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PLAINTIFF’S ORIGINAL
APPLICATION FOR WRIT OF HABEAS CORPUS,
AND FOR
TEMPORARY RESTRAINING ORDER
COMES NOW Zoubir BOUCHIKHI, Plaintiff in the above-styled and numbered cause, and
for cause of action would show unto the Court the following:
1. This is an action to challenge the unlawful and egregious order of detention entered against
Plaintiff by the Defendants in violation of the Immigration and Nationality Act (“INA”),
regulations implemented pursuant to the INA, and the United States Constitution.
2. Plaintiff is a 49 year old native and citizen of Algeria who has lived in the United States for
the past 11 years and serves as a religious leader to the Houston Islamic community. He has
a wife and son who are also Algerian nationals, and three younger children born in Houston
who are therefore United States citizens. In December 2008, Plaintiff was arrested at his
home in Houston by agents of U.S. Immigration and Customs Enforcement (“ICE”). He has
and this action is brought against her in her official capacity. She is generally charged with
administration and enforcement of the Immigration and Nationality Act (“INA”), and is
further authorized to delegate such powers and authority to subordinate employees of her
Department. See, 8 USC §1103. Both CIS and ICE are component agencies within the
DHS.
4. Defendant Kenneth Landgrebe is the Houston Field Office Director of Immigration and
Customs Enforcement, an official of the ICE generally charged with supervisory authority
over all operations of the agency within his District. Mr. Landgrebe and his subordinates are
JURISDICTION
Plaintiff is in the Defendants’ custody under or by color of the authority of the United States,
and in violation of the Constitution or laws of the United States, as more fully set forth below.
Requena-Rodriguez v. Pasquarell, 190 F3d 299 (5th Cir. 1999); INS v. St. Cyr, 121 S.Ct.
2271 (2001), Shokeh v. Thompson, 369 F.3d 865 (5th Cir. 2004).
6. Jurisdiction is also conferred by 28 USC §1331, in that this is a civil action arising under the
7. Authority to grant the requested injunctive relief in cases otherwise within the court's
VENUE
8. Venue is proper in this court, pursuant to 28 USC §1391(e), in that this is an action against
officers and agencies of the United States in their official capacities, brought in the District
where a Defendant resides and where a substantial part of the events or omissions giving rise
to Plaintiff's claim occurred. Plaintiff is detained within this District, and administrative
decisions regarding his custody have largely been made within this District.
EXHAUSTION OF REMEDIES
9. Plaintiff has exhausted his administrative remedies. As will be detailed below, Plaintiff and
others acting upon his behalf have made numerous requests for his release to Defendants.
remedies.
CAUSE OF ACTION
10. Plaintiff has made every effort to consistently maintain lawful immigration status. He was
originally admitted with a lawful nonimmigrant visa in December 1997, and legally changed
his nonimmigrant status to that of an “R-1” religious worker in February 2000 under the
subsequent extensions by U.S. Citizenship and Immigration Services (“CIS”), extending his
lawful immigration status until December 2004. While maintaining lawful nonimmigrant
status, CIS approved an immigrant visa petition on Imam BOUCHIKHI’s behalf in July 2003
and, based upon that approved petition he applied for adjustment of status to lawful
11. Adjustment of status under INA §245(a) requires that the applicant: (a) have been lawfully
admitted or paroled; (b) be the beneficiary of an approved immigrant visa petition under INA
§204 [8 USC §1154]; (c) have an immigrant visa immediately available; and (d) be legally
admissible to the United States under INA §212. 8 USC §1182. At the time his application
for adjustment of status was filed, Imam BOUCHIKHI had been lawfully admitted as a
nonimmigrant, had an approved immigrant visa petition filed by his employer, ISGH, was
legally admissible to the United States and had an immigrant visa immediately available.
BOUCHIKHI traveled outside the United States for emergent personal reasons. Pursuant to
federal regulation, he obtained an advanced parole document from CIS authorizing his travel
departure from the United States without obtaining this advanced parole document operates
13. The statutory authority for this parole procedure is set forth in §212(d)(5) of the INA. 8 USC
§1182(d)(5). That statute authorizes the Attorney General (now the Secretary of DHS) to
parole aliens into the United States temporarily on a case by case basis “for urgent
(b) While worded as an extraordinary and exceptional act, advanced parole incident to
without forcing the process to begin all over again has been deemed “a significant
public benefit.”
