Professional Documents
Culture Documents
No. 1:17-cv-00488-CBA
Respondents.
INTRODUCTION
1.
Petitioner, Dr. Suha Abushamma, is a Sudanese national who was granted a H-1B
visa in order pursue a three-year medical residency program at the Cleveland Clinic. She is in
the midst of her first year of the program and focuses on internal medicine. She lives and works
in Cleveland, Ohio. She has a fianc in the United States, who is also a doctor and lives in
Michigan. They plan to be married this summer in the United States.
2.
arrived at John F. Kennedy International Airport (JFK) on Saudi Airlines (SVA) flight 21.
Dr. Abushamma was returning to the United States from a short visit with her family in Saudi
Arabia; she intended to catch a connecting flight at JFK to her home in Cleveland.
3.
Instead of being allowed to transit to her connecting flight, Dr. Abushamma was
detained for roughly nine hours during which time she was not given anything to eat and not
permitted to speak with her lawyer. She was then denied entry to the United States pursuant to
President Donald Trumps January 27, 2017, Executive Order titled, Protecting the Nation from
Foreign Terrorist Entry into the United States, Kroman Decl. Ex. 11 (the EO).
4.
While she was detained, Dr. Abushamma was misled and coerced by Customs
and Border Patrol (CBP) agents into signing a form the agents described as requiring her to
return to Saudi Arabia. The CBP agents did not tell her and she did not understand that she was
actually signing a Form I-275, Withdrawal of Application for Admission/Consular Notification
(Form I-275). No one told her that upon signing the form, her valid H-1B visa would
purportedly be cancelled.
References to Kroman Decl. Ex. __ are exhibits appended to the Declaration of Jennifer L. Kroman (Kroman
Decl.), dated January 31, 2017.
5.
Instead, CBP agents falsely told Dr. Abushamma that if she did not sign the form,
she would be forcibly removed from the United States and banned from re-entry for five years.
6.
During this time, despite her repeated requests, Dr. Abushamma was not allowed
by CBP agents to speak with her lawyer. Nor would CBP speak with her lawyer who was ready
and willing to speak to CBP. Dr. Abushamma, who knew that lawyers were working to secure
her release, was further denied additional time to wait for any news from her lawyers. Instead,
CBP Agents falsely told Dr. Abushamma that her lawyers could not help her and that she would
have to leave the United States absent an order from the Supreme Court of the United States.
7.
While Dr. Abushamma was detained at JFK, her lawyers filed a petition for a writ
of habeas corpus on her behalf. The writ was emailed to the Judge for the Eastern District of
New York who was on duty for emergency applications at that time (Judge Donnelly) at 7:42
P.M. It was subsequently filed with the Court electronically, Pet. for Writ of Habeas Corpus and
Compl. for Declaratory and Injunctive Relief (Jan. 28, 2017), ECF No.1.
8.
It was only after Dr. Abushamma signed the Form I-275 at approximately 7:50
P.M. that she was allowed to make one phone call. Even after she signed the Form, CBP agents
continued to discourage Dr. Abushamma from calling her lawyers, advising her that it was
useless. She therefore called a friend to let him know she was being forced back to Saudi
Arabia.
9.
behalf of two arriving aliens and a class of all others similarly situated, Judge Donnelly issued an
order that prohibited the removal of, among other persons, any holders of valid immigrant and
non-immigrant visas. . . from Sudan . . . legally authorized to enter the United States. See
Kroman Decl. Ex. 2, Decision and Order, Darweesh v. Trump, No. 17 Civ. 480 (AMD)
(E.D.N.Y. Jan. 28, 2017), ECF No. 8 (the Darweesh Order).
10.
Even prior to the issuance of the Darweesh Order, Judge Donnelly ordered on the
record: Im going to direct you, if theres somebody right now who is in danger of being
removed, I am going to direct you to communicate that I have imposed a stay. Nobody is to be
removed in this class, okay? Kroman Decl. Ex. 3, Tr. of Civil Cause for Emergency Motion for
Stay of Removal at 19:12-16.
