Alknfushe v. Trump et al

Filing 1

First PETITION for Writ of Habeas Corpus filing fee $ 5, receipt number 0207-9243825, filed by Iman Alkanfushe. (Meyer, Erin)

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UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF NEW YORK

IMAN ISMAEL IBRAHIM ALKNFUSHE,

Case No. _____________________

Petitioner,
v.
DONALD TRUMP, President of the United
States; U.S. DEPARTMENT OF
HOMELAND SECURITY (“DHS”); U.S.
CUSTOMS AND BORDER PROTECTION
(“CBP”); JOHN KELLY, Secretary of DHS;
KEVIN K. MCALEENAN, Acting
Commissioner of CBP; and JAMES T.
MADDEN, New York Field Director, CBP,

Date: January 28, 2017

Respondents.

PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR
DECLARATORY AND INJUNCTIVE RELIEF

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INTRODUCTION
Petitioner Iman Ismael Ibrahim Alknfushe, a citizen of Iraq and U.S. visa holder, landed
at John F. Kennedy International Airport (“JFK Airport”) on the morning of January 28, 2017.
Petitioner Alknfushe was granted an IR-5 visa on or about January 16, 2017 as a result of her
relationship to her daughter, Elaf Hussain, a citizen of the United States. After conducting
standard procedures of administrative processing and security checks, the federal government
has deemed the Petitioner not to pose threats to the United States.
Despite these findings and Petitioner’s valid entry documents, U.S. Customs and Border
Protection (“CBP”) blocked Petitioner from exiting JFK Airport and detained Petitioner therein.
No magistrate has determined that there is sufficient justification for the continued detention of
either Petitioner.

Instead, CBP is holding Petitioner at JFK Airport solely pursuant to an

executive order issued on January 27, 2017.
Because the executive order is unlawful as applied to Petitioner, her continued detention
based solely on the executive order violates her Fifth Amendment procedural and substantive
due process rights, violates the First Amendment Establishment Clause, is ultra vires the
immigration statutes, and violates the Administrative Procedure Act and Religious Freedom
Restoration Act. Further, Petitioners’ continued unlawful detention is part of a widespread
pattern applied to many refugees and arriving aliens detained after the issuance of the January
27, 2017 executive order. Therefore, Petitioner respectfully applies to this Court for a writ of
habeas corpus to remedy her unlawful detention by Respondents, and for declaratory and
injunctive relief to prevent such harms from recurring.

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JURISDICTION AND VENUE
1.

Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331, 1361, 2241, 2243,

and the Habeas Corpus Suspension Clause of the U.S. Constitution. This court has further
remedial authority pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.
2.

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).
3.

No petition for habeas corpus has previously been filed in any court to review

Petitioner’s cases.
PARTIES
4.

Petitioner is the mother of Elaf Hussain, a citizen of the United States and resident

of Parlin, New Jersey, and the sponsor of Petitioner’s petition for a visa to the United States.
Petitioner was granted an IR-5 visa to enter the United States on or about January 16, 2017.
Petitioner and Petitioner’s family fear that if Petitioner returns to Iraq, Petitioner’s life would be
endangered.
5.

The U.S. Department of Homeland Security (“DHS”) is a cabinet department of

the United States federal government with the primary mission of securing the United States.
6.

U.S. Customs and Border Protection (“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.

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7.

Respondent John Kelly is the Secretary of DHS. Secretary Kelly has immediate

custody of Petitioners and other members of the proposed class. He is sued in his official
capacity.
8.

Respondent Kevin K. McAleenan is the Acting Commissioner of CBP. Acting

Commissioner McAleenan has immediate custody of Petitioners and other members of the
proposed class. He is sued in his official capacity.
9.

Respondent James T. Madden is the Director of the New York Field Office of

CBP, which has immediate custody of Petitioners and other members of the proposed class. He
is sued in his official capacity.
10.

Respondent Donald Trump is the President of the United States. He is sued in his

official capacity.
STATEMENT OF FACTS
President Trump’s January 27, 2017 Executive Order
11.

On January 20, 2017, Donald Trump was inaugurated as the forty-fifth President

of the United States.
12.

One week later, on January 27, President Trump signed an executive order

entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which is
attached hereto as Exhibit A and is hereinafter referred to as the “EO.”
13.

Citing the threat of terrorism committed by foreign nationals, the EO directs a

variety of changes to the manner and extent to which non-citizens may seek and obtain
admission to the United States, particularly (although not exclusively) as refugees. Among other

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things, the EO imposes a 120-day moratorium on the refugee resettlement program as a whole;
proclaims “that the entry of nationals of Syria as refugees is detrimental to the interests of the
United States,” and therefore “suspend[s]” indefinitely their entry to the country; similarly
proclaims that “the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental
to the interests” of the country.
14.

