IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Alexandria Division

ALEXANDRE P. KONANYKHINE

and

ELENA GRATCHEVA

                                                 Petitioners,

vs.

WILLIAM J. CARROLL,
District Director,
Immigration and Naturalization Service

     Predecessor in Interest to:
     Deputy Field Office Director
     Department of Homeland Security,
     U.S. Immigration and Customs Enforcement

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Civil Number: 97-449-A


PETITIONERS ALEXANDRE KONANYKHINE AND ELENA GRATCHEVA'S
AMENDED EMERGENCY MOTION
TO ENFORCE SETTLEMENT AGREEMENT
AND TO STAY DEPORTATION, OR ALTERNATIVELY,
AN APPLICATION FOR A WRIT OF HABEAS CORPUS, OR
ALTERNATIVELY, A MOTION FOR A PRELIMINARY INJUNCTION



Petitioners Alexandre Konanykhine and his wife, Elena Gratcheva, by and through their attorneys, J.P. Szymkowicz, and the Law Firm of Szymkowicz & Szymkowicz, LLP, by special and limited appearance for this emergency motion only, respectfully files the instant amended emergency motion requesting that this Honorable Court enforce certain provisions of the August 21, 1997 Settlement Agreement in the above-referenced matter and stay Petitioners Konanykhine and Gratcheva's deportation and release Petitioners Konanykhine and Gratcheva from detention. The amendment of the original motion is filed pursuant to F. R. Civ. P. 15 (a). Alternatively, Petitioners Konanykhine and Gratcheva respectfully request that this Motion be treated as an Application for a Writ of Habeas Corpus. As a second alternative, Petitioners Konanykhine and Gratcheva respectfully request that this Motion be treated as a Motion for a Preliminary Injunction pursuant to F. R. Civ. P. 65 (a).


BACKGROUND

1. Petitioner Konanykhine and his wife, Elena Gratcheva, are Russian nationals who are seeking political asylum in the United States of America.

2. Konanykhine entered this country via Antigua.

3. In 1996, Konanykhine, who was incarcerated for immigration fraud, filed a habeas corpus action.

4. As the result of the habeas corpus action, the Honorable T.S. Ellis, III found Konanykhine's arrest to be unlawful and ordered Konanykhine released from incarceration.

5. The Immigration and Naturalization Service, then immediately re-arrested Konanykhine on the same grounds.

6. Konanykhine filed a second habeas corpus action.

7. In a settlement agreement related to the second habeas corpus action dated August 21, 1997 that resulted in the release of Konanykhine from incarceration, the Office of Immigration Litigation and Konanykhine agreed that

  Respondent [Immigration and Naturalization Service] agrees to parole petitioner [Konanykhine] pending final resolution of his immigration proceedings, including any direct judicial appeals thereof, so long as petitioner engages in _____ [indecipherable in copy] conduct, or so long as no other circumstances arise, which warrant revocation of his parole under 8 C.F.R. § 212.5. See Exhibit 1.

8. In an Order dated February 19, 1999, issued by United States Immigration Judge John Milo Bryant, Konanykhine and his wife were granted political asylum in the United States.

9. Judge Bryant's February 19, 1999 Order stated

  [t]he Court finds that Applicant [Konanykhine] and Respondent [Gratcheva] have a well-founded fear of persecution on account of their political opinion if they are returned to Russia. Furthermore, it is apparent that the men who seek to harm them cannot be controlled by the Russian authorities. Accordingly, Applicant [Konanykhine] and Respondent [Gratcheva] have met the statutory requirement for a grant of asylum.

In addition to demonstrating statutory eligibility for asylum, an alien must also show that he or she merits a favorable exercise of the Court's discretion. There exists no substantial facts which would cause the Court to exercise its discretion negatively. Accordingly, the Court will grant to Applicant [Konanykhine] and Respondent [Gratcheva] the refuge of asylum in the United States in the exercise of its discretion. See Exhibit 2 .


10. The Immigration and Naturalization Service [now called "Department of Homeland Security, U.S. Immigration and Customs Enforcement"] appealed Judge Bryant's Order dated February 19, 1999 to the Board of Immigration Appeals.

