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Ayesh v. U.S. Immigration and Customs Enforcement

December 14, 2009

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



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

MEMORANDUM OPINION AND ORDER

Hatem Ayesh has petitioned the Court for a writ of habeas corpus and for an injunction, declaratory relief, and a writ of mandamus. The Court conducted a bench trial on Ayesh's claims. This constitutes the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

Ayesh's claims

In his petition, Ayesh alleges that he is a citizen of the United States and that U.S. Immigration and Customs Enforcement (ICE) wrongfully placed him in custody intending to deport him. The respondents deny that Ayesh is a U.S. citizen.

Ayesh alleges that entered the United States as a lawful permanent resident in 1982. In 1987, he applied to be naturalized as a U.S. citizen. Ayesh contends that he became a citizen on March 2, 1988. On March 23, 1988, he was convicted of criminal possession of marijuana, and in August 1989, he was convicted of a similar offense. In December 1989, he was "paroled" by the former Immigration and Naturalization Service (INS) to determine his eligibility to remain in the United States. In August 2002, Ayesh was convicted of false use of a Social Security number.

According to Ayesh's petition, in October 2001, the Department of Homeland Security (DHS) issued him a notice to appear, alleging that he was not a U.S. citizen and was removable from this country due to his conviction of a crime (it is unclear from the record which criminal conviction(s) formed the basis of the notice to appear). Ayesh alleges that he was in ICE custody for several years and was then released. He alleges in his petition that he had argued to an immigration judge that he could not be removed because he is a U.S. citizen. The record does not disclose whether the judge ruled on that issue or why Ayesh was released from ICE custody.

Ayesh alleges in his petition that in 2004, he applied for and obtained a U.S. passport but that in March 2005, the State Department revoked his passport on the ground that he is not a U.S. citizen. At the time he filed this lawsuit, Ayesh alleged, removal proceedings were pending before an immigration judge. The Court notes that after Ayesh filed the present lawsuit, an immigration judge found Ayesh to be removable from this country, and the Board of Immigration Appeals denied his appeal. The latter ruling was issued shortly after the conclusion of the trial in the present case.

Ayesh contends in his petition that as a U.S. citizen, the Constitution forbids his deportation. In addition, he alleges that he filed, in 2006, an application for issuance of a new citizenship certificate, which U.S. Citizenship and Immigration Services (USCIS) had not adjudicated at the time he filed suit. Ayesh also contends that his passport was improperly revoked without a hearing as required by federal regulations. He seeks an order declaring that he is a U.S. citizen; his constitutional rights were violated by placing him in removal proceedings; and the State Department violated the law in refusing to issue him a new passport.

Facts*fn1

1. The naturalization application and approval process in 1988

Ayesh applied for naturalization in 1988. The Court begins by reviewing the procedure and practice at that time concerning applications for naturalization.

A person wishing to be naturalized submits an application to file a petition for naturalization - a Form N-400 - and, if that is approved, submits a petition for naturalization - a Form N-405. The N-400 form contains a series of questions about the applicant and his background. The applicant must swear to the truth of the information he provides.

After filing an application for naturalization, the applicant is scheduled for an interview by am immigration officer. In 1988, immigration officers worked for the INS, which had its Chicago office in the Dirksen Federal Courthouse. The immigration officer would begin the interview by swearing in the applicant. The usual practice of immigration officers was to verbally ask the applicant every question in the application, to verify the accuracy of the applicant's written answers. During this process, the officer would take notes and make corrections directly on the application. The officer would also obtain the applicant's fingerprints and other required documentation. The officer would administer a civics examination (referred to by some witnesses at trial as a "government test") and would require the applicant to write one or more sentences in English.

During the interview -- at least if it appeared the applicant was likely to qualify for naturalization -- the immigration officer would, together with the applicant, fill out the petition for naturalization form (the N-405 form). The front side of the N-405 form contains spaces to insert identifying information, as well as preprinted statements affirming that the applicant met the requirements for naturalization, and a space for the applicant's signature. The lower right ...


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