Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 1 of 9

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1 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION ALBERTO VASQUEZ-MARTINEZ, ) PETITIONER, PLAINTIFF, ) ) v. ) C.A. ) MICHAEL J. PITTS, FIELD OFFICE DIRECTOR ) IMMIGRATION & CUSTOMS ENFORCEMENT, ) MICHAEL OCHOA, DEPUTY CHIEF COUNSEL, ) IMMIGRATION & CUSTOMS ENFORCEMENT, ) ERIC HOLDER, Jr., U.S. ATTORNEY GENERAL, ) and ) THE UNITED STATES OF AMERICA, ) RESPONDENTS, DEFENDANTS. ) ) PETITION FOR WRIT OF HABEAS CORPUS COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, AND MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Alberto Vasquez-Martinez ("Mr. Vasquez"), through counsel, files the instant Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. He also seeks a temporary restraining order, and/or preliminary injunction. Two issues are raised. First, he challenges the constitutionality of a system which allows the Respondents to detain him for an extended period, without reaching the question of whether they have jurisdiction over him, i.e., of whether he is a United States citizen. He also challenges their interpretation of 8 U.S.C. 1226(c)(1), 1 under which they suddenly decided to detain him under that provision, even though he was released from criminal custody in the offense for which he was initially placed in removal proceedings in 2005, and since then, they twice released him on his own recognizance, in part because of his claim to United States citizenship, and in part on the basis of humanitarian considerations, in that he is the sole source of support for his U.S. citizen wife and six children, and also helps support his two children from his first marriage. 1 The Office of Chief Counsel defends its decision to hold Mr. Vasquez under mandatory detention by reference to Matter of Rojas, 23 I&N Dec. 117 (BIA 2001), 2001 BIA LEXIS 11, holding that a criminal alien is subject to mandatory detention even he is not taken into custody immediately on release from criminal custody.

2 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 2 of 9 I. JURISDICTION AND VENUE 1. Jurisdiction is laid under 28 U.S.C (habeas corpus); 1331 (federal question), and 2201 et seq. (Declaratory Judgment Act), and 5 U.S.C. 702 et seq, (Administrative Procedure Act). 2. Mr. Vasquez is currently detained by Respondents at Los Fresnos, Texas. He resides in Harlingen, Texas, and the primary events in question occurred in Harlingen, Texas, both of which are within the jurisdiction of the Court. II. THE PARTIES 3. Petitioner Vasquez is a native of Mexico, who acquired United States citizenship through his United States citizen father. He also holds lawful permanent resident status in the United States. 4. Respondent Michael Pitts is the Field Office Director for Interior Enforcement of the San Antonio District of the Bureau of Immigration and Customs Enforcement, ( ICE ). Respondent Michael Ochoa is the Deputy Chief Counsel of the Harlingen Office of ICE. Respondent Eric Holder, Jr., is the Attorney General of the United States. Each is sued in his official capacity only. The United States of America is also a named Respondent/Defendant. III. THE FACTS 5. Alberto Vasquez-Martinez is a native of Mexico, who entered the United States as a lawful permanent resident in 1979, when he was one year old, and has resided here ever since. He claims to have acquired U.S. citizenship through his United States citizen father, who was physically present in the United States for approximately twenty years prior to his birth, including nearly ten after the age of fourteen - double the statutory requirement of ten years, of which five were after the age of fourteen. 2 Petitioner s (sealed) Exhibit C, herein incorporated by reference. 2 8 U.S.C. 1401(g) (1978). 2

3 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 3 of 9 6. On or about August 22, 2005, Mr. Vasquez was given deferred adjudication, with ten years probation, for the offense of aggravated assault against his wife, Natasha Vasquez. Id. 7. On September 13, 2005, an NTA was prepared and served, charging Mr. Vasquez with deportability for having been convicted of a crime of domestic violence. At that time, he was released on his own recognizance. Id. Mr. Vasquez attended all of his hearings before the Immigration Judge. 8. On March 24, 2006, the Immigration Judge terminated proceedings without prejudice, to allow Mr. Vasquez to seek a Certificate of Citizenship. Unfortunately, Mr. Vasquez attempted to do so without the assistance of counsel. The supporting documentation submitted was therefore not prepared to the Government s satisfaction, and without interviewing his witnesses, as contemplated by 8 C.F.R (b), they denied his application, on August 29, Id. 9. A second NTA was therefore issued on October 20, 2009, and again, Mr. Vasquez was released on recognizance. A Master Calendar Appearance was scheduled for March 24, 2010, before Immigration Judge David Ayala. Id. 10. Mr. Vasquez then obtained counsel, who set about attempting to document his U.S. citizenship. In order to do so, in November, 2009, Mr. Vasquez requested that the original documents filed in support of his N-600 application for a Certificate of Citizenship be returned to him, (Form G-884), so that he could apply for a United States passport. This never occurred. 11. On November 4, 2009, counsel served on ICE a Motion to Terminate, based on his claim that the offense for which he was given deferred adjudication did not render him deportable, even if he were not a U.S. citizen. The motion was filed with the Immigration Court on December 10, ICE never responded to the motion. Petitioner s Exhibit A, incorporated herein by reference. 3