11.
The Darweesh Order applied to Dr. Abushamma and protected her from removal.
12.
Saudi Arabia, which took off just before 9:00 P.M., after the Darweesh Order was issued.
13.
Dr. Abushamma was improperly removed from the United States in contravention
Moreover, had Dr. Abushamma not been wrongfully coerced into signing the
Form I-275 and improperly forced onto the flight to Saudi Arabia (SVA 20), she would still be in
the United States, protected by the Darweesh Order. Additionally, Dr. Abushamma would have
had the protection of a subsequent order issued in the District of Massachusetts, which prohibited
both the detention and removal of holders of valid immigrant and non-immigrant visas . . . from
Sudan . . . legally authorized to enter the United States. Kroman Decl. Ex. 6, TRO, Tootkaboni
v. Trump, No. 17-cv-10154 (D. Mass. Jan. 29, 2017) (Burroughs, J.), ECF No. 6 (the
Tootkaboni Order). Dr. Abushamma should not lose the protections of the Darweesh and
Tootkaboni Orders because of Respondents wrongful conduct.
15.
2241, and 2243, and the Habeas Corpus Suspension Clause of the U.S. Constitution, U.S. Const.
art. I, 9, cl. 2. This court has further remedial authority pursuant to the Declaratory Judgment
Act, 28 U.S.C. 2201-02.
17.
Venue properly lies within the Eastern District of New York because a substantial
part of the events or omissions giving rise to this action occurred in the District. 28 U.S.C.
1391(b).
18.
No petition for habeas corpus has previously been filed in any court to review Dr.
Abushammas case, with the exception of the petition filed by counsel on January 28, 2017.
This pleading amends and supersedes the January 28, 2017 Habeas Petition.
PARTIES
19.
Sudanese national. She is employed as a resident of internal medicine at the Cleveland Clinic in
Cleveland, Ohio and has been living and working pursuant to a H-1B visa in Cleveland since last
summer.
20.
the United States federal government with the primary mission of securing the United States.
21.
CBP is an agency within DHS with the primary mission of detecting and
preventing the unlawful entry of persons and goods into the United States.
22.
Respondent John Kelly is the Secretary of DHS. Secretary Kelly had immediate
Respondent James T. Madden is the Director of the New York Field Office of
CBP, which had immediate custody of Dr. Abushamma. He is sued in his official capacity.
25.
Respondent Donald Trump is the President of the United States. He is sued in his
official capacity.
STATEMENT OF FACTS
President Trumps January 27, 2017 Executive Order
26.
On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President
of the United States. Throughout his campaign, he made repeated and specific promises to enact
a Muslim ban once elected.
27.
One week later, on January 27, President Trump signed the EO entitled,
Protecting the Nation from Foreign Terrorist Entry into the United States. Kroman Decl. Ex.
1.
28.
variety of changes to the manner and extent to which non-citizens may seek and obtain
admission to the United States.
29.
Most relevant to the instant action is Section 3(c) of the EO, which provides that
the immigrant and nonimmigrant entry into the United States of aliens from countries referred to
in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of
the United States, and therefore suspend[s] entry into the United States, as immigrants and
nonimmigrants, of such persons for 90 days from the date of this order, with narrow exceptions
not relevant here. Kroman Decl. Ex. 1 (emphasis added)
30.
There are seven countries that fit the criteria in 8 U.S.C. 1187(a)(12): Iraq, Iran,
Libya, Somalia, Sudan, Syria, and Yemen. According to the terms of the EO, therefore, the
entry into the United States of non-citizens from those countries is suspended from 90 days
from the date of the EO.
Dr. Abushamma
31.
Dr. Abushamma is a citizen of Sudan who currently lives and works in Cleveland,
Ohio. She was born in 1990 in Saudi Arabia, and her family currently lives in Saudi Arabia.
