IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
ALEXANDRE P. KONANYKHINE )
)
and )
)
ELENA GRATCHEVA )
)
Petitioners, )
) Civil Number: 97-449-A
vs. )
)
WILLIAM J. CARROLL, )
District Director, )
Immigration and Naturalization Service )
)
Predecessor in Interest to: )
Deputy Field Office Director )
Department of Homeland Security, )
U.S. Immigration and Customs Enforcement )
PETITIONERS ALEXANDRE KONANYKHINE AND ELENA GRATCHEVA’S AMENDED EMERGENCY MOTION
TO ENFORCE SETTLEMENT AGREEMENT
AND TO STAY DEPORTATION, OR ALTERNATIVELY,
AN APPLICATION FOR A WRIT OF HABEAS CORPUS, OR ALTERNATIVELY, A MOTION FOR A PRELIMINARY INJUNCTION
Petitioners Alexandre Konanykhine and his wife, Elena Gratcheva, by and through their attorneys, J.P. Szymkowicz, and the Law Firm of Szymkowicz & Szymkowicz, LLP, by special and limited appearance for this emergency motion only, respectfully files the instant amended emergency motion requesting that this Honorable Court enforce certain provisions of the August 21, 1997 Settlement Agreement in the above-referenced matter and stay Petitioners Konanykhine and Gratcheva’s deportation and release Petitioners Konanykhine and Gratcheva from detention. The amendment of the original motion is filed pursuant to F. R. Civ. P. 15 (a). Alternatively, Petitioners Konanykhine and Gratcheva respectfully request that this Motion be treated as an Application for a Writ of Habeas Corpus. As a second alternative, Petitioners Konanykhine and Gratcheva respectfully request that this Motion be treated as a Motion for a Preliminary Injunction pursuant to F. R. Civ. P. 65 (a).
BACKGROUND
1. Petitioner Konanykhine and his wife, Elena Gratcheva, are Russian nationals who are seeking political asylum in the United States of America.
2. Konanykhine entered this country via Antigua.
3. In 1996, Konanykhine, who was incarcerated for immigration fraud, filed a habeas corpus action.
4. As the result of the habeas corpus action, the Honorable T.S. Ellis, III found Konanykhine’s arrest to be unlawful and ordered Konanykhine released from incarceration.
5. The Immigration and Naturalization Service, then immediately re-arrested Konanykhine on the same grounds.
6. Konanykhine filed a second habeas corpus action.
7. In a settlement agreement related to the second habeas corpus action dated August 21, 1997 that resulted in the release of Konanykhine from incarceration, the Office of Immigration Litigation and Konanykhine agreed that
Respondent [Immigration and Naturalization Service] agrees to parole petitioner [Konanykhine] pending final resolution of his immigration proceedings, including any direct judicial appeals thereof, so long as petitioner engages in _____ [indecipherable in copy] conduct, or so long as no other circumstances arise, which warrant revocation of his parole under 8 C.F.R. § 212.5. See Exhibit 1.
8. In an Order dated February 19, 1999, issued by United States Immigration Judge John Milo Bryant, Konanykhine and his wife were granted political asylum in the United States.
9. Judge Bryant’s February 19, 1999 Order stated
[t]he Court finds that Applicant [Konanykhine] and Respondent [Gratcheva] have a well-founded fear of persecution on account of their political opinion if they are returned to Russia. Furthermore, it is apparent that the men who seek to harm them cannot be controlled by the Russian authorities. Accordingly, Applicant [Konanykhine] and Respondent [Gratcheva] have met the statutory requirement for a grant of asylum.
In addition to demonstrating statutory eligibility for asylum, an alien must also show that he or she merits a favorable exercise of the Court’s discretion. There exists no substantial facts which would cause the Court to exercise its discretion negatively. Accordingly, the Court will grant to Applicant [Konanykhine] and Respondent [Gratcheva] the refuge of asylum in the United States in the exercise of its discretion. See Exhibit 2 .
10. The Immigration and Naturalization Service [now called “Department of Homeland Security, U.S. Immigration and Customs Enforcement”] appealed Judge Bryant’s Order dated February 19, 1999 to the Board of Immigration Appeals.