4 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 4 of On February 10, 2010, Mr. Vasquez reported to ICE, pursuant to his Order of Release on Recognizance. At that time, he was taken into custody. The undersigned spoke with the Deportation Officer, who advised her that this was done at the request of the Office of Chief Counsel, which had conducted a file review, and determined that Mr. Vasquez was subject to mandatory detention. The undersigned had several conversations with attorneys from that office, and was informed that, after consultation with Defendant Ochoa, it had been decided that he would not be released, and that the Government would stand on Matter of Rojas, supra On February 12, 2010, counsel filed a motion with the Immigration Court, requesting a Joseph bond hearing. She discussed with Court personnel the fact that she would be asserting U.S. citizenship, and asked whether the Immigration Judge would want to hear the witnesses in person, or if not, how he handled such hearings. No-one knew. 14. Therefore, on February 18, 2010, counsel appeared for the bond hearing, with the necessary witnesses to demonstrate, virtually conclusively, that Mr. Vasquez is a United States citizen. Immigration Judge Achtsam stated at that time that he would not hear live witnesses, and that he would reschedule the case, to give counsel time to prepare their testimony by affidavit. He also asked counsel whether she agreed with the proposition that, if he found Mr. Vasquez to be a danger to the community, it would not even be necessary to reach the question of his citizenship. Counsel disagreed, stating that she considered that since citizenship was a jurisdictional fact, it had to be determined prior to reaching the traditional bond factors. The Judge asked that she file a brief on that issue by Monday, February 22, 2010, 3 The I-213 prepared after counsel had objected to ICE s detention also mentions that he reported five days late. However, counsel has never seen anyone detained for this reason. See, Petitioner s (sealed) Exhibit B, incorporated herein by reference. 4

5 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 5 of 9 and rescheduled the bond hearing for Tuesday, February 23, Counsel served and filed the requested brief, and affidavits, shortly before noon on February 22, Exhibit C. 14. On February 23, 2010, counsel returned to court, with the witnesses. At that time, the Immigration Judge stated that he had not had time to look at the brief, and would have to reschedule the hearing. Counsel requested that it be held the following morning, since she will be out of town from about noon, February 24, 2010, until the evening of March 3, The Judge was unavailable on February 24, so the hearing was rescheduled for March 4, Id. 15. As fate would have it, on February 8, 2010, two days before Mr. Vasquez was detained, his wife was laid off. Exh. D. Further, if he is not released soon, Mr. Vasquez will also lose his job. 16. In a similar case, the same Immigration Judge has ruled that he need not reach the issue of citizenship, if he finds that a detainee is a danger to the community, and the BIA has sustained this ruling. In that case, the person had to remain in detention for months. Petitioner s Exh. D, incorporated herein by reference. IV. APPLICABLE LAW A. MR. VASQUEZ IS NOT SUBJECT TO MANDATORY DETENTION WHERE HE WAS NOT DETAINED WHEN HE WAS RELEASED FROM CRIMINAL CUSTODY, PARTICULARLY GIVEN THAT HE WAS RELEASED ON RECOGNIZANCE BY ICE ON TWO SEPARATE OCCASIONS The question of whether 8 U.S.C. 1226(c)(1) applies to aliens who were not placed under mandatory detention at the time they were released from criminal custody has generated a great deal of litigation. To the best of counsel s knowledge and belief, every district court, but one, that has considered the issue has concluded that 1226(c)(1) does not apply in such circumstances. The mandatory detention provisions of 8 U.S.C. 1226(c)(1) apply 4 Counsel is giving a CLE seminar in Houston on February 25, 2010, and has oral argument in New Orleans on March 3,