11. On November 20, 2003, the Board of Immigration Appeals issued an Order that stated

CONCLUSION


In conclusion, we agree with the Immigration Judge that the applicant [Konanykhine] is not excludable from the United States as an alien who procured or sought to procure a visa or other immigration benefit by fraud or willful misrepresentation of a material fact. However, we disagree with the Immigration Judge's conclusion that the applicant [Konanykhine] and the respondent [Gratcheva] have a well-founded fear of persecution in Russia on account of any protected ground. Thus, the Immigration Judge's decision will be reversed to the extent that it granted asylum to the applicant [Konanykhine] and respondent [Gratcheva]. The applicant [Konanykhine] appears ineligible for any other form of relief from exclusion, and therefore he will be deported to Russia. The respondent [Gratcheva] will be accorded the privilege of voluntary departure.

ORDER: The appeal is sustained in part.

FURTHER ORDER: The Immigration Judge's February 19, 1999 decision is sustained in part and reversed in part.

FURTHER ORDER: The applicant's [Konanykhine's] and respondent's [Gratcheva's] applications for asylum and withholding of exclusion/deportation are denied.

FURTHER ORDER: It is ordered that the applicant [Konanykhine] be excluded from the United States and deported to Russia.

FURTHER ORDER: In accordance with our decision in Matter of Chouliaris, 16 I&N Dec. 168 (BIA 1977), the respondent [Gratcheva] is permitted to depart from the United States voluntarily within 30 days from the date of this order or any extension beyond that time as may be granted by the district director; and in the event of failure so to depart, the respondent [Gratcheva] shall be deported to Russia. See Exhibit 3.


12. On or about November 24, 2003, Konanykhine's immigration counsel, Michael Maggio, Esquire filed a "Petition for Review" of the Board of Immigration Appeals' November 20, 2003 Order with the United States Court of Appeals for the Fourth Circuit.
See Exhibit 4.

13. Konanykhine's counsel in the instant matter does not believe that the United States Court of Appeals for the Fourth Circuit has issued any decision with regard to the Petition for Review (although a Motion to Stay Deportation was denied).

14. In December 2003, Konanykhine consulted with a Canadian immigration attorney who advised him that entry into Canada under Canadian law as a refugee status claimant is not considered an admission into Canada, and therefore, Konanykhine would remain under the jurisdiction of the United States until he was granted refugee status in Canada.

15. On December 18, 2003, Canadian attorney John J. Somjen, Esquire, stated in a letter to the United States Department of Justice

I am writing to you at the behest of Mr. Michael Maggio, of the law firm of Maggio Kattar of Washington, D.C., who represents the above clients in their United States immigration matters.

I have been a member of the Bar in Toronto, Ontario, since 1971, and have devoted the majority of my practice to immigration matters during that time.

I understand that the United States authorities have the above clients in detention at this time.

It is my opinion that the above individuals are eligible to make an asylum claim in Canada pursuant to the provisions of our current governing statute, the Immigration and Refugee Protection Act. My opinion is based on the fact that the claimants can properly identify themselves, have never been recognized as Convention Refugees by any other country to date, and have never been convicted of any offenses by any Court outside Canada.

On December 4, 2003, an appointment was arranged at the Canadian Port of Entry located at the Canadian side of the Peace Bridge in Fort Erie, Ontario, Canada for the above clients to be interviewed for eligibility to make their asylum claim in Canada. This appointment was arranged by me through the Director General of Immigration, Ontario Region, and was booked by Canadian Immigration Officer Annette Tennier of the Refugee Unit at the Peace Bridge Port of Entry, Fort Erie, Ontario, Canada. Annette Tennier's telephone number is 1(905)871-5632. Her colleague, Ms. Tone Lalonde, is also apprised of these facts.

The appointment booked for 8:30 a.m. today. I am advised on today's date by Ms. Toni Lalonde that the clients never showed up for their appointment this morning.

It is my opinion, for the above reasons, that if they were interviewed in the manner described above, the above clients would be routinely allowed to enter Canada as eligible Refugee Claimants, and their cases would be scheduled to be heard by the above-describe tribunal around one year from now. This is an everyday event that occurs at the Peace Bridge and at every other busy Canadian Port of Entry.

If you have any further questions or concerns, please do not hesitate to contact the writer.

Yours very truly,

SOMJEN AND PETERSON

/s/

John J. Somjen See Exhibit #5.


16. Pursuant to the appointment described in Attorney Somjen's December 18, 2003 letter, Konanykhine and Gratcheva traveled to the Peace Bridge between New York and Ontario in order to file their refugee status claims with the Canadian Immigration authorities.