11. On November 20, 2003, the Board of Immigration Appeals issued an Order that stated
CONCLUSION
In conclusion, we agree with the Immigration Judge that the applicant [Konanykhine] is not excludable from the United States as an alien who procured or sought to procure a visa or other immigration benefit by fraud or willful misrepresentation of a material fact. However, we disagree with the Immigration Judge’s conclusion that the applicant [Konanykhine] and the respondent [Gratcheva] have a well-founded fear of persecution in Russia on account of any protected ground. Thus, the Immigration Judge’s decision will be reversed to the extent that it granted asylum to the applicant [Konanykhine] and respondent [Gratcheva]. The applicant [Konanykhine] appears ineligible for any other form of relief from exclusion, and therefore he will be deported to Russia. The respondent [Gratcheva] will be accorded the privilege of voluntary departure.
ORDER: The appeal is sustained in part.
FURTHER ORDER: The Immigration Judge’s February 19, 1999 decision is sustained in part and reversed in part.
FURTHER ORDER: The applicant’s [Konanykhine’s] and respondent’s [Gratcheva’s] applications for asylum and withholding of exclusion/deportation are denied.
FURTHER ORDER: It is ordered that the applicant [Konanykhine] be excluded from the United States and deported to Russia.
FURTHER ORDER: In accordance with our decision in Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), the respondent [Gratcheva] is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent [Gratcheva] shall be deported to Russia. See Exhibit 3.
12. On or about November 24, 2003, Konanykhine’s immigration counsel, Michael Maggio, Esquire filed a “Petition for Review” of the Board of Immigration Appeals’ November 20, 2003 Order with the United States Court of Appeals for the Fourth Circuit. See Exhibit 4.
13. Konanykhine’s counsel in the instant matter does not believe that the United States Court of Appeals for the Fourth Circuit has issued any decision with regard to the Petition for Review (although a Motion to Stay Deportation was denied).
14. In December 2003, Konanykhine consulted with a Canadian immigration attorney who advised him that entry into Canada under Canadian law as a refugee status claimant is not considered an admission into Canada, and therefore, Konanykhine would remain under the jurisdiction of the United States until he was granted refugee status in Canada.
15. On December 18, 2003, Canadian attorney John J. Somjen, Esquire, stated in a letter to the United States Department of Justice
I am writing to you at the behest of Mr. Michael Maggio, of the law firm of Maggio Kattar of Washington, D.C., who represents the above clients in their United States immigration matters.
I have been a member of the Bar in Toronto, Ontario, since 1971, and have devoted the majority of my practice to immigration matters during that time.
I understand that the United States authorities have the above clients in detention at this time.
It is my opinion that the above individuals are eligible to make an asylum claim in Canada pursuant to the provisions of our current governing statute, the Immigration and Refugee Protection Act. My opinion is based on the fact that the claimants can properly identify themselves, have never been recognized as Convention Refugees by any other country to date, and have never been convicted of any offenses by any Court outside Canada.
On December 4, 2003, an appointment was arranged at the Canadian Port of Entry located at the Canadian side of the Peace Bridge in Fort Erie, Ontario, Canada for the above clients to be interviewed for eligibility to make their asylum claim in Canada. This appointment was arranged by me through the Director General of Immigration, Ontario Region, and was booked by Canadian Immigration Officer Annette Tennier of the Refugee Unit at the Peace Bridge Port of Entry, Fort Erie, Ontario, Canada. Annette Tennier’s telephone number is 1(905)871-5632. Her colleague, Ms. Tone Lalonde, is also apprised of these facts.
The appointment booked for 8:30 a.m. today. I am advised on today’s date by Ms. Toni Lalonde that the clients never showed up for their appointment this morning.
It is my opinion, for the above reasons, that if they were interviewed in the manner described above, the above clients would be routinely allowed to enter Canada as eligible Refugee Claimants, and their cases would be scheduled to be heard by the above-describe tribunal around one year from now. This is an everyday event that occurs at the Peace Bridge and at every other busy Canadian Port of Entry.
If you have any further questions or concerns, please do not hesitate to contact the writer.
Yours very truly,
SOMJEN AND PETERSON
/s/
John J. Somjen See Exhibit #5.
16. Pursuant to the appointment described in Attorney Somjen’s December 18, 2003 letter, Konanykhine and Gratcheva traveled to the Peace Bridge between New York and Ontario in order to file their refugee status claims with the Canadian Immigration authorities.
17. While in their automobile on the Peace Bridge, prior to crossing into Canada, a large team of U.S. Bureau of Immigration and Customs Enforcement officers swarmed Konanykhine and Gratcheva’s automobile, forced them out and detained them.
