IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF 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 Director of U.S. Immigration and Customs Enforcement; William JOYCE in his capacity as El Paso Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY, Petition for Writ of Habeas Corpus Respondents PRELIMINARY STATEMENT Emilio Gutiérrez-Soto ("Petitioner" or "Mr. Gutiérrez-Soto") is a 54-year-old journalist from Mexico who came to the United States to seek political asylum protection after the Mexican military threatened to physically hurt and kill him. Mr. Gutiérrez-Soto entered the U.S. with his minor son Oscar on June 16, 2008 and filed a formal petition for political asylum. He was granted work permits and given a social security card. Since 2009, Mr. Gutiérrez-Soto has lived in Las Cruces, New Mexico with his son. He found lawful employment and established strong community ties. He has no criminal record and has followed all the conditions of his release. On December 7, 2017, during a check-in with the U.S. Immigration and Customs Enforcement ("ICE"), Mr. Gutiérrez-Soto was suddenly and inexplicably informed that he and his son would be deported immediately. They were placed in a vehicle and were driven by ICE to a U.S. Border Patrol Station the U.S./Mexican border. The Board of Immigration Appeals ("BIA") issued an Emergency Stay of Removal when the vehicle carrying Mr. Gutiérrez-Soto and his son were parked inside the gated U.S. Border Patrol Station next to the port of entry. Instead of releasing Mr. Gutiérrez-Soto and Oscar, they remain in ICE custody. Emilio and Oscar Gutiérrez-Soto are currently detained in the El Paso Processing Center. Mr. Gutiérrez-Soto's detention violates his constitutional rights of due process, equal protection, and freedom of speech and the press, as well as international law and the Administrative Procedure Act. For any or all of these reasons, this Court should grant Mr. Gutiérrez-Soto's habeas corpus petition for declaratory relief and order ICE to release Mr. Gutiérrez-Soto on reasonable conditions of supervision. In the alternative, the Court should grant an individualized hearing where Mr. Gutiérrez-Soto can challenge his detention. PARTIES 1. Petitioner Emilio Gutiérrez-Soto is a resident of Las Cruces, New Mexico. He is currently detained under the direction of Respondents at the El Paso Processing Center located at 8915 Montana Ave, El Paso, TX 79925. 2. Respondent Jefferson Sessions III is named in his official capacity as the Attorney General of the United States. In this capacity, he is responsible for the administration of the immigration laws as exercised by the Executive Office for Immigration Review, pursuant to INA § 103(g), 8 U.S.C. § 1103(g), is legally responsible for administering Petitioner’s removal proceedings and the standards used in those proceedings, and as such is the legal custodian of 2 Petitioner. Respondent Sessions’ address is U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, District of Columbia 20530. 3. Respondent Kirstjen Nielsen is named in her official capacity as the Secretary of Homeland Security in the United States Department of Homeland Security. In this capacity, she is responsible for the administration of the immigration laws pursuant to Section 103(a) of the INA, 8 U.S.C. § 1103(a) (2007); supervises Respondent Joyce; is legally responsible for Petitioner’s detention and removal; and as such is the legal custodian of Petitioner. Respondent Nielsen’s address is U.S. Department of Homeland Security, 800 K Street, N.W. #1000, Washington, District of Columbia 20528. 4. Respondent Thomas Homan is named in his official capacity as the Director of the United States Immigration and Customs Enforcement. In this capacity, he is responsible for the administration of immigration laws and overseeing the activities of the Immigration and Customs Enforcement. Respondent’s address is 500 12th St., SW Washington, District of Columbia 20536. 5. Respondent William Joyce is named in his official capacity as the Field Office Director of the El Paso Field Office for ICE within the United States Department of Homeland Security. In this capacity, he is also responsible for the administration of immigration laws and execution of detention and removal determinations. Respondent Joyce's address is El Paso Field Office 11541 Montana Ave., Suite E, El Paso, TX 79936. JURISDICTION 6. This Court has subject matter jurisdiction over this Petition pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 1331, and Article I, § 9, cl. 2 of the United States Constitution; the All Writs Act, 28 U.S.C. § 1651; the Administrative Procedure Act 5 U.S.C. § 701, et seq.; and for 3 injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Petitioner’s current detention as enforced by Respondents constitutes a “severe restraint[] on [Petitioner’s] individual liberty,” such that Petitioner is “in custody in violation of the . . . laws . . . of the United States.” See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973); 28 U.S.C. § 2241(c)(3). 