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Khorrami v. Rolince

June 26, 2007

AHMAD FARID KHORRAMI, PLAINTIFF,
v.
MICHAEL E. ROLINCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

Plaintiff Ahmad Farid Khorrami ("Plaintiff" or "Dr. Khorrami") filed a first amended complaint that states two counts against various FBI and INS agents (collectively "Defendants"). Count I is a Bivens claim alleging Fourth Amendment violations; Count II is a Bivens claim alleging Fifth Amendment violations. Currently before me is Defendants' motion to dismiss.

I. BACKGROUND

Dr. Khorrami is an Iranian-born British citizen currently residing in the United States. Dr. Khorrami spent some time in the U.S. in the mid-1970s and then returned here in 1997.

In August, 2000, Dr. Khorrami applied for legal permanent residence based upon his marriage to a U.S. citizen. In February, 2001, he was issued a form I-512 advance parole authorization that enabled him to visit Canada and be paroled back in the country. In July, 2001, Dr. Khorrami became employed at Skyway Airlines, a commuter airline based in Milwaukee, Wisconsin.

In the days following September 11, 2001, Dr. Khorrami learned that FBI agents had contacted many of his acquaintances to inquire about him. Upon becoming aware of this, he reached out voluntarily to the Chicago FBI office and offered to make himself available for a meeting. On September 17, 2001, two Chicago FBI agents visited Dr. Khorrami at his home in Chicago for approximately three hours. After the meeting, the agents left and indicated that they did not have ongoing concerns about him.

Later that day (September 17, 2001), Dr. Khorrami went to Skyway's offices to meet with the chief pilot. During that meeting, Plaintiff alleges that an FAA representative abruptly entered the office and ripped Dr. Khorrami's airport security ID from around his neck. At that point, several government agents-from the INS and FBI-appeared at Skyway's offices. Dr. Khorrami alleges that the agents-including Agent John Neinhardt of the Milwaukee INS-then interrogated him for the next twelve hours. He claims that the agents used threatening and abusive language. Dr. Khorrami also claims that throughout the interrogation, he pleaded with Agent Neinhardt to allow him to call the British embassy; he claims that he was not permitted to do so.

Dr. Khorrami alleges that he was then taken to the FBI headquarters in Milwaukee where he submitted to a lie detector test. He claims that an FBI agent there-Dale Mueller-falsely told him that he worked for a private company that administered the test. He further asserts that he was asked to sign a document consenting to the use of the test results in court, and told, "if you don't sign, you don't get out of here." Plaintiff also alleges that Agent Neinhardt warned him, "we're going to cancel your visa, we're going to take you."

Agent Neinhardt then allegedly handed Plaintiff a Notice to Appear, charging that he was an arriving alien in INS custody. He also claims that he was served with a letter from the then-INS Director stating that his immigration "parole" had been revoked. Dr. Khorrami claims that he was then taken to a waiting car, that Agent Neinhardt punched him in his right arm, and that Agent Neinhardt called him a terrorist. Plaintiff claims that he was then transported to Waukesha County Jail in Wisconsin and that he was strip searched upon arrival.

He alleges that on September 19, 2001, Agent Neinhardt again interrogated him and told him that he had canceled Plaintiff's visa in order to assist his colleagues at the FBI. Dr. Khorrami claims that Agent Neinhardt told him that the INS was involved because the FBI lacked sufficient information to continue to keep him.

Dr. Khorrami claims that his wife spoke with FBI and INS officials on September 18, 2001, and that they indicated to her that it was likely that Plaintiff would soon be cleared from the suspect list. He also claims that an agent informed his wife on September 22, 2001, that the FBI had cleared Dr. Khorrami's name from all watch lists. Dr. Khorrami claims that despite these assurances, he remained in detention. He claims that on September 21, his fourth day in Waukesha, Agents Dale Mueller and Jack Felske of the Milwaukee FBI interrogated him again. He claims that while Agent Felske waited in the hall, Agent Mueller threatened him verbally, knocked him out of his chair, and kicked him repeatedly. He alleges that this beating caused blood in his urine, and he claims that he was treated for suicidal tendencies. He further asserts that he began experiencing chest pains.

