UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS EL PASO DIVISION Emilio GUTIÉRREZ-SOTO, Petitioner, Case No. EP-18-CVv. Jefferson SESSIONS III, in his official capacity as the Attorney General of the United States; Kirstjen NIELSEN in her official capacity as Secretary of Homeland Security; Thomas HOMAN in his official capacity as the acting Director for U.S. Immigration and Customs Enforcement; William P. JOYCE in his official capacity as the acting El Paso Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY, Respondents. BRIEF IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS FOR EMILIO GUTIÉRREZ-SOTO Eduardo Beckett Attorney for Petitioner New Mexico SBN 21759 Beckett Law Firm, P.C. 8300 Montana Avenue El Paso, Texas 79925 Penny M. Venetis Pro Hac Vice Counsel for Petitioner Rutgers Law School Center for Law and Justice 123 Washington Street Newark, NJ 07102-3026 TABLE OF CONTENTS TABLE OF AUTHORITIES ...........................................................................................................i STATEMENT OF RELEVANT FACTS........................................................................................1 I. EMILIO AND OSCAR GUTIÉRREZ-SOTO ARE POLITICAL ASYLUM SEEKERS............................................................................................................................1 II. WHILE IN THE UNITED STATES, EMILIO AND OSCAR GUTIÉRREZ-SOTO HAVE DEVELOPED STRONG COMMUNITY TIES.....................................................2 III. MR. GUTIÉRREZ-SOTO HAS BEEN CRITICAL OF UNITED STATES IMMIGRATION POLICY..................................................................................................4 IV. EMILIO AND OSCAR GUTIÉRREZ-SOTO ARE SUFFERING BECAUSE OF THEIR CURRENT DETENTION...................................................................................................5 V. EMILIO AND OSCAR GUTIÉRREZ-SOTO WAS WRONGFULLY DETAINED AT HIS LAST ICE CHECK-IN.................................................................................................6 VI. MR. GUTIÉRREZ-SOTO AND HIS SON WILL BE HARMED IF THEY ARE DEPORTED TO MEXICO.........................................................................................8 VII. THE CURRENT ADMINISTRATION HAS DEMONSTRATED ANIMOSITY TOWARDS MEXICANS AND HAS SINGLED THEM OUT FOR DETENTION...................…………....................................................................................9 VIII. EMILIO AND OSCAR GUTIÉRREZ-SOTO ARE BEING TARGETED FOR DEPORTATION BECAUSE EMILIO GUTIÉRREZ-SOTO IS A JOURNALIST…………...................................................................................................11 LEGAL ARGUMENTS.................................................................................................................13 I. II. ICE’S VIOLATED MR. GUTIÉRREZ-SOTO AND HIS SON’S DUE PROCESS RIGHTS.................................................................................................13 A. WITHOUT IDENTIFYING ANY LEGITIMATE INTEREST IN REVOKING THEIR PAROLE AND DETAINING THEM, ICE HAS VIOLATED EMILIO AND OSCAR GUTIÉRREZ-SOTO’S SUBSTANTIVE DUE PROCESS RIGHTS……………….........................................................................................13 B. ICE VIOLATED EMILIO AND OSCAR’S PROCEDURAL DUE PROCESS RIGHTS.....................................................................................16 ICE VIOLATED MR. GUTIÉRREZ-SOTO AND HIS SON’S EQUAL PROTECTION RIGHTS.............................................................................................................................18 A. ICE’S POLICIES ARE MOTIVATED BY DISCRIMINATORY INTENT.................................................................................................................19 III. 1. President Trump’s Statements Are Direct Evidence of Bias.....................20 2. The Trump Administration’s Discriminatory Bias Favoring Deportation of Mexicans Is Also Supported by Circumstantial Evidence.........................22 THE UNITED STATE’S DETENTION OF OSCAR AND EMILIO GUTIÉRREZSOTO VIOLATES THE FIRST AMENDMENT.............................................................25 A. ICE VIOLATED THE RIGHT TO FREEDOM OF THE PRESS....................................................................................................................26 B. ICE VIOLATED THE RIGHT TO FREEDOM OF SPEECH.............................29 C. ICE’S DETENTION OF MR. GUTIÉRREZ-SOTO IS PRESUMPTIVELY INVALID UNDER THE FIRST AMENDMENT................................................30 IV. THE UNITED STATES GRANTS ASYLUM TO JOURNALISTS AND THOSE WHO ARE CRITICAL OF GOVERNMENT POLICIES..........................................................32 V. ICE’S ARREST AND SUBSEQUENT DETENTION OF EMILIO AND OSCAR GUTIÉRREZ-SOTO ARE CONTRARY TO INTERNATIONAL LAW........................35 V. A. THE ICCPR GUARDS AGAINST ARBITRARY DETENTION.......................38 B. THE ICCPR GUARANTEES THE RIGHT TO ENGAGE IN POLITICAL SPEECH.................................................................................................................41 C. THE UNITED STATES HARSHLY CRITICIZES OTHER GOVERNMENTS FOR TAKING ACTIONS IDENTICAL TO ICE’S.............................................42 1. The United States Harshly Criticizes Other Countries for Arbitrarily Arresting and Detaining Migrants and Asylum Seekers............................43 2. The United States Consistently Condemns Countries That Abuse Journalists..................................................................................................46 3. The United States Condemns Countries for detaining Migrants and Asylum Seekers for Engaging in Public Protest Against the Government................................................................................................48 THE ADMINISTRATIVE PROCEDURE ACT ALLOWS THIS COURT TO ORDER ICE TO RELEASE OSCAR AND EMILIO GUTIÉRREZ-SOTO..................................49 CONCLUSION..............................................................................................................................51 STATUTES INA § 101(a)(42)...........................................................................................................................33 INA § 208(b)(1).............................................................................................................................32 5 U.S.C. § 702................................................................................................................................49 5 U.S.C. § 706...............................................................................................................................50 CONSTITUTIONS U.S. Const. amend. XIV, § 1...................................................................................................17, 36 CASES Abdi v. Duke, No. 1:17-CV-0721 EAW, 2017 U.S. Dist. LEXIS 191568 (W.D.N.Y. 2017).....................................................................................................................16, 17 Alafyouny v. Chertoff, No. 3:06-CV-0204-M, 2006 U.S. Dist. LEXIS 40854 at *44 (N.D. Tex. May 19, 2006)................................................................................................................................38 Amato v. Wilentz, 753 F. Supp. 543 (D.N.J. 1990).......................................................................29 Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002).......................................29 Assoc. Builders & Contractors of Tex. Gulf Coast, Inc. v. United States Dep't of Energy, 451 F. Supp. 281, 288 (S.D. Tex. 1978)........................................................................................15 Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002)........................................................................35 Bassene v. Holder, 723 F.3d 1036, 1043 (9th Cir. 2013)..............................................................34 Baugh v. Judicial Inquiry and Review Comm’n, 907 F.2d 440 (4th Cir. 1990)............................29 Bolling v. Sharpe, 347 U.S. 497, 500 (1954).................................................................................17 Bridges v. Wixon, 326 U.S. 135, 148 (1945)..........................................................................18, 24 Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790-91 (2011)................................................29 Buckley v. Valeo, 424 U.S. 1, 93 (1976).......................................................................................17 Citizens United v. Fed. 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AG of the United States, 607 F.3d 101 (3d Cir. 2010)..................................35 Farag v. United States, 587 F. Supp. 2d 436, 467–68 (E.D.N.Y. 2008)........................................23 Fed. Commc’n Comm’n v. League of Women Voters of Cal., 468 U.S. 364, 383-384 (1984).............................................................................................................................................28 Fuller v. Gonzales, No. CIV.A. 3:04-CV-2039-SRU, 2005 WL 818614, at *3 (D. Conn. Apr. 8, 2005)..............................................................................................................................................38 Gov't of Canal Zone v. Brooks, 427 F.2d 346, 347 (5th Cir. 1970)..............................................16 Gregoire v. Centennial Sch. Dist., 907 F.2d 1366 (3d Cir. 1990), cert. denied, 498 U.S. 899 (1990).............................................................................................................................................29 Grutter v. Bollinger, 539 U.S. 306, 344 (2003).............................................................................35 Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976) ...............................................................17 Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004)........................................................................33 Hayraptenyan v. Mukasey, 534 F.3d 1330 (10th Cir. 2008).........................................................33 Hollingsworth v. Balcom, 441 F.2d 419, 421 (6th Cir. 1971).......................................................16 Hussain v. INS, No. 98-70454, 2000 U.S. App. LEXIS 25987 (9th Cir. Oct. 12, 2000)........33, 34 Immigration and Naturalization Serv. v. 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Medlock, 499 U.S. 439, 448.......................................................................................28 Maldonado v. Macias, 150 F. Supp. 3d 788, 798 (W.D. Tex. 2015).................................12, 13, 14 McGuire v. Reilly, 386 F.3d 45, 62 (1st Cir. 2004) cert. denied, 544 U.S. 974 (2005)................29 McKay v. Federspiel, No. 14-cv-10252, 2014 WL 7013574 at *10 n.12 (E.D. Mich. 2014).......29 Meza-Manay v INS, 139 F.3d 759, 765 (9th Cir. 1998)................................................................34 Morton v. Ruiz, 415 U.S. 199, 235 (1947)..............................................................................16, 17 Murray v. Schooner Charming Betsy, 6 U.S. 64, 118 (1804)........................................................34 N.Y. Times v. 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Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)...........................29 Roper v. Simmons, 545 U.S. 551, 578 (2005).........................................................................34, 35 Shaw v. Reno, 509 U.S. 630, 647 (1993)......................................................................................17 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S 105 116 iii (1991).............................................................................................................................................28 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S. Ct. 499 (1954)......................15 United States v. Koreh, 59 F.3d 431, 439 (3d Cir. 1995)..............................................................34 United States v. Sokolov, 814 F.2d 864 (2d Cir. 1987).................................................................34 United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990)....................................................34 U.S. Postal Serv. v. Greenburgh Civic Ass’n, 453 U.S. 114, 131 n.7 (1983)...............................30 Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)......18, 19, 20 Vongsakdy v. INS, 171 F.3d 1203, 1207 (9th Cir. 1999)..............................................................34 Washington v. Davis, 426 U.S. 229, 239 (1976) ....................................................................17, 18 Wong Wing v. United States, 163 U.S. 228, 238 (1896).........................................................18, 24 Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886)......................................................................21 Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 353 (2009).........................................................27 Zadvydas v. Davis, 533 U.S. 678, 693 (2001).......................................................12, 13, 17, 24, 37 LEGISLATIVE MATERIALS H.R. 3003, 115th Cong. (2017)......................................................................................................21 EXECUTIVE MATERIALS Exec. Order No. 13,767, 82 Fed. Reg. 8,793 (Jan. 30, 2017)........................................................21 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017)..................................................21, 22 U.S. Immigration and Customs Enforcement, ICE 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (2009)..........................................................15, 16 U.S. DEPARTMENTAL REPORTS U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Secretary’s Preface, (2016).....................................................41 U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Azerbaijan (2016)...................................................................46 iv U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Bahamas (2016)......................................................................47 U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, China, (2016)....................................................................43, 44 U.S. Dept. of Sate, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Ethiopia (2016)....................................................................................47 U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, France (2016)....................................................................46, 47 U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Germany, (2016).....................................................................42 U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Russia, (2016).........................................................................43 U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Spain, (2016)..........................................................................43 U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, United Kingdom, (2016)...................................................42, 43 SECONDARY SOURCES Human Rights First, Arbitrary Detention of Asylum Seekers and U.S. Commitments under the International Covenant on Civil and Political Rights, (August 2010)...........................................39 Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence, Nw. J. Int’l Hum. Rts. 1, 4 (2005)..............35, 39 David Sloss, The Domestication of International Human Rights: Non-Self Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l l. 129 (1999).......................................34 INTERNATIONAL MATERIALS A v. Australia, U.N. Human Rights Comm. Communication No. 560/1993, para. 9.5, U.N. Doc. CCPR/C/59/D/560/1993 (Apr. 30, 1997)......................................................................................37 Dudgeon v. United Kingdom, 45 Eur. Ct. H.R. (1981).................................................................35 G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).........................34 v International Convention on Civil and Political Rights art. 2, Dec. 16, 1966, S. Exec. Doc. No. E, 95-2, 999 U.N.T.S. 171..........................................................................................34, 35, 36, 38, 40 Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, 31 I.L.M. 645 (1992).....................................................................................35. 