32.
program at the Cleveland Clinic in Cleveland, Ohio, where she has been employed since July
2016. She graduated at the top of her class in medical school and was selected for her current
residency position from a pool of approximately 5,000 applicants, among whom she was ranked
as one of the top candidates. As a result of Dr. Abushammas outstanding credentials and offer
of employment with the Cleveland Clinic, she was eligible for a nonimmigrant H-1B visa for
individuals in specialty occupations.
33.
Before the United States government issued Dr. Abushamma her H-1B visa, the
government performed extensive administrative processing and security checks. Based on these
checks, the government determined Dr. Abushamma to be admissible to the United States as a
nonimmigrant visa holder, and on April 28, 2016, she received her H-1B visa, effective June 20,
2016.
34.
At the Cleveland Clinic, Dr. Abushamma sees about ten patients each day. She
serves as the primary care physician for a number of patients who depend on her to prescribe and
refill their medications, check their labs, coordinate specialty care when needed, and speak with
them about their medical conditions and discuss next steps. She is described by the Program
Director of the Internal Medicine Residency Program at the Cleveland Clinic, Dr. Abby Spencer,
as integral in the care of these patients, and a stand-out physician and colleague who has
repeatedly and consistently demonstrated the utmost ethical standards. Decl. of Abby Spencer,
M.D. 3 (Jan. 31, 2017).
36.
Despite working incredibly long hours as a medical resident, Dr. Abushamma has
built a life for herself in the United States. She is engaged to a doctor of internal medicine at the
Detroit Medical Center in Michigan, and they are planning to get married in the United States
this summer.
Respondents Unlawful Detention and Unlawful Removal of Dr. Abushamma
37.
On January 23, 2017, Dr. Abushamma flew from Cleveland, Ohio to Jeddah,
Saudi Arabia for a visit with her family, who lives in Saudi Arabia. On January 28, 2017, Dr.
Abushamma took a flight from Jeddah, Saudi Arabia with a final destination of Cleveland, Ohio.
Upon her arrival at JFK at approximately 11 A.M., she was detained by CBP agents and was not
permitted to board her connecting flight to Cleveland. CBP agents confiscated her passport and
threatened to take away her phone. She was not told why her passport was being held and
received no information about how long she would be detained.
38.
Dr. Abushamma was detained for about six hours before she told that she was
being refused entry to the United States. Growing increasingly concerned and not permitted to
make any telephone calls, Dr. Abushamma reached out to her immigration attorney, David
Leopold (Attorney Leopold) via text message.
39.
and told her that she was being detained because of the EO and because she was a visa holder
from Sudan. Dr. Abushamma was given no further information. Dr. Abushamma asked to speak
to her immigration attorneyAttorney Leopoldand was told she was not permitted to do so.
That female CBP agent then left and did not return again.
40.
Via text, Attorney Leopold advised Dr. Abushamma that lawyers were working
A second CBP agent came to speak with Dr. Abushamma. His identification tag
read T. Lam. He told her that she would not be permitted to enter the United States. Dr.
Abushamma again asked to speak with her immigration attorney by phone, but Agent Lam
refused. During this time, Agent Lams supervisor was close by.
42.
Attorney Leopold told Dr. Abushamma by text message that he would speak to
CBP to explain the situation and Dr. Abushamma relayed that to Agent Lam and his supervisor,
but both Agent Lam and his supervisor refused to speak with Attorney Leopold.
43.
Agent Lam told Dr. Abushamma that the only way she would leave detention was
if she signed a form agreeing to return to Saudi Arabia. He showed her what she now knows to
be a Form I-275, although at the time she had no knowledge of what the form was, its purpose,
or its consequences. Agent Lam told her that she should sign it.
44.
