United States District Court, D. Connecticut
ORDER DENYING PLAINTIFF'S AMENDED MOTION FOR
BOND ARTERTON U.S.D.J.
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:
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.
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.
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.
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].
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.
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.
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
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.
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."
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