7. Federal district courts have jurisdiction to hear habeas corpus claims by non-citizens challenging the lawfulness or constitutionality of their detention by the Department of Homeland Security. See, e.g. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). VENUE 8. Pursuant to Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), venue lies in the United States District Court for the Western District of Texas, the judicial district where Respondent William P. Joyce is based. Id. at 494-95 (citing Wales v. Whitney, 114 U.S. 564, 574 (1885)). STATEMENT OF FACTS REGARDING CURRENT DETENTION EMILIO GUTIÉRREZ-SOTO IS A POLITICAL ASYLUM SEEKER 9. Emilio Gutiérrez-Soto is a 54-year-old award-winning Mexican journalist who, along with his then-minor son Oscar Gutiérrez-Soto, fled to the United States in June 2008 seeking political asylum. Mr. Gutiérrez-Soto worked as a journalist for the newspaper El Diario del Noroeste in Ascención, Chihuahua, from 1999 until he fled to the United States in June 2008. He seeks asylum in the United States because he received death threats from members of the Mexican Security Forces, the 5th Military Zone, a Mexican Military Regiment stationed in Nuevas Casas Grandes, Chihuahua (Venetis Decl. Ex. 1, Motion to Reopen at 8). 4 10. Mr. Gutiérrez-Soto’s application for political asylum is currently pending before the Board of Immigration Appeals. (Venetis Decl. Ex. 2, Second Asylum Application). 11. Oscar, who was then a minor, was released from the custody of the Office of Refugee Resettlement (“ORR”) on August 14, 2008. Mr. Gutiérrez-Soto was granted humanitarian parole in 2009, and he was permitted to live in the United States. Mr. Gutiérrez-Soto was granted a work permit on 08/10/2010. (Venetis Decl. Ex. 45, Emilio Gutiérrez-Soto’s Proof of Employment Authorization). Oscar began receiving work permits on January 2012. (Venetis Decl. Ex. 46, Oscar Gutiérrez-Soto’s Proof of Employment Authorization). Both were given social security numbers soon after their work permits were granted. (Venetis Decl. Ex. 2, Second Asylum Application at 14-15; Venetis Decl. Ex. 46, Oscar GutiérrezSoto’s Proof of Employment Authorization). 12. Mr. Gutiérrez-Soto settled in Las Cruces, New Mexico in 2009 where he has close community ties. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 8). During Mr. Gutiérrez-Soto’s nine years in the United States, he has never violated the law, nor has he engaged in any action or behavior to warrant his current detention. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 9). 13. Mr. Gutiérrez-Soto and his son have attended all scheduled immigration hearings and appointments. They have been in compliance with all ICE requirements and have been present at every ICE check-in, including on December 7, 2017, when he was detained. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 7). SUMMARY OF REASONS PETITIONER IS SEEKING ASYLUM 14. On February 4, 2005, Mr. Gutiérrez-Soto wrote an article entitled “Demands to Stop Impunity,” in which he openly criticized the Mexican Military, particularly soldiers who had 5 assaulted and robbed patrons at a hotel known as “La Estella,” located in Puerto Palomas, Chihuahua, Mexico. Shortly after the article was published, Mr. Gutiérrez-Soto received a telephone call from a Lieutenant Colonel in the Mexican Military, demanding that he meet with military officers at El Miami Hotel, located in downtown Ascensión. As Mr. GutiérrezSoto approached with his minor son in a truck, he observed about fifty soldiers strategically distributed along four blocks. During the meeting, a group of twenty soldiers surrounded Mr. Gutiérrez-Soto and confronted him about his journalism. Then, Mexican General Alfonso Garcia-Vega (“General”) ordered Mr. Gutiérrez-Soto to stop reporting about the Mexican military and forced him to apologize for publishing his articles. The General also told Mr. Gutiérrez-Soto that he was under close surveillance by the Mexican military. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 1). 15. As a dedicated journalist, the following day, El Diario del Noroeste published an article entitled, “Members of the Military Threaten Reporter’s Life,” which revealed the details about how Mr. Gutiérrez-Soto was detained and threatened by the General and the Mexican military. (Id.). 