14. After Plaintiff filed his application for adjustment of status in October 2003, and after he had
traveled on advanced parole in January 2006, CIS revoked the approval of the immigrant visa
March 2007. This revocation, undertaken under INA §205 [8 USC §1155], was challenged
15. While both Plaintiff and ISGH urgently maintain that the petition was properly approved and
unjustifiably revoked, Plaintiff cannot (and therefore does not) bring that issue before this
Court. The Court of Appeals for the Fifth Circuit has specifically held that the federal courts
do not have jurisdiction to review a revocation under INA §205. Ghanem v. Upchurch, 481
16. Having no other means of challenging the revocation of their visa petition, Imam
BOUCHIKHI and the ISGH have recently filed a new petition addressing all issues and
17. However, before Plaintiff and ISGH were able to do that, removal proceedings were
commenced against Plaintiff, wherein he was charged as an “arriving alien” without a valid
immigrant visa. 8 USC §1182(a)(7). Even though Imam BOUCHIKHI last “arrived” in the
United States in February 2006, his travel on advance parole and the subsequent denial of his
application for adjustment of status resulted in his classification as an “arriving alien.” 8 CFR
§245.2(a)(4)(i)(B). Plaintiff was arrested at his home in December 2008, shortly after his
administrative appeal on the visa petition revocation had been denied and before he could file
is not asking this Court to review any matter that is within the Immigration Judge’s
jurisdiction. However, solely because Plaintiff traveled on advance parole before his petition
was revoked and his application for adjustment of status of status was denied, the
Defendants or, alternatively, this Court can order Imam BOUCHIKHI’s release.
19. Plaintiff has no criminal record. He has resided in Houston for over ten years and has three
United States children. He has tremendous support in the Houston area Muslim community.
He is by no means dangerous or likely to abscond. He has many supporters willing and able
20. Plaintiff has made every reasonable effort to obtain relief from the Defendants. Specifically:
(a) Shortly after Plaintiff’s arrest and upon learning that the Immigration Judge had no
responsible Detention Officer (DO), Officer Kutz. He was unable to reach the DO
(b) Having heard nothing, counsel called again on December 23 and learned that the DO
Kutz was detailed out of town and another DO, Officer Franco, was responsible.
Counsel was told to put the request in writing, addressed to Field Office Director
(c) A written request for Imam BOUCHIKHI’s release was sent by overnight delivery.,
and was delivered to Defendant Landgrebe’s office on December 26, 2008. A copy
(d) On the morning of December 30, 2008, having heard nothing in reply to Plaintiff’s
request, counsel attempted to contact DO Franco. He did not answer his phone
(e) Receiving no reply, counsel called again in the afternoon of December 30, 2008.
After calling several phone numbers, being left on hold and cut off in the process of
transfer, calling back, etc., counsel was finally told that DO Franco was also out of
the office and no one but the Duty Officer was available. Counsel spoke to the Duty
Officer, who expressed his opinion that probably no one had looked at Plaintiff’s
parole request because of the holidays and that no one would until after the New
Year.
(f) On January 2, 2009, counsel attempted once again to discuss Plaintiff’s custody status
with someone in Defendants’ office. Initially no one answered the telephone at the
number distributed for public use -- (281)774-4816; the automated system transferred
the call to a voice mail system which had no “valid attendant number” and simply said
DO Franco was still out. Counsel then asked to be transferred to whomever was
covering Franco’s cases in his absence. Counsel was placed on hold while the
availability of such an officer was checked. After being left on hold for approximately
ten minutes, and after having already been told that DO Franco was out of the office,
counsel was transferred to Franco’s voice mail without any further explanation.
(g) On January 6, 2009, having heard nothing, Plaintiff’s counsel again called the ICE
detention office and was able to speak with DO Franco. Counsel was told that DO
Kutz was going to be out on detail for additional weeks, that Kutz’s cases were
divided between two other officers, and that Plaintiff’s case officer was now DO
Valtierra. Counsel discussed the written release request briefly with DO Franco;
while counsel was placed on hold, Officer Franco was able to locate the written
request that had been delivered on December 26 -- it had simply been placed in DO
Kutz’s box, apparently to await his return. DO Franco promised to deliver the
request to DO Valtierra and ask him to call counsel back that day.
(h) On the morning of January 8, 2008, having heard nothing, counsel attempted to call
DO Valtierra, only to find that his name was not listed in the automated directory at
the ICE detention office. Counsel therefore called DO Franco again, who transferred
the call to Valtierra. Valtierra confirmed that he had Plaintiff’s written release request
to review the file. DO Valtierra offered to get back to counsel “today or tomorrow.”
