IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 03-M-0102 (OES)

John Doe,
Petitioner,

V.

MICHAEL COMFORT, Acting District Director (ADD), Immigration and Naturalization Service (INS), Denver District, Executive Office for Immigration Review,
Respondent,

U.S. ATTORNEY GENERAL, John Ashcroft,

Respondent.

PETITIONER’S MOTION FOR WRIT OF HABEAS CORPUS

POSTURE:

Petitioner, John Doe, has been in detention since November 6, 2002. The Board of Immigration Appeals (BIA or the Board) denied Mr. Doe’s Motion to Reopen his case on May 29, 2003. Mr. Doe timely filed a Petition for Review with the honorable Tenth Circuit Court of Appeals on July 9, 2003. He filed his Opening Brief on or about September 24, 2003. The Tenth Circuit Panel ordered supplemental jurisdictional briefs regarding the Court’s jurisdiction in this case. The Respondent filed its brief on February 6, 2004 in a timely manner. Counsel for Petitioner filed its brief on or about February 23, 2004, after the February 6, 2004 deadline.

1. Respondent conceded that the Tenth Circuit Court had jurisdiction in this case and argued that the Tenth Circuit could remand the case to the BIA or dismiss the case on substantive grounds. Respondent did not argue that the Tenth Circuit Court lacked jurisdiction because the new evidence did not support the BIA’s denial of Mr. Doe’s Motion to Reopen. The Respondent’s therefore waived that argument, and apparently conceded that the evidence does support reopening in the interest of justice.

2. Mr. Doe has argued that the constitution, treaty, statutes, regulations, and jurisprudential law indicate that in the interest of justice Mr. Doe’s new, material, evidence, which could not have been made available at the time of his original hearing forces the finding of facts and conclusion of law he is eligible for asylum. Mr. Doe argues that in the interest of justice the BIA must reopen Mr. Doe’s case and grant him asylum because the new evidence proves that he is statutorily eligible for asylum. He argues that his removal order is a nullity, and that his detention is improper and unconstitutional. Respondent has waived any argument to the contrary.

3. Mr. Doe has been in the detention center for one year and four months. Counsel for Petitioner called the Tenth Circuit Court Clerk Team to enquire as to when the Tenth Circuit might make a decision on the case, over which the Respondent concedes jurisdiction in its brief. The Clerk stated that it could not say when the honorable Tenth Circuit would render a decision in the case. There is no indication that the Respondent will be able to remove Mr. Doe in the reasonably, foreseeable, future, and Mr. Doe has been in the detention center well beyond the six-month period permitted by Zadvidas v. Davis and INS, 533 U.S. 678, (2001), which Petitioner argued in its previous briefs and motions to this honorable Federal District Court. 

4. If the honorable Tenth Circuit accepts jurisdiction, it will do so arguably because there is a constitutional infirmity in Mr. Doe’s removal order, by which Mr. Doe was prejudiced. Mr. Doe’s case will arguable be remanded to the BIA. Again Mr. Doe will incur delays in the detention center until an unpredictable, future, date beyond a reasonably foreseeable period of time for the BIA to issue a decision on his case, a decision which this honorable Federal District Court, can determine will be favorable to Mr. Doe, especially based upon the Respondent’s admission that the Tenth Circuit Court has jurisdiction in this case.

5. Further, since the Respondent concedes that the honorable Tenth Circuit Court has jurisdiction, but only the right to remand the case to the BIA, then the Tenth Circuit jurisdiction arguably does not permit the Tenth Circuit to order the Respondent to release Petitioner from the Department of Homeland Security, thus there is no adequate, available remedy other than the Writ of Habeas Corpus as exists exclusively in this Federal District Court.  

6. Mr. Doe has also presented this Court with evidence of his inability to be with his three year old U.S. citizen daughter, MaKayla, who is growing up without him, and in the custody of an unstable mother. Mr. Doe has also presented evidence of his seriously, deteriorating, health and debilitating, health problems, giving Mr. Doe severe pain while detained without his therapy.

WHEREFORE, Petitioner, John requests this honorable Federal District Court, for the District of Colorado, issue Petitioner a Writ of Habeas Corpus, releasing him from Respondent’s detention center.                     

Respectfully submitted,                   Date: March 4, 2004
PATRICK C. HYDE, P.C.

_____________________________________
Patrick C. Hyde,
Attorney
Reg. No. 14633
139 West Tenth Avenue
Denver, CO 80204
303-825-2220
303-825-1718 (fax)
lawoffice@patrickchydepc.com

CERTIFICATE OF SERVICE

I, _______________________________________, certify that I served the above:

PETITIONER’S MOTION FOR WRIT OF HABEAS CORPUS

By depositing it in the US mail, the _____ day of ________________, 2003, postage prepaid to:

DHS/BICE, Office of the IDDR  
4730 Paris Street
Denver, CO 80239

DHS/BICE, District Counsel
4730 Paris Street
Denver, CO 80239

US Attorney
ATTN: Deputy Chief, Michael Hegarty
1225 17th Street, 7th Floor
Denver, CO 80202

US Department of Justice
US Attorney General John Ashcroft
1440 Pennsylvania Street NW Suite 4400
Washington, DC 20530

     ____________________________________