17. While in their automobile on the Peace Bridge, prior to crossing into Canada, a large team of U.S. Bureau of Immigration and Customs Enforcement officers swarmed Konanykhine and Gratcheva's automobile, forced them out and detained them.

18. Within ninety minutes of their detention, Konanykhine and Gratcheva were taken to an airport and flown to Washington Reagan National Airport.

19. Upon their arrival at Washington Reagan National Airport, Konanykhine and Gratcheva were taken to the Russian Embassy on Wisconsin Avenue in Washington, DC and advised that they would be flown to Russian immediately without the right to call their attorneys.

20. The Russian Embassy was not able to issue special travel documents that would enable Konanykhine and Gratcheva to be flown to Russia.

21. Konanykhine and Gratcheva left the Russian Embassy and were taken to the Immigration and Naturalization Service office in Arlington, Virginia, where they were held for a few hours pending transfer to the Arlington County Detention Center.

22. The next day, Friday December 19, 2003, the special travel documents were issued by the Russian Embassy and Konanykhine and Gratcheva were flown from the Washington, DC area to New York in order to board a New York to Moscow flight.

23. While on the domestic flight, this Honorable Court issued a temporary stay of Konanykhine and Gratcheva's deportation and set the matter for hearing on Monday December 22, 2003 at 3:00 p.m.

24. Around the same time as this Honorable Court was hearing argument on the temporary stay, the Fourth Circuit issued an order denying Konanykhine and Gratcheva's Motion for a Stay of Deportation which had been filed in that Court.

25. On December 19, 2003, Neil R. Acri, Deputy See Exhibit 6.

Konanykhine's Affidavit in Response to the ICE's Parole Revocation Letter dated December 19, 2003

                    Konanykhine filed an Affidavit in response to the Department of Homeland Security, U.S. Immigration and Customs Enforcement Branch's [hereinafter "ICE"] parole revocation letter dated December 19, 2003. This Affidavit states
 
I verify under the penalties of perjury that following is true:

1. My name is Alexandre Konanykhine.

2. I have read the letter from Neil R. Acri, Deputy Field Office Director, Washington D.C. Field Office, U.S. Immigration and Customs Enforcement dated December 19, 2003 regarding the revocation of my parole.

3. I have never "failed to consistently report to the Assistant Director for Detention and Removal by phone." In fact, I have reported to the designated agent in a timely manner each and every time I was required to, not only because I was required to, but also because my failure to do so, could result in my detention and deportation, two things which I did not want to have happen. The last time I was required to report, was November 22, 2003 and I did report on this date as required. As I am required to report approximately once every two months, I was not required to report again until late-January 2004.

4. I did not "[fail] to request permission to move from [my] authorized residence [in the Washington, DC area] to another state [New York]." In fact, in or before 1999, I was given explicit permission to move from the Washington, DC area to the New York City area, where my wife and I have continuously lived since at least 1999.

5. I did "[change] residence without notifying or requesting permission from the Service this past month." However, my lease of my New York City apartment, located at 170 West 73rd Street, had been scheduled to end on November 30, 2003 for many months. I had planned to rent another apartment in the New York City area prior to the Board of Immigration Appeals decision dated November 20, 2003, but the legal effect of this November 20, 2003 decision made it impractical for me to sign a long term lease of an apartment.

6. From approximately, November 30, 2003 until December 18, 2003, my wife and I stayed with friends or stayed in hotels in the New York City area.

7. Neither my 1997 settlement agreement referenced in the December 19, 2003 letter at issue nor the 1999 amendment to this agreement [which allowed me to move to the New York City area] required me to inform the agent to whom I was directed to report of these temporary residences, since they were not "permanent residences."

8. The next date on which I was required to report to the agent to whom I was directed to report was in late-January 2004.

9. I was "apprehended as [I] was attempting to enter Canada on December 18, 2003. However, neither my 1997 settlement agreement referenced in the December 19, 2003 letter at issue nor the 1999 amendment to this agreement [which allowed me to move to the New York City area] prevented me from doing this.

10. My wife and I attempted to enter Canada on the morning of December 18, 2003 in order to be interviewed by the Office of the Canadian Director General of Immigration at 8:30 a.m. at the Peace Bridge Port of Entry, Fort Erie, Ontario, Canada with regard to an asylum claim to be filed under the Canadian Immigration and Refugee Protection Act.