(i) Hearing nothing from ICE, counsel called and left two voice mail messages for DO
(j) On January 12, 2009, with absolutely no opportunity for further contact concerning
Plaintiff’s release request, counsel spoke with a DHS attorney familiar with Plaintiff’s
removal case. Counsel was told informally that the DHS attorney had been told the
(k) On January 14, 2009, again having heard nothing formally regarding the written
release request, Plaintiff’s counsel again called the ICE detention office and asked for
DO Valtierra. Counsel was told that Valtierra was out of town for a few days.
Counsel asked to speak to the officer responsible for the case, and was transferred to
a voice mailbox. In great frustration, counsel called the main public number,
miraculously got a real person rather than a machine, and explained that the
responsible officers on Plaintiff’s file kept shifting, counsel kept leaving messages and
no one was returning calls. Since the written release request was directed to Director
Landgrebe personally, counsel asked to speak to Mr. Landgrebe. The call was
left and counsel was assured that someone would call back about Plaintiff’s release
request, his associate attempted to call DO Valtierra on January 16, 2009. Unable to
reach him, she left a voice mail for his supervisor, Ms. Arendale. No reply.
(m) On the morning of January 21, 2009, counsel again attempted to call the DO. No one
answered, and counsel left a voice mail. Counsel then called the main ICE office and
was told by an officer that no one at that office could help him and that he must call
the DO’s at the detention center. Counsel attempted to explain that he had been
doing that, that no one was calling back, and that someone in Director Landgrebe’s
office had promised to call back the previous week and had never done so. Counsel
was told that he must call the detention center, and ask to speak to a supervisor if
necessary. Counsel called back to the detention center, again got only the voice mail,
and left a message of compelling clarity to the effect that a call back from a supervisor
(n) Having heard nothing by that afternoon, counsel called again on January 21. This
time, a real person answered the phone and, upon learning the purpose of the call,
advised for the first time that counsel needed to speak with an Officer Mitchell.
Officer Mitchell was surprisingly not available at the moment, and counsel was
(o) Having received no call back, counsel called again late in the afternoon of January 21
and asked for Officer Mitchell. Counsel was told that Officer Mitchell could not be
numerous messages over the past month, had made a written release request a month
previous, had been told he needed to speak to four different officers and/or a
supervisor and that no one was calling back. Counsel asked to speak with a
supervisor, any supervisor. Counsel was told that all supervisors were in a meeting
(p) Having STILL heard nothing, counsel called again the morning of January 23, 2009.
Calling several times at several different numbers for both the main ICE office and the
detention center, counsel was able to leave three voice mail messages. At a fourth
number, he was left on hold for eight minutes before hanging up. The voice mail
messages stressed the extreme frustration felt by counsel, the reasons for it, and
demanded a call back from a supervisor. Eventually, by calling the main ICE office
and begging and pleading, counsel was able to talk to a supervisor, John McPoland.
Mr. McPoland was very sympathetic, and said he would have a supervisor at the
detention center call counsel. Several hours later, Mr. McPoland called counsel (the
very first time in over a month anyone in the Houston ICE office returned a call
concerning Plaintiff’s case), and advised that the appropriate supervisor was Ms.
Arendale. Counsel was told that Mr. McPoland had discussed the matter with Ms.
January 26, 2009. Not having her direct phone number, counsel called the main
number and two assistants’ numbers but got only voice mails. Three voice mail
(r) Having received no phone call in reply to numerous attempts and messages, and with
Kenneth Landgrebe denied the request in writing on January 23, 2009 (receivd by
counsel on January 27). The written denial simply recites the statutory guidelines for
parole and asserts that Plaintiff’s release was not shown to be sufficiently in the public
(s) Following the written denial, on or about February 24, 2009, Defendant Landgrebe
and member of ISGH and several other Islamic organizations, to discuss the Imam’s
detention. Plaintiff’s attorney, however, was not invited to this meeting despite
meeting, Mr. Khalili understood that Defendant Landgrebe was willing to further
consider the matter and that another written request for release, addressing the
(t) Immediately thereafter, Plaintiff submitted through counsel a supplemental request for
same statutory parole standards recited in the Director’s denial letter also governed
Plaintiff’s advance parole, which had been approved in 2005, resulting in his parole
back into the United States in February 2006. Ironically, this grant of advance parole
Immigration Judge of jurisdiction over his custody status and leaving it entirely in Mr.
Landgrebe’s hands. In addition to the above analysis, the supplemental request also
(u) For approximately two weeks following the supplemental request, Plaintiff and his
counsel waited patiently for a response. On or about March 17, 2009, Defendants’
agents approached Plaintiff at the detention center where he is held and showed him
a form authorizing his release upon posting of a bond in the amount of $20,000.