Agent Lam told Dr. Abushamma that there was a flight back to Saudi Arabia that
was leaving at 8:30 P.M. He told her that if she did not sign the Form I-275 right away, she
would be forced onto the plane and would be barred for five years from returning to the United
States. Dr. Abushamma was not permitted to call Attorney Leopold to ask him questions about
the Form I-275 or Agent Lams explanations, despite having told Agent Lam and his supervisor
that she had an attorney.
45.
Dr. Abushamma was terrified because she wanted to finish her residency at the
Cleveland Clinic and because she was afraid of being removed by force.
46.
At 6:48 P.M., Dr. Abushamma texted Attorney Leopold, Im going. I dont have
a choice. Decl. of David Wolfe Leopold 11 (Jan. 31, 2017) (Leopold Decl.).
47.
hour (in the Darweesh case) and that attorneys also were working on filing a habeas petition for
her. Dr. Abushamma told Agent Lam and his supervisor that there were attorneys working on
her behalf.
48.
At 7:17 P.M., Dr. Abushamma texted Attorney Leopold, I do not have the option
to stay. They are NOT giving me that option. Its leave voluntarily or by force thats all.
Leopold Decl. 15.
49.
Dr. Abushamma repeatedly begged Agent Lam and his supervisor to give her
more time because there were attorneys working to have her released. Her pleas were ignored.
50.
Instead, Agent Lams supervisor told her that she would need an order from the
Supreme Court to help her, which would never happen. Agent Lam and his supervisor told Dr.
Abushamma that her lawyers could not do anything to help her in her situation and so she should
sign the Form I-275. These false statements were designed to and had the effect of coercing Dr.
Abushamma into signing the Form I-275 quickly in order for CBP to remove Dr. Abushamma on
SVA flight 20.
51.
Forbidden from calling her attorney despite repeated requests and scared of being
removed by force and barred from the United States for five years, Dr. Abushamma felt like she
had no choice and signed the Form I-275.
52.
Had Dr. Abushamma been permitted to call her attorney or had Attorney Leopold
or any of Dr. Abushammas other attorneys working at JFK been permitted to speak with CBP
agents on her behalf, she would not have signed the Form I-275.
53.
Dr. Abushamma was detained at JFK for roughly nine hours before she signed the
Form I-275. During that entire time, she was not given anything to eat and CBP agents refused
to allow her make any phone calls.
54.
Agent Lam stamped Dr. Abushammas visa with the words Cancelled NYC
but did not return her passport to her or give her a copy of the Form I-275 that she was made to
sign. Instead, Agent Lam gave these documents and her boarding pass to a flight attendant on
the flight back to Saudi Arabia.
10
55.
Only after signing the Form I-275 was Dr. Abushamma offered food and
Dr. Abushamma wanted to call her attorney, but Agent Lam told that it would be
pointless to use her one phone call to call her lawyer since he could not help her. Agent Lam
told her to call a family member or friend to tell them that she was going back to Saudi Arabia.
Dr. Abushamma called a friend to advise him that she was being sent back to Saudi Arabia.
57.
Dr. Abushamma was then fingerprinted and made to sign another form. No one
explained the second form to her and she still does not know what it was that she signed. She
does not believe she was ever given a copy of that second form.
58.
Dr. Abushamma was then escorted onto the airplane by two CBP agents. One
stood in front of her and the other stood behind her. Dr. Abushamma felt like they were trying to
make sure that she did not escape, as though she was a criminal in custody.
59.
The plane pulled away from the gate at JFK at approximately 8:30 P.M. The
flight remained on the ground at JFK for approximately another 25 minutes until it finally took
off shortly a few minutes before 9 P.M.
60.
After Dr. Abushamma was finally given back her passport and other documents
that had been given to the flight attendant by the CPB agents, she saw that there was a document
labeled Notice To Detain, Remove, or Present Alien (the Notice Form), that stated that the
reason for her removal was because she was an Inadmissible Alien. At the time she arrived in
the United States and throughout her detention until she was coerced into signing the Form I275, she had held a valid H-1B visa.
11
61.
