Author: mopress

Email from Joshua Bardavid, Esq.

Hi Greg: The Report and Recommendation came down today. It is attached. In short, the judge rejected the government’s argument that the Hazahzas are a flight risk or that removal is foreseeable.

Judge Stickney also stated that the government has failed to “specify what if anything else [the Hazahzas] can or should do at this point to facilitate the issuance of travel documents” above what the Hazahzas
have already done. He stated that he was “troubled and deeply concerned by” the claims of the government.

Nevertheless, Judge Stickney agreed with the government that Congress has stripped him of jurisdiction to review these decisions of the government, at least until 6-months of detention. Therefore, he concluded that the case should be held in abeyance until May 2.

I am pleased that Judge Stickney has recognized that the government’s positions are “unsupported” and troubling It is shocking that the Hazahzas must continue to wait in in a prison with violent offenders
for another four weeks before the Court could take action, but this is the result when Congress strips our courts — the neutral arbiter of fact and law in our system — of habeas authority to review decisions of
immigration officials. . . .

-Josh

Jay Johnson-Castro sends a link to this April 2 Washington Post story by N.C. Aizenman. Undocumented immigrants in the USA have 3.1 million American-born children, whose rights as citizens have until recently been widely ignored. When we read stories like this, we remember the 4-year-old twin citizen chidren of the Suleiman family who were split from their mother and father during an early November raid, only to be reunited at the Dallas-Fort Worth airport for deportation to Jordan in early 2007. We do not give up hope that the twins will be brought home with their mother and father.–gm

In December, immigration agents descended on six meat-processing plants belonging to Swift & Co. and arrested 1,297 illegal workers. At one plant, in Worthington , Minn. , the workers had at least 360 U.S.-born children and probably many more, according to a local pastor who raised money for them.

Similarly, of 361 workers arrested during a raid of the Michael Bianco Inc. manufacturing plant in New Bedford , Mass. , last month, about 90 were the sole caregivers for one or more children in the United States, according to federal and state authorities.

On Thursday, a chubby-cheeked fifth-grader named Jessica Guncay joined the ranks of such children when immigration agents raided a Dixie Printing and Packaging Corp. plant in Baltimore , where her parents were working under false Social Security numbers.

During an interview in her home in Pikesville the next day, Jessica, 10, said that although she had known her Ecuadoran parents were in the country illegally, she never imagined they would be arrested.

“I feel sick inside,” she mumbled, staring at her white sneakers.

Her mother, Ana Tapia, who sat next to Jessica on the family’s brown velvet couch, pulled her daughter in for a tearful hug.

Although Jessica’s father, Jury Guncay, 45, remains in custody, Tapia, 40, was released several hours after the raid so Jessica would not be left without anyone to care for her. But the black monitoring bracelet around Tapia’s ankle testified to the limited nature of that reprieve: She must remain under partial house arrest until her case comes up in immigration court. Jay also sends the following links about immigrant rights.

For those who care and keep up on the atrocities being committed against the innocent and helpless…”for-profit”…here’s some references…

(ACLU video on Chertoff and ICE’s children prisoners at Hutto)

(Editorial from the Houston Chronicle)

(texasprisonbidness.org: A new blog that has been formed to deal with for-profit prisons)

(KPFK Audio from Beneath the Surface with Michael Slate (March 27, 2007): Interview with Jay is 40% into the talk)

( Ronnisrant: A blog that has just discovered and has weighed in about the atrocities that are being committed against immigrants in concentration camps in Texas , USA )

(A report by the Brownsville Herald and interview with our heroine, pro-bono attorney, Jodi Goodwin…about the Raymondville concentration camp. Jodi calls it Ritmo.)