39 Torres v. Finland, Committee on Human Rights, Commc’n No. 291/1988, 45th Sess., Supp. No. 40, UN Doc. A/45/40 (1990).....................................................................................................37, 38 U.N. Human Rights Committee, General Comment No. 8, Right to Liberty and Security of Persons, U.N. Doc. HRI/GEN/1/Rev.1 (1982)..........................................................................36, 37 U.S. Reservations, Declarations, and Understandings, International Covenant on Political and Civil Rights, 138 Cong. Rec. S4781-01 (April 2, 1992).................................................................35 Van Alphen v. Netherlands, U.N. Human Rights Comm. Commc’n No. 305/1988, ¶ 5.8, U.N. Doc. CCPR/C/39/D/305/1988 (Aug. 15, 1990)..............................................................................36 OTHER Commission of Wartime Relocation and Internment of Civilians, Personal Justice Denied, 18, 49-50, 118-33 (1982).......................................................................................................................23 Smolla & Nimmer on Freedom of Speech § 3:9.............................................................................29 vi STATEMENT OF RELEVANT FACTS I. EMILIO AND OSCAR GUTIERREZ-SOTO ARE POLITICAL ASYLUM SEEKERS Emilio Gutierrez-Soto is a 54?year-old, award-winning Mexican journalist who, along with his then~minor son Oscar Guti?rrez~Soto, ?ed to the United States on June 2008 seeking political asylum. Mr. Gutierrez?Soto worked as a journalist for the newspaper El Diario del Noroeste in Ascenci?n, Chihuahua, from 1999 until he ?ed to the United States on June 2008. He seeks asylum in the United States because he received death threats from members of the Mexican Security Forces?a Mexican Military Regiment stationed in Nuevas Casas Grandes, Chihuahuam?after reporting on military abuse and corruption. (Venetis Decl. EX. 1, Nov. 20, 2017, Motion to Reopen, at 8). Emilio and Oscar Guti?rrez-Soto?s applications for political asylum are currently pending before the Board of Immigration Appeals. (Venetis Decl. Ex. 2, Nov. 20, 2017, Second Asylum Application). After ?eeing from Mexico in 2008, Mr. Gutierrez-Soto and his son applied for political asylum in the United States. Mr. Gutierrez-Soto and his son were detained separately by ICE. Oscar was paroled after two months and lived with family friends as an ?unaccompanied minor.? Emilio was paroled after seven months. (Venetis Decl. EX. 3, Mar. 2, 2018, Emilio Gutierrez- Soto Declaration). In 2009, Mr. Gutierrez-Soto and his son settled in Las Cruces, New Mexico, where they have close community ties. (Venetis Decl. EX. 4, Dec. 20, 2017, Request for Humanitarian Parole, at 8). During Oscar and Emilio Guti?rrez-Soto?s nine years in the United States, they have never violated the law, nor has he engaged in any action or behavior to warrant the detention. (Venetis Decl. Ex. 4, Dec. 20, 2017, Request for Humanitarian Parole, at 9). Mr. Gutierrez?Soto and his son have attended all scheduled immigration hearings and appointments. They have been in compliance with all Immigration and Customs Enforcement requirements and have been present at every ICE check-in, including on December 7, 2017, when they were suddenly detained. (Venetis Decl. EX. 4, Dec. 20, 2017, Request for Humanitarian Parole, at 7). II. WHILE IN THE UNITED STATES, EMILIO AND OSCAR GUTIERREZ-SOTO HAVE DEVELOPED STRONG COMMUNITY TIES While living in the United States, Emilio Gutierrez-Soto and his son Oscar have developed strong community ties in Las Cruces, New Mexico, where they have resided for nine years. (Venetis Decl. Ex. 4, Dec. 20, 2017, Request for Humanitarian Parole, at 8). Oscar and Emilio Gutierrez?Soto have also been issued multiple work permits by the US. government, and have worked lawfully in the United States for nine years. (Venetis Decl. EX. 4, Dec. 20, 2017, Request for Humanitarian Parole Tab A, at 10; Venetis Decl. Ex. 45, Emilio Guti?rrez-Soto?s Proof of Employment; Venetis Decl. Ex. 46, Oscar Guti?rrez-Soto?s Proof of Employment). Mr. Gutierrez?Soto has worked in the food industry and operates a food truck. (Venetis Decl. Ex. 4, Dec. 20, 2017, Request for Humanitarian Parole, at 7). Oscar Gutierrez-Soto attended high school in Las Cruces, New Mexico, and two years of college at Dona Ana Community College. (Venetis Decl. Ex. 5, Mar. 2, 2018, Oscar Gutierrez?Soto Declaration). He worked in his father?s food truck, at Olive Garden, and at New Mexico State University before he was detained. (Li) Emilio and Oscar Guti?rrez?Soto?s community engagement is so strong that a group calling themselves the ?Community Friends of Emilio? was formed. The group later changed its name to ?Alianza en Apoyo a Solicitantes de Asilo Polititico? (Allegiance in Support of Political Asylum Applications). Alianza has primarily been involved in educating the public on political asylum. The group includes prominent members of his community, including journalists and attorneys. (Venetis Decl. Ex. 4, Dec. 20, 2017, Request for Humanitarian Parole, at 8). In addition to his strong community ties in New Mexico, because of his journalism and the bravery he has exhibited in his reporting, Mr. Gutierrez-Soto has received support from various international journalism organizations, including: Reporters Without Borders, The National Press Club, the Society of Professional Journalists, Canadian Journalists for Free Expression, Radio Television Digital News Organization, Military Reporters and Editors, Society of American Business Editors and Writers, National Association of Hispanic Journalists, National Association of Black Journalists, National Photographers Association, PEN America, Asian American Journalists Association, Writers Guild of America, East, The Alicia Patterson Foundation, Online News Organization, American Society of News Editors, Association of Alternative Newsmedia, Committee to Protect Journalists, and Reporters Committee for Freedom of the Press. (11.) The National Press Club invited Mr. Gutierrez-Soto to accept the prestigious John Aubuchon Press Freedom AwardI on behalf of Mexico?s journalists in October 2017. (Venetis Dec. EX. 47, Mar. 5, 2018, Decl. of Bill McCarren, at 5). Less than two months later, ICE inexplicably attempted to deport him. After Mr. Gutierrez?Soto was detained, the National Press Club circulated a ?Free Emilio? Petition that gathered approximately 100,000 signatures at the writing of this brief. (Venetis Decl. EX. 6, Signatures for the National Press Club?s Free Emilio Petition). The quanti?able support for Mr. Gutierrez-Soto and his son demonstrates deep concern by the public for these law-abiding refugees? safety if they are deported. The public is 1 The National Press Club, a leading professional organization for journalists, honors two recipients the John Aubuchon Press Freedom Award, one domestic and one foreign, for demonstrating through their work the principles of press freedom and open government. (Venetis Decl. Ex. 7, Aug. 15, 2017, Business Insider article at demanding that the United States government not treat this brave journalist, who risked his life to expose corruption, like a criminal. The New York Times and have reported on Mr. Guti?rrez?Soto?s story and the signi?cant threats of Violence directed at Mexican journalists reporting on corruption and state abuse in Mexico. (Venetis Decl. Ex. 4, Dec. 20, 2017, Request for Humanitarian Parole, at 9). The Washington Post. the Houston Chronicle, and the Post have all editorialized for his release along with the student newspaper at the University of Missouri, home to one of the nation?s premier journalism schools. (Venetis Decl. Ex. 48, Dec. 1 l, 2017, Washington Post Editorial); Editorial, Plight of Mexican oumalist Is Why Trump Should Rethink Immigration Policy, Houston Chron (Dec. 26, 2017), Editorial, America Can Support Democracy by Helping Mexican Journalists, Denv. Post (Feb. 16, 2018, 2:34 PM), ://Www.denverpost.com/20 8/ 02/ 1 6/ mexican?journalists; Tatyana Monnay, Opinion, By Deporting Emilio Gutierrez Soto, the US. Would Go against the Pillars of Its Own Society. The Maneater (Feb. 23, 2018), MR. GUTIERREZ-SOTO HAS BEEN CRITICAL OF UNITED STATES IMMIGRATION POLICY Due to the long delay in the processing of their asylum cases and the United States? reluctance in providing him and his son political refuge, Emilio Gutierrez?Soto has openly expressed criticism of and disappointment with the United States? immigration system. In January 2011, Mr. Guti?rrez~Soto publicly stated, ?We are talking about an immigration judge and an immigration attorney whose job it is . . . to keep from expanding the abundance of people 4 looking for protection because of the Violence in Mexico.? (Venetis Decl. Ex. 8, Jan. 21, 2011, Associated Press article, at 1). In January 2017, Mr. Guti?rrez~Soto similarly stated, am very disappointed in the immigration authorities, especially the policies that the United States exercises.? (Venetis Decl. Ex. 9, Aug. 1, 2017, Knight Center for Journalism in the Americas article, at 1). Mr. Gutierrez?Soto has also been very critical of the United States? failure to recognize his persecution in Mexico. Mr. Gutierrez-Soto stated in January 2011: ?I?m exhausted from all of these stressful times, the pressure of knowing that they took away our homeland . . . and knowing that we don?t have a country that accepts us with its laws and regulations even after being aware that we ?ed Mexico because the Mexican state was persecuting us.? (Venetis Decl. Ex. 8, Jan. 21, 2011, Associated Press article, at 1). In expressing his disappointment with United States immigration law, Mr. Gutierrez-Soto stated in February 2011: ?We are here because we want to save our lives and it just seems so unfair because a country of freedom and human rights . . . is ignoring as.? (Venetis Decl. Ex. 10, Jan. 4, 2011, Seattle Times article, at 1). IV. EMILIO AND OSCAR ARE SUFFERING BECAUSE OF THEIR CURRENT DETENTION detention of Oscar and Emilio Gutierrez?Soto has caused them emotional, medical, and ?nancial hardships. Mr. Gutierrez-Soto and his son had to sleep on concrete floors because they were not assigned beds. Oscar in particular, spent over twenty-four hours without a bed. Emilio was not given his blood pressure medication for several days. (Venetis Decl. Ex. 3, Mar. 2, 2018, Emilio Gutierrez-Soto Declaration). On January 23 and 24, 2018, Licensed Clinical Annika Sridharan, performed two evaluations on Mr. Gutierrez?Soto while he was detained at the El Paso Processing Center. (Venetis Decl. Ex. 11, Jan. 23 24, 2018, Evaluation, at 1). Dr. Sridharan noted that throughout the evaluation, it was evident that the threats and intimidation Mr. Guti?rrez~Soto encountered from the Mexican military in association with his work as a reporter, as well as his experiences of near-deportation and immigration detention, have considerably impacted his emotional health and well-being. (Id. at 7). Based on the evaluation, Dr. Sridharan found that Mr. Gutierrez-Soto displays consistent with diagnoses of Post-traumatic Stress Disorder and Major Depressive Disorder. Mr. Gutierrez-Soto?s requests to see a doctor have been denied, and he is not receiving his medication for high blood pressure and cholesterol. (ILL) In regard to his medical hardships, Mr. Gutierrez?Soto has stated, think that this is all because of the stress that I?ve been suffering, to which we?ve been subjected, and the fear that they have imposed on us, including the immigration authorities.? (Venetis Decl. Ex. 12, Dec. 22, 2017, Democracy Now! article, at 8). Also, his home in Las Cruces, New Mexico, was broken into and his food truck, along with personal property in his home, were stolen. (Venetis Decl. Ex. 13, Dec. 18, 2017, National Press Club Article, at 2). Oscar Gutierrez-Soto has lost his income sources as well, as he has not been able to report to his jobs at the Olive Garden restaurant and the University of New Mexico. (Venetis Decl. Ex. 5, Mar. 2, 2018, Declaration of Oscar Gutierrez-Soto). V. EMILIO AND OSCAR GUTIERREZ-SOTO WERE WRONGFULLY DETAINED AT THEIR LAST ICE CHECK-IN Mr. Gutierrez?Soto and his son were scheduled to meet with ICE on December 7, 2017 for a routine check?in while the Board of Immigration Appeals considers their asylum claims. It was snowing that morning and transportation was impeded. Their immigration lawyer secured permission from ICE to ariive late to the check-in due to transportation issues and unexpected weather conditions. When Mr. Gutierrez-Soto and his son arrived, ICE informed them that they would be deported to Mexico that