UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION
________________________
§
§
Zoubir BOUCHIKHI, §
Plaintiff §
§
v. §
§
Janet NAPOLITANO, § Case No. _______________________
Secretary, U.S. §
Department of Homeland Security §
§
and §
Ken Landgrebe, Field Director §
U.S. Immigration and Customs Enforcement, §
Houston Office §
§
Defendants §
________________________

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.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 1

 PARTIES

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

been held in ICE custody since.

3. Defendant Janet Napolitano is Secretary of the Department of Homeland Security (“DHS”),

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

the custodians in whose custody Plaintiff is unlawfully held.

JURISDICTION

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 2

5. Jurisdiction for this cause of action in this Court is proper under 28 USC §2241(c), in that

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

Constitution and laws of the United States.

7. Authority to grant the requested injunctive relief in cases otherwise within the court's

jurisdiction is conferred by 28 USC §2201(a).

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.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 3

 These requests have been ignored and ultimately denied for reasons that do not bear even

cursory review. As detailed below, Imam BOUCHIKHI has no other administrative

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

sponsorship of the Islamic Society of Greater Houston (“ISGH”). He was granted

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

permanent resident in October 2003.

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.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 4

12. While his application for adjustment of status was pending, in January 2006, Imam

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

incident to the pending adjustment of status application. See, 8 CFR §245.2(a)(4)(i)(B). A

departure from the United States without obtaining this advanced parole document operates

to abandon the application for adjustment of status. 8 CFR §245.2(a)(4)(i)(A).

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

humanitarian reasons or significant public benefit.” 8 USC §1182(d)(5)(A).

(a) A parole is not considered an “admission.” Id.

(b) While worded as an extraordinary and exceptional act, advanced parole incident to

a pending application for adjustment of status has routinely been employed by

immigration officials for decades. Presumably, as the time necessary to adjudicate

adjustment of status applications has grown, facilitating the travel of applicants

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

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 5

 petition filed by ISGH on his behalf and denied his application for adjustment of status in

March 2007. This revocation, undertaken under INA §205 [8 USC §1155], was challenged

administratively without success until November 2008.

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

F.3d 222 (5th Cir. 2007).

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

concerns raised in the revocation proceedings.

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

a new application for adjustment of status.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 6

18. Removal proceedings remain pending before the Immigration Judge in Houston. Plaintiff

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

Immigration Judge has no jurisdiction over his custody status. 8 CFR

§1103.19)(h)(2)(i)(B), Matter of Oseiwusu, 22 I&N Dec. 19 (BIA 1998). Only 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

to post a reasonable bond for his release.

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

custody jurisdiction, Plaintiff’s undersigned attorney attempted to contact the

responsible Detention Officer (DO), Officer Kutz. He was unable to reach the DO

personally, and left a detailed voice mail message.

(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

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 7

 Kenneth Landgrebe. This information came from one of Mr. Landgrebe’s subordinate

supervisors, Ms. Arendale.

(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

of this request with attachments is attached hereto as Exhibit A.

(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

extension, and a voice mail message was left.

(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

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 8

 “goodbye” and terminated the call. Counsel then called another office, learned that

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

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 9

 but, since it was DO Kutz’s case, he was not familiar with the case and would have

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

Valtierra on January 9, 2009.

(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

release request was going to be denied.

(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

transferred to what purported to be Mr. Landgrebe’s office. A detailed message was

left and counsel was assured that someone would call back about Plaintiff’s release

request. No one did.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 10

 (l) Plaintiff’s counsel was out of town for several days in mid-January. At counsel’s

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

would be greatly appreciated and expected.

(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

assured that he would call me back as soon as possible.

(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

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 11

 reached and that he should leave a message. Counsel then explained that he had left

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

but a message would be left and one would call back.

(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.

Arendale and that she would be calling counsel that day.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 12

 (q) Having heard nothing since January 23, counsel attempted to call Ms. Arendale on

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

messages were left.

(r) Having received no phone call in reply to numerous attempts and messages, and with

no opportunity to discuss the merits of Plaintiff’s request for release, Defendant

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

interest. (Exhibit B attached).

(s) Following the written denial, on or about February 24, 2009, Defendant Landgrebe

agreed to meet with a Mohammad Khalili, a representative of the Muslim community

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

specific request by Mr. Khalili that he be allowed to attend. As a result of this

meeting, Mr. Khalili understood that Defendant Landgrebe was willing to further

consider the matter and that another written request for release, addressing the

concerns raised in the written denial, should be submitted.

(t) Immediately thereafter, Plaintiff submitted through counsel a supplemental request for

release addressed to the immediate and personal attention of Defendant Kenneth

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 13

 Landgrebe. (Exhibit C). In that supplemental request, counsel pointed out that the

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

resulted in Plaintiff’s current classification as an “arriving alien” thus depriving the

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

contained numerous letters of support demonstrating Plaintiff’s contributions to the

community and the damage resulting from his continued detention.

(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

trying to do since December!).

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 14

 (v) On March 18, 2009, Director Landgrebe called counsel and advised that the bond

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

community leaders were directed to ICE headquarters on the Imam’s behalf.

(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

Immigration Judge, a remarkable statement since as previously noted the Immigration

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

Defendants will continue to review Plaintiff’s custody status.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 15

21. Plaintiff complains that his continued detention is illegal and improper, in that conditions for

release of aliens must be reasonable and appropriate in the circumstances. Shokeh v.

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

or the Houston community.

(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

Immigration Judge’s decision, an appeal to the Board of Immigration Appeals may

be taken by Plaintiff and/or the Department of Homeland Security.

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

agreement communicated to Plaintiff on or about March 17, 2009.

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 16

 REQUEST FOR
TEMPORARY RESTRAINING ORDER

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

Court enter an order:

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 17

 (a) enjoining the Defendants from further detaining Plaintiff until the merits of the instant

action may be decided;

(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

Defendants’ lack of response or accountability; and

(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

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 18

 VERIFICATION
BEFORE ME, the undersigned authority, personally appeared BRIAN K. BATES, known

to me to be the same, who stated under oath the following:

“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

to prevent irreparable injury to Plaintiff.”

_______________________________________
BRIAN K. BATES

SIGNED AND SWORN BEFORE ME THIS ____ DAY OF May 2009.

______________________________
NOTARY PUBLIC, STATE OF TEXAS

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 19

 LIST OF ATTACHMENTS
Exhibit Description

A Plaintiff’s First Request for Release

B Letter from Defendant Kenneth Landgrebe, dated January 23, 2009.

C Plaintiff’s Supplemental Request

D Letter from Timothy Tubbs, dated April 10, 2009

PLAINTIFF’S ORIGINAL COMPLAINT PAGE 20