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Milardo v. Kerlikowske

United States District Court, D. Connecticut

April 1, 2016

PAOLINA MILARDO, ARNALDO GIAMMARCO, Plaintiffs,
v.
R. GIL KERILIKOWSKE, JEH JOHNSON, SARAH SALDANA, AND LORETTA LYNCH, Defendants.

MEMORANDUM OF DECISION GRANTING DEFENDANTS’ MOTION TO DISMISS EMERGENCY PETITION FOR WRITS OF HABEAS CORPUS AD TESTIFICANDUM [DKT. #23]

VANESSA L. BRYANT, UNITED STATES DISTRICT JUDGE

Petitioners Paolina Milardo (“Milardo”) and Arnaldo Giammarco (“Giammarco”) seek writs of habeas corpus ad testificandum to enable them to return to the United States to testify in person before the Judiciary Committee of the Connecticut General Assembly (the “Judiciary Committee”) and for Milardo to testify in person in support of her state habeas petition. For the reasons that follow, the Court determines that it lacks jurisdiction to grant Petitioners the relief they seek. Accordingly, the Defendants’ motion is GRANTED.

I. Factual Background

On March 16, 2016, Petitioners filed an emergency petition for writs of habeas corpus ad testificandum. [Dkt. #1 at 1]. Petitioners are each former U.S. residents who lived in the country for 50 years and who have been deported to Italy. [Dkt. #1-2, Pet’rs’ Mem. at 34]. On February 25, 2016, Connecticut Representative William Tong and Senator Eric Coleman, co-chairs of the Judiciary Committee, issued legislative subpoenas to both Petitioners. See [Dkt. #5-1, Ex. 1 to Wishnie Decl. at 7-8]. The subpoenas compel their attendance at “an informational hearing” on April 4, 2016, for the purpose of giving “testimony on what [they] know regarding the . . . impact of Connecticut criminal convictions on immigrant households, including [the Petitioners’] famil[ies], affected by deportation or threat of deportation.” [Id.]. The Committee determined that their “presence is necessary for committee members to evaluate [their] credibility, as well as [their] acceptance of responsibility and remorse for the specific events that occurred in [Connecticut] which resulted in [their] deportation.” [Id.].

Relatedly, Representatives Rick Lopes, Jack Hennessy, and Roland Lemar introduced two proposed joint resolutions at the January 2015 session of the General Assembly, Resolution Nos. 46 and 47, seeking the pardon of Petitioner Giammarco. See H.J. 46 (2015); H.J. 47 (2015). The proposed resolutions seek the “unconditional pardon” of Giammarco for convictions of nonviolent offenses he committed prior to 2008, along with the restoration of “all rights forfeited” by Giammarco “by reason of conviction of crime.” Id. On January 26, 2015, the resolutions were referred to the Committee on Veteran’s Affairs, and on February 3, 2015, Resolution No. 46 was reserved for a subject matter public hearing. However, this resolution “did not leave the Committee.” [Dkt. #5-1, Ex. 19C. to Wishnie Decl. at 124, ¶ 19]. The status of Resolution No. 47 is unclear from the documents submitted by the Petitioners.

As deportees seeking to comply with the legislative subpoenas, on February 29, 2016, Petitioners contacted the U.S. Immigration and Customs Enforcement (“ICE”) to request a temporary parole of their deportation for significant public benefit and humanitarian reasons. Under 8 C.F.R. § 212.5, aliens who “will be witnesses in proceedings being, or to be, conducted by judicial, administrative, or legislative bodies in the United States” are eligible for parole “on a case-by-case basis for ‘urgent humanitarian reasons’ or ‘significant public benefit, ’ provided the aliens present neither a security risk nor a risk of absconding.” 8 C.F.R. § 212.5(b)(4).