Most relevant to the instant action is Section 3(c) of the EO, in which President

Trump proclaims “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 that he is therefore “suspend[ing] 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.
15.

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.
Petitioner Iman Ismael Ibrahim Alknfushe
16.

Petitioner is the mother of Elaf Hussain, a citizen of the United States and resident

of Parlin, New Jersey, and the sponsor of Petitioner’s petition for a visa to the United States.
Petitioner was granted an IR-5 visa to enter the United States on or about January 16, 2017.
Petitioner and Petitioner’s family fear that if Petitioner returns to Iraq, Petitioner’s life would be
endangered.

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17.

Petitioner’s daughter, Elaf Hussain, petitioned for an immediate relative

immigrant visa on behalf of her mother, Petitioner, in or around July 2015. After the United
States Citizenship and Immigration Servces (“USCIS”) approved this petition, it was sent to the
National Visa Center (“NVC”). Once approved at NVC, Petitioner had an interview at the U.S.
embassy in Baghdad on or around November 15, 2016. The visa was issued to Petitioner on or
about January 16, 2017.
18.

Petitioner departed from Iraq on or around January 27, 2017 en route to New

York. Petitioner connected in Doha, Qatar and boarded a connecting flight to JFK which
departed at 2:00 a.m. AST. Petitioner’s flight arrived at JFK at or around 7:55 a.m. on January
28, 2017 and Petitioner attempted to enter the United States.
19.

Petitioner is not being permitted to meet with attorneys who are present at JFK

and have made attempts through Petitioner’s daughter to meet with her.
20.

Between approximately 1:00 p.m. and 2:00 p.m. on January 28, 2017, Petitioner’s

daughter, Elaf Hussain, received a phone call from an unknown number [phone]) and a
man, who represented himself as an immigration officer, informed her that they were expecting
an order to return Petitioner to Iraq, but that the order had not yet arrived. Petitioner’s daughter
was permitted to speak with Petitioner over the telephone at this time for approximately one
minute. Petitioner expressed at that time that she did not wish to be returned to Iraq.
21.

At around 3:30 p.m. on January 28, 2017, an immigration officer in a black

uniform approach Petitioner’s daughter as she was waiting at the arrivals area of JFK. The
officer informed Petitioner’s daughter that his boss had received the order that “everyone is

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going back.” Petitioner’s daughter understood that this was as a result of President Trump’s
recent EO. Petitioner’s family has had no further contact with Petitioner.
22.

Upon knowledge and belief, Petitioner remains in the custody of CBP at JFK.

23.

Upon knowledge and belief, Petitioner is not being permitted to apply for asylum

or other forms of protection from removal.
24.

Upon knowledge and belief, Petitioner is at imminent risk of being returned to

Iraq against her will, and despite the grave danger she faces there.
CAUSES OF ACTION
COUNT ONE
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS
DENIAL OF RIGHT TO APPLY FOR ASYLUM
1.

Petitioner repeats and incorporates by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.
2.

Procedural due process requires that the government be constrained before it acts

in a way that deprives individuals of liberty interests protected under the Due Process Clause of
the Fifth Amendment. Additionally, due process requires that arriving immigrants be afforded
those statutory rights granted by Congress and the principle that “[m]inimum due process rights
attach to statutory rights.” Dia v. Ashcroft, 353 F.3d 228, 239 (3d Cir. 2003) (alteration in
original) (quoting Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir. 1996)).
3.

The United States government is obligated by United States and international law

to hear the asylum claims of noncitizens presenting themselves at United States borders and ports
of entry. The Immigration and Nationality Act provides that “[a]ny alien who is physically

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present in the United States or who arrives in the United States . . . irrespective of such alien’s
status, may apply for asylum in accordance with this section or, where applicable, section
235(b).” 8 U.S.C. § 1158(a)(1); see also id. § 1225(b)(1)(A)(ii).
4.

Congress has given asylum seekers the right to present evidence to an

Immigration Judge, 8 U.S.C. § 1229a(b)(4)(B), the right to move to reconsider any decision that
the applicant is removable, 8 U.S.C. § 1229a(c)(5), and the right to judicial review by a court of
appeals of final agency orders denying asylum on the merits and directing removal, 8 U.S.C. §
1252(a)(2)(B)(ii).
5.

