Parlak v. Baker

• Decision Date: 20 May 2005
• Docket Number: No. 05-70826.,05-70826.
• Citation: 374 F.Supp.2d 551
• Parties: Ibrahim PARLAK, Petitioner, v. Robin BAKER, Detroit Field Office Director, U.S. Immigration and Customs Enforcement, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

374 F.Supp.2d 551

Ibrahim PARLAK, Petitioner, v. Robin BAKER, Detroit Field Office Director, U.S. Immigration and Customs Enforcement, Respondent.

No. 05-70826.

United States District Court, E.D. Michigan, Southern Division.

May 20, 2005.

David S. Foster, John J. Marhoefer, Cindy Sobel, Latham & Watkins LLP, Chicago, IL, for the Petitioner, Ibrahim Parlak.

L. Michael Wicks, Assistant United States Attorney, Chief, Civil Division, Detroit, Douglas E. Ginsburg, Senior Litigation Counsel, Office of Immigration Litigation, Civil Litigation, United States Department of Justice, Washington, D.C., for the Respondent, Robin Baker (Field Office Director, Detroit Office, Bureau of Immigration and Customs Enforcement, United States Department of Homeland Security).

MEMORANDUM AND ORDER GRANTING PETITION FOR HABEAS CORPUS

COHN, District Judge.

I. Introduction

This is a habeas case under 28 U.S.C. § 2241. Petitioner Ibrahim Parlak is challenging his continued detention by the United States Customs Immigration and Customs Enforcement (ICE) pending the completion of removal proceedings. Respondent is Robin Baker, the District Director of the Detroit Field Office of ICE. ICE has placed Petitioner in the Calhoun County Jail in Battle Creek, Michigan pursuant to a contract with ICE.¹ Petitioner says his seven month detention pending completion of removal proceedings violates his statutory and due process rights. Respondent asserts that petition must be dismissed for lack of jurisdiction, or in the alternative, the case must be transferred to the Western District of Michigan because venue is not proper in the Eastern District of Michigan. Respondent also says that Petitioner's continued detention does not violate his statutory or due process rights. In other words, Respondent says Petitioner's claims fail on the merits.

For the reasons that follow, the Court finds that Petitioner's continued detention in the circumstances present here violates his constitutional rights. Accordingly, the petition is GRANTED. Petitioner shall be released from custody subject to the posting of a $50,000.00 cash bond and such other reasonable conditions to be agreed upon by the parties or upon order of the Court after a request for a hearing.

II. Background

Petitioner is a native of Turkey. He was born in 1962 in the primarily Kurdish province of Gaziantep. On March 19, 1990, Petitioner was convicted by a now-dissolved Turkish Security Court of Kurdish separatism. He was sentenced to 4 years and 2 months imprisonment and was released from prison the same day of his conviction for time served after having spent 17 months in jail, apparently because he cooperated with the government. The conviction stemmed from events in 1988 involving a gun fight between Kurdish separatists and Turkish soldiers and in which two Turkish soldiers were killed.²

Petitioner left Turkey on April 13, 1991 and entered the United States as a non-immigrant in transit on a C-1 visa.³ On July 12, 1992, he was granted asylum. The basis for his asylum claim was his support for the Kurdistan Workers Party, known as the PKK, against the Turkish government.⁴ On June 4, 1994, he adjusted his status to lawful permanent resident. On August 24, 1998, he filed an application for naturalization. On November 28, 2001, his application was denied.

Petitioner has lived in Harbert, Michigan located in southwest Michigan since 1994. He owns a home, a restaurant, and is the father of a seven year old daughter.⁵ There is no evidence that Petitioner has ever been convicted of a crime in the United States.

On April 2, 2002, the INS issued Petitioner a Form I-862 Notice to Appear placing him in removal proceedings and charging him with being removable under 8 U.S.C. § 1227(a)(1)(A) because Petitioner made false statements on his adjustment of status application regarding whether he had ever been arrested or imprisoned and whether the had ever engaged in terrorist activity. The INS claimed that Petitioner had previously been arrested and imprisoned in Turkey in 1988 on suspicion of being a member of the PKK.⁶ The INS also alleged that Petitioner was not eligible to adjust his status at the time he did because he was not a refugee. He was not taken into custody based on these charges.

On or about October 9, 2003, Turkey revoked Petitioner's citizenship.

On February 11, 2004, a hearing was held at which Petitioner denied the charges for removability. He also asserted that his activities in support of the Kurds in Turkey were not those of a terrorist.

