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Ayesh v. U.S. Immigration & Customs Enforcement

September 26, 2008

HATEM AYESH, PETITIONER,
v.
U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, ET. AL., RESPONDENTS.



The opinion of the court was delivered by: Matthew F. Kennelly, District Judge

MEMORANDUM OPINION AND ORDER

Hatem Ayesh, who is in "removal" (deportation) proceedings in Chicago, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 as well as declaratory, mandamus, and injunctive relief to "compel the Respondents . . . to accord [him] the due process of law to which he is entitled." Pet. ¶ 2. Specifically, Ayesh contends that he is a United States citizen but that in spite of this status, he has been wrongfully placed in United States Immigration and Customs Enforcement (ICE) custody and denied a passport and citizenship certificate by the United States Department of State. Respondents ICE, United States Attorney General Michael B. Mukasey, the Department of State, and the Department of Homeland Security (DHS) have moved to dismiss Ayesh's petition for lack of subject matter jurisdiction and failure to state a claim. For the reasons stated below, the Court denies respondents' motion without prejudice.

Background

Ayesh, a native of Jordan and Israel,*fn1 immigrated to the United States on February 6, 1982 as a permanent resident. Sometime prior to March 2, 1988, Ayesh filed a request for naturalization. Immigration officer Paula Price conducted a naturalization interview of Ayesh on March 2, 1988. That day, Ayesh filed his completed petition for naturalization with the clerk's office of the United States District Court, Northern District of Illinois, Eastern Division. A copy of the signed petition reflects that Price administered the oath of allegiance to Ayesh and granted his petition and that naturalization certificate number 12765432 was issued in Ayesh's name. See Pet. Ex. A at 2-3.

Three weeks later, on March 23, 1988, Ayesh was convicted in a Texas court of criminal possession of a controlled substance (marijuana). He was convicted of criminal possession a second time on August 18, 1989. DHS seeks to deport him based upon these convictions and upon the assertion that Ayesh made a false claim to citizenship on August 26, 2006, when he returned from Mexico to the United States.

On October 4, 2001, the DHS arrested Ayesh, alleging that he was not a citizen of the United States and that he was removable from the United States as a result of his criminal convictions. During his removal hearing in Oakdale, Louisiana, Ayesh admitted that he had been convicted of the offenses but contended that he was a United States citizen and as such was not removable. While these proceedings were ongoing, on August 16, 2002, Ayesh pled guilty to the false use of a social security number in the District Court for the Western District of Louisiana and was sentenced to a six month term of imprisonment. He remained in custody in Louisiana while his immigration case was pending until some point in 2004, when, after again being charged as removable from the United States, he was released on a $5000 bond.*fn2

After his release on bond, using a copy of his petition for naturalization, Ayesh obtained a United States passport. See Pet. Ex. B. On March 24, 2005, however, he received a letter from the State Department informing him that his passport was being revoked because DHS had "erroneously issued [him] an [sic] letter verifying that [he] became a naturalized U.S. citizen on March 2, 1988." Pet. Ex. C at 1. The letter went on to say that a review of Ayesh's file had revealed that he never completed the naturalization process and that he was therefore not a United States citizen. Id. Finally, the letter directed Ayesh to surrender his passport immediately to the State Department. Id. at 2.

Ayesh filed this petition on January 24, 2008, alleging that respondents have unlawfully constructively detained him and seeking a writ of habeas corpus, a writ of mandamus, and declaratory and injunctive relief. Specifically, he asks the Court to (1) find that he is a U.S. citizen whose constitutional rights respondents have violated by placing him in removal proceedings, (2) find that the State Department's refusal to issue him a new U.S. passport is unlawful, (3) issue a writ of mandamus compelling the Secretary of State to grant him a passport and compelling United States Citizenship and Immigration Services (USCIS) to issue him a naturalization certificate, (4) enjoin the State Department from asserting certain provisions relating to passport invalidity; and (5) award him reasonable attorney's fees pursuant to the Equal Access to Justice, 28 U.S.C. § 2412.

On January 31, 2008, the immigration judge (IJ) in Chicago found that Ayesh is removable from the United States based on his previous criminal convictions and ordered that he be deported to Israel. Ayesh appealed that decision to the Board of Immigration Appeals (BIA), where his appeal is now pending.

Respondents moved to dismiss Ayesh's petition on May 13, 2008.

Discussion

Respondents base their motion to dismiss on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). "In ruling on a motion under Rule 12(b)(1), [a] district court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff." Capitol Leasing Co. v. Fed. Deposit. Ins. Corp., 999 F.2d 188, 191 (7th Cir. 1993) (citations omitted). To determine whether subject matter jurisdiction exists, "the district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue." Johnson v. Apna Ghar, Inc., 330 F.3d 999, 1001 (7th Cir. 2003) (internal quotation marks and citation omitted).

In deciding a motion to dismiss under Rule 12(b)(6), the Court accepts as true all well-pleaded factual allegations in the complaint. Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007). To avoid dismissal, the allegations need only "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'"

EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (citing Bell Atl. ...


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