Consistent with these United States statutory and international law obligations,

individuals arriving at United States ports of entry must be afforded an opportunity to apply for
asylum or other forms of humanitarian protection and be promptly received and processed by
United States authorities.
6.

Having presented herself at a United States port of entry, Petitioner is entitled to

apply for asylum and to be received and processed by United States authorities.
7.

Respondents’ actions in denying Petitioner the opportunity to apply for asylum,

taken pursuant to the EO, violate the procedural due process rights guaranteed by the Fourteenth
Amendment.
COUNT TWO
FIFTH AMENDMENT – PROCEDURAL DUE PROCESS
DENIAL OF RIGHT TO WITHHOLDING/CAT PROTECTION
8.

Petitioner repeats and incorporates by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.

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9.

Under United States law as well as human rights conventions, the United States

may not return (“refoul”) a noncitizen to a country where she may face torture or persecution.
See 8 U.S.C. § 1231(b); United Nations Convention Against Torture (“CAT”), implemented in
the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277,
div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. §
1231).
10.

Respondents’ actions in seeking to return Petitioner to Iraq, taken pursuant to the

EO, deprive Petitioner of her rights under 8 U.S.C. § 1231(b) and the Convention Against
Torture without due process of law.
COUNT THREE
FIRST AMENDMENT – ESTABLISHMENT CLAUSE

11.

Petitioner repeats and incorporates by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.
12.

The EO exhibits hostility to a specific religious faith, Islam, and gives preference

to other religious faiths, principally Christianity. The EO therefore violates the Establishment
Clause of the First Amendment by not pursuing a course of neutrality with regard to different
religious faiths.
COUNT FOUR
THE IMMIGRATION AND NATIONALITY ACT, THE CONVENTION AGAINST
TORTURE, THE FOREIGN AFFAIRS REFORM AND RESTRUCTURING ACT OF
1998, IMPLEMENTING REGULATIONS [ACCARDI DOCTRINE]

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13.

Petitioner repeats and incorporates by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.
14.

The Immigration and Nationality Act and implementing regulations, including 8

U.S.C. § 1225(b)(1) (expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C.
§ 1158 (asylum), and 8 U.S.C. § 1231(b)(3) (withholding of removal), and the United Nations
Convention Against Torture (“CAT”), implemented in the Foreign Affairs Reform and
Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112
Stat. 2681, 2681-822 (1998) (codified at 8 U.S.C. § 1231 note), entitle Petitioner to an
opportunity to apply for asylum, withholding of removal, and CAT relief. These provisions also
entitle Petitioner to a grant of withholding of removal and CAT relief upon a showing that she
meets the applicable legal standards. Respondents’ actions in seeking to return Petitioner to Iraq,
taken pursuant to the EO, deprives Petitioner of her statutory and regulatory rights.
15.

Respondents’ actions in seeking to expel Petitioner, taken pursuant to the EO,

deprives Petitioner of her statutory and regulatory rights in violation of Accardi v. Shaughnessy,
347 U.S. 260 (1954). Respondents’ failure to follow the required regulations prejudicially
deprived Petitioner of fundamental due process and statutory rights, and this denial of process
was so egregious as to shock the conscience.
COUNT FIVE
FIFTH AMENDMENT – EQUAL PROTECTION
16.

Petitioner repeats and incorporates by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.

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17.

The EO discriminates against Petitioner on the basis of her country of origin and

religion, without sufficient justification, and therefore violates the equal protection component of
the Due Process Clause of the Fifth Amendment.
18.

Additionally, the EO was substantially motivated by animus toward—and has a

disparate effect on—Muslims, which also violates the equal protection component of the Due
Process Clause of the Fifth Amendment. Jana-Rock Const., Inc. v. N.Y. State Dep’t of Econ.
Dev., 438 F.3d 195, 204 (2d Cir. 2006); Hunter v. Underwood, 471 U.S. 222 (1985).
19.

Respondents have demonstrated an intent to discriminate against Petitioner on the

basis of religion through repeated public statements that make clear the EO was designed to
prohibit the entry of Muslims to the United States. See Michael D. Shear & Helene Cooper,
Trump Bars Refugees and Citizens of 7 Muslim Countries, N.Y. Times (Jan. 27, 2017),
(“[President Trump] ordered that Christians and others from minority religions be granted
priority over Muslims.”); Carol Morello, Trump Signs Order Temporarily Halting Admission of
Refugees, Promises Priority for Christians, Wash. Post (Jan. 27, 2017).
20.