11. This December 18, 2003 meeting was scheduled in early-December, 2003 by my Canadian attorney, John J. Somjen, Esquire.

12. My wife and I hold current valid passports from Uruguay, but these passports are in the possession of the U.S. Immigration and Customs Enforcement Department and have been since at least 1997. These passports do not expire until 2004.

13. I respectfully request that this Honorable Court issue a stay of my and my wife's deportation and release my wife and I from detention pending the resolution of all appeals of the Board of Immigration Appeals' November 20, 2003 order as stated in the 1997 settlement agreement.

14. Alternatively, I respectfully request that this Honorable Court allow my wife and I to voluntarily depart the United States of America in order to travel to other countries, including, but not limited to, Canada, Mexico and Antigua, in order to pursue immigration and/or asylum claims in these countries.

15. I know that if I am deported to Russia, I will be tortured and die without due process or fair jury trial.

16. I also know that my wife will be tortured and may die if she is deported to Russia.

17. My former business partner, Mikhail Khordokovsky, has been the subject of numerous articles in newspapers around the world due to his recent illegal arrest on, what I believe, are politically motivated charges.

18. Prior to my death, I am sure that I will be tortured in order to produce, from my own mouth, evidence which I know is not true, but which will lead to Mr. Khordokovsky's illegal conviction and execution.

19. After leaving Russia, my wife and I traveled to Germany, Austria, Antigua and Uruguay, in addition to other countries.

20. I am not aware that my wife or I have ever broken any laws of any countries, broken any rules of the Immigration and Naturalization Service or its successors or violated the terms of my 1997 settlement agreement or the 1999 agreement amending the 1997 settlement agreement [except, with the possible exception of minor traffic offenses such as speeding].

21. I also ask that my wife and I be allowed to be present in the courtroom when the instant matters are addressed in order to provide rebuttal and explanation testimony and assistance to my counsel.

I swear and affirm under the penalties of perjury that the statements contained in the instant Motion are true and correct.

/s/
Alexandre Konanykhine
See Exhibit 7.

Konanykhine's Handwritten Affidavit which he Prepared in Passaic County Jail

                    Konanykhine also filed an Affidavit stating certain facts. This Affidavit was written on December 21, 2003 while Konanykhine was confined in the Passaic County Detention Center. This Affidavit states
 


December 21, 2003
Paterson, NJ

I, Alexandre P. Konanykhine, are [sic] stating under penalty of perjury:

1. On December 18, 2003 my wife and I were arrested by the BICE officers while trying to cross the Peace Bridge for an appointment with Canadian authorities, which was scheduled because my wife had been ordered by BIA to leave the country within 30 days. The arresting officers did not allow my wife or myself to enter Canada, stating that we "were wanted by Russia". We were not allowed to call our attorney and were almost immediately flown to Washington, DC and immediately taken to the Russian Embassy. The accompanying officers explained that they were flying us to Moscow immediately thereafter.

2. The Russian counsul [sic] explained to the INS that he would not be able to issue travel documents the same day because he needed to go through verification of our citizenship. For a period of at least one hour Assistant Deputy Director of the BICE Neil Clark was yelling and screaming on the Russian council [sic] demanding immediate issue of travel documents and stressing that it was paramount that we were sent to Russia the same day, and that senior Russian officials were promised that.

3. The next day we were taken to New York JRK airport for connecting flight to Moscow. We arrived to [sic] Reagan National Airport too late to board the last possible flight through normal means. To secure the seats on that plane BICE officer Green stated to Delta Airlines Representatives and the Airport Police that a federal court ordered that we would be on that very flight. A lot of pressure was applied. We were advised by BICE officers that if the court were still in session at the time of the flight byt [sic] no stay was issued, we would be flown to Moscow. Our baggage was checked in and partially flown to Moscow.

4. It was evident that extraordinary measures were being employed to deliver us to Moscow and that it was caused by a deal with the Russian government.

5. In 1992-1995 I served as Vice President of Mr. Khordorkovsky for International Affairs. Recent arrest of Mr. Khordorkovsky is a major event in Russia and caused major international outcry, including concern expressed by President Bush and pending bill in U.S. Congress requesting removal of Russia from G-8 group of countries. Deputies of Mr. Khordorkovsky has [sic] been jailed as a part of this obvious political persecution. If delivered to Russia, I have no doubt, that I will be tourtured [sic] to make up incriminating statements on Mr. Khordorkovsky and to incriminate myself.