day. Although their immigration lawyer indicated that he was in the process of requesting an Emergency Stay of Removal from the BIA, ICE refused to wait for the response. Two, armed ICE agents then placed Mr. Gutierrez? Soto and Oscar into custody and loaded them into a vehicle and began driving toward the border to Juarez, Mexico. (Venetis Decl. Ex. 14, Dec. 16, 2017, Record of Meeting with ICE, at 14). As ICE officers were driving Mr. Gutierrez-Soto and his son towards the border, the BIA issued an Emergency Stay of Removal, in response to their-immigration lawyer?s advocacy. Instead of releasing Mr. Gutierrez?Soto and his son, ICE placed them into detention at the El Paso Detention Center on December 7, 2017. Once there, it took several hours to process Mr. Guti?rrez~Soto and his son. During this time, they had to sit on the cold cement ?oor. That evening, Mr. Gutierrez-Soto and his son were transferred to the Sierra Blanca Detention Center located ninety miles away from El Paso. Emilio and Oscar were moved from the remote Sierra Blanca facility to El Paso only after the National Press Club made an issue of the remoteness of their placement at a December 2017 press conference. (Venetis Decl. Ex. 44, Dec. 12, 2017, National Press Club article) (??Please, please do not forget us,? Gutierrez said through his attorney, who translated his pleas. ?Do not forget to publish the pain, the terrifying situation I am 999 in and the terrifying manner that journalists have to work in Mexico. see also National Press Club, NPC Conference: Emilio Gutierrez Detained, Nat?l Press Club (Dec. 11, 2017), detained (discussing Chair of National Press Club's Press Freedom Committee protesting remote detention location). When they were processed for the third time, they were required to sleep on the cold cement floor. Mr. Guti?rrez~Soto and his son were held at the Sierra Blanca Detention Center for three days and were separated from each other. During this time, neither knew whether the other had been deported. (Venetis Decl. Ex. 3, Mar. 2, 2018, Declaration of Emilio Gutierrez-Soto). While there, Mr. Gutierrez-Soto held a press conference where he criticized US. immigration policy. (Venetis Decl. Ex. 12, Dec. 22, 2017, Democracy Now! article, at 1). On December 11, 2017, Mr. Guti?rrez~Soto and his son were transferred back to the El Paso Detention Center, but were not given any information about the transfer and believed they were being deported to Mexico. (Venetis Decl. EX. 3, Mar. 2, 2018, Declaration of Emilio Gutierrez?Soto). While in detention, Mr. Gutierrez?Soto continued to critique the US. governments. In a telephone interview with Democracy Now, Mr. Gutierrez-Soto criticized the United States political asylum proceedings, the US. immigration system, and the Department of Homeland Security. (Venetis Decl. Ex. 12, Dec. 22, 2017, Democracy Now! article, at 6). Dozens of Mr. Guti?rrez~Soto?s supporters, as well as elected officials?wincluding City Council members Gabe Vasquez, Yvonne Flores, and Gill Sorg, and representatives from United States Senators Tom Udall and Martin Heinrich?s of?ces?attended the press conferences. During the press conferences, many attendees criticized ICE for Mr. Guti?rrez?Soto?s detention, as well as the Trump Administration?s immigration policies. The conferences were covered by many news outlets, including: The Associated Press, the Washington Post, Texas Tribune, the National Press Club, and the Las Cruces Sun-News. (Venetis Decl. Ex. 15, Dec. 12, 2017, Las Cruces Sun?Times article, at 3). VI. MR. AND HIS SON WILL BE HARMED IF THEY ARE DEPORTED TO MEXICO A December 2017 United Nations report stated that at least eleven journalists have been killed in Mexico that year and considers attacks on reporters ?endemic.? The report further states that ?the suffering is widespread, yet the violence has often singled out those most essential to telling the story of con?ict and insecurity, corruption, and criminality: journalists.? (V enetis Decl. Ex. 16, Dec. 4, 2017, United Nations Report, at 2). On February 2, 2018, Deputy Assistant Secretary of the United States Department of State, Scott Busby, submitted a letter to the BIA in Mr. Guti?rrez?Soto?s case describing the dangers that Mexican journalists face. Mr. Busby informed the BIA that more journalists were killed in Mexico in 2017 than in any previous year, thus making Mexico the most dangerous place in the world to be a journalist, outside of war zones. Mexican journalists were subjected to physical attacks, harassment, and intimidation due to their reporting. Perpetrators of violence against journalists continued to act with impunity. The Mexican government does not adequately investigate, arrest, or prosecute those responsible for the violence. (Venetis Decl. Ex. 17, Feb. 2, 2018, Letter from Department of State filed in Mr. Guti?rrez-Soto?s Asylum Case, at 2). VII. THE CURRENT ADMINISTRATION HAS DEMONSTRATED ANIMOSITY TOWARDS MEXICAN AND HAS SIN GLED THEM OUT FOR DETENTION. President Donald Trump has expressed anti?Mexican sentiments both during his presidential campaign and throughout his presidency. i?resident Trump has repeatedly disparaged and scapegoated Mexican immigrants, portraying them as undesirable criminals. He has singled them out for detention and deportation because of their ethnicity. A sampling of President Trump?s anti?Mexican immigrant statements includes: 0 ?When Mexico sends its people, they're not sending their best . . . . They?re sending people that have lots of problems, and they're bringing those problems with us . . . . They're bringing drugs. They?re bringing crime. They're rapists.? ?The Mexican legal system is corrupt, as is much of Mexico. Pay me the money that is owed me nowmand stop sending criminals over our border.? 0 ?The border is wide open for cartels terrorists. Secure our border now. Build a massive wall deduct the costs from Mexican foreign aid!? 0 would build a great wall??and nobody builds walls better than me, believe me? and I?ll build them very inexpensively. I will build a great, great wall on our southern border. And I will have Mexico pay for that wall.? 0 ?Mexico is not our friend. They're killing us at the border and they're killing us on jobs and trade. (Venetis Decl. Ex. 18, Aug. 31, 2016, Times article at (Venetis Decl. Ex. 19, Aug. 31, 2016, article at 1). More generally, the Trump Administration has been vocal about restricting the in?ux of immigrants, particularly from countries where residents are not Caucasian. For instance, during a January 2018 discussion regarding an immigration deal, President Trump ?demanded to know why he should accept immi grants from ?shithole countries? [referring to Haiti and some African nations], rather than from places like Norway.? (Venetis Decl. Ex. 20, Jan. 11, 2018, New York Times article at 4). Emilio and Oscar Gutierrez-Soto, as Mexicans, fall within this category. A January 2018 study published by the Hope Border Institute documents the violations of rights of asylum seekers by immigration enforcement agencies in the El Paso and Southern New Mexico region. ?By effectively nationalizing troubling policies, practices, patterns, and a culture of abuse unique to the El Paso Sector, the Trump Administration has weaponized border enforcement, immigrant detention, and the immigration courts, solidifying an iron triangle of deterrence against asylum seekers, forcing them to make the painful choice between deportation and prolonged detention.? (Venetis Decl. Ex. 21, Jan. 2018, Hope Border Institute article Discussing the Criminalization of Asylum Seekers in Trump Era, at 1). 10 EMILIO AND OSCAR ARE BEING TARGETED FOR DEPORTATION BECAUSE EMILIO GUTIERREZ-SOTO IS A OURNALIST President Trump has repeatedly also vili?ed journalists and has roused his supporters to be hostile to journalists: 0 During Presidential campaign rallies, President Trump forced journalists to sit in jail-like cages, and goaded the crowd to taunt the reporters. (gee Venetis Decl. Ex. 22, Oct. 14, 2016, New York Times article, at 1). President Trump?s supporters, numbering more than 15,000, ??ashed homemade signs, ?ipped middle ?ngers[,] and lashed out in tirades often laced with profanity as journalists made their way to a crammed, fenced-in island in the center of the ?oor.? (Q) These attacks have only escalated since President Trump?s election, ?moving from routine critiques to dedicating nearly the majority of major speeches to ridiculing what he sees as a media cabal that has declared war on him.? (Li) Consequently, journalists have feared for their personal safety. (Sine, egg Venetis Decl. EX. 23, Nov. 9, 2016, Politico article, at 2). In a press conference, President Trump, referring to reporters, stated would never kill them but I do hate them . . . . And some of them are such lying, disgusting people.? Venetis Decl. EX. 24, Oct. 13, 2017, American Civil Liberties Union article, at 3). 0 President Trump has tweeted that the media is the enemy of the American people. Venetis Decl. Ex. 25, Feb. 18, 2017, EM article, at 1). He wrote, ?We should have a contest as to which of the Networks, plus CNN and not including m, is the most dishonest, corrupt and/or distorted in its political coverage of your favorite President They are all bad. Winner to receive the FAKE NEWS In a news conference, President Trump?s staff physically ejected Jorge Ramos, television?s ?most in?uential Latino newsman,? for merely asking a question. (E Venetis Decl. EX. 26, Aug. 25, 2015, Washington Post article, at 1). Mr. Ramos is a Mexico-born Univision anchor and journalist. (m The Trump Administration has threatened respected news outlets: - President Trump has deemed any news outlet that criticizes him as being ?fake news.? (m Venetis Decl. Ex. 27, Feb. 6, 2017, Washington Post article, at 1). For example, President Trump told w?s Jim Acosta, ?You?re fake news,? while responding to Mr. Acosta?s questions. Trump used the term ?fake news? to refer to CNN and other news outlets more than 153 times from January to November 2017. The Trump Administration has barred news outlets?including CNN, the New York Times, Politico and the Los Angeles Times-?from attending certain off- 11 camera press briefings. (5.29. Venetis Decl. EX. 28, Feb. 24, 2017, Washington Post article, at 1). President Trump threatened to revoke network licenses. He challenged EC News after the network reported that President Trump wanted a major expand of the nuclear arsenal. (See Venetis Decl. EX. 29, Oct. 11, 2017, Washington article, at 1). The request reportedly prompted Secretary of State Rex Tillerson to later call Trump a ?moron.? (Q) In response, President Trump - disparaged NBC News via Twitter and threatened to strip the network of its license. (Q) During his Presidential campaign, President Trump warned that he would ?open up? libel laws to make it easier for him to sue news organizations that criticized hint. Venetis Dec]. Ex. 30, Feb. 27, 2016, PBS NewsHour article, at 2). ?We?re going to have people sue you like you never got sued before.? The Trump Administration has arrested journalists and is particularly hostile to foreign journalists: Since President Trump was elected, journalists have been arrested thirty-four times in the US. Venetis Decl. Ex. 31, Jan. 10, 2018, Columbia Journalism Review article, at 2). Twenty?nine of those arrests were at protests. (Q) These occurred in Standing Rock, where protests erupted over the Dakota Access pipeline; in St. Louis, where people took to the streets in response to a police shooting; and in Washington, DC, where there were sizable protests during Trump?s inauguration. (Q) Nine of these journalists were charged with felonies. At least one case went to trial. (Q) Fifteen journalists have had their equipment seized. In 2017, ?ve journalists were detained at the border. (Venetis Decl. Ex. 32, 2017, US. Press Freedom Tracker). A British?Iranian reporter for BBC World Service was stopped in Chicago O?Hare airport two days after President Trump signed an executive order banning entry to the US. for ninety days for individuals from seven countries, including Iran. (Q) An Iraqi CNN editor was detained at Atlanta?s Harts?eld?Jackson International Airport and subjected to secondary screening while returning from an assignment. (Q) A former acting bureau chief of the New York Times in East Africa and International Center for Journalists Fellow, who is a dual Sudanese-American citizen, was stopped at the border after arriving on a ?ight from Israel. (Q) An American senior editor for In These Times magazine was stopped by US. Customs and Border Protection while attempting to cross the U.S.-Canadian border and ordered to delete images she had taken of the border crossing. (Q) 12 As a journalist who is Mexican, Mr. Gutierrez-Soto belongs to two categories that President Trump denigrates and vili?es on a regular basis. LEGAL ARGUMENTS 1. ICE VIOLATED MR. GUTIERREZ-SOTO AND HIS DUE PROCESS RIGHTS continued detention of Emilio and Oscar Gutierrez-Soto violates their substantive and procedural rights to due process, guaranteed by the Fifth Amendment of the United States Constitution. The United States Supreme Court has made clear that even for immigrants, ?[?reedom from imprisonment?from government custody, detention, or other forms of physical restraint?lies at the heart of the liberty that [the Due Process] Clause protects.? Zadvydas v. 533 US. 678, 690 (2001). The ?Due Process Clause applies to all ?persons? within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.? Zadvydas, 533 US. at 693; see, also Maldonado v. Macias, 150 F. Supp. 3d 788, 799 (W.D. Tex. 2015) (granting babies gays relief to detained political asylum seeker on due process grounds). A. WITHOUT IDENTIFYING ANY LEGITIMATE INTEREST IN REVOKING THEIR PAROLE AND DETAINING THEM, ICE HAS VIOLATED EMILIO AND OSCAR SUBSTANTIVE DUE PROCESS RIGHTS ?Government detention violates a person's substantive due process rights unless such detention is . . . cin certain special and ?narrow? non-punitive ?circumstances,? where a special justi?cation, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint.? Rosales-Garcia v. Holland, 322 F.3d 386, 411 (6th Cir. 2003) (citing Zadvyas, 533 US. at 690). Much of the constitutional reasonableness of immigrant detention has focused on the length of the stay. See, generally Demore v. Hvung Joon Kim, 538 US. 510 (2003); Zadvydas, 533 US. 678 (2001). However, 13 the length of detention deals only with the question of who bears the presumption of reasonableness. Maldonado, 150 F. Supp. 3d at 800-1. It is the reasonable nexus between the detention and a legitimate government purpose that makes the detention of an immigrant constitutionally reasonable or unreasonable. See Zadyydas, 533 U.S. at 699 (?