16. Mr. Gutiérrez-Soto also filed a complaint with the National Commission of Human Rights and the local District Attorney because he was afraid that he would be harmed if he continued to report about corruption in the Mexican military. (Id. at 1-2). Mr. Gutiérrez-Soto is at a higher risk than members of the Mexican population at large because the complaint he filed with the National Commission of Human Rights became known to the Mexican military. (Venetis Decl. Ex. 43, Declaration of Howard Campbell, Ph.D – Anthropological Report at 4). 6 17. Between February 2005 and 2008, Mr. Gutiérrez-Soto continued working as a journalist for El Diario del Noreste, reporting on various matters. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 2). 18. On the night of May 5, 2008, a group of soldiers kicked down Mr. Gutiérrez-Soto’s front door, stormed his home, and pointed their weapons at Emilio and Oscar. Mr. Gutiérrez-Soto was forced onto the ground by the soldiers. At one point, a Mexican soldier directly threatened Mr. Gutiérrez-Soto. (Venetis Decl. Ex. 1, Motion to Reopen at 8). 19. The next day, Mr. Gutiérrez-Soto helped write an article that was published in El Diario del Noreste exposing the details of the search of his home and the abuse directed at Mr. Gutiérrez-Soto and his son. 20. After publishing the details of the raid, Mr. Gutiérrez-Soto filed a second complaint with the National Commission for Human Rights and the District Attorney. This second filing put him at even greater risk. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 2). 21. Fearing for their lives, Mr. Gutiérrez-Soto and his minor son fled from Mexico to the United States. On June 16, 2008, they applied for political asylum in the United States at the Antelope Wells Border Crossing Station seeking protection from the Mexican military. They were then taken to the Port of Entry (“POE”) in Columbus, New Mexico. (Venetis Decl. Ex. 1, Motion to Reopen at 9). 22. Mr. Gutiérrez-Soto and his son were both detained and separated by ICE upon their arrival in 2008. (Venetis Decl. Ex. 3, March 2, 2018 Certification of Emilio Gutierrez-Soto, at ¶ 2). Oscar was treated as an unaccompanied minor, and released after two-months to the custody of family and friends. (Id.). 7 23. During that time, an international public campaign spearheaded by the Paris-based international non-profit organization Reporters without Borders (“RWP”). advocated for Mr. Gutiérrez-Soto’s release (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole, at 4). 24. On January 30, 2009, Mr. Gutiérrez-Soto was released from ICE detention pursuant to a humanitarian parole. (Id.). WHILE IN THE UNITED STATES, MR. GUTIÉRREZ-SOTO HAS DEVELOPED STRONG COMMUNITY TIES 25. While living in the United States, Mr. Gutiérrez-Soto has developed strong community ties in Las Cruces, New Mexico, where he has resided for nine years. (Id. at 8). 26. During this time, Mr. Gutiérrez-Soto has been continually employed, with valid work permits issued by the United States government. He has worked in the food industry by operating a food truck. (Id. at 7). 27. Mr. Gutiérrez-Soto’s community engagement is so strong that the group “Community Friends of Emilio” formed. The group is now known as “Alianza en Apoyo a Solicitantes de Asilo Polititico/Allegiance in Support of Political Asylum Applications.” Alianza, of which Mr. Gutiérrez-Soto is a member, has primarily been involved in educating the public on political asylum. The group includes prominent members of his community, including journalists and attorneys. (Id. at 8). 28. In addition to his strong community ties in New Mexico, Mr. Gutiérrez-Soto has received support from 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 8 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. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 8). 29. The National Press Club invited Mr. Gutiérrez-Soto to accept the John Aubuchon Press Freedom Award on behalf of Mexico’s journalists in October 2017 because of the bravery he exhibited in continuing to report about government corruption in Mexico, even though his life was in danger. (Venetis Decl. Ex. 7, Aug. 15, 2017, Business Insider article at 1). 30. At the writing of this petition, approximately 100,000 individuals signed the National Press Club’s “Free Emilio Petition” started on January 9, 2018. (Venetis Decl. Ex. 6, Signatures for the National Press Club’s Free Emilio Petition). The overwhelming and quantifiable support for Mr. Gutiérrez-Soto reflects public demand that the United States government not treat a brave journalist who risked his life to expose corruption like a criminal. 