Plaintiff was asked to sign the form, which he did. The following day, an attempt was
made to post the bond at the Immigration and Customs Enforcement office. The
bond money was refused, however, on the grounds that the bond had not yet been
finally approved. It was apparently suggested that the bond could not be posted until
the undersigned counsel spoke with Mr. Landgrebe (something counsel had been
could not be accepted until final authorization was received from headquarters in
Washington. Counsel was advised that a final decision was expected in the near
future and that counsel would be notified immediately when it was received.
(w) When nothing was heard, counsel called the detention center again on March 23,
2009. At that time, he spoke with DO Kutz who had returned from detail. Officer
Kutz checked the status of the parole request and advised counsel that they were still
waiting to hear from headquarters, that they had e-mailed a follow up, and that he did
not know the cause of the delay or why headquarters was involved.
(x) Since March 23, counsel has made several telephonic inquiries and has been told the
same thing: the bond cannot be accepted without headquarters approval, and
headquarters had not given that approval. Many letters and phone calls from
(y) On April 10, 2009, a letter from ICE headquarters was sent to Mr. Khalili (but not
served upon Plaintiff’s counsel of record). (Exhibit D). In that letter, Defendants
simply intimate that the Plaintiff’s fate and custody status are in the hands of the
Judge has no jurisdiction over Plaintiff’s custody status. If he had, a reasonable bond
would have been set and posted over four months ago! The letter further states that
Thompson, 369 F.3d 865 (5th Cir. 2004). The essential issues in determining an alien’s
custody status pending removal proceedings are whether he is a danger to the community, a
threat to national security, or likely to abscond. Matter of Guerra, 24 I&N Dec. 37 (BIA
2006).
(a) Plaintiff lived in the Houston area and was at liberty for over ten years before his
arrest. He has no criminal history, and he has three United States citizen children.
Defendants have not even suggested that he is a threat or danger to the United States
(b) Plaintiff’s removal proceedings remain pending. A hearing was held most recently on
April 13; the Immigration Judge has yet to make a decision. Regardless of the
22. The relief Plaintiff seeks herein is therefore quite simple and limited. Plaintiff asks this court
to enter an order compelling Defendants to release him under conditions that are reasonable
and appropriate under the circumstances. Alternatively, while Plaintiff believes such to be
excessive, Plaintiff asks that the Court order Defendants to accept the $20,000 bond
22. Plaintiff hereby requests entry of an order restraining Defendants from continuing him in
custody. He has already been detained for almost five months, separated from his religious
duties and his young children, while Defendants have treated his repeated and urgent requests
for release in the manner described above. His continued detention will constitute an
irreparable harm.
23. Plaintiff has no adequate remedy under law. Because the Immigration Judge has no custody
jurisdiction in the case of an “arriving alien,” the decisions made by Defendants offer no
administrative recourse or review. They are, however, reviewable by this Court. Shokeh v.
Thompson, supra.
24. The legitimate interests of the Defendants would in no way be impaired by Plaintiff’s release.
Indeed, in the absence of anything remotely resembling a legitimate reason to detain Plaintiff,
his release would serve the interests of administrative economy by saving the costs of his
needless detention.
PRAYER
25. WHEREFORE, in view of the arguments and authority noted herein, Plaintiff respectfully
prays that the Defendants be cited to appear herein and that, upon due consideration, the
(b) ordering Plaintiff’s release from custody upon posting of a reasonable bond;
(c) awarding Plaintiff reasonable attorneys fees for the instant cause, necessitated by
(d) granting such other relief at law and in equity as justice may require.
Respectfully submitted,
REINA BATES &KOWALSKI IMMIGRATION LAW GROUP
____________________________________
BRIAN K. BATES
Texas Bar No. 01899600
6260 Westpark Dr., Suite 110
Houston, TX 77057
(281)448-9500 FAX: (281)448-6767
Counsel for Plaintiff
“My name is BRIAN K. BATES and I am Counsel for Zoubir BOUCHIKHI, Plaintiff in the
instant case, who is presently in the custody of the Immigration and Customs Enforcement Houston
District. I hereby affirm that I have read the foregoing Plaintiff's Original Complaint, that the
information contained therein is true and correct to the best of my personal knowledge and/or
information and belief after reasonable inquiry, and that the requested injunctive relief is warranted
_______________________________________
BRIAN K. BATES
______________________________
NOTARY PUBLIC, STATE OF TEXAS