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Achbani v. Homan

United States District Court, D. Connecticut

September 22, 2017

NOUREDDINE ACHBANI, Plaintiff,
v.
THOMAS D. HOMAN, et al, Defendants.

          ORDER DENYING PLAINTIFF'S AMENDED MOTION FOR PRELIMINARY INJUNCTION

          JANET BOND ARTERTON U.S.D.J.

         After consideration of the parties' briefing and oral arguments at the September 22, 2017 hearing, the Court denies Plaintiffs Amended Motion for Preliminary Injunction for the reasons that follow:

         I. Procedural History

         Plaintiff Noureddine Achbani filed the instant action on September 8, 2017 [Doc. #1], and moved simultaneously for a Temporary Restraining Order [Doc. #2] and Preliminary Injunction [Doc. #3]. In his Application for a Temporary Restraining Order, Plaintiff asked the Court to preserve the status quo and prevent irreparable harm from occurring to Plaintiff pending determination of Plaintiff s request for a preliminary injunction. [Doc. #2]. Plaintiff requested that Defendants be restrained and enjoined from unlawfully detaining Plaintiff and from removing Plaintiff to Morocco prior to the adjudication of his pending application for adjustment of status to Lawful Permanent Resident of the United States. Id. Plaintiff also requested that the Defendants be directed to immediately release the Plaintiff from the Franklin County House of Corrections in Greenfield, Massachusetts pending the outcome of the application for adjustment of status. Id.

         Also on September 8, 2017, the Court conducted a telephonic conference, [Doc. #10], at which the Parties consented to the terms of a Temporary Restraining Order that granted Plaintiffs application in part and with modification. Under the terms of that Consent Order, [Doc #8], Defendants were required to notify the Court upon receipt of travel documents from the Moroccan government required for the physical removal of Plaintiff from the United States. Upon receipt of this notification by the Court, a hearing would be scheduled, and Plaintiff would not be removed pending the outcome of the hearing. [Doc. #8]. The Court did not address Plaintiffs request that the Court direct Defendants to release Plaintiff, but instructed Defendants to "consider whether electronic monitoring or another alternative to Plaintiffs current detention could adequately serve Defendants' interests and [to] explain in writing the conclusions therein." Id.

         On September 15, 2017, Defendants filed notice that they had obtained travel papers and that Plaintiffs removal had been scheduled for the week of September 25, 2017. [Doc. #11]. In response to the Court's direction that Defendants consider whether electronic monitoring or another alternative to Plaintiffs current detention could adequately serve Defendants' interests, Defendants provided the Declaration of Aldean R. Beaumont, Assistant Field Director of the Hartford Office of U.S. Immigration and Customs Enforcement, who opined that "electronic monitoring is not effective at ensuring surrender for physical removal[, ]" and that no alternative to detention could adequately serve Defendants' interests in effectuating the final removal order. Id.

         In light of Defendants' receipt of travel documents and scheduled removal of Plaintiff for the week of September 25, 2017, the Court set a hearing on Plaintiffs Motion for Preliminary Injunction for September 22, 2017, with the Parties' briefing on the Motion to be submitted by September 20, 2017. [Doc. #13]. On September 19, 2017, Plaintiff filed an Amended Complaint, [Doc. #16], and an Amended Motion for Preliminary Injunction, [Doc. #17].

         II. Factual Allegations

         Plaintiff Achbani is a native and citizen of Morocco. (Am. Compl. 10). Plaintiff entered the United States on a visitor's visa on April 20, 1999, and remained in the United States after the expiration of his visitor's visa. Id. Plaintiff first came to the attention of the Immigration and Naturalization Service "sometime after September 2002, when he voluntarily reported and registered with the government pursuant to the National Security Entry-Exit Registration System (NSEERS) or INS Special Registration." Id. Plaintiff "was placed in removal proceedings in New York before the immigration court following his voluntary registration." Id. Plaintiffs removal proceedings "concluded in immigration court in New York, New York on June 14, 2005[, ]" and Plaintiff appealed the adverse decision of the immigration judge to the Board of Immigration Appeals ("BIA") and then to the Second Circuit. Id. at 10-11. Plaintiffs later motions to reopen, filed with the BIA, were denied. Id. at 11. Plaintiff and his wife, Soumia Sedki, are the parents of three young children, all of whom are U.S. citizens. Id. Ms. Sedki is a Lawful Permanent Resident of the United States. Id. The family lives together in Greenwich, Connecticut. Id.

         Ms. Sedki filed an immigration visa petition (Form 1-130, Petition for Alien Relative) on her husband's behalf. Id. The Department of Homeland Security approved this petition on April 29, 2016. Id. "Subsequent to the approval of the Form 1-130 visa petition, the Plaintiff filed an Application for Permission to Reapply For Admission into the United States After Deportation or Removal on USCIS Form 1-212." Id. Defendants "required that [Plaintiff] report to the Office of Enforcement and Removal in Hartford, Connecticut pursuant to his release on an order of supervision." Id. Plaintiff "reported to this office with perfect attendance for a period of approximately ten years." Id. Over the course of this ten-year period, Plaintiff "reported to the Office ... and was released without incident." Id. Plaintiff "made numerous attempts for over two years to obtain a valid Moroccan passport to provide to his supervision case officers at their request." Id. at 12.

         "On numerous occasions over this approximate ten year period, the Defendants were advised and updated about the Plaintiffs pending applications for an immigrant visa." Id. Plaintiff "filed approximately three applications for a one-year stay of removal" and "[i]ncluded with this application were copies of the Plaintiffs receipt notices concerning the immigrant visa applications." Id. "Also included were birth certificates and medical records of his children and verification that the Plaintiff does not have a criminal record." Id.

         On August 24, 2017, Plaintiff appeared for a "routine supervision appointment at the Office ... as he had done for approximately ten years prior." Id. Plaintiff was "detained by Defendants Palumbo, Bates and Frye and was abruptly taken into custody by these Defendants." Id. "Handcuffs were placed on him and he was removed from the Enforcement and Removal Office to a different office located in the building at 450 Main Street in Hartford, Connecticut for processing to be moved to Franklin Country, Massachusetts for indefinite detention." Id. at 12-13.

         "On this date, the Plaintiffs attorney advised Defendant Assistant Director Aldean Beaumont and Defendant Palumbo in writing that the Plaintiff had an approved I- 130 and a pending 1-212 application." Id. at 12. "Furthermore, the Plaintiffs attorney provided the Defendants with email correspondence from a section chief from the Hartford USCIS office explaining that the Plaintiff was required to have the 1-212 adjudicated by the local field office prior to filing for a provisional waiver." Id.

         According to Plaintiff, "Defendants refused to acknowledge the significance of the change in the July 29, 2016 final rule that amended 8 CFR 212.7(e)(4)(iv) and its applicability to the Form 1-212 despite the fact that their own agency had adopted this rule change." Id. at 13. "Defendant Palumbo claimed that the Form 1-212 was ...


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