31. The New York Times (on June 16, 2015) and CNN on (August 31, 2016) have reported on Mr. Gutiérrez-Soto’s case and the significant threats of violence directed at Mexican journalists reporting on corruption and state abuse. (Venetis Decl. Ex. 4, December 20, 2017 Request for Humanitarian Parole at 9). The Washington Post on December 11, 2017 issued an editorial demanding that Emilio Oscar be released and granted political asylum. (Venetis Decl. Ex. 48, Dec. 11 Washington Post article). 9 THE CURRENT ADMINISTRATION HAS DEMONSTRATED ANIMOSITY TOWARDS MEXICANS 32. President Donald Trump has expressed anti-Mexican sentiments during his Presidential campaign and throughout his Presidency. He began his campaign by stating, “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 . . .” (Venetis Decl. Ex. 19, CNN article citing to Donald Trump quotes at 1). President Trump has vowed to build a “huge,” “big” and “beautiful” wall along the border of the United States and Mexico to prevent Mexican criminals from entering the United States. Trump has also made offensive statements about the country as a whole, calling much of Mexico and its legal system "corrupt" and claiming that it sends "criminals" across the border. (Venetis Decl. Ex. 18, Times Magazine article citing to Donald Trump quotes at 1). 33. A study published by the Hope Border Institute on January 18, 2018 documented the violations of rights of asylum seekers by immigration enforcement agencies in the El Paso and Southern New Mexico region: “[b]y 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, July 18, 2018 Hope Border Institute Publication discussing the criminalization of asylum seekers in the Trump Era at 1). 10 THE CURRENT ADMINISTRATION HAS DEMONSTRATED ANIMOSITY TOWARDS JOURNALISTS 34. President Trump has repeatedly vilified journalists throughout his campaign and presidency. During a campaign rally, President Trump, referring to reporters, stated "I would never kill them but I do hate them…And some of them are such lying, disgusting people.” (Venetis Decl. Ex. 24, October 13, 2017 American Civil Liberties Union article at 3). 35. Donald Trump, throughout his presidential campaign, forced journalists to sit in jail-like cages, and goaded the crowd into taunting the reporters. (Venetis Decl. Ex. 22, October 14, 2016 New York Times article at 1-2). President Trump’s supporters, numbering more than 15,000, “flashed homemade signs, flipped middle fingers 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 floor.” (Id.). 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.” (Id.). Consequently, journalists have feared for their personal safety. (Venetis Decl. Ex. 23, November 9, 2016 Politico article at 2). 36. President Trump’s animosity toward journalism and the free press has also included explicit contempt for Mexican-American journalists. In a news conference on August 25, 2015, President Trump ejected television’s “most influential Latino newsman,” Jorge Ramos, a Univision anchor and journalist who was born in Mexico, after he asked a question about immigration. (Venetis Decl. Ex. 26, August 25, 2015 Washington Post article at 2). President Trump told Mr. Ramos to "Go back to Univision" before security staff physically removed the journalist from the room. (Id.). MR. GUTIÉRREZ-SOTO HAS BEEN CRITICAL OF U.S. IMMIGRATION POLICY 11 37. Due to the long delay in processing Mr. Gutiérrez-Soto’s asylum case, Mr. Gutiérrez-Soto has openly expressed criticism and disappointment towards the United States immigration system. In particular, Mr. Gutiérrez-Soto has been critical of the United States Immigration Court, believing that the Court seeks to prevent permitting asylum seekers from staying in this country. In January 2011, Mr. Gutiérrez-Soto has stated, “We are talking about an immigration judge and an immigration attorney whose job it is … to keep from expanding the abundance of people looking for protection because of the violence in Mexico.” (Venetis Decl. Ex. 8, January 21, 2011 Associated Press article at 1). In January 2011, he also stated “I’m exhausted from all of these stressful times, the psychological 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 fled Mexico because the Mexican state was persecuting us.” (Venetis Decl. Ex. 8, Associated Press article at 1). Mr. Gutiérrez-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 us.” (Venetis Decl. Ex. 10, Seattle Times article at 1). In January 2017, Mr. Gutiérrez-Soto similarly stated, “I am very disappointed in the immigration authorities, especially the policies that the United States exercises.” (Venetis Decl. Ex. 9, Knight Center for Journalism in the Americas article at 1). 