[The habeas court] should measure reasonableness primarily in terms of the statute's basic purpose . . . Only two permissible reasons for the civil detention of immigrants exist, namely: prevention of ?ight to ensure the appearance of aliens at future immigration proceedings; and (2) preventing danger to the community.? Kim v. Napolitano, N0. 1-CV-261-KC, 2011 U.S. Dist. LEXIS 158259, at *13 (W.D. 2011). Here, none of those conditions exist, as Mr. Gutierrez-Soto and his son are law-abiding members of society who are seeking political asylum and have complied with all of the United States govemment?s directives. In Maldonado v. Macias, the court granted a habeas corpus writ for an asylum seeker with no criminal history, who had always comported with regulations, and who asked for asylum upon entering the U.S. 150 F. Supp. 3d at 810. The court gave heavy weight to the petitioner?s law~abiding life, and found that his continued detention was constitutionally unreasonable. I_d, at 809-810. Similarly, in January 2017, the U.S. District Court for the Southern District of New York granted habeas comus relief to an immigrant facing deportation charges for past criminal activity because the petitioner complied with ICE regulations and had integrated himself into the fabric of his community for ten years. The court found that he had developed a significant liberty interest that was violated by unprompted and sudden detention: [I]f due process means anything at all, it means that we must look at the totality of circumstances and determine whether we have dealt fairly when we are depriving a person of the most essential aspects of life, liberty and family. Here, any examination of those circumstances makes clear that petitioner?s liberty interest, his interest in due process, required that we not pluck him out of his life without a moment?s notice[.] 14 Ragbir v. Sessions, No. 18-cv-236 (KBF) (S.D.N.Y. Jan. 29, 2018); (Venetis Decl. Ex. 33, Jan. 29, 2018, Opinion and Order, at 5). When Emilio and Oscar Gutierrez-Soto were released and permitted to live freely in the United States unimpeded for nine years, allowed to integrate into and to contribute to American society, they developed a signi?cant liberty interest that is protected by the Constitution. Emilio and Oscar pose absolutely no danger to the community and are not a ?ight risk. In the past nine years, they have complied with all of requirements of their parole and have never committed any crimes. (Sie Venetis Decl. EX. 4, at 7e9). Emilio and Oscar are active and dedicated members of their community in Las Cruces, New Mexico. at 8). To revoke their parole and detain them inde?nitely and without justi?cation violates Emilio and Oscar?s rights to substantive due process. The decisions discussed directly above, ?nding that sudden and prolonged detention of law-abiding immigrants who have integrated into the community are due process violations, are still valid law. They are not impacted by the recent Supreme Court decision Jennings v. Rodriguez, No. 15-1204, 2018 US. LEXIS 1516 (Feb. 27, 2018), which is distinguishable here. Jennings was a narrow holding, ?nding that the Ninth Circuit had erred in ?nding that 8 U.S.C. 1225(b), 1226(a), and 1226(0) imposed a bond hearing requirement for detained immigrants every six months?e asp Maldonado, 150 F. Supp. 3d at 809 (?This Court need not decide, and indeed is in no position to decide, whether to apply a bright line reasonableness limit of six months or whether reasonableness should be evaluated on a case?by?case The decision dealt with asylum seekers who had never been released on bond and had been detained upon 15 entering the country.2 The Supreme Court remanded Jennings to the Ninth Circuit to determine whether prolonged detention of immigrants violates the Constitution. As discussed directly above, courts throughout the country have held that that is the case. B. ICE VIOLATED EMILIO AND PROCEDURAL DUE PROCESS RIGHTS On December 8, 2009, ICE issued a procedural directive governing the detention of asylum seekers to ensure ?transparent, consistent, and considered ICE parole determinations for arriving aliens seeking asylum in the United States.? US. Immigration and Customs Enforcement, ICE 11002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (2009) [hereinafter ?2009 ICE Directive?]. The directive declared ?establis[hed] a quality assurance process? to ?ensure accountability and compliance with the procedures set forth herein.? 2009 ICE Directive. The 2009 ICE Directive guides policy regarding the discretionary release of asylum seekers whose detention is against the ?public interest.? The policy explains that after an immigrant has both established his or her credible fear and identity, if the immigrant is not a ?ight risk nor a danger to the community, the immigrant should be paroled. Q3 The United States Supreme Court requires ICE to follow its directives. Indeed, in States ex rel. Accardi V. Shaughnessv, 347 US. 260 (1954), the Supreme Court overturned a deportation order because the Immigration and Naturalization Service failed to adhere to its own procedures regarding discretionary decisions. The court found that the failure to give proper weight to the immigrant?s particular facts in its discretionary decision violated his procedural due 2 The case discusses other aliens as well. This brief discusses only the holding as it relates to asylum seekers because that part of the holding is relevant to this case. 3 Signi?cantly, the directive contains a great deal of affirmative language in directing its guidelines: ?ail proceed in accordance with the terms of this directive?; conducting parole determinations . DRO mil follow the procedures set forth in section 8 of this objective. 2009 Directive, 3, 4 (emphasis added). 16 process rights. m. at 266-68; accord Assoc. Builders Contractors of Tex. Gulf Coast, Inc. v. United States Dept of Energy, 451 F. Supp. 281, 288 (SD. Tex. 1978) purpose of the Accardi doctrine is to prevent arbitrariness inherently characteristic of an agency's violation of its own regulations?). Both the Fifth and Sixth Circuits have since noted the signi?cance of Accardi, holding that an agency?s refusal to abide by its own regulations regarding signi?cant interests violates procedural due process. "Sgt: Gov't of Canal Zone V. Brooks, 427 F.2d 346, 347 (5th Cir. 1970) (?It is a denial of due process for any government agency to fail to follow its own regulations providing for procedural safeguards to persons involved in adj udicative processes before Hollingsworth v. Balcom, 441 F.2d 419, 421 (6th Cir. 1971) rules and regulations must be followed in order to comply with the requirement of basic fairness implicit in the concept of due process of law?). The Fifth Circuit has also applied the holding explicitly to the discretionary decisions of governmental bodies. 451 F. Supp. 281, 286 (?It matters not which governmental agency or political subdivision has promulgated the procedures or regulations, or whether the regulations so established go beyond what is constitutionally required. The rules and regulations of an administrative agency are binding even when the action under review is discretionary in nature?). The US. District Court for the Western District of New York recently applied these cases to grant the habeas writs of twenty-?ve asylum seekers detained by ICE. Abdi v. Duke, No. EAW, 2017 US. Dist. LEXIS 191568 (W.D.N.Y. 2017). The court held that, ?The ICE Directive does not simply guide the discretion of immigration of?cials in making parole determinations. Rather, it sets forth speci?c procedural rights for asylum-seekers in connection with the parole at *29. The court found that the 2009 ICE Directive 17 ?remains in full force and effect,? and that it was used by ICE as evidence of adequate procedural process in lieu of providing asylum seekers with a bond hearing. at *30. The Abdj court cited the United States Supreme Court case Morton v. Ruiz as authority, noting that ?where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required. at *24 (citing Morton v. Ruiz, 415 US. 199, 235 (1974)). The court explained its reasoning further,.saying that ?the relevancy of the internal policy is to ascertain whether it pertains to individual rights. If so, under binding Supreme Court . . . precedent, that internal policy must be followed.? 2017 US. Dist. LEXIS 191568 at *30. By detaining Oscar and Emilio Gutierrez?Soto, asylum seekers who have always complied with regulations and pose no threats to society, ICE has violated its own procedures thereby violating Oscar and Emilio?s procedural due process rights. II. ICE VIOLATED MR. GUTIERREZ-SOTO AND HIS EQUAL PROTECTION RIGHTS Equal Protection guards against sweeping generalizations about categories of people based on national origin. See, Qg, Shaw v. Reno, 509 US. 630, 647 (1993) (striking down racial gerrymander because reinforces the perception that members of the same racial group . . . think alike, share the same political interests, and will prefer the same candidates at the polls?). The Equal Protection Clause provides that ?no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.? US. Const. amend. XIV, 1. The US. Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, making discrimination by the federal government subject to review under the same standards as discrimination by the states. Bolling v. Sharpe, 347 US. 497, 500 (1954), reaff?d in Washington V. Davis, 426 US. 229, 239 (1976); see also Hampton v. Mow 18 Sun Wong, 426 US. 88, 100 (1976); Buckley v. Valeo, 424 US. 1, 93 (1976). Non~citizens are protected by the equal protection component of the Due Process Clause. Sge'Zadvvdas V. Davis, 533 US. 678, 693 (2001) is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstance changes . . . Bridges v. Wixon, 326 US. 135, 161 (1945) an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders. Such rights include those protected by the First and the Fifth Amendments and by the due process clause of the Fourteenth Amendment?); Wong Wing v. United States, 163 US. 228, 238 (1896) (?It must be concluded that all persons within the territory of the United States are entitled to the protection by [the Fifth] [A]1nendrnent[] . . . ICE is discriminating against Mr. Gutierrez-Soto and his son Oscar on the basis of their Mexican origin, in clear Violation of their constitutional rights. A. POLICIES ARE MOTIVATED BY DISCRIMINATORY INTENT The United States Supreme Court has held that the Equal Protection Clause forbids the government from intentionally discriminating against individuals on the basis of their national origin. See, City of Cleburne v. Cleburne Living Ctr. Inc., 473 US. 432, 439 (1985) (stating that the Equal Protection Clause ?is essentially a direction that all persons similarly situated should be treated alike?); Washington v. Davis, 426 US. 229, 242 (1976). In order to show intentional discrimination, plaintiffs must prove that ?a discriminatory purpose has been a motivating factor? in the challenged action. Village of Arlington Heights v. Metro. Hous. Dev. Com, 429 US. 252, 265~77 (1977) (emphasis added). Plaintiffs need not prove that the ?challenged action rested solely on racially discriminatory purposes,? or even that a 19 discriminatory purpose ?was the ?dominant? or ?primary? one.? 1d, at 265 (emphasis added); gee also Pers. Adm?r of Mass. v. eenev, 442 U.S. 256, 279 (1979) (?Discriminatory purpose . . . implies that the [government] selected or reaf?rmed a particular course of action at least in part ?because of,? not merely ?in spite of,? its adverse effects upon an identi?able group?). ?Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be aVailable.? Arlington Heights, 429 U.S. at 266. In Village of Arlington Heights V. Metropolitan Housing Development Corporation, the U.S. Supreme Court explained the different ways in which discriminatory purpose can be proved through circumstantial evidence: The impact of the of?cial action whether it bears more heavily on one [suspect class] than another may provide an important starting point . . . The historical background of the decision is one evidentiary source, particularly if it reveals a series of of?cial actions taken for invidious purposes . . . Departures from the normal procedural sequence also might afford evidence that improper purposes are playing a role . . . The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decision making body, minutes of its meeting, or reports. 429 U.S. at 267468 (citations omitted) (internal quotation marks omitted) (?The foregoing summary identi?es, without purporting to be exhaustive, subjects of proper inquiry in determining whether . . . discriminatory intent Here, strong direct and circumstantial evidence ?rmly establish that the Trump Administration is impermissibly biased against Mexicans upon the President?s directive. ICE is discriminatorily targeting Mexicans like Mr. Gutierrez-Soto and his son for unlawful detention and deportation. 1. President Trump?s Statements Are Direct Evidence of Bias It is no secret that one of President Donald Trump?s top priorities is to deport Mexicans from the United States because he believes that they are ?criminals? and ?rapists.? Such racially 20 motivated deportations are unconstitutional. In International Refugee Assistance Proiect v. hump the US. Court of Appeals for the Fourth Circuit considered a constitutional challenge to the third iteration of an executive order which blocked travel to the US. from six predominantly Muslim countries. No. 17-2231, 2018 US. App. LEXIS 3513 (4th Cir. Feb. 15, 2018). The court gave great weight to evidence of ?President Trump?s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; [and] his subsequent explanation that he would effectuate this Muslim ban by targeting territories instead of Muslims 1d, at *49 (internal quotation marks omitted). The Court of Appeals reasoned that the plaintiffs did not ?just plausibly allege with particularity that the Proclamation?s purpose [was] driven by anti~Muslin1 bias, they offer[ed] undisputed evidence of such bias: the words of the President.? Id, at *48?49 (emphasis added). Similarly here, President Trump has repeatedly disparaged and scapegoated Mexican immigrants since the start of his presidential campaign, portraying them as undesirable criminals. As fully set forth p. 10, he made their expulsion from the country a central theme of his campaign and presidency, directly stating to roaring crowds and the press that: 0 ?When Mexico sends its people, they're not sending their best . . . . They?re sending people that have lots of problems, and they?re bringing those problems with us . . . . They're bringing drugs. They're bringing crime. They?re rapists.? ?The Mexican legal system is corrupt, as is much of Mexico. Pay me the money that is owed me now?and stop sending criminals over our border.? 