On September 24, he was taken to an INS processing center in Broadview, Illinois and then quickly moved to the DuPage County Jail in Wheaton, Illinois. In September and October, 2001, Plaintiff's counsel filed motions to have Dr. Khorrami released on bail. The INS opposed the motions, arguing that Plaintiff was an inadmissible alien and that the Immigration Judge had no jurisdiction to reconsider an INS bail determination. On October 10, 2001, the Immigration Judge denied Dr. Khorrami's motions.

At a November 14, 2001 hearing before the immigration judge, the INS submitted an affidavit from defendant Michael Rolince, FBI Chief of the International Terrorism Operations Section, which included numerous reasons why the FBI was investigating Plaintiff to determine his connections, if any, to the terrorist attacks of September 11, 2001.

One month later in a December 12, 2001 hearing, the INS submitted a letter from defendant Thomas Knier, FBI Special Agent in Charge, explaining that one of the statements in Rolince's letter-that Dr. Khorrami lived in the same apartment as one of the hijackers-was wrong. Knier explained that the FBI had information showing that this statement was incorrect at the time affidavit was submitted. He further explained that it was nevertheless mistakenly included because of the fast-paced need to gather millions of pieces of information regarding the September 11 bombings and because the FBI was unable to centralize this information.

On December 14, 2001-two days after defendant Knier's clarifying letter was submitted-the INS granted Dr. Khorrami parole under 8 U.S.C. § 1226, releasing him from detention pending Dr. Khorrami's removal proceedings.

In February, 2002, Dr. Khorrami suffered a heart attack, which he claims resulted from his mistreatment and incarceration.

During the course of Dr. Khorrami's removal proceedings, his counsel filed several motions and appeared at several hearings in which he argued that Dr. Khorrami was not subject to detention or removal because he was not an inadmissible alien as charged by the INS. The immigration judge denied these motions, and in 2004, issued a final order, finding Dr. Khorrami to be removable as charged. In particular, he held that once Dr. Khorrami's parole was revoked, his status reverted to an alien seeking admission into the United States, and because he had no valid entry documents, he was removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I). Although the immigration judge found that Dr. Khorrami was removable, he also granted Plaintiff's request for permanent residence status based on his marriage to a U.S. citizen. As a result, Dr. Khorrami was not deported.

II. DISCUSSION

A. Motion to Dismiss Standard

A motion to dismiss tests the sufficiency of a complaint, not the merits of a case. Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). I should grant Defendants' motion to dismiss only if Plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Furthermore, I must accept all well-pleaded factual allegations in the complaint as true, drawing all reasonable inferences from those facts in Plaintiff's favor. Cleveland v. Rotman, 297 F.3d 569, 571 (7th Cir. 2002). That said, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations and quotations omitted). I may grant the motion only if "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

B. Jurisdictional Bars

At the outset, Defendants argue that three provisions of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") deprive this Court of jurisdiction to hear Plaintiff's claims; they are: 8 U.S.C. §§ 1252(b)(9); 1252(g); and 1252(a)(2)(B)(ii). I must consider these questions first, because absent subject-matter jurisdiction, I cannot proceed. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102 (1998) (rejecting the so-called doctrine of "hypothetical" or "assumed" jurisdiction and holding that courts should address subject-matter jurisdiction first); Crestview Vill. Apartments v. United States Dep't of Hous. & Urban Dev., 383 F.3d 552, 557 (7th Cir. 2004); State of Illinois v. City of Chicago, 137 F.3d 474, 478 (7th Cir. 1998) ("Subject-matter jurisdiction is the first question in every case, and if the court concludes that it lacks jurisdiction it must proceed no further.").

Jurisdiction stripping provisions must be interpreted in light of "the strong presumption in favor of judicial review of administrative action." INS v. St. Cyr, 533 U.S. 289, 298 (2001). Moreover, it is also essential to remember the Supreme Court's admonition that "[w]here Congress intends to preclude judicial review of constitutional claims its intent to do so must be ...


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