38. ICE took Mr. Gutiérrez-Soto and his son into custody just two months after he gave an acceptance speech at the National Press Club where he accused ICE of “bartering away international law” when it comes to asylum seekers. Emilio Gutierrez accepts John Aubuchon Award at 2017 NPC Fourth Estate Award Ceremony, The National Press Club 12 (Oct. 4. 2017), http://www.press.org/news-multimedia/videos/emilio-gutierrez-accepts-johnaubuchon-award-2017-npc-fourth-estate-award-cer. 39. ICE’s actions toward Emilio and Oscar Gutierrez-Soto are efforts to silence them. An immigration officer 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. (Venetis Decl. Ex. 47; Decl. of Bill McCarren). 40. Since his detainment, Mr. Gutiérrez-Soto has continued to speak out, calling U.S. Immigration authorities "an institution based on lies" in an interview from the El Paso Processing Center published on December 22, 2017. (Venetis Decl. Ex. 12, Democracy Now! article at 6). In the same interview, he called the conditions at the El Paso Processing Center "denigrating" and declared that the prisoners at the center were underfed and undernourished. (Id. at 5). MR. GUTIÉRREZ-SOTO’S RECENT UNLAWFUL DETENTION 41. Mr. Gutiérrez-Soto and his son were scheduled to meet with ICE on December 7, 2017. Their immigration lawyer secured permission from ICE to arrive late to the check-in due to falling snow in El Paso that caused serious transportation delays. When Mr. Gutiérrez-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 BIA’s response. Two armed ICE Agents then placed Mr. Gutiérrez-Soto and Oscar into custody and loaded them into a vehicle and began driving towards a U.S. Border Patrol Station near the border of Juarez, Mexico. (Venetis Decl. Ex. 14, Record of meeting with ICE at 1-4). 13 42. The BIA issued an Emergency Stay of Removal in response to their immigration lawyer’s (Eduardo Beckett, Esq.) advocacy. (Venetis Decl. Ex. 14, Record of Meeting with ICE at 4). 43. Instead of releasing Mr. Gutiérrez-Soto and his son, when Mr. Beckett informed them of the stay, ICE first took them to the El Paso Processing Center where they were not allowed to see their attorney. Once there, for several hours to process. They had to sit on the cold cement floor. That evening, Mr. Gutiérrez-Soto and his son were transferred to the Sierra Blanca Detention Center located approximately 90 miles away from El Paso. Once there, they were processed once again and were required to sleep on the cold cement floor. Mr. Gutiérrez-Soto and his son stayed 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. 14, March 2, 2018 Certification of Emilio Gutierrez-Soto at ¶ 3). 44. While there, Mr. Beckett and Bill McCarren of the National Press Club held a press conference for Mr. Gutiérrez-Soto, where Gutiérrez-Soto continued his criticism of U.S. immigration policy. (Venetis Decl. Ex. 12, December 22, 2017 Democracy Now! Article, at 1; Venetis Decl. Ex. 47, March 5, 2018 Certification of William C. McCarren). 45. In a telephone interview with Democracy Now!, Mr. Gutiérrez-Soto criticized the United States political asylum proceedings, the U.S. immigration System, and the Department of Homeland Security. (Venetis Decl. Ex. 12, Democracy Now! Article at 6). 46. Dozens of Mr. Gutiérrez-Soto's supporters including City Council members Gabe Vasquez, Yvonne Flores, and Gill Sorg, and representatives from the offices of United States Senators Tom Udall and Martin Heinrich’s, attended the press conferences, held on December 11 and December 12, 2017. Many criticized the detention and the Trump Administration’s immigration policies. (Venetis Decl. Ex. 15, Las Cruces Sun-Times Article at 3). 14 HARDSHIPS STEMMING FROM CURRENT DETENTION 47. Mr. Gutiérrez-Soto’s home in Las Cruces, New Mexico, was broken into. (Venetis Decl. Ex. 13, National Press Club Petition Update at 2) 48. Mr. Gutiérrez-Soto’s food truck and personal property in his home have been stolen. (Venetis Decl. Ex. 13, National Press Club Petition Update at 2) 49. ICE’s detention of Mr. Gutiérrez-Soto has caused him emotional, medical, and financial hardships. 