Aslanturk v. Hott

Citation459 F.Supp.3d 681
Decision Date08 May 2020
Docket NumberCivil No. 1:20-cv-00433 (RDA-JFA)
Parties Ejder ASLANTURK, Petitioner, v. Russell HOTT, et al., Respondents.
CourtU.S. District Court — Eastern District of Virginia

Mark Alastair Stevens, Murray Osorio PLLC, Fairfax, VA, for Petitioner.

ORDER

Rossie D. Alston, Jr., United States District Judge

This matter comes before the Court on Petitioner Ejder Aslanturk's ("Petitioner") Motion for Temporary Restraining Order and/or Preliminary Injunction ("TRO/Preliminary Injunction Motion") (Dkt. 5). Considering Petitioner's Habeas Petition (Dkt. 1); the TRO/Preliminary Injunction Motion; Petitioner's Memorandum in Support of the TRO/Preliminary Injunction Motion (Dkt. 6) and the documents attached thereto; the Government's Memorandum in Opposition (Dkt. 7) and the documents attached thereto; and Petitioner's Reply (Dkt. 9) and the documents attached thereto; for the following reasons, it is hereby ORDERED that Petitioner's TRO/Preliminary Injunction Motion (Dkt. 5) is DENIED.

I. BACKGROUND
A. Factual Background
i. Petitioner's Background

The factual background of Petitioner's circumstances is not insignificant and, in many aspects, drives the analysis of this case. Petitioner is a citizen of Turkey who on March 5, 2011, originally came to the United States on a tourist visa, which granted him permission to remain in the United States until September 4, 2011. Dkt. Nos. 7, 4; Dkt. 7-1, ¶ 5; 6-9, 2. In the years prior to coming to the United States, and while living in Turkey, Petitioner owned a large construction company, started a "pro-peace newspaper ... [which] publiciz[ed] the view of the Democratic Leftist Party[,]" and "ran for mayor as a Democratic Leftist Party candidate on a pro-peace platform." Dkt. 1, ¶¶ 7-10. In the year that he ran for mayor, Petitioner was required to "close his newspaper after it was shot at." Id. at ¶ 9.

On October 21, 2011, Petitioner was the subject of an INTERPOL Red Notice, which was triggered by the Turkish government's issuance of a warrant for Petitioner's arrest.1 Dkt. Nos. 7, 3; 71,¶ 9.

Petitioner "is wanted in Turkey to serve a seven-year and six-month sentence pursuant to a 2007 conviction for forgery and issuing false documents." Dkt. 7-1, ¶ 9. While in Turkey, "Petitioner was convicted of filing fraudulent documents related to a construction project, which resulted in the loss of approximately $200,000 in government funds." Id. at 19; see also Dkt. 1, ¶ 12.

ii. Petitioner's Immigration Proceedings

Although his tourist visa expired on September 4, 2011, on May 4, 2012, while still within the United States, Petitioner submitted an application to the United States Citizenship and Immigration Services ("USCIS") to become a "Lawful Permanent Resident." Dkt. 7, 4. During the pendency of his application for Lawful Permanent Resident status, Petitioner also applied for an advance parole document that would grant him permission to travel internationally and return to the United States. Dkt. Nos. 7, 4; 1, ¶ 15; 7-1, ¶ 7; 6-9, 2. On September 1, 2012, the USCIS approved Petitioner's advanced parole application. Dkt. Nos. 7, 4; 7-1, ¶ 7. Accordingly, on May 9, 2013, Petitioner "travelled abroad and presented himself after arrival from a cruise ship for admission to the United States at Key West, Florida[.]" Dkt. 7, 3. There, Petitioner was "paroled into the United States ... to resume his application for adjustment of status." Dkt. 6-9, 2.

On July 5, 2017, the USCIS denied Petitioner's application to become a Lawful Permanent Resident because Petitioner "did not provide sufficient documents to establish that [his] arrest in Turkey was dismissed." Id. at 2-3. Petitioner then requested that USCIS "reopen and reconsider" its decision on his application. Id. at 3. On April 18, 2018, USCIS did so and requested additional evidence to establish that Petitioner's case in Turkey was dismissed, as Petitioner had claimed. Id. However, on December 6, 2018, USCIS ultimately denied Petitioner's application for adjustment to Lawful Permanent Resident status. Dkt. Nos. 6-9, 3; 7, 3; 7-1, ¶ 8.

On January 15, 2019, upon the direction of the United States Immigration and Customs Enforcement agency ("ICE"), Petitioner appeared at an ICE office located in Fairfax, Virginia. Dkt. Nos. 7, 3; 7-1, ¶ 10. There, he was arrested by ICE officers pursuant to an administrative arrest warrant. Id. Three days later, ICE officers served Petitioner with a Notice to Appear, Form I-862, which "charged Petitioner with being removable from the United States under 8 U.S.C. § 1182(7)(A)(i)(I) [INA § 212(a)(7)(A)(i)(I) ] for being an ‘intending immigrant but without an approved visa or other approval to being in the United States as an immigrant.’ " Dkt. Nos. 6-9, 3; 7, 3. Accordingly, pending his removal proceedings, Petitioner was detained at the Caroline Detention Facility in Bowling Green, Virginia, where he still remains. Dkt. Nos. 7, 3; 7-1, ¶ 11.