(Update of the Abilene Reporter News on the Hazahza hearing this past Friday)

(xicanopwr.com: A comprehensive overview of the prison camps for immigrants)

(A great aztlanelectronicnews.net: overview of the immigrant prison camp atrocities)

(On Hutto…from Sean Cunningham of PBS)

(The ABA ’s March ’07 report and criticisms of ICE detention in pdf format)

(Dallas Morning News: On the hearing in the matter of Hazahzas v. Chertoff)

Jay

By Greg Moses

DissidentVoice / CounterPunch / TrueBlueLiberal
PeninsulaPeaceAndJusticeCenter

The bullet that ripped open the dreamer’s neck on April 4, 1968 has not yet put a scratch on the dream. But it did stop one man from making good on his word, to shut down the capital of the USA during the summer of ’68. Forty years later, we have no business pretending that we do not know what Martin Luther King, Jr. would have done next.

All King needed in April ’68 was one more nonviolent march in Memphis so that he could get back on the road to Washington, D.C. where he planned to show the world how to immobilize an empire. He would shut down the center of federal power until people got their government back. Washington would be made to deliver to each American doorstep a job offer or a paycheck. Who doubted then that it could be done?

From early December 1955 until early April 1968, there are only fourteen King Years on the American calendar. And while it may be true that during King Year One the Montgomery bus boycott started without him, it would be difficult to imagine how he could have made himself more useful. How could we today not miss a man like that?

In 1968 the world’s youngest winner of the Nobel Peace Prize was attacking the everyday violence of American life where it begins, in the daily threat of economic rejection. On the way to pick up the peace prize in King Year Ten, he had traveled through Scandinavia, where he had seen up close how a modern economy did not need to be run like everyman’s trench war.

In King Year Twelve, the dreamer opened up the truth of the working-man’s war in America for all the cameras to see. King had a way of revealing truths that sometimes even he was not fully prepared to look at. When black citizens and workers marched for the right to exist among white neighbors in Chicago, it was the white folks themselves (and Northern white folks, too) who took to the trenches. The white media shivered differently this time and for different reasons. King, too, had to gauge whether all-out race war was worth the risk of starting, and so he left Chicago abruptly to a chorus of boos.

With so much violence in the alleyways, how could King not discern how the great American talent would out. In King Year Thirteen he said the greatest purveyor of violence in the world was the government of the USA. That was April 4, 1967. On April 4, 1968 he lay dying, falling back so un-naturally that one foot appeared stuck to that balcony floor. The mind that had comprehended America through the touch of ten million eager handshakes was suddenly and irrevocably emptied out.

On April Fool’s day 2008, the Secretary of the Department of Homeland Security — with prior consent of Congress, and only after the Texas delegate count had been finalized by the Democratic County Conventions — suspended more than 20 laws and regulations that once required the federal government to act peacefully and civilly in its relations with the rest of the citizens of the USA, with their property rights, with their natural resources, and with their relations to living creatures, all of which the federal government is now free to treat with open resentment along the Mexican border, in the way it has treated so many things for the past seven years or more.

Would King put up with this cycle of nonsense? Look to the Flip Schulke photo on page 123 of the Life Magazine commemorative edition that has recently been sold across America’s newsstands (reprinting the 2000 Viking Studio collaboration between Charles Johnson the novelist and Bob Adelman). Look at the three books that King is holding as the tired-of-this-too dreamer takes another jail term in 1967: Galbraith’s New Industrial State, Styron’s Nat Turner, and the Holy Bible. Thesis, antithesis, synthesis, all tucked together in the grip of his left hand. Does he look like he’s ready to be gone?

Still, as we mourn the first forty years without King, we cannot afford to forget that it takes a people to kill a dream. And the ultimate faith of nonviolence lies in the unstoppable truth that even a sleeping people cannot forget to desire. And a desiring people cannot forget to act. And once people put themselves into motion as one, it becomes possible for an army of lovers to win, even against such awful dragons as stalk the broad daylight along the avenues of Washington, DC.

(Note: revised April 4, 2008)

Background reading in the matter of Suzi Hazahza’s imprisonment–gm

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

RADI HAZAHZA, #A95-219-510, et al.
Petitioners,

v.

MICHAEL CHERTOFF, et al.,
Respondents.

3:07-CV-0327-D
ECF

ORDER SETTING ORAL ARGUMENT

Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the District Court filed on February 21, 2007, this case has been referred to the United States Magistrate Judge.