50. On January 23 and 24, 2018, Licensed Clinical Psychologist Annika Sridharan evaluated Mr. Gutiérrez-Soto at the El Paso Processing Center. (Venetis Decl. Ex. 11, Psychological Evaluation, at 1). Dr. Sridharan noted the threats and intimidation Mr. Gutiérrez-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 psychological wellbeing. (Id. at 7). Dr. Sridharan found that Mr. Gutiérrez-Soto displays symptoms of Posttraumatic Stress Disorder and Major Depressive Disorder. (Id.) While in detention, Mr. Gutiérrez-Soto’s requests to see a doctor have been denied, and he is not receiving his medication for high blood pressure and cholesterol. (Id.) 51. In regard to his medical hardships, Mr. Gutiérrez-Soto has stated, “I 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, Democracy Now! Article at 8). MR. GUTIÉRREZ-SOTO WILL BE HARMED IF RETURNED TO MEXICO 52. A December 2017 United Nations report states that at least eleven journalists have been killed in Mexico that year and considers attacks on reporters south of the border “endemic.” 15 The report further states that “the suffering is widespread, yet the violence has often singled out those most essential to telling the story of conflict and insecurity, corruption, and criminality: journalists.” (Venetis Decl. Ex. 16, United Nations Report at 2). 53. On February 2, 2018, Deputy Assistant Secretary of the U.S. State Department Scott Busby sent a letter to the Board of Immigration Appeals in Mr. Gutiérrez-Soto’s asylum case, describing the dangers that Mexican journalists face. Mr. Busby told the BIA that more journalists were killed in Mexico in 2017 than in any previous year, 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 with inadequate investigation, arrest, or prosecution by the government. (Venetis Decl. Ex. 17, Letter from Department of State filed in of Mr. Gutiérrez-Soto’s asylum case at 2). CLAIMS FOR RELIEF FIRST CAUSE OF ACTION: MR. GUTIÉRREZ-SOTO’S DETENTION IS A VIOLATION OF HIS SUBSTANTIVE DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT 54. Petitioner repeats and reaffirms all arguments and factual statements made in paragraphs 1 through 53 as if fully restated herein. 55. Respondents' continued detention of Mr. Gutiérrez-Soto deprives him of his core liberty interest in freedom from bodily restraint. Further, respondents have failed to raise any justifications for the revocation of his parole, and his detention. 56. Petitioner's detention violates his substantive due process rights under the Fifth Amendment, which requires that deprivation of a core liberty interest be tailored narrowly to a compelling government interest regardless of the effected individual's immigration status. In the “special 16 and narrow nonpunitive circumstances” of immigration detention, due process requires “a special justification . . . [that] outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (internal quotation marks omitted) (internal citations omitted) see also Maldonado v. Macias, 150 F. Supp. 3d 788, 806 (W.D. Tex. 2015). Here, Respondents have made no claims that such an interest exists. SECOND CAUSE OF ACTION: MR. GUTIÉRREZ-SOTO’S DETENTION IS A VIOLATION OF HIS PROCEDURAL DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT 57. Petitioner repeats and reaffirms all arguments and factual statements made in paragraphs 1 through 56 as if fully restated herein. 58. Petitioner's detention is also a violation of his procedural due process rights. In 2009, ICE issued a binding procedural directive that after an immigrant has both established their identity and credible fear of persecution, they should be provided parole if they are not a flight risk nor a danger to their community. U.S. Immigration and Customs Enforcement, ICE 110002.1, Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture (2009). Such directives are controlling on ICE procedures for the purpose of fairness as required for due process of law. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-268 (1954); see also Abdi v. Duke, No. 1:17-CV-0721 EAW, 2017 U.S. Dist. LEXIS 191568 (W.D.N.Y. 2017). 59. Respondents violated ICE’s own procedures in detaining Petitioner, in violation of Petitioner’s rights to procedural due process. THIRD CAUSE OF ACTION: THE UNITED STATES DESCRIMINATES AGAINST MR. GUTIÉRREZ-SOTO BY DETAINING HIM ON THE BASIS OF HIS COUNTRY OF ORIGIN IN VIOLATION OF HIS EQUAL PROTECTION RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENT 17 60. Petitioner repeats and reaffirms all arguments and factual statements made in paragraphs 1 through 59 as if fully restated herein. 61. Mr. Gutiérrez-Soto is entitled to the fundamental right to equal protection. Shaw v. Reno, 509 U.S. 630, 647 (1993); Bolling v. Sharpe, 347 U.S. 497, 500 (1954); Bridges v. Wixon, 326 U.S. 135, 161 (1945); Wong Wing v United States, 163 U.S. 228, 238 (1896). ICE's application of discriminatory policies espoused by the Trump Administration is a violation of the Equal Protection Clause of the Fourteenth Amendment. 