18. Within ninety minutes of their detention, Konanykhine and Gratcheva were taken to an airport and flown to Washington Reagan National Airport.
19. Upon their arrival at Washington Reagan National Airport, Konanykhine and Gratcheva were taken to the Russian Embassy on Wisconsin Avenue in Washington, DC and advised that they would be flown to Russian immediately without the right to call their attorneys.
20. The Russian Embassy was not able to issue special travel documents that would enable Konanykhine and Gratcheva to be flown to Russia.
21. Konanykhine and Gratcheva left the Russian Embassy and were taken to the Immigration and Naturalization Service office in Arlington, Virginia, where they were held for a few hours pending transfer to the Arlington County Detention Center.
22. The next day, Friday December 19, 2003, the special travel documents were issued by the Russian Embassy and Konanykhine and Gratcheva were flown from the Washington, DC area to New York in order to board a New York to Moscow flight.
23. While on the domestic flight, this Honorable Court issued a temporary stay of Konanykhine and Gratcheva’s deportation and set the matter for hearing on Monday December 22, 2003 at 3:00 p.m.
24. Around the same time as this Honorable Court was hearing argument on the temporary stay, the Fourth Circuit issued an order denying Konanykhine and Gratcheva’s Motion for a Stay of Deportation which had been filed in that Court.
25. On December 19, 2003, Neil R. Acri, Deputy See Exhibit 6.
Konanykhine’s Affidavit in Response to the ICE’s Parole Revocation Letter dated December 19, 2003
Konanykhine filed an Affidavit in response to the Department of Homeland Security, U.S. Immigration and Customs Enforcement Branch’s [hereinafter “ICE”] parole revocation letter dated December 19, 2003. This Affidavit states
I verify under the penalties of perjury that following is true:
1. My name is Alexandre Konanykhine.
2. I have read the letter from Neil R. Acri, Deputy Field Office Director, Washington D.C. Field Office, U.S. Immigration and Customs Enforcement dated December 19, 2003 regarding the revocation of my parole.
3. I have never “failed to consistently report to the Assistant Director for Detention and Removal by phone.” In fact, I have reported to the designated agent in a timely manner each and every time I was required to, not only because I was required to, but also because my failure to do so, could result in my detention and deportation, two things which I did not want to have happen. The last time I was required to report, was November 22, 2003 and I did report on this date as required. As I am required to report approximately once every two months, I was not required to report again until late-January 2004.
4. I did not “[fail] to request permission to move from [my] authorized residence [in the Washington, DC area] to another state [New York].” In fact, in or before 1999, I was given explicit permission to move from the Washington, DC area to the New York City area, where my wife and I have continuously lived since at least 1999.
5. I did “[change] residence without notifying or requesting permission from the Service this past month.” However, my lease of my New York City apartment, located at 170 West 73rd Street, had been scheduled to end on November 30, 2003 for many months. I had planned to rent another apartment in the New York City area prior to the Board of Immigration Appeals decision dated November 20, 2003, but the legal effect of this November 20, 2003 decision made it impractical for me to sign a long term lease of an apartment.
6. From approximately, November 30, 2003 until December 18, 2003, my wife and I stayed with friends or stayed in hotels in the New York City area.
7. Neither my 1997 settlement agreement referenced in the December 19, 2003 letter at issue nor the 1999 amendment to this agreement [which allowed me to move to the New York City area] required me to inform the agent to whom I was directed to report of these temporary residences, since they were not “permanent residences.”
8. The next date on which I was required to report to the agent to whom I was directed to report was in late-January 2004.
9. I was “apprehended as [I] was attempting to enter Canada on December 18, 2003. However, neither my 1997 settlement agreement referenced in the December 19, 2003 letter at issue nor the 1999 amendment to this agreement [which allowed me to move to the New York City area] prevented me from doing this.
10. My wife and I attempted to enter Canada on the morning of December 18, 2003 in order to be interviewed by the Office of the Canadian Director General of Immigration at 8:30 a.m. at the Peace Bridge Port of Entry, Fort Erie, Ontario, Canada with regard to an asylum claim to be filed under the Canadian Immigration and Refugee Protection Act.
11. This December 18, 2003 meeting was scheduled in early-December, 2003 by my Canadian attorney, John J. Somjen, Esquire.