On February 27, 2019, Petitioner appeared before the Arlington Immigration Court in Arlington, Virginia ("Immigration Court"). Dkt. 7, 3. Petitioner was represented by counsel and through counsel, he conceded his removability and again applied for the adjustment of his status to Lawful Permanent Resident, which included "an application to waive any criminal grounds of inadmissibility." Id. The Immigration Court then set the matter for a hearing on March 26, 2019, regarding Petitioner's application for the adjustment of his status. Id. ; 7-1, ¶ 13. Accordingly, Petitioner again appeared before the Immigration Court on March 26, 2019, for such a hearing. Dkt. Nos. 7, 3-4; 7-1, ¶ 14.

Following the hearing, on May 8, 2019, the Immigration Court denied Petitioner's application for the adjustment of his status to Lawful Permanent Resident. Dkt. Nos. 6-9, 3; 7, 4; Dkt. 7-1, ¶ 15. The Immigration Court also set the matter for a hearing on Petitioner's applications for asylum, withholding, and protection under the Convention Against Torture. Dkt. Nos. 6-9, 20; 7-1, ¶ 15.

On May 21, 2019, Petitioner appeared with counsel before the Immigration Court for his first hearing concerning his applications for asylum, withholding, and protection under the Convention Against Torture. Dkt. 7-1, ¶ 16. That day, the hearing adjudicating Petitioner's applications under the Convention Against Torture commenced, but the matter was continued due to the amount of time that the proceedings required. Id. On July 16, 2019, that court continued to hear the merits of the proceedings, Id. at ¶ 18. The remainder of the evidence was heard that day, and the Immigration Court took the matter under advisement to issue a written decision. Id.

On October 25, 2019, the Immigration Court issued its written decision, which denied Petitioner's applications for removal and deferral. Dkt. 6-10, 4. The Immigration Court further ordered that Petitioner's "application for asylum shall be deemed frivolous, and [that Petitioner] shall be permanently ineligible for any future benefits under the INA, pursuant to INA § 208(d)(6) and 8 C.F.R. § 1208.20." Dkt. 6-10, 4, 20. The Immigration Court further ordered that Petitioner be removed to Turkey. Id. at 20.

On November 22, 2019, Petitioner appealed the findings of the Immigration Court to the Board of Immigration Appeals ("BIA"). Dkt. Nos. 1, ¶ 21; 7, 4. The BIA issued a briefing schedule requiring both parties to file their briefs on February 4, 2020. Dkt. 7, 4. The parties did so. Id. The appeal before the BIA remains pending. Id. ; Dkt. 1, ¶ 21.

Since Petitioner's removal proceedings have been pending, he has twice requested that ICE release him from immigration custody on parole – first on January 25, 2019, and a second time on April 2, 2020. Dkt. 7, 4. Both requests were denied. Id.

After Petitioner submitted to ICE his April 2, 2020, request for release, on April 4, 2020, ICE ordered all its filed offices "to identify detainees at a higher risk for complications from COVID-19 and to consider whether continued detention remained appropriate." Id. at 5. Petitioner was so identified. Id. Accordingly, ICE considered not only Petitioner's parole request, but also "performed the required reassessment of Petitioner's custody status as required by the agency's April 4, [2020,] order, taking the COVID-19 pandemic and Petitioner's medical history into account as [ ] factor[s] in those considerations." Id. ICE apparently also considered that "Petitioner is wanted by another sovereign nation to serve a significant criminal sentence and that the Immigration [Court] concluded that Petitioner lied to the court." Id. Taking these considerations into account, on April 17, 2020, ICE denied Petitioner's April 2, 2020, request for release.

iii. COVID-19

According to the Centers for Disease Control and Prevention ("CDC"), "Coronavirus (COVID-19) is an illness caused by a virus that can spread from person to person." One "can become infected from respiratory droplets when an infected person coughs

, sneezes, or talks." People "may also be able to [contract the virus] by touching a surface or object that has the virus on it, and then by touching [their] mouth, nose, or eyes." Because at present, there is no vaccine to protect against COVID-19, the CDC advises that the "best way to protect [one]self is to avoid being exposed to the virus that causes COVID-19." The CDC further counsels that good preventative measures include (1) avoiding close contact with others; (2) wearing a face mask; (3) cleaning and disinfecting frequently touched surfaces; and (4) frequent hand washing with soap and water for a minimum of 20 seconds. The CDC has also indicated that while everyone is at risk of contracting the virus, "[o]der adults and people of any age who have serious underlying medical conditions may be a higher risk for more severe illness."

On March 11, 2020, the World Health Organization declared COVID-19 a pandemic. Jaime Ducharme, World Health Organization Declares COVID-19 a Pandemi...

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