0 ?The border is wide open for cartels terrorists. Secure our border now. Build a massive wall deduct the costs from Mexican foreign aid!? 0 would build a great wall?and nobody builds walls better than me, believe mew? and I'll build them very inexpensively. I will build a great, great wall on our southern border. And I will have Mexico pay for that wall.? 0 ?Mexico is not our friend. They're killing us at the border and they're killing us on jobs and trade. 21 (Venetis Decl. Ex. 18, Times article at (Venetis Decl. Ex. 19, CNN article at More generally, the Trump Administration has been vocal about restricting the in?ux of immigrants, particularly from countries where residents are not Caucasian. For instance, during immigration reform negotiations with Congress in January 2018, President Trump ?demanded to know why he should accept immigrants from ?shithole countries? [referring to Haiti and some African nations], rather than from places like Norway.? (See Venetis Decl. Ex. 20, New York Ms article at 4). Emilio and Oscar Gutierrez-Soto, who are brown-skinned Mexicans, clearly come from a country that President Trump considers a ?shithole.? 2. The Trump Administration?s Discriminatory Bias avoring Deportation of Mexicans Is Also Supported by Circumstantial Evidence The Trump Administration?s anti?Mexican animus is also evident from circumstantial evidence: legislative history; (ii) the direct impact of ICE practices on Mexican communities; and departures from traditional procedure by the Trump Administration. ICE is exercising its authority in a discriminatory fashion by singling out Mexicans like Mr. Gutierrez-Soto and his son for detention and deportation. "Sic Yick W0 V. Hopkins, 118 U.S. 356, 373-74 (1886) (stating that a government action which is facially neutral violates equal protection if it is applied in a discriminatory fashion). 0 President Trump has promised to cut funding to ?sanctuary jurisdictions? that provide support and protection to Mexican immigrants, such as Travis County, Texas Dallas County, Texas; Clark County, Nevada; New Mexico; and California. (See Venetis Decl. Ex. 34, Center for Immigration Studies, at 1). In June 2017, President Trump issued an Executive Order attempting to cut funding to sanctuary cities, Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017), even though a federal court issued a nationwide preliminary injunction halting its enforcement, ?e Ctv. of Santa Clara v. Trump, 250 F. Supp. 3d 497 (ND. Cal), recons. den., 267 F. Supp. 3d 1201 (ND. Cal. 2017). Republicans introduced a bill known as the "No Sanctuary for Criminals Act," which cuts federal funding for state and local governments that have sanctuary policies in place. See HR. 3003, 115th Cong. (2017). The bill was passed by the House of 22 Representatives on June 29, 2017, and the Trump Administration has voiced its ?strong support? that the ?bill [be signed] into law.? (Venetis Decl. Ex. 35, Statement of Administration Policy, at 1). On January 25, 2017, President Trump signed Executive Order 13,767, which ?direct[ed] executive departments and agencies[] to deploy all lawful means to secure the Nation?s southern border, to prevent further illegal immigration into the United States, and to repatriate illegal aliens swiftly [and] consistently.? Exec. Order No. 13,767, 82 Fed. Reg. 8,793 (Jan. 30, 2017). The order also called for the expansion of immigrant detention facilities at or near the border of Mexico, specifically authorizing the use of private contractors ?to construct, operate, or control facilities" in what is expected to be a signi?cant ramp-up of the detention system that existed previously under the Obama Administration. Idg; Venetis Decl. Ex. 36, LA Times article, at (See also Venetis Decl. Ex. 37, Newsweek article, at 2). The Trump Administration has specifically targeted the Mexican community by increasing the intensity of raids? there and arresting Mexicans. Notably, from January 22, 2017 through September 9, 2017, ICE arrested 97,482 people suspected of being in the country illegally?ma 43% increase over the same time period in 2016 under President Barack Obama. (Venetis Decl. Ex. 38, New York Magazine article, at 2). During that same span, ICE arrested 28,011 undocumented immigrants without a criminal record, a 179% increase from the same period in 2016, when the Obama Administration mainly went after those who committed serious offenses. Id, The increasing frequency of this tactic has prompted Mexico?s Ministry of Foreign Affairs to release a statement urging its citizens to ?stay informed about immigration matters and keep in touch with the extensive Mexican consular network in the while still acknowledging that ?there is little they can do to slow deportation.? (E Venetis Decl. Ex. 39, Chicago Tribune article, at 2). On January 25, 2017, President Trump signed Executive Order 13,768 as well, which promised to triple the number of ICE agents and vastly expand the definition of a ?criminal alien? targeted for deportation. Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017). The order authorized ICE to adopt a more aggressive posture than it had in the latter years of the Obama Administration. id. Consequently, ICE agents, who were previously told to only target people who were high priorities for removal, like those with criminal backgrounds, are now detaining law abiding Mexican immigrants. 3% Moreover, Mexican immigrants who had 23 previously considered themselves safe from deportation have been rounded up in raids or at ICE routine check-ins. (See, Venetis Decl. EX. 40, The Guardian article). This is the case here, as Emilio and Oscar Gutierrez?Soto have a pending asylum case and, by law, can remain in the US. while their asylum claim is adjudicated. For nine years, Emilio and Oscar had attended all scheduled immigration hearings and appointments. (Venetis Decl. EX. 4, at 7). They acted in compliance with all ICE requirements and were present at every ICE check-in. Yet, despite their compliance, Mr. Gutierrez?Soto and his son are behind bars, in ICE custody. (Venetis Decl. EX. 4, at 7). In light of increased presence in predominantly Mexican communities in the U.S., it is unsurprising that most recent ?scal report lists Mexico as the leading country of origin for removals. (Venetis Decl. EX. 41, Fiscal Year 2017 ICE Enforcement and Removal Operations Report). The Trump Administration?s targeting of Mexicans is, at minimum, ?a motivating factor? for Mr. Gutierrez-Soto and his son?s detention, if not the ?sole purpose of the challenged action.? S_ee_ Arlington Heights, 429 US. at 265-66. This discriminatory purpose is evident from President Trump?s statements, as well as legislative history, the negative impact of ICE practices on Mexican communities, and departures by the Trump Administration from traditional procedures. Consequently, invidious policies to effectuate the detention of Mexican immigrants on account of this anti?Mexican animus are subject to strict scrutiny.4 4 The vili?cation and detention of Mexican asylum seekers is similar to the US. detention of Japanese Americans and immigrants during World War II as both were considered threats to national security and faced unconstitutional detentions. Korematsu v. United States, which upheld the detention of Japanese Americans and immigrants as lawful, is now considered a "black mark on our constitutional jurisprudence." Farag v. United States, 587 F. Supp. 2d 436, 467~68 (E.D.N.Y. 2008) (discussing Korematsu v. United States. 323 US. 214 (1944)); see also Doe v. Gonzales, 500 F. Supp. 2d 379, 414 (S.D.N.Y. 2007) (characterizing Korematsu as a "far?reaching invasion[] of liberty" that caused the loss of "essential human The Commission of Wartime Relocation and lnternment of Civilians 24 actions fail strict scrutiny because the targeting of Mexican?immigrants for detention furthers no compelling government interest. Asylum seekers should not be detained, as discussed supra pp. 16?18. Accordingly, Mr. Guti?rrez~Sot0 and his son?s detentions constitute patent violations of their constitutionally protected rights to equal protection. THE UNITED STATES DETENTION OF OSCAR AND EMILIO VIOLATES THE FIRST AMENDMENT The First Amendment prevents the United States from ?abridging the freedom of speech [and] the freedom of the press.? US. Const. amend. I. The United States Supreme Court has held that the First Amendment applies to non-citizens in the United States. Bridges v. Wixon, 326 US. 135, 148 (1945) (?Freedom of speech and of press is accorded aliens residing in this country?); see also Citizens United v. Fed. Election Comm?n, 558 US. 310, 340?41 (2010) Government may commit a constitutional wrong when by law it identi?es certain preferred speakers . . . . The First Amendment protects speech and speaker, and the ideas that flow from each?); Zadvvdas V. Davis, 533 US. 678, 693 (2001) (?It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But once an alien enters the country, the legal circumstance Wong Wing v. United States, 163 US. 228, 238 (1896) must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by those Mr. Gutierrez?Soto?s application for political asylum is currently pending before the Board of Immigration Appeals pursuant to a Motion to Reopen. (Venetis Decl. EX. 4). Thus, he criticized the courts for upholding the detention policies and found that excluded individuals suffered major economic losses, as well as intangible harms of deprivation of liberty, unjusti?ed stigma, pain, and weakened familial ties. See CWRIC, Personal Justice Denied, 18, 49?50, 118?33 (1982). The government's actions during WWII mirror the policies pursued by the Trump Administration today against Mexicans like Oscar and Emilio Gutierrez?Soto, who have suffered great humiliation and economic loss from their detention. 25 is protected under an automatic stay of removal. (13L) Mr. Gutierrez-Soto has been living openly and working with the full approval of the federal government and entitled to full protection of the Constitution, including the First Amendment. A. ICE VIOLATED THE RIGHT TO FREEDOM OF THE PRESS The First Amendment?s Free Press Clause protects the right of individuals to express themselves through publication and dissemination of information, ideas, and opinions without interference, constraint, or prosecution by the government. The constitutional guaranties of freedom of speech and press are not for the bene?t of the press so much as for the bene?t of all the people. First National Bank of Boston v. Bellotti, 435 US. 765 (1978) (rejecting the ?suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by" non?institutional-press businesses); Branzburg v. Haves, 408 US. 665, 704 (1972) (?Freedom of the press is a fundamental personal right?) (quotation marks omitted). The ?broadly defined freedom of the press assures the maintenance of the American political system and an open society.? Time Inc. 13m, 385 US. 374 (1967). ?It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the government itself or by a private licensee.? Red Lion Broadcasting Co. Federal Communications Com., 395 US. 367 (1969). Mr. Gutierrez?Soto is being targeted for deportation because he is a journalist. President Trump has repeatedly vili?ed journalists and well-respected news outlets, as discussed saga pp. 1143. On reporters, he stated: would never kill them but I do hate them . . . . And some of them are such lying, disgusting people.? 0 President Trump has tweeted that the media is the enemy of the American people. 26 He has deemed any news outlet that criticizes him as being ?fake news.? During a Presidential campaign rally, President Trump forced journalists to sit in jail-like cages, and goaded the crowd of more than 15,000 to taunt the reporters. His supporters ?ashed homemade signs, ?ipped middle ?ngers, and lashed out in tirades as journalists made their way to the pen. In a news conference, President Trump singled-out and ejected Jorge Ramos, a Mexican?American and television?s most in?uential Latino newsman, when Mr. Ramos attempted to ask a question about immigration. The Trump Administration has barred news outlets?including CNN, the New York Times, Politico and the Los Angeles Times?from attending certain off- camera press brie?ngs. He threatened to revoke network licenses because the networks were critical of his policies. President Trump warned during his Presidential campaign that he would ?open up? libel laws to make it easier for him to sue news organizations. Since President Trump was elected, journalists have been arrested thirty-four times in the U.S., the majority of which were at protests. Some were charged with felonies, and many have had their equipment seized. In 2017, ?ve journalists were detained at the US. border. Further evidence that actions toward Emilio and Oscar Gutierrez-Soto are efforts to silence them, in violation of their First Amendment rights, is that an immigration of?cer told Bill McCarren of the National Press Club that Emilio and Oscar's supporters should ?tone it down," and not publicize the Gutierrez-Soto?s detention. These comments were made in front of US. Congressman Beto O?Rourke, D?Texas. (Venetis Dec. Ex. 47, Mar. 5, 2018, Decl. of Bill McCarren, at 5). Mr. Gutierrez-Soto worked as a Mexican journalist who wrote about governmental corruption for the newspaper El Diario del Noroeste in Ascenci?n, Chihuahua for nine years, and had no option but to ?ee Mexico after receiving death threats from members of the Mexican 27 Security Forces for his work. He is an award-winning journalist, and has received support from prestigious international journalism organizations, including: Reporters Without Borders, The National Press Club, the Society of Professional Journalists, Canadian Journalists for Free Expression, Radio Television Digital News Organization, Military Reporters and Editors, Society of American Business Editors and Writers, National Press Foundation, National Association of Hispanic Journalists, National Association of Black Journalists, National Photographers Association, PEN America, Asian American Journalists Association, Writers Guild of America, East, The Alicia Patterson Foundation, Online News Organization, American Society of News Editors, Association of Alternative Newsrnedia, Committee to Protect Journalists, and Reporters Committee for Freedom of the Press. ICE took Emilio into custody within weeks of his appearance at the National Press Club, where Emilio Gutierrez-Soto accused US. immigration authorities of ?bartering away international law? when it comes to asylum seekers. Sme_e National Press Club, E_mijig Gutierrez Accepts John Aubuchon Award at 2017 NPC Fourth Estate Award Ceremony, Nat?l Press Club (Oct. 4, 2017), The National Press Club, which awarded Emilio with a prestigious award just two months before his jailing, circulated a ?Free Emilio? Petition that has gathered approximately 100,000 signatures at the writing of this brief. His detention has been condemned by the Washington Post, the Houston Chronicle, the Denver Post, and the student newspaper for the University of Missouri, home to one of the nation?s premier journalism schools. Mr. Gutierrez-Soto is being detained for being a Mexican reporter, a member of two groups that the Trump Administration openly vili?es, in violation of the Freedom of the Press clause of the First Amendment. See New York Times Co. v. United States, 403 US. 713, 717, 28 (1971) (?The press was to serve the governed, not the governors. . . . Only a free and unrestrained press can effectively expose deception in government. B. ICE VIOLATED THE RIGHT TO FREEDOM OF SPEECH The First Amendment ?protects the right to be free from government abridgment of speech.? Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 358 (2009). The First Amendment to the Constitution protects pure speech, even vehement, scathing and offensive criticism of others. United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985) (holding that speech is "protected unless both the intent of the speaker and the tendency of his words [is] to produce or incite an imminent lawless act, one likely to Even speech which one knows may advocate breaking of the law or might cause others to act does not remove that speech from the protection of the First Amendment. Brandenburg, 395 U.S. at 447; see also Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245 (2002) ("The prospect of crime . . . by itself does not justify laws suppressing protected speech. This protection exists because of the ?profound national commitment? re?ected by the First Amendment that ?debate on public issues [be] uninhibited, robust, and wide?open.? New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); see als_o Associated Press v. United States, 326 U.S. 1, 20 (1945) (holding that the First Amendment is designed to permit ?the widest possible dissemination of information from diverse and antagonistic sources?). ICE detained Mr. Gutierrez-Soto because he criticized United States immigration policy?ICE used detention as a form of speech regulation. Mr. Gutierrez-Soto has developed strong community ties in Las Cruces, New Mexico, where he has resided for nine years. (See Venetis Decl. EX. 4, Request for Humanitarian Parole at 8). Mr. Gutierrez-Soto has complied with every requirement imposed by ICE and has never violated the law while living in America. 29 (E at 7). On December 7, 2017, Mr. Gutierrez-Soto acted the same as he did during all his previous check-ins with ICE. (Venetis Decl. Ex. 14, Dec. 16, 2017, Record of Meeting, at He has done nothing illegal. A11 Mr. Gutierrez-Soto has done is exercise his rights. He openly criticized the United States immigration system with respect to the long delay in his case for political asylum. (V enetis Decl. Ex. 12, Dec. 22, 2017, Democracy Now! article, at 6). Mr. Gutierrez-Soto has also expressed disappointment in the United States for appearing unwilling to grant his request for political asylum in the United States, even though the United States has been made aware that Mexico has become the second most dangerous place for journalists. Mr. Gutierrez-Soto is among many who have openly criticized the United States? policy on immigration. (Venetis Dec]. Ex. 15, Dec. 12, 2017, Las Cruces Sun-Times article, at 3). The speech advanced by Mr. Gutierrez?Soto demonstrates the need for a ?profound national commitment? to ?uninhibited, robust, and wide-open? debate concerning immigration reform. N.Y. Times V. Sullivan, 376 US. 254, 270 (1964). Accordingly, Mr. Guti?rrez~Soto?s sudden and inexplicable detention can only be explained by the government?s disagreement with his public views on immigration reform. C. DETENTION 0F OSCAR AND EMILIO GUTIERREZ-SOTO IS PRESUMPTIVELY INVALID UNDER THE FIRST AMENDMENT Content discrimination ?raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.? Simon Schuster. Inc. V. Members of NY. State Crime Victims Bd., 502 US. 105, 116 (1991); see also Leathers V. Medlock, 499 US. 43 9, 448 (1991); Fed. Commc?n Comm?n V. League of Women Voters of Cal., 468 US. 364, 383-384 (1984); Consol. Edison Co. V. Pub. SerV. Comm?n N.Y., 447 US. 530, 536 (1980); Police Dept. of Chi. V. Mosley, 408 US. 92, 9598 (1972). Viewpoint discrimination is a subset of content 30 discrimination; all viewpoint discrimination is first content discrimination, but not all content discrimination is vieWpoint discrimination. See. Cornelius v. NAACP Legal Def. Educ. Fund Inc., 473 U.S. 788 (1985); Perry Educ. Ass?n V. Perry Local Educators? Ass?n, 460 U.S. 37 (1983); Baugh V. Judicial Inquiry and Review Comm?n, 907 F.2d 440 (4th Cir. 1990); Gregoire V. Centennial Sch. Dist, 907 F.2d 1366 (3d Cir. 1990), cert. denied, 498 U.S. 899 (1990); v. Wilentz, 753 F. Supp. 543 (D.N.J. 1990); McKay V. Federspiel, No. l4?cv-10252, 2014 WL 7013574, at *10 n.12 (ED. Mich. 2014) (citing Smolla Nimmer on Freedom of Speech 3:9) (?Viewpoint discrimination is a subset of content discrimination . . . . A viewpoint-based law goes beyond mere content-based discrimination and regulates speech based upon agreement or disagreement with the particular position the speaker wishes to express?). ?The bedrock principle of viewpoint neutrality demands that the [government] not suppress speech where the real rationale for the restriction is disagreement with the underlying ideology or perspective that the speech expresses.? Ridlev v. Mass. Bay Transo. Authority, 390 F.3d 65, 82 (lst Cir. 2004) (citing Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)); accord McGuire V. Reilly, 386 F.3d 45, 62 (lst Cir. 2004) cert. denied, 544 U.S. 974 (2005) (?The essence of a Viewpoint discrimination claim is that the government has preferred the message of one speaker over also Brown v. Entm?t Merchants @111, 564 U.S. 786, 790-91 (2011) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002)) (?The most basic of those principles is this: a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content?). detention of Mr. Gutierrez?Soto constitutesimpermissible viewpoint discrimination and is an attempt to silence journalists and pro-immigrant speech; therefore, 31 conduct is presumptively invalid, and detention of Mr. Gutierrez-Soto a patent violation of both the Free Speech and Freedom of Press Clauses under the First Amendment. Lambis Chapel V. Center Moriches Union Free Sch. Dist, 508 U.S. 384, 394 (1993) (quoting City Council of LA. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)) (?The principle that has emerged from our cases ?is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of Perry Educ, 460 U.S. 37, 46 (1983) (citing U.S. Postal Serv. v. Greenburgh Civic Ass?n, 453 U.S. 114, 131 11.7 (1983)) State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker?s View?). IV. THE UNITED STATES GRANTS ASYLUM TO OURNALISTS AND THOSE WHO ARE CRITICAL OF GOVERNMENT POLICIES Since the enactment of Immigration and Nationality Act of 1965 the United States has offered asylum to refugees who can prove that they face imminent danger for exercising their freedom of speech by expressing political beliefs. INA In process standardized by the Refugee Act of 1980, the INA provides that the Secretary of Homeland Security or the Attorney General may grant asylum to any person who is outside any country of such person?s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, political opinion. INA 208(b)(1); INA 101(a)(42) (emphasis added). As such, from 2014 to 2016, the United States has granted asylum to over 11,000 individuals who meet the statutory. Nadwa 32 Mossaad and Ryan Baugh, Of?ce of Immigration Statistics, Refugees and Asylees: 2016, 9 (2018). The US. has a rich history of providing asylum protections to journalists like Mr. Gutierrez?Soto. It is thus antithetical to US. policy for the US. to target and deport Mr. Gutierrez-Soto because he is a journalist. See, Havraptenyan V. Mukasev, 534 F.3d 1330 (10th Cir. 2008); Hasan v. Ashcroft, 380 F.3d 1114 (9th Cir. 2004); Hussain v. INS, No. 98? 70454, 2000 US. App. LEXIS 25987 (9th Cir. Oct. 12, 2000). In Hayraptenyan, the Tenth Circuit overturned the decision and found that the petitioner proved prior persecution by demonstrating that she faced retaliation after publishing reports critical of the Armenian government. 5 34 F.3d at 1333. The petitioner, a reporter for a local newspaper, suffered assault from police of?cers and received many threats to her family over the phone. 1531. at 1333-34. Her husband was attacked and required hospitalization, and her daughter was almost abducted. I_d. Similarly, in Hagan, petitioner, a news reporter in Bangladesh, suffered threats and assault after being critical of a local government chairman. 380 F.3d at 1117. After she wrote a second article bringing attention to the chairman?s corruption, her apartment was burned down, and posters depicting her likeness along with calls to have her punished and arrested were posted throughout the area. m. at 1118. Remanding the case to the BIA, the Ninth Circuit held that the reporter?s articles were "a political statement" and that the retaliation she faced was persecution because it stemmed from her reporting on government corruption. 191,. at 1123. In mm, the Ninth Circuit remanded another denial of asylum sought by an Indian newspaper editor. Hussain V. INS, No. 98?70454, 2000 US. App. LEXIS 25987 at (9th Cir. Oct. 12, 2000). After his paper ran stories about a leader of the political party known as the 33 Mohajir Quami Movment, an opposing party, the Punjabi Pakhpoon Intihad attacked his of?ce, held him by his hair, stuck him, and threatened to kill him. L1. The Ninth Circuit stated that "Journalism is work that overtly manifests a political opinion. I_d. at *6 (citing United States v. Ko_reh, 59 F.3d 431, 439 (3d Cir. 1995); United States v. Sokolov, 814 F.2d 864 (2d Cir. 1987)). Applying this principle, the court reversed the BIA's prior decision. E. at Additionally, the importance of freedom of expression and First Amendment principles are re?ected in the United States steadfast commitment to provide safe haven to individuals escaping the threat of persecution in their home countries for expressing democratic ideas and criticizing their government's policies. While there are no statistics showing how many individuals have been granted asylum based on political speech, the sampling of cases listed below demonstrate that our federal courts have sanctioned granting asylum protection to those facing persecution based on expressing political opinions. See, cg. Meza?Manay INS, 139 F.3d 759, 765 (9th Cir. 1998) (reversing BIA opinion and granting review of asylum petition for espousing political beliefs); Vongsakdv v. INS, 171 F.3d 1203, 1207 (9th Cir. 1999) (granting review in case where BIA failed to give appropriate weight to petitioner?s past persecution for expression of strong support for democracy); Bassene v. Holder, 723 F.3d 1036, 1043 (9th Cir. 2013) (vacating denial of asylum eligibility, ?nding that BIA failed to evaluate petitioner's fear of persecution on account of political beliefs). For example, in Osorio INS the Second Circuit ruled in favor of a persecuted union leader from Guatemala. 18 F.3d 1017 (2d Cir. 1994). Osorio was a member and eventual leader of Sindicato Central de Trabaj adores Municipal an independent labor union. Id. at 1023. Throughout his tenure, the union faced violent opposition from the municipal government; over the course of 1986, SCTM members were beaten, kidnapped, and killed, and 34 one member's three-year-old son was shot and paralyzed from the waist down. m. In November 1986, Osorio led a strike of SCTM members because the "rights of the workers were being trampled upon." E. at 1023. In the following years, Osorio received personal threats warning him to stop his "outspokenness" or he would face serious consequences, and in 1989 he eventually ?ed to the United States seeking asylum protections. E. at 1024. Although his initial petition and his appeal to the BIA were denied, the Second Circuit reversed, holding that Osorio was eligible. for asylum because "his life or freedom would be threatened in Guatemala on account of his political opinion." E. at 1033. Espinoza?Cortez v. AG of the United States, demonstrates the United States? continued role in providing a safe haven for those facing threats of violence due expressed political beliefs. 