This is a petition for habeas corpus relief filed by five detainees of the Bureau of Immigration and Customs Enforcement (ICE) pursuant to 28 U.S.C. § 2241, et seq. Petitioners (a father and four of his five children, who are Stateless individuals either born within the
Palestinian Territories or of Palestinian ethnicity born in Jordan) are presently confined at the Rolling Plains Detention Center in Haskell, Texas. In this action, they challenge their continued detention pending removal and the conditions of their detention.1

In response to this Court’s expedited order to show cause, Respondents filed a response seeking dismissal of the habeas corpus petition. Petitioners filed a reply objecting thereto.

The Court now sets this case for oral argument on the issues set out below.
In this action Petitioners challenge their continued detention. The detention, release, and removal of aliens subject to a final order of removal is governed by § 241 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231. Section 1231(a)(1)(A) provides that, after entry of an order of removal, “the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’).” See also 8 C.F.R. § 241.3. That removal period begins on the latest of the following: (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court’s final order; (iii) if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement. 8 U.S.C. § 1231(a) (1)(B)(i)-(iii). During the 90-day removal period, the alien must be detained. 8 U.S.C. § 1231(a)(2). After the ninety-day period, if the alien does not leave or he has not been removed, he must be released under the supervision of the Attorney
General. 8 U.S.C. § 1231(a)(3). Such supervision includes requiring the alien to periodically appear before an immigration officer for identification, to submit to medical and psychiatric exams, to give other personal information under oath, and to obey reasonable written restrictions on the alien’s conduct or activities. 8 U.S.C. § 1231(a)(3)(A)-(D)).

Under limited circumstances, certain aliens may be detained beyond the removal period. 8 U.S.C. § 1231(a)(6), which pertains to “inadmissible or criminal aliens,” provides: that the Attorney General may detain beyond the 90-day removal period aliens who are inadmissible, aliens who have committed aggravated felonies, aliens who are otherwise
dangerous, and aliens who are a flight risk.2

In this action, Respondents rely on § 1231(a)(6) as the basis for Petitioners’ detention, contending they are a flight risk.3

1. Whether Petitioners Are a Flight Risk Under § 1231(a)(6)

Respondents argue that Petitioners may be detained beyond the removal period under § 1231(a)(6) because they are unlikely to comply with the final removal order due to their failure to appear for an appointment with ICE officials on July 1, 2005. (Respondent’s Response at 3). Petitioners dispute ever receiving form G-56, which notified Petitioners of the July 1, 2005 appointment, and which according to Respondents was mailed to their home address and their former attorney.

At oral argument, the parties should address whether Petitioners are a flight risk because they failed to appear for the July 1, 2005 appointment. In this connection, the parties should address the mailing and receipt, if any, of Form G-56, and or any other source which informed Petitioners of the July 1, 2005 appointment.

2. Continued Detention Under § 1231(a)(6)

A. Whether the Habeas Corpus Petition is Premature

Relying on Zadvydas v. Davis, 533 U.S. 678 (2001), Respondents contend that Petitioners’ detention under § 1231(a)(6) is presumptively reasonable for six months, or until early May 2007. Thus, they contend the petition is premature and should be dismissed.
In Zadvydas, the Supreme Court stated that it recognized a six-month period “for the sake of uniform administration in the federal courts.” Id. at 700-701. Although not expressly stated, the Supreme Court viewed the six-month period to include the 90-day removal period plus 90 days thereafter. Akinwale v. Ashcroft, 287 F.3d 1050, 1052 and n. 3 (11th Cir. 2002) (collecting cases at note 3).

In this case, the 90-day removal period expired long before Petitioners were apprehended. It, thus, appears unreasonable to require that the initial 90-day removal period be part of the six-month presumptive period recognized by the Supreme Court in connection with detention under § 1231(a)(6).