The Notice Form also incorrectly states that Dr. Abushamma was born in Sudan.
Dr. Abushamma was born in Saudi Arabia, which is what she told Agent Lam when he asked her
where she was born, but when he filled out the Notice Form, he wrote Sudan.
62.
significantly impacted by her removal by Respondents, primarily because she maintains her
employment as an internal medicine resident, a position that she worked very hard to obtain and
that she cares about deeply, in Cleveland, Ohio. She has similarly built a life for herself in
Cleveland and as such has important property interests in the areas, such as her apartment and
car. Finally, Dr. Abushamma has also been separated from her fianc who is a doctor in the
United States.
63.
United States as soon as possible to resume her life, including to continue her residency and to be
reunited with her community and her fianc.
Order of Judge Donnelly Violated by Respondents Removal and Other Federal
Court Decisions Enjoining and Restraining Respondents Enforcement of the EO
The Darweesh Order
64.
On January 28, at approximately 8:45 P.M., Judge Donnelly the Darweesh Order
that prohibited Respondents from removing individuals who had arrived in the United States
with proper documentation:
12
Even prior to the issuance of the Darweesh Order, Judge Donnelly ordered from
the bench: Im going to direct you, if theres somebody right now who is in danger of being
removed, I am going to direct you to communicate that I have imposed a stay. Nobody is to be
removed in this class, okay? Kroman Decl. Ex. 3 at 19:12-16.
66.
Because Dr. Abushamma was still in the United States at JFK at the time the
Darweesh Order was issued (and continued to be constructively in custody even after takeoff of
the plane while her passport and other documents were withheld by the flight attendants at the
direction of CBP), the Darweesh Order applied to Dr. Abushamma and prevented her removal.
67.
After the Darweesh Order issued, many individuals being detained at JFK and
airports throughout the United States were released and permitted entry to the United States.
68.
Indeed, undersigned counsel filed three other petitions for habeas relief with
Upon information and belief, at least one other plane carrying an individual
seeking admission to the United States who had been detained and scheduled to be removed
pursuant to the EO, that would have taken off after the Darweesh Order was issued, was recalled
13
to the gate so that the individual could be deplaned and not removed, consistent with the
Darweesh Order.
70.
CBP did not take such action with respect to Dr. Abushamma and instead caused
her removal from the United States in violation of the Darweesh Order.
Other Federal Orders
71.
In addition to the Darweesh Order, four other federal district courts issued orders
14
transport the petitioner back to the United States and admit him under the terms of
his previously approved visa.
c. Temporary Restraining Order, Aziz v. Trump, No. 17-cv-116 (E.D. Va. Jan. 28,
2017) (Brinkema, J.), ECF No. 3 (Kroman Decl. Ex. 4): ordering that the
Government permit attorneys to access to all legal permanent residents detained at
Dulles International Airport and prohibiting the removal from the United States of
such individuals for a period of seven days.
d. Order Granting Emergency Motion for Stay of Removal, Doe v. Trump, No. C17126 (W.D. Wash. Jan. 28, 2017) (Zilly, J.), ECF No. 5 (Kroman Decl. Ex. 5):
ordering a stay of removal and enjoining the Government from removing
petitioners pending a further order of the court.
CAUSES OF ACTION
COUNT ONE
FIFTH AMENDMENT PROCEDURAL AND SUBSTANTIVE DUE PROCESS
DENIAL OF RIGHT TO ENTER THE UNITED STATES AND UNLAWFUL
REMOVAL
72.
Dr. Abushamma repeats and incorporates by reference each and every allegation
First, the Darweesh Order created a due process right for Dr. Abushamma. The
Darweesh Order prohibited the removal of, among other persons, any holders of valid
immigrant and non-immigrant visas . . . from Sudan . . . legally authorized to enter the United
States. Kroman Decl. Ex. 2. Judge Donnellys verbal order from the bench did the same.