Applying a general law in a fashion that discriminates on the basis of religion in

this way violates Petitioner’s rights to the equal protection of the Fifth Amendment Due Process
Clause. Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999); Yick Wo v. Hopkins, 118
U.S. 356, 373-74 (1886). Petitioner satisfies the Supreme Court’s test to determine whether a
facially neutral law – in this case, the EO and federal immigration law – has been applied in a
discriminatory fashion. The Supreme Court requires an individual bringing suit to challenge the
application of a law bears the burden of demonstrating a “prima facie case of discriminatory
purpose.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266-7 (1977).
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This test examines the impact of the official action, whether there has been a clear pattern
unexplainable on other grounds besides discrimination, the historical background of the decision,
the specific sequence of events leading up to the challenged decision, and departures from the
normal procedural sequence. Id.
21.

Here, President Donald Trump and senior staff have made clear that the EO will

be applied to primarily exclude individuals on the basis of their national origin and being
Muslim. See, e.g., sources cited, supra ¶ 19, See, e.g., Donald J. Trump, Donald J. Trump
Statement

On

Preventing

Muslim

Immigration,

(Dec.

7,

2015),

https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslimimmigration (“Donald J. Trump is calling for a total and complete shutdown of Muslims entering
the United States until our country's representatives can figure out what is going on.”); Abby
Phillip and Abigail Hauslohner, Trump on the Future of Proposed Muslim Ban, Registry: ‘You
know my plans’, Wash. Post (Dec. 22, 2016). Further, the President has promised that
preferential treatment will be given to Christians, unequivocally demonstrating the special
preferences and discriminatory impact that the EO has upon Petitioner. See sources cited, supra ¶
19.
22.

Thus, Respondents have applied the EO with forbidden animus and

discriminatory intent in violation of the equal protection of the Fifth Amendment and violated
Petitioner’s equal protection rights.

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COUNT SIX
ADMINISTRATIVE PROCEDURE ACT
23.

Petitioner repeats and incorporates by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.
24.

Respondents detained and mistreated Petitioner solely pursuant to an executive

order issued on January 27, 2017, which expressly discriminates against Petitioner on the basis
of her country of origin and was substantially motivated by animus toward Muslims. See supra
Count Five.
25.

The EO exhibits hostility to a specific religious faith, Islam, and gives preference

to other religious faiths, principally Christianity.
26.

The INA forbids discrimination in issuance of visas based on a person’s race,

nationality, place of birth, or place of residence. 8 U.S.C. § 1152(a)(1)(A).
27.

The INA and implementing regulations, including 8 U.S.C. § 1225(b)(1)

(expedited removal), 8 C.F.R. §§ 235.3(b)(4), 208.30, and 1003.42; 8 U.S.C. § 1158 (asylum),
and 8 U.S.C. § 1231(b)(3) (withholding of removal), and the United Nations Convention Against
Torture (“CAT”), implemented in the Foreign Affairs Reform and Restructuring Act of 1998
(“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998)
(codified at 8 U.S.C. § 1231 note), entitle Petitioner to an opportunity to apply for asylum,
withholding of removal, and CAT relief.
28.

Respondents’ actions in detaining and mistreating Petitioner were arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law, in violation of APA
§ 706(2)(A); contrary to constitutional right, power, privilege, or immunity, in violation of APA

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§ 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 § 706(2)(D).
COUNT SEVEN
RELIGIOUS FREDOM RESTORATION ACT
29.

Petitioner repeats and incorporates by reference each and every allegation

contained in the preceding paragraphs as if fully set forth herein.
30.

The EO will have the effect of imposing a special disability on the basis of

religious views or religious status, by withdrawing an important immigration benefit principally
from Muslims on account of their religion. In doing so, the EO places a substantial burden on
Petitioner’s exercise of religion in a way that is not the least restrictive means of furthering a
compelling governmental interest.
PRAYER FOR RELIEF
WHEREFORE, Petitioner prays that this Court grant the following relief:
(1) Issue a Writ of Habeas Corpus requiring Respondents to release Petitioner forthwith;
(2) Issue an injunction ordering Respondents not to detain any individual solely on the basis of
the EO;
(3)

Enter a judgment declaring that Respondents’ detention of Petitioner is and will be

unauthorized by statute and contrary to law;
(4) Award Petitioner reasonable costs and attorney’s fees; and
(5) Grant any other and further relief that this Court may deem fit and proper.

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DATED: January 28, 2017
Queens, New York
Respectfully submitted,

/s/ Erin M. Meyer_______
Erin M. Meyer
James A. Unger
Proskauer Rose LLP
11 Times Square
New York, NY 10036
[e-mail]
Phone: [phone]
Fax: [phone]

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