Respondents rely on Vulaj v. Baker, 2006 WL 325326 (E.D. Mich. Nov. 8, 2006), to argue that the six-month period of reasonable detention cannot be triggered until a petitioner is actually detained under § 1231(a)(6). In Vulaj, the order of removal became administratively final on May 17, 2002, when the BIA affirmed the immigration judge’s order of removal and
granted Petitioner thirty days to voluntarily department. The petitioner did not appeal and did
not depart voluntarily. On September 25, 2006, the petitioner was arrested. The court held that
“[u]nder § 1231(a)(6) his detention [was] mandatory for 90 days, and it [was] presumptively reasonable for up to six months under Zadvydas.” The court further held that “because Petitioner ha[d] only been in custody since September 25, 2006, his petition for writ of habeas corpus [was] premature.”4

Petitioners rely on Ulysse v.Dept’ of Homeland Security, 291 F.Supp.2d 1318 (M.D. Fla. 2003), which rejected ICE’s assertion that the 90-day removal period under § 1231(a)(1) begins when a petitioner is taken into custody. While this Court finds the Ulysse decision persuasive, it was limited to detention during the initial 90-day- removal period under § 1231(a)(1). The Ulysse court specifically noted that ICE did not suggest that the petitioner had committed any crimes, was dangerous, or posed a flight risk to justify detention under § 1231(a)(6). Id. at 1325 and n. 12.

At oral argument, the parties should address in details whether the presumptive period of detention under § 1231(a)(6) is always six months, or whether it should be reduced to 90 days in cases, such as this, where the 90-day removal period expired long before Petitioners’ detention.

B. Whether Petitioners Have Made a Sufficient Showing of No Significant
Likelihood of Removal in the Reasonably Foreseeable Future, and Whether Respondents Can Rebut that Showing

Zadvydas provides that if the alien has not been removed within six months and removal is no longer reasonably foreseeable, continued detention under § 1231(a)(6) is not authorized.

Id., 533 U.S. at 699. The alien may petition the court for release if he can show that there is no
significant likelihood of his removal in the foreseeable future. Id at 701. The Government is then required to rebut the showing with evidence. Id.

In its February 2, 2007 Decision to Continue Detention, ICE informed Petitioners that a “request for a travel document was forwarded to the Embassy of Israel.” (Petition at Exh. 17).

Petitioners allege that Respondents cannot obtain travel documents from Israel – a country of which they are not citizens nor to which they have been ordered removed. (Petitioner’s Reply at 7). In support, they cite Yassir v. Ashcroft, 111 Fed. Appx. 75, *2 (3d Cir. 2004) (in which it was noted that under the Oslo Accord between Palestinians and Israelis, no travel documents can be issued for any person who does not have official Israeli or Palestinian identification), and
Abdel-Muhti v. Ashcroft, 314 F.Supp.2d 418, 425-27 (M.D. Pa. 2004) (noting that new procedures regarding Palestinian repatriation were agreed upon in early March 2004 between U.S. and Israel officials).

At oral argument, the parties should address whether Petitioners have made a sufficient showing of no significant likelihood of removal in the reasonably foreseeable future, and whether respondents can rebut that showing.

IT IS THEREFORE ORDERED that this case is set for oral argument at 10:00 a.m. on March 29, 2007, before the undersigned United States Magistrate Judge.

A copy of this order shall be transmitted to counsel for Petitioners, and counsel for Respondents.
Signed this 15th day of March, 2007.

PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE

1 Nazmeih Juma, wife of Petitioner Radi Hazahza and mother of the remaining Petitioners, was released by ICE on February 6, 2007, along with her minor son, Mohammed Hazahza.

2 Section 1231(a)(6) reads as follows:
An alien ordered removed who is inadmissible under section 1182 of this title, removable under
section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the
Attorney General to be a risk to the community or unlikely to comply with the order of removal
may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).

3 Contrary to Petitioners’ assertion, Respondents do not rely on the mandatory detention provision during the initial 90-day removal period found at 8 U.S.C. § 1231(a)(2). Nor do Respondents appear to contend that the removal period began to run when Petitioners were detained.

4 Respondents also rely on Cuevas-Rodriguez v. Chertoff, 2006 WL 1421032 (E.D. Mich. May 23, 2006). That case, however, is distinguishable because the alien was confined on the basis of a criminal conviction until April 24, 2006. Hence the removal period under § 1231(a)(1) did not begin until the date of his release from detention. See 8 U.S.C. §
1231(a)(1)(B)(iii).