6 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 6 of 9 when two conditions are fulfilled. First, the individual must be detained WHEN released from criminal custody, and second, as a result of the criminal conviction, the individual must be removable, i.e., at a minimum, s/he must be an alien. As Petitioner has attempted to demonstrate before the Immigration Judge, he is not an alien. Moreover, the WHEN RELEASED language in 1226(c) is abundantly clear and unambiguous, and means that the DHS must detain a person when released from the criminal custody. Respondents misinterpret this as meaning anytime after release. See, Matter of Rojas, supra. Numerous courts have rejected this interpretation, including Waffi v. Loiselle, 527 F.Supp.2d 480 (E.D.Va. 2007), and Quezada-Bucio v. Ridge, 317 F.Supp.2d 1221 (E.D.Wa. 2004). 5 To the best of counsel s knowledge and belief, the only decision to the contrary is Sulayao v. Shanahan, (S.D.N.Y. 2009), 2009 WL Although the petitioner in the instant case was released in August, 2005, mandatory detention does not apply to him since he was not detained immediately after his release from criminal custody. Detention, under the statute, is required "when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense." 1226(c)(1). The "when released" language clearly indicates that detention is not required of an individual who was not in criminal custody when arrested by the DHS. The petitioner was sentenced to imprisonment but was not taken into custody by the DHS at the time he was released from criminal custody, but rather was detained by the DHS more than four years after his release. See, Waffi v. Loiselle, supra, and Quezada-Bucio v. Ridge, supra. In neither case did the Government appeal the District Court 5 See also dissenting opinion of BIA member Rosenberg in Matter of Rojas, 23 I&N Dec. 117 (BIA 2001). 6

7 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 7 of 9 decision to the Court of Appeals, notwithstanding that, as published decisions, they carry a certain persuasive value. B. MR. VASQUEZ IS NOT AN ALIEN AND IS THEREFORE IMMUNE FROM DETENTION BY RESPONDENTS Alternatively, Mr. Vasquez challenges the absence of any procedure by which he can obtain a prompt determination in Immigration Court of whether ICE and the EOIR even have jurisdiction over his person. See, Flores-Torres v. Mukasey 548 F.3d 708,709 (9 th Cir. 2008): ICE claims it has the authority to [detain Petitioner] under the Immigration and Nationality Act (INA), which permits the detention of an alien who is in removal proceedings. Torres, however, contends that he is not an alien, that he became a United States citizen at the age of seventeen when his mother was naturalized, and that ICE is therefore without authority to detain him. We reverse the district court's dismissal for lack of jurisdiction of Torres's habeas petition challenging his continued confinement, and remand for a determination whether he is a citizen and thus immune from detention under the INA. Here, Mr. Vasquez submitted an extensive brief to the Immigration Judge, questioning his jurisdiction. Exh. D. However, he will have been detained for over three weeks, before he can even hope that the IJ will issue a ruling. And, given: 1) the IJ s refusal to hear live testimony from Mr. Vasquez witnesses, 2) his prior determination that a bond hearing is not a proper forum to decide a contested issue of United States citizenship, Exh. E, at p.4, and 3) the fact that the BIA previously upheld that determination, it is highly unlikely that the IJ will issue a favorable ruling. V. CAUSES OF ACTION A. HABEAS CORPUS Petitioner first seeks a writ of habeas corpus, releasing him from the unlawful and unconstitutional custody imposed by Respondents, for 1) detaining him years after he was released from criminal custody, in violation of 8 U.S.C. 1226(c)(1), and 2) failing to provide him with a procedure for promptly determining whether the Respondents even have jurisdiction over his person, given his claim 7

8 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 8 of 9 that he is a United States citizen, and not an alien, as defined by 8 U.S.C. 1001(a)(3): The term alien means any person not a citizen or national of the United States. B. INJUNCTIVE AND DECLARATORY RELIEF Petitioner further seeks injunctive, and corresponding declaratory relief, on his claim that it is unconstitutional for Defendants to detain him, allegedly pursuant to the mandatory detention provisions of 8 U.S.C. 1226(c)(1), without providing him a prompt and effective forum for determining whether he is an alien, as defined by 8 U.S.C. 1001(a)(3). WHEREFORE, it is urged that the Court issue a temporary restraining order, and thereafter, a preliminary injunction, restraining and enjoining Respondents from not immediately releasing Mr. Vasquez, pending determination of his claim to United States citizenship. Respectfully Submitted, s/ Lisa S. Brodyaga Attorney at Law Landrum Park Road Federal Id: 1178 San Benito, TX Texas State Bar: (956) (956) (fax) VERIFICATION I, Lisa S. Brodyaga, hereby certify that I am familiar with the facts of the case as stated above, and that they are true and correct to the best of my knowledge and belief. s/ Lisa S. Brodyaga CERTIFICATE OF CONSULTATION The undersigned has consulted with Victor Rodriguez, AUSA, regarding his availability for a hearing on the request for a temporary restraining order. Mr. Rodriguez has stated that he will be available on March 5, 8, 9, and 10, 2010, and if necessary, during the afternoon of March 4, The undersigned is also 8

9 Case 1:10-cv Document 1 Filed in TXSD on 02/23/10 Page 9 of 9 available on all of these dates. CERTIFICATE OF SERVICE I certify that a courtesy copy of the foregoing, with Exhibits A through E, were electronically served on Victor Rodriguez, AUSA, this 23 rd day of February, s/ Lisa S. Brodyaga 9