62. President Trump's constant and continuous vilification of Mexicans as “murderers” and “rapists” and the focus of targeted ICE raids on Mexican immigrant communities are discriminatory on their face and as applied, in violation of Petitioner’s equal protection rights. FOURTH CAUSE OF ACTION: CONTINUED DETENTION OF MR. GUTIÉRREZSOTO RESTRICTS FREEDOM OF THE PRESS IN VIOLATION OF THE FIRST AMENDMENT 63. Petitioner repeats and reaffirms all arguments and factual statements made in paragraphs 1 through 62 as if fully restated herein. 64. Petitioner has been a vocal critic of the United States in a variety of American new sources, such. Moreover, Mr. Gutiérrez-Soto’s story has been covered by such news sources as the New York Times, the Washington Post and CNN. 65. President Trump’s hostile statements incitements of violence towards journalists are evidence of attempts to stifle the free press, of which Mr. Gutiérrez-Soto is a part. New York Times Co. v. United States, 403 U.S. 713, 717, (1971). ICE told the Executive Director of the National Press Club to “tone down” its coverage of Petitioner’s detention. The detention of 18 Emilio and Oscar Gutiérrez-Soto without cause is part of this pattern and a clear violation the freedom of the press. FIFTH CAUSE OF ACTION: CONTINUED DETENTION OF MR. GUTIÉRREZSOTO IS CONTENT AND VIEWPOINT DISCRIMINATION IN VIOLATION OF HIS FIRST AMENDMENT RIGHTS 66. Petitioner repeats and reaffirms all arguments and factual statements made in paragraphs 1 through 65 as if fully restated herein. 67. Mr. Gutiérrez-Soto's is an active critic of U.S. immigration policy, the most divisive and important public policy issue of our day. He has spoken and written negatively about the treatment suffered by him and his son during their detention in 2008. In addition, he has been critical about the extended amount of time the immigration court has taken to review gus asylum petition. He has also been a member of public panels along with U.S. journalists who have criticized U.S. immigration policy. 68. President Trump's well documented hostility towards immigrants and dissenters is evidence of a systematic silencing of political criticism. Mr. Gutiérrez-Soto's detention without cause is part of this pattern and a clear violation of his First Amendment rights. Ysursa v. Pocatello Educ. Ass'n, 555 U.S. 353, 358 (2009); see also New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). SIXTH CAUSE OF ACTION: ICE’S DETENTION OF MR. GUTIÉRREZ-SOTO IS REVERSABLE UNDER THE ADMINISTRATIVE PROCEDURE ACT (“APA”); 5 U.S.C. § 701 et seq. 69. Petitioner repeats and reaffirms all arguments and factual statements made in paragraphs 1 through 68 as if fully restated herein. 70. The APA entitles a person suffering a legal wrong because of agency action to seek relief against the United States and its officers. See 5 U.S.C. § 702. The APA empowers a district 19 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. 71. Respondents have violated the Constitution, international law and their own regulations in detaining Petitioner, in violation of the APA. PRAYER FOR RELIEF WHEREFORE, Petitioner respectfully request that this Court: 1) Assume jurisdiction over this matter; 2) Issue a Writ of Habeas Corpus ordering Respondents to release Petitioner immediately, or, in the alternative, allow for an individualized assessment where Oscar can challenge his detention; 3) Enter preliminary and permanent injunctive relief enjoining Respondents from further unlawful detention of Petitioner; 4) Issue a declaratory statement that the Petitioner is eligible for release on a reasonable bond and that ICE’s interpretation of the Immigration and Nationality Act (“INA”) is arbitrary, capricious, erroneous, and violates the Due Process Clause of the U.S. Constitution as well as the First Amendment and Equal Protection as applied to the Petitioner’s case, and further states that the Petitioner is entitled to an individualized bond hearing before a neutral judge; 5) Enter a judgment declaring that Respondents’ detention of Petitioner is contrary to law; 6) Award Petitioner his costs and reasonable attorneys' fees in this action as provided by the Equal Access to Justice Act, 28 U.S.C. § 2412, or other statute, and 20 7) Grant such further relief as the Court deems just and proper. Eduardo Beckett New Mexico SBN 21759 Dated: March 5, 2018 El Paso, Texas Beckett Law Firm, P.C. 8300 Montana Avenue El Paso, Texas 79925 Penny M. Venetis Pro Hac Vice counsel Dated: March 5, 2018 Newark, New Jersey Rutgers Law School Center for Law and Justice 123 Washington Street Newark, NJ 07102-3026 21