C. There is no end in sight to the government s detention of Balasundaram. 49. The delay at the BIA coupled with the series of possible remands and appeals from a BIA decision means that it could take an additional year or more for the proceedings in Balasundaram s administrative case to be resolved. 50. Despite the BIA s normal six month timeframe to decide cases of detained petitioners, the cases in which the government raises the material support bar take a significantly longer time to decide, according to a recent study carried out by the Asian Law Caucus, who will seek to file an Amicus Curiae brief forthwith. In cases where DHS has raised the material support bar the BIA takes an average of over 16 months to decide a case 13 months where the petitioner is in detention. See Amicus Curiae Br. of Asian Law Caucus at 5. Perversely, it appears that the BIA takes the most time to decide appeals where, like here, an immigration judge has granted asylum or relief under the Convention Against Torture, averaging 23.6 months. Id. at 7. If Balasundaram s case is an average one, this means ten more months until the BIA makes a decision. 51. But the BIA decision will not conclude proceedings. If the BIA reverses the immigration judge s decision, the case will remanded to the Immigration Judge for 12

13 consideration of the claim for relief from removal based on the Convention Against Torture. After this decision, there could be another appeal to the BIA and possibly the First Circuit, which takes a median time of nearly 11 months to resolve an appeal from an administrative decision. Administrative Office of the U.S. Courts, 2008 Annual Report of the Director: Judicial Business of the U.S. Courts at 109 (Table B-4C (U.S. Gov t Printing Office 2009, available at Because there is no mandatory timeframe for these proceedings, and because DHS refuses to release Balasundaram on parole, his detention has become indefinite. E. Prolonged and Indefinite Detention Has Exacerbated Balasundaram s Medical Condition 53. As part of the second request for release on parole in November 2009, Balasundaram submitted to DHS a letter written by members of the Suffolk County House of Correction Mental Health Department, which has been treating him. 54. In that letter, the Mental Health Director determined that Balasundaram suffers from Major Depressive Disorder and Posttraumatic Stress Disorder, reporting that Balasundaram has markedly depressed mood, dimished sleep, and diminished ability to concentrate, all of which significantly exceed those of others in ICE detention. Exhibit C. His nightmares often parallel the experience he faced while detained by the Tamil Tigers in Sri Lanka. Id. Balasundaram also reports intrusive thoughts of being bound and killed. Id. He experiences nightmares in which his family is tortured and killed. Id. 13

14 His cellmates report that Balasundaram screams in his native Tamil language while sleeping and also will cry very intensely. Id. 55. Balasundaram s continued detention, and particularly the indefinite nature of it, continues to adversely affect his health. DHS has notice of this medical problem but has refused to release Balasundaram on parole. As such, his detention has become punitive. CLAIMS FOR RELIEF COUNT ONE (Indefinite Detention Violates the Immigration and Nationality Act 56. Balasundaram realleges and incorporates by reference each and every allegation contained in the preceeding paragraphs as if set forth fully herein. 57. Respondents indefinite detention of Balasundaram violates the Immigration and Nationality Act, insofar as the statute under which he is detained does not authorize indefinite detention. COUNT TWO (Prolonged Detention Without a Hearing Violates the Immigration and Nationality Act 58. Balasundaram realleges and incorporates by reference each and every allegation contained in the preceeding paragraphs as if set forth fully herein. 59. Respondents continued detention of Balasundaram without a hearing to determine whether his prolonged detention is justified and whether release on bond and/or other reasonable conditions is appropriate violates the Immigration and 14

15 Nationality Act insofar as the statute does not authorize detention for a prolonged period of time absent a hearing to determine whether such detention is justified. COUNT THREE (Detention Without a Hearing Violates the Due Process Clause 60. Balasundaram realleges and incorporates by reference each and every allegation contained in the preceeding paragraphs as if set forth fully herein. 61. Respondents continued detention of Balasundaram without a hearing to determine whether his prolonged detention is justified and whether release on bond and/or other reasonable conditions is appropriate violates the Due Process Clause of the Fifth Amendment to the United States Constitution. COUNT FOUR (Punitive Civil Detention is Unlawful 62. Balasundaram realleges and incorporates by reference each and every allegation contained in the preceeding paragraphs as if set forth fully herein. 63. Balasundaram is presumably held in ICE custody pursuant to 8 U.S.C. 1225(b(1(B(ii and (b(2(a, which authorize the detention of asylum-seekers pending the outcome of asylum proceedings. 64. The purpose of immigration detention being civil in nature, it cannot be punitive. Once it becomes punitive, it violates the Immigration and Nationality Act and the Constitution. 65. Whereas Balasundaram s detention is causing his health to deteriorate and whereas the Respondents are on notice about his deteriorating health, detention has become punitive and therefore unlawful. 15

16 PRAYERS FOR RELIEF Wherefore, Petitioner prays that this Honorable Court grant the following relief: 1. Assume jurisdiction over this matter 2. Grant the Writ of Habeas Corpus and order Petitioner s immediate release from custody under reasonable conditions of supervision; or in the alternative, order a constitutionally adequate hearing before a judge, at which the judge must release Petitioner unless Respondents prove by clear and convincing evidence that Petitioner s continued detention remains justified and that release on bond or other reasonable conditions would not be appropriate 3. Order Petitioner released pending appeal of any decision releasing him from detention pursuant to Fed. R. App.P. 23(b; 4. Declare the Respondent s twenty-one plus month long detention of Petitioner violates the Immigration and Nationality Act and the Due Process Clause of the Fifth Amendment; 5. Declare the Respondent s failure to provide Petitioner with a custody and bond hearing violates the Immigration and Nationality Act and the Due Process Clause of the Fifth Amendment; 6. Grant Petitioner reasonable attorneys fees, costs and other disbursements pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412; and 7. Grant such other relief as the Court deems just and equitable. Respectfully Submitted, 16

17 /s/ Laura Rótolo Laura Rótolo, BBO # American Civil Liberties Union Foundation of Massachusetts 211 Congress Street Boston, MA ( x311 April 28,

18 CERTIFICATE OF SERVICE I hereby certify that I caused a copy of the foregoing to be served electronically to the registered participants as identified in the Notice of Electronic Filing on April 28, /s/ Laura Rótolo 18