On April 26, 2004, prior to a decision on removability, ICE filed a motion to reopen the evidence. ICE asserted that it had additional documents relating to the criminal charges against Petitioner in Turkey for being a member of the PKK and that the Turkish government had an ongoing criminal investigation against Petitioner for membership in the PKK. The documents also allegedly showed that Petitioner's 1990 conviction stemmed from the death of the two Turkish soldiers in 1988.

On July 22, 2004, ICE submitted evidence that Petitioner was re-sentenced in absentia in Turkey on March 16, 2004 to 6 years imprisonment because of his role in the 1988 killing of the two Turkish soldiers in his capacity as group administrator of the PKK. The Turkish court, however, reduced a possible life sentence to 6 years because Petitioner had cooperated and suspended a portion of the sentence, mandating that Petitioner serve only 1/5 of his sentence, which Petitioner has already served. Thus, Petitioner's re-sentencing did not subject him to any additional incarceration.

On July 27, 2004, ICE issued a Form I-286 Notice of Custody Determination ordering Petitioner into custody. On July 29, 2004, ICE took Petitioner into custody.

On August 5, 2004, ICE filed two additional charges against Petitioner, claiming that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony based on the conviction in Turkey.

On August 10, 2004, an Immigration Judge conducted a bond hearing and continued Petitioner's detention. In a written decision, the Immigration Judge found that Petitioner was subject to mandatory detention, not because of the charges of removability, but rather because there was "reason to believe" that Petitioner is an alien described under section 237(a)(4) of the Act, 8 U.S.C. § 1227(a)(4)(B), which provides:

Any alien who has engaged, or at any time after admission engages in any terrorist activity (as defined in section 1132(a)(3)(B)(iv) of this title) is deportable.

Under applicable regulations, 8 C.F.R. § 1003.19(H)(2)(i)(C), the Immigration Judge found that it could not redetermine Petitioner's custody status because he was an alien described under § 1227(a)(4)(B). In other words, the Immigration Judge found that it had no authority to release Petitioner. The Immigration Judge then went on to explain why there was reason to believe Petitioner had engaged in terrorist activities. The Immigration Judge also noted that because of this, Petitioner was subject to mandatory detention. The Immigration Judge also noted that while there was evidence of Petitioner's ties to the community, he was a flight risk because he has fled Turkey years ago, provided inaccurate information to support his claim for asylum, and faced the possibility of deportation to Turkey.

Petitioner appealed the bond decision to the Board of Immigration Appeals (BIA).

On October 14, 2004, while his appeal was pending, ICE filed an additional charge of removability against Petitioner, now charging him with multiple terrorist activity under 8 U.S.C. § 1227(a)(4).

On November 23, 2003, the BIA affirmed the Immigration Judge's detention decision, finding that the Immigration Judge lacked jurisdiction to redetermine Petitioner's custody because Petitioner had not established that ICE was substantially unlikely to prevail on the (newly-added) charge of removability, i.e. that Petitioner had engaged in terrorist activity.

Thus, Petitioner faces removal based on the following charges, the latter two which were added during the course of bond review proceedings:

1. Removable under 8 U.S.C. § 1227(a)(1)(A) because Petitioner made false statements on his adjustment of status application regarding whether he had ever been arrested or imprisoned and whether he had engaged in terrorist activity

2. Removable under 8 U.S.C. § 1227(a)(1)(A) because Petitioner was not eligible to adjust his status at the time he did because he was not a refugee

3. Removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for being an aggravated felon

4. Removable under 8 U.S.C. § 1227(a)(4)(B) for engaging in terrorist activities

On December 6, 2004 and December 7, 2004, an Immigration Judge conducted a removal hearing on all of the removal charges and on Petitioner's application for deferral of removal under the United Nations Convention Against Torture. On December 29, 2004, the immigration judge issued a lengthy written decision sustaining all of the charges of removability, denied Petitioner's deferral application, and ordered him removed to Turkey. Petitioner has filed an appeal of this removal decision to the BIA, where it is pending. The appeal is proceeding on a expedited basis; briefing is now complete.

III. Analysis

A. Jurisdiction

Respondent says that the Court lacks jurisdiction over the proper respondent in this case and that venue is improper in this district. In a habeas corpus proceeding under 28 U.S.C. § 2241, the appropriate forum is governed by two factors: (1) whether the court has personal jurisdiction over petitioner's custodian; and (2) whether petitioner satisfies traditional venue considerations. A court has personal jurisdiction "so long as the custodian can be reached by service of process." Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Section 2243 of Title 28 requires the writ of...