607 F.3d 101 (3d Cir. 2010). Espinoza?Cortez, an active supporter of Colombia?s Liberal Party, faced death threats and harassment from the Fuerzas Armadas Revolucionarias de Colombia due to his political beliefs and af?liation with the party. Id. at 10304. FARC warned that ?Espinosa?Cortez?s wife and daughter would be killed," two members directly approached his daughter, forcing her to tell him that they were ?not playing". Li at 104-05. Eventually, the threats forced the family to ?ee to the United States for their safety. Id. at 105. Initially, Espinoza?Cortez?s requests for asylum protections were rejected by the however, the Third Circuit remanded the decision, stating that if Espinoza-Cortez and his family were forced to return to Colombia, they could face further persecution frorn FARC simply for the expression of their political beliefs. Id, at 111. V. ARREST AND SUBSEQUENT DETENTION OF EMILIO AND OSCAR ARE CONTRARY TO INTERNATIONAL LAW United States laws should be compatible with, and not violate, international law. Murray v. Schooner Charming Betsy, 6 US. 64, 118 (1804); United States V. Thomas, 893 F.2d 35 1066, 1069 (9th Cir. 1990) (stating that courts adhere to the Charming Betsy principle ?out of respect for other nations?). Courts have used the Charming Betsy canon on several occasions to interpret Congressional intent. See, e. Immigration and Naturalization Serv. v. Cardoza- m, 480 US. 421, 436 (1987). Emilio and Oscar Guti?rrez?Soto?s recent arrest and detention by ICE of?cers violates provisions of international law that the United States is obligated to follow. The protection of human rights has been a cornerstone of the international community since the creation of the United Nations in 1945. One of the earliest resolutions on human rights passed by the United Nations General Assembly was the United Nations Declaration on Human Rights, which the United States spearheaded. GA. Res. 217 A, Universal Declaration of Human Rights (Dec. 10, 1948) [hereinafter Subsequently, the international community drafted and ratified the International Covenant on Civil and Political Rights a treaty that the US. rati?ed in 1992. International Convention on Civil and Political Rights art. 2, Dec. 16, 1966, S. Exec. Doc. No. B, 95-2, 999 U.N.T.S. 171 [hereinafter Although the ICCPR does not create a private right of action, it can be enforced through the common law or federal and state constitutions. David Sloss, The Domestication of International Human Rights: Non-Self Executing Declarations and Human Rights Treaties, 24 Yale J. Int?l l. 129 (1999). Indeed, the United States Supreme Court has considered international law and norms when deciding important constitutional issues. See, e. Roper v. Simmons, 545 US. 551, 578 (2005) (Recognizing the overwhelming weight of international opinion opposing the juvenile death penalty and referring to international law in interpreting constitutional law); Lawrence v. Texas, 539 US. 558 (2003) (invoking the European Court of Human Rights? opinion in Dudgeon v. United Kingdom, 45 Eur. Ct. HR. (1981)); Grutter v. Bollinger, 539 US. 36 306, 344 (2003) (Ginsburg and Breyer, ., concurring) (citing the International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106, Annex, UN GAOR, 20th - Sess., Supp. No. 21, UN Doe. (Dec. 21, 1965), and the Convention on the Elimination of All Forms of Discrimination Against Women, GA. Res. 34/180, UN GAOR, 34th Sess., Supp. No. 46, UN Doc (Sept. 3, 1981)); Atkins v. Virginia, 536 US. 304, 316 n.21 (2002) (noting that the practice of implementing the death penalty in cases involving mentally challenged individuals was ?overwhelmingly disapproved" within the world community.) Moreover, the Senate Committee on Foreign Relations declared during their hearing on the ICCPR that a non-self?executing declaration was added because was the case with the Torture Convention, existing US. law generally complies with the Covenant.? U.S. Reservations, Declarations, and Understandings, International Covenant on Political and Civil Rights, 138 Cong. Rec. (April 2, 1992) [hereinafter RUDs on the Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, 31 I.L.M. 645 (1992). Thus, it would be appropriate here to give consideration and weight to the ICCPR as it reinforces Mr. Guti?rrez?Soto?s freedom of expression, liberty rights, and due process rights guaranteed by the United States Constitution. The ICCPR is one of three covenants that were closely modeled after the United States Constitution. Kristina Ash, U.S. Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global In?uence, NW. J. Int?l Hum. Rts. 1, 4 (2005). Similar to the First Amendment of the Constitution, Article 19 of the ICCPR guarantees freedom of expression and speech, ICCPR, sum, art. 1 9, stating that ?Everyone shall have the right to hold opinions Without interference.? ICCPR, m, art. 19. Similar to the Fourteenth Amendment of the United States Constitution?s ban on the deprivation of ?life, liberty, and 37 property without due process of law,? US. Const. amend. XIV, Article 9 of the ICCPR guarantees everyone ?the right to liberty and security of person . . and mandates that no individual ?shall be subjected to arbitrary arrest or detention . . . [or] be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.? ICCPR, M, art. The language of the Declaration makes it clear that member states to the United Nations are obligated to protect the rights of both citizens and non?citizens. arrest and subsequent detention of Mr. Gutierrez-Soto on December 7, 2017 is a direct violation of the prohibition on arbitrary detention and freedom of expression. A. THE ICCPR GUARDS AGAINST ARBITRARY DETENTION The United Nations Committee on Human Rights stresses that requirements of individuals to remain in custody pursuant to a lawful arrest must be both reasonable and lawful in all circumstances. Van Alphen v. Netherlands, UN. Human Rights Comm. Commc?n No. 305/1988, 11 5.8, U.N. Doc. (Aug. 15, 1990) (emphasis added). lfa migrant or asylum seeker is detained, the ICCPR requires the State Party to provide a prompt and ef?cient review of the necessity of the detention. Article 9(4) of the ICCPR states that who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.? ICCPR, gm, art. 9(4) (emphasis added); s,e_e also UN. Human Rights Committee, General Comment No. 8, Right to Liberty and Security of Persons, UN. Doc. lfRev.1 (1982) important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention?). The United Nations Committee on Human Rights explained that this provision requires State Parties to conduct an 38 independent and objective inquiry into the necessity of the detention and allow the reviewing court to release the asylum seeker from detention if it is deemed unlawful. 5g: Torres v. Finland, Committee on Human Rights, Commc?n No. 291/1988, 45th Sess., Supp. No. 40, UN Doc. (1990) (?Article 9, paragraph 4, which envisages that the legality of detention will be determined by a court so as to ensure a higher degree of objectivity and independence in such control?); see, A v. Australia, UN. Human Rights Comm. Communication No. 560/ 1993, para. 9.5, U.N. Doc. (Apr. 30, 1997) (stating ?what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely Indeed, the Inter-American Commission on Human Rights recently released a statement urging that the United States reconsider its detention of migrants and human rights leaders, stating, in accordance with international law, and with the norms and standards of the Inter-American system, any process that may result in the expulsion or deportation of a foreigner must be individual in nature, in order to evaluate the personal circumstances of each individual, including, at minimum, identifying the person and clarifying the particular circumstances of his or her immigration status. Likewise, this proceeding must not discriminate on the basis of nationality, color, race, sex, language, religion, political opinion, social origin or other status, and must observe the minimum guarantees of due process. (Venetis Decl. Ex. 42, Feb. 16, 2018, Press Release Published by the Inter?American Commission on Human Rights) (emphasis added). This is consistent with United States domestic law which recognizes that all individuals, regardless of citizenship status, are entitled to protections under the Due Process Clause of the United States Constitution. ?See Zadyydas v. Davis, 533 US. 678, 693 (2001). Therefore, a statutory limitation ?must bear at least some relation to a legitimate governmental purpose (to meet substantive due process limitations), and the application of that abrogation in a particular case must be subject to adequate procedural protection (to meet procedural due process limitations). Alafvounv v. Chertoff, No. 39 0204-M, 2006 U.S. Dist. LEXIS 40854, at *44 (ND. Tex. May 19, 2006) (gi?ng M9131, Gonzales, No. CIVA. 2005 WL 818614, at *3 (D. Conn. Apr. 8, 2005)). Emilio and Oscar Gutierrez-Soto have not been provided an independent and objective inquiry related to their sudden detention, in violation of international law. The United Nations High Commissioner for Refugees found in Torres v. Finland that Finland?s Of?ce of the Interior?s detention of a migrant author on three separate occasions for period of 6-7 days at a time was ineongruent with Article 9, section 4 of the ICCPR. Torres v. Finland, Committee on Human Rights, Commc?n No. 291/1 98 8, 45th Sess., Supp. No. 40, UN Doc. (1990). Responding to the argument that there was at least some form of process available to the migrant author, the UNHCR explained, ?while the author was detained under orders of the police, he could not have the lawfulness of his detention reviewed by a court. Review before a court of law was possible only when, after several days, the detention was con?rmed by order of the Minister.? 1d, at 1] 7.2. If a detention period of several days in Torr?es was insuf?cient under the ICCPR, then forcefully arresting and detaining Emilio and Oscar Gutierrez-Soto for a period of three months is also a direct Violation of the ICCPR. Emilio and Oscar Guti?rrez-Soto?s detention is not necessary. Their asylum case is still pending. Neither is a ?ight risk, or an immediate threat to the national security of the United States. They were both granted a stay of removal nine years ago and have lived peacefully in the United States. They have no criminal record, and are at risk of death if returned to the Mexican Government. The facts indicate that the December 7th detention was not reasonable and lawful. The detentions of Emilio and Oscar Gutierrez-Soto are thus arbitrary under international law and violate the ICCPR. gee generally Human Rights First, 40 Arbitrary Detention of Asylum Seekers and U.S. Commitments under the International Covenant on Civil and Political Rights, (August 2010). B. THE ICCPR GUARANTEES THE RIGHT TO ENGAGE IN POLITICAL SPEECH When the ICCPR was debated, one of Congress? major concerns was its seeming restrictions and limitations on free expression and speech. US. RUDs on the 31 see also Ash, supra. The Senate Committee on Foreign Relations made it clear that it wanted the broadest speech protections available.5 The Senate?s advice and consent is subject to the following declarations . . . (2) That it is the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant . . . [f]or the United States, Article 5, paragraph 2, which provides that fundamental human rights existing in any State Party may not be diminished on the pretext that the Covenant recognizes them to a lesser extent, has particular relevance to Article 19, paragraph 3, which would permit certain restrictions on the freedom of expression. The United States declares that it will continue to adhere to the requirements and constraints of its Constitution in respect to all such restrictions and limitations. U.S. RUDs on the ICCPR. It is evident from this language that the United States holds ?eedom of expression in the highest regard, and that any treaty limitations on speech in the ICCPR were to be ignored and interpreted more broadly in keeping with the United States Constitution. Like the First Amendment, the ICCPR recognizes that people should be free to engage in criticism of the government, political advocacy, and advocacy of ideas, whether popular or unpopular, without the fear of retaliation. Article II, Section 1 of the ICCPR makes clear that ?Each State Party to the Present Covenant undertakes to respect and to ensure to all individuals 5 The Senate Committee concluded that Article 20 of the ICCPR directly con?icted with the First Amendment because it required the prohibition of certain forms of speech and expression which are protected under United States constitutional law. 31 I.L.M. 645 (1992). In response, the United States Senate submitted a reservation broadening the right to freedom of speech and expression to comport with the First Amendment of the United States Constitution. Li 41 within its territory and subject to its jurisdiction the rights recognized in the present Covenant, Without distinction of any kind, such as . . . political or other opinion, national or social origin, property, birth or other status.? ICCPR, ?lm, art. 2. This means that the ICCPR protects both United States citizens and non~citizens who are in the US, like Mr. Gutierrez-Soto. The ICCPR also recognizes, as does the United States Constitution, that ?[a]ll persons [are] equal before the law? and entitled to equal protection of the laws. ICCPR, supra, art. 26. Article 26 goes further to declare that ?the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.? Id (emphasis added). It is clear from the language of the Covenant and Congressional intent that the United States recognizes its obligation to treat all individuals under equal protection of the laws and not discriminate on basis of political opinion. C. THE UNITED STATES CRITICIZES OTHER GOVERNMENTS FOR TAKING ACTIONS IDENTICAL TO THOSE TAKEN AGAINST EMILIO AND OSCAR For the past forty?two years, the US. Department of State has been compiling and publishing annual ?Country Reports on Human Rights Practices? for all United Nation member states, as well as for countries receiving aid from the UN. The United States condemned other countries of similar abuses to migrants and asylum seekers in 2016. Secretary of State Rex Tillerson states in the preface that The Human Rights Reports are used by the US. Legislative, Executive, and Judicial Branches as a resource for shaping policy and guiding decisions . . . [t]he Department of State hopes these reports will help other governments, civil society leaders, activists, and individuals re?ect on the situation of human rights in their respective countries and work to promote accountability for violations and abuses. 42 US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Secretary?s Preface, (2016) [hereinafter ?Preface to Reports on Human Rights?]. It is clear from Secretary Tillerson?s Preface that these reports are intended to condemn human rights abuses, shape policy in order to remedy them and determine allocation of foreign aid. Human Rights Reports document the human rights abuses of nearly 200 countries across the world. The types of abuses frequently covered in these Reports include: the arbitrary arrest and detention of people engaged in legitimate peace?il protest in critique of their government; the existence of people imprisoned, detained or removed from the country for their political beliefs; and the improper and irregular detainment and deportation of immigrants. The US. Government, in compiling these reports, annually reiterates its commitment to the furtherance of human rights, both domestically and abroad. This is demonstrated by the Preface to the 2016 Human Rights Reports, in which the Trump Administration?s Secretary of State Rex Tillerson claims, ?Our values are our interests when it comes to human rights. The production of these reports underscores our commitment to freedom, democracy, and the human rights guaranteed to all individuals around the world.? Tillerson, Preface to Reports on Human Rights, $1152}. By detaining Mr. Gutierrez-Soto, the US. is contravening the very principles it claims to uphold and which it condemns other countries for violating. 