On March 8, 2016, with knowledge of the subpoenas, in which the Connecticut legislators conveyed the need for in-person testimony to assess the Petitioners’ credibility, acceptance of responsibility, and remorse, ICE denied Petitioners’ requests. See [Dkt. #5-1, Ex. 2 to Wishnie Decl. at 10, 12]. In its denial notices, ICE explained that it, “has prosecutorial discretion and may exercise it in the ordinary course of enforcement.” [Id.]. As for humanitarian parole, the letter explained that this is “used sparingly to bring someone who is otherwise inadmissible into the United States . . . due to a compelling emergency” and that a subpoena calling for testimony before the Judiciary Committee did not constitute a “compelling emergent reason to justify humanitarian parole.” [Id. at 10-11, 12-13]. Significant public benefit parole “is a temporary measure generally used to provide a legal mechanism for informants, witnesses, criminals, and defendants” to “assist with ongoing investigations, prosecutions or testify as witnesses in proceedings.” [Id. at 10, 12]. ICE determined that Petitioners were not eligible for this parole upon concluding that their “physical presence in the United States [wa]s not necessary to provide testimony before the Judiciary Committee.” [Id. at 11, 13]. ICE based its conclusion on the availability of videoconferencing technology, which was “widely utilized across the country” and was authorized by the Federal Rules of Civil Procedure. [Id.]. In addition, the letters informed Petitioners that ICE “may be able to provide [them] access to ICE video teleconference resources” in one of its Italy offices. [Id.]. In order to pursue this possibility, ICE invited both Petitioners to “reach out to [its] Harford office” and thereafter, ICE “will begin making arrangements.” [Id.]. For the same reason, ICE found that Petitioner Milardo’s desire to testify in person at her state habeas trial did not justify significant public benefit parole. [Id. at 11].[1] The record does not indicate that Petitioners have ever contacted ICE and requested access to its videoconferencing resources.[2] In addition, there is no indication that Petitioners sought from ICE reconsideration or further review of this decision, nor did they present to ICE, as they do to this Court, information regarding the technological difficulties they have encountered while living in Italy, which they believe may imperil their ability to testify remotely at the hearing before the Judiciary Committee. See [Dkt. #5-1, Ex. 19B to Wishnie Decl., at 118-19, ¶¶ 41-44, Ex. 19C to Wishnie Decl. at 125, ¶¶ 26-29].[3]

In addition to their requests for temporary parole, Petitioners have pursued other procedural mechanisms available for nonimmigrant aliens to travel to the United States. On March 10 and 11, 2016, they submitted applications for B-2 visitor visas, which are still pending, and they have made appointments with the U.S. Consulate General of the United States in Naples, Italy, to apply for a discretionary waiver of admissibility under § 212(d)(3) of the Immigration and Nationality Act (“INA”). [Dkt. #5-1, Exs. 5-8 to to Wishnie Decl.]. The Petitioners’ appointments occurred on March 17, 2016, but it is still unknown whether either will receive a waiver. [Dkt. #5-1, Exs. 19B and 19C to Wishnie Decl. at 119, ¶ 51, 126, ¶ 34].[4]

Following these travel denials, Petitioners filed the instant Emergency Petition for Writs of Habeas Corpus Ad Testificandum. See [Dkt. #1]. Petitioners contend that the Court has authority to issue writs of habeas corpus ad testificandum, they may be issued to facilitate legislative testimony, Petitioners are in “custody” for habeas purposes, and the circumstances militate in favor of granting the writ.

II. Legal Standards

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction (12(b)(1))

“Federal courts are courts of limited jurisdiction.” Gunn v. Minton, ____U.S.____, 133 S.Ct. 1059, 1064 (2013). Subject matter jurisdiction is not waivable, and a lack of subject matter jurisdiction may be raised at any time, by a party or the court sua sponte. See Gonzalez v. Thaler, ___U.S.____, 132 S.Ct. 641, 648 (2012); see also Sebelius v. Auburn Reg’l Med. Ctr., U.S., 133 S.Ct. 817, 824 (2013) (“Objections to a tribunal’s jurisdiction can be raised at any time, even by a party that once conceded the tribunal’s subject-matter jurisdiction over the controversy.”). If a court lacks subject matter jurisdiction, it must dismiss the action. See Fed. R. Civ. P. 12(h)(3).

A “district court must take all uncontroverted facts in the complaint as true, and draw all reasonable inferences in favor of the party asserting jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, “where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings[.]” Id. “In that case, the party ...


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