Accordingly, Dr. Abushamma, a Sudanese national legally authorized to enter the United States
15
pursuant to her H-1B visa, had a legally cognizable interest that guaranteed her due process in
the event that Respondents decided to try and remove her from the United States. Therefore,
when Dr. Abushammas flight took off at 9:00 P.M., and Dr. Abushamma was removed from the
United States without any process, Respondents violated not only the Courts order, but also Dr.
Abushammas due process rights.
74.
Second, Dr. Abushamma has a due process interest in the statutory rights granted
by Congress; that is, constitutionally protected liberty . . . interests may arise from statutory
rights, to which limited due process rights attach. Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.
1984). United States law, including federal statutes and regulations, obligate the United States to
allow immigrant visa holders admission into the United States, unless those individuals are for
some reason inadmissible.
Third, the grant of the H-1B visa to Dr. Abushamma created an entitlement to Dr.
Finally, Dr. Abushamma was denied her due process rights in various other ways,
did not provide Dr. Abushamma any food for roughly nine hours, until
she signed the Form I-275 purportedly withdrawing her visa;
did not allow her to use the telephone until she signed the Form I-275
purportedly withdrawing her visa;
told her only the Supreme Court of the United States could stop her
from being removed;
told her that her lawyers could not do anything to help her;
told her she would be forcibly removed if she did not sign the Form
I-275; and
told her that if she did not sign the Form I-275, she would not be
allowed to return to the United States for five years.
COUNT TWO
Dr. Abushamma repeats and incorporates by reference each and every allegation
Petitioner to lawful entry to the United States in accordance with her H-1B visa.
17
79.
Abushamma of her statutory and regulatory rights and an opportunity to receive regular removal
proceedings in the event that entry is denied.
80.
In particular, because Dr. Abushamma had a valid H-1B visa, denial of admission
into the United States violated 8 U.S.C. sections 1151, 1201, and 1125, and accompanying
regulations.
COUNT THREE
THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. 1152
81.
Dr. Abushamma repeats and incorporates by reference each and every allegation
U.S.C. 1152 and accompanying regulations. This statute prohibits discrimination against
individuals on the basis of nationality, without sufficient justification.
COUNT FOUR
FIFTH AMENDMENT EQUAL PROTECTION
83.
Dr. Abushamma repeats and incorporates by reference each and every allegation
origin and religion, without sufficient justification, and therefore violates the equal protection
component of the Due Process Clause of the Fifth Amendment.
18
COUNT FIVE
ADMINISTRATIVE PROCEDURE ACT
85.
Dr. Abushamma repeats and incorporates by reference each and every allegation
Respondents detained and mistreated Dr. Abushamma solely pursuant to the EO,
which expressly discriminates against Dr. Abushamma and others on the basis of their country of
origin and was substantially motivated by animus toward Muslims. See supra Count Three.
87.
The EO exhibits hostility to a specific religious faith, Islam, and gives preference
The INA and implementing regulations entitle Dr. Abushamma to enter the
capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of the
Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A); contrary to constitutional right,
power, privilege, or immunity, in violation of APA 706(2)(B); in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right, in violation of APA 706(2)(C);
and without observance of procedure required by law, in violation of APA 706(2)(D).
19
coerced Form I-275, (b) reinstate Dr. Abushammas H-1B visa, and (c) immediately return Dr.
Abushamma to JFK Airport, and admit her into the United States, subject to the laws and
regulations existing prior to January 17, 2017.
Government to permit a valid visa-holder, who had been removed pursuant to the EO, to return
to the United States pending the Courts determination as to the legality of his removal);
(2)
pursuant to the EO was, is, and will be unauthorized by statute and contrary to law;
(3)
jurisdiction;
(4)
Award Dr. Abushamma her costs and reasonable attorneys fees; and
(5)
Grant any other and further relief that this Court may deem fit and proper. Dr.
20
Respectfully submitted,
CLEARY GOTTLIEB STEEN & HAMILTON LLP
21