1. The United States Criticizes Other Countries for Arbitrarily Arresting and Detaining Migrants and Asylum Seekers The United States has criticized other countries? arbitrary detention and unfair treatment of asylum seekers and migrants in its 2016 Country Reports on Human Rights Practices. In the 2016 report on Germany, the Department of State found that there were numerous human rights issues. US. Dept. of State, Bureau of Democracy, Human Rights and 43 Labor, Country Reports on Human Rights Practices for 2016, Germany (2016). The report stated, ?[a]uthorities in various states continued the practice of detaining rejected asylum seekers awaiting deportation, sometimes for protracted periods.? Li. The report emphasized the 2014 ruling of the Federal Court of Justice which held that EU Authorities ?may detain asylum seekers, refugees, and migrants awaiting deportation to a country within the EU under Dublin procedures only if there was evidence they might abscond,? and criticized the German government for failing to follow the guidelines. 1d (emphasis added) ?ve states had separate facilities, although some states shared facilities?). The report also emphasized that of October 2015 . . . [a]uthorities may return asylum seekers, refugees, and migrants who are from safe countries of origin or who are not eligible for asylum without giving prior notice.? Similarly, the 2016 report on the United Kingdom criticized what the Department of State described as being ?the most serious human rights problems? over the year, which included ?restrictions on those seeking asylum in the country.? US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, United Kingdom, (2016). In a report on arbitrary detention and abuse of asylum seekers, the report stated that: Home Of?ce of?cials have the power to detain asylum seekers and unauthorized migrants who do not enter the asylum system. Immigration detention was used to establish a person?s identity or basis of claim, to remove a person from the UK, or to avoid a person?s noncompliance with any conditions attached to a grant of temporary admission/release . . . Although Home Office policy stated detention should be used sparingly, and for the shortest period necessary, there was neither a maximum time limit for the use of immigration detention in the UK nor automatic judicial oversight of decisions to detain. Li. Of the detained immigrants in 2016, the report stated, ?81 percent of all immigration detainees leaving detention had been held for less than two months, approximately 2 percent for between six and 12 months, and an additional 1 percent for more than a year.? 1d, If a detention 44 period in the United Kingdom of two months or longer without ?automatic judicial oversight? warranted criticism from the United States Department of State, then Emilio and Oscar Gutierrez-Soto?s three-month detention and lack of judicial oversight violates human rights protocols recognized by the United States. Similarly, in 2016 the US criticized Russia because the ?police at times detained, ?ned, and threatened migrants, refugees, and stateless persons with deportation[,] and that citizens subjected them to racially motivated assaults.? The report noted Russia?s lack of cooperation concerning ?asylum and refugee problems with UNCHR and other humanitarian organizations.? U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Russia (2016). Similar activity was also criticized in the 2016 report on Spain, ?nding that the country?s ?denial of access to asylum and summary forced returns of asylum seekers by police,? were Spain?s ?most signi?cant human rights problems.? US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Spain (2016). Finally, the 2016 report on China referred to the country?s ?failure to protect refugees and asylum seekers? as a major human rights violation. US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, China (2016). The law does not provide for the granting of refugee or asylee status. The government did not have a system for providing protection to refugees but allowed UNHCR to assist the relatively small number of non-North Korean and non-Burmese refugees. The government did not of?cially recognize these individuals as refugees; they remained in the country as illegal immigrants unable to work, with no access to education, and subject to deportation at any time. The United States Department of State?s 2016 Country Reports on Human Rights Practices condemns many of the same actions that it is exhibiting towards Emilio and Oscar 45 Gutierrez-Soto. Mr. Gutierrez?Soto applied for asylum, is at risk of death if he returns to Mexico, but ICE arrested and detained him without any indication of length or reason. It is hypocritical for the United States to arbitrarily detain Mr. Gutierrez?Soto and his son Oscar, both asylum seekers, while condemning Russia, China, Spain, the UK, and Ireland for taking similar actions towards refugees. 2. The United States Consistently Condemns Countries That Abuse Journalists The United States, through its Country Reports on Human Rights, has expressed a great interest not only in free expression through a free press, but also the protection of members of the press who choose to speak out in a critical way against their governments and corrupt policies. Most signi?cantly, the United States criticized the hostility that Mexico exhibits towards journalists who criticize the government and military, noting that: Perpetrators of violence against journalists continued to act with impunity with few reports of successful investigation, arrest, or prosecution of suspects. Observers believed organized crime to be behind some of these cases, but NGOs asserted there were signi?cant instances when local government authorities participated in or condoned these acts. The international NGO Article 19 analyzed complaints of violence or harassment registered with their organization and reported that 47 percent of cases of aggression against journalists in the prior seven years originated from public of?cials. According to the Office of the UN High Commissioner for Human Rights in Mexico, 14 journalists were killed between January and mid-December. During the ?rst half of the year, Article 19 registered 218 cases of aggression against journalists, including assaults, intimidation, arbitrary detention, and threats; in 2015 there were 397 such cases. US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Mexico (2016). In its 2016 Report on the Philippines, the United States condemns a national leader who promotes violence against a critical press, stating: Journalists faced harassment and threats of violence, including from politicians and government authorities critical of their reporting. In April then candidate Duterte drew widespread criticism after he told the media that journalists should 46 enjoy no special protections and could be ?assassinated? if they were ?corrupt? and took money from politicians. Human rights NGOs frequently criticized the government for failing to protect journalists. Many journalists reported an uptick in online threats, including threats of violence and harassment, in response to articles posted online that were critical of the government. U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Philippines (2016). The United States has also criticized other countries for their unfounded arrests, detention, and deportation treatment of ournalists. In its 2016 Country Report on Chad, the State Department described how ?[s]ecurity forces arbitrarily arrested journalists, demonstrators, critics of the government, and other individuals.? U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Chad (2016). Similarly, in its 2016 report, the State Department criticized Egypt: According to media reports and local and international human rights groups, state and nonstate actors arrested and imprisoned, harassed, and intimidated journalists. Foreign correspondents reported cases where the government denied them entry, deported them, and delayed or denied issuance of media credentials; some claimed these actions were part of a government campaign to intimidate foreign media. U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Egypt (2016). In the 2016 Report on Sri Lanka again the United States reported that ?[t]he most signi?cant human rights problems were incidents of arbitrary arrest, detention, surveillance, and harassment of civil society activists, journalists, [and] members of religious minorities.? U.S. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Sri Lanka (2016). In its 2016 Report on Madagascar, the U.S. states that ?security forces arbitrarily arrested 47 journalists, political opponents, demonstrators, and other civilians.? US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Madagascar (2016). 3. The United States Condemns Countries for Detaining Migrants and Asylum Seekers for Engaging in Public Protest Against The Government One of the most frequent human rights abuse described in the Reports is the extensive pre?trial detention of people engaged in public protest against the government, generally under the pretext of black letter law. In its most recent Report on Azerbaijan, the State Department stated that ?[t]he incarceration of persons who attempted to exercise freedom of speech raised concerns about authorities? use of the judicial system to punish dissent.? US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Azerbaijan (2016). Notably, our own State Department sided with an individual who spoke in support of terrorist acts in France. The US. admonished France for sentencing radical militant can-Marc Rouillan to eight months in prison in response to his political speech supporting the terrorists who attacked the French satirical newspaper Charlie Hebdo who killed several of its writers. US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, France (2016); see also Tony Cross, Former Far-Left Armed Group Leader in Court for 'Condoning' Paris Attacks, Radio France Internationale (January 1, 2016), attacks. Roullian stated in an interview that he felt the terrorists ?fought bravely? against the French police. The 2016 US. Report further criticized the French government for using speech- based violations as a viable stand-alone ground for deportation, noting, ?[a]uthorities may deport a noncitizen for publicly using ?hate speech? or speech constituting a threat of terrorism.? 43 2016 US. Report further criticized the French government for using speech~based violations as a viable stand-alone ground for deportation, noting, ?[a]uth0rities may deport a noncitizen for publicly using ?hate speech? or speech constituting a threat of terrorism.? Ii Likewise, in its 2016 Report on Ethiopia, the United States comments, ?There were thousands of reports of arbitrary arrest and detention related to protests. Security forces arbitrarily arrested and detained protesters, professors, university students, musicians, businesspersons, health workers, journalists, children, and others? and that ?[a]uthorities arrested, detained, and harassed persons for criticizing the government.? US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Ethiopia (2016). Similarly, in its 2016 Reports, the State Department criticized the Bahamas after ?the foreign minister threatened to revoke the permanent residency status of a critic of the government? who had spoken out against new, strict immigration policies, which resulted in the large-scale deportation of Haitian immigrants. US. Dept. of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, Bahamas (2016). It is hypocritical for the US. Government to condemn the abuse, detention, and deportation for those who engage in political speech and even the advocacy of terroristic violence in Europe; and then detain and deport human rights advocates like Mr. Gutierrez?Soto and Oscar for engaging in constructive and peaceful discussions about the need for immigration reform in the US. VI. THE ADMINISTRATIVE PROCEDURE ACT ALLOWS THIS COURT TO ORDER ICE TO RELEASE OSCAR AND EMILIO The present case is subject to judicial review under Section 702 of the Administrative Procedure Act Se_e 5 U.S.C. 702. Section 702 entitles person suffering legal 49 wrong because of agency action, or adversely affected or aggrieved by agency action? to judicial review. I_d. The APA empowers a district court to compel agency action ?unlawfully withheld or unreasonably delayed.? See 5 U.S.C. 706. The court may also hold unlawful and set aside agency action deemed to be not in accordance with law or contrary to constitutional rights. Id?, Oscar and Emilio Guti?rrez~Soto have suffered and are continuing to suffer legal wrongs because of their continued detention by ICE. S_ee_ discussion, @1121 Section V. failure to release Emilio and Oscar violates their rights to (I) substantive due process, see discussion sum Subsection I.A., (2) procedural due process, see discussion Subsection LB, (3) equal protection, discussion gm Section II, and (4) freedom of the press and freedom of speech, discussion Sections Respondents? actions are arbitrary, capricious, and contrary to the clearly established constitutional and international law. Oscar and Emilio Gutierrez-Soto are asylum seekers who do not pose a danger to the community and are not ?ight risks. Moreover, Respondents have not stated that these risks are present. continued detention of Oscar and Emilio Gutierrez-Soto demonstrates that it will continue to act in an arbitrary and capricious manner. Thus, the Court should review agency action pursuant to the APA, issue a declaratory judgment that ICE is violating their constitutional rights, and order that ICE immediately release Oscar and Emilio Gutierrez-Soto. 50 CONCLUSION For the reasons discussed herein, this Court should grant Emilio and Oscar Gutierrez? Soto?s petitions for habeas corpus. Eduardo Beckett New Mexico SBN 21759 Dated: March 5, 2018 Beckett Law Firm, P.C. El Paso, Texas 8300 Montana Avenue El Paso, Texas 79925 UK Penny {Y?enetis Egg H_a? Vice counsel Dated: March 5, 2018 Rutgers Law School Newark, New Jersey Center for Law and Justice 123 Washington Street Newark, NJ 07102-3026 51