6. I have never committed any crime or immigration violation. In fact, charges of immigration violations have been prooven [sic] wrong and I was cleared of them. The immigration judge also found that "the Russian government fabricated charges against me to conceal its own corruption". That decision caused a lot of international coverage in media. I have no doubt that Russian government will employ tourture [sic] to force me to incriminate myself because of that decision of the U.S. immigration court and the resulting media coverage.

7. My wife has never committed any crimes or violations, nor has she ever been charged. Her only "fault" is that she fallen [sic] in love with me, so now the Russian government requested her to have more leverage on me. Facing threats to her and tourture, [sic] I would most certainly have to falsely incriminate myself and face a show trial following [sic] by sub human condition [sic] in Russian preason [sic] and likely death - as practically all experts agree.

Signed (under penalty of perjury)

/s/
Alexandre Konanykhine
See Exhibit 8

 
BACKGROUND OF RUSSIAN LEGAL SYSTEM

Amnesty International's Findings


In ROUGH JUSTICE: The law and human rights in the Russian Federation, a 100 page book published in 2003, Amnesty International analyzed the Russian legal system with regard to human rights and abuses of the Russian legal system that lead to violation of human rights. See ROUGH JUSTICE: The law and human rights in the Russian Federation, Amnesty International Publications, London, U.K., 2003.

The preamble to ROUGH JUSTICE, describes Amnesty International as

  " is a worldwide movement of people who campaign for internationally recognized human rights.

Amnesty International's vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights standards.

In pursuit of this vision, Amnesty International's mission is to undertake research and action focused on preventing and ending grave abuses of the rights to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination, within the context of its work to promote all human rights." ROUGH JUSTICE, preamble at page i.

The very beginning of ROUGH JUSTICE states that it is "important that no one should be returned to a country where they would be at risk of torture, execution or unfair trial." ROUGH JUSTICE, Page 2. This rule should be applied in the Konanykhine and Gratcheva matter as the effect of the ICE's deportation would be a de facto criminal extradition without authority based on a treaty between the United States and Russian Federation - an extradition that would certainly place the young couple at risk of torture, execution or unfair trial. The following passages from ROUGH JUSTICE highlight the areas where the Russian legal system fails to comply with minimum international standards:

  Page 2
"The legacy of the Union of Soviet Socialist Republics (USSR) has placed massive obstacles in the way of the Russian Federation's self declared goal of becoming a society based on the rule of law. One of these is the insignificant role that courts played in the past.

The Bolsheviks came to power in 1917 intent upon abolishing law and the courts altogether. They modified their position when it became clear that a state without law deprives itself of legitimacy. What evolved in the USSR was an 'administered society.' The power to resolve disputes lay not with the courts but with Communist Party and government functionaries. In this context, the courts posed no independent challenge to the ruling system and were little more than appendages to it.

Close to its point of collapse in 1991, the USSR had a population of 260 million people, but only 15,781 judges. This was approximately the same number as in what was then the Federal Republic of Germany, a country with a quarter of the USSR's population. Soviet judges were reputedly the least qualified of the nation's jurists. Membership of the Communist Party was obligatory for judges, and the Ministry of Justice - an arm of the executive - controlled allocation of resources in a way perceived as open to political pressure and thereby undermining independence. Until 1989 the promotion of judges depended on the recommendation of Communist Party officials. From 1989 to 1991 the power to appoint and promote judges was transferred to members of the parliament - the Congress of Soviet People's Deputies - but judges were still not independent. Always predominantly female, the profession became mostly young and inexperienced after the economic deterioration of the mid-1980s left many judges too poor to stay in their job.

The status of Soviet Judges was so low that they commanded virtually no respect. Professionally, they played what has been described as a 'supporting role' in the system of Soviet justice. The state prosecution service - the procuracy - was the body officially charged with ensuring that the law was respected in every area of Soviet life, even to the extent of 'protesting' court decisions it disagreed with. Because administrative solutions were preferred in the USSR, the range of issues that came before the courts was limited compared with courts in many other countries. The incestuous relationship between judges and the Communist Party meant that judges were required to attend party meetings at their place of work, to implement directives from the party apparatus and to place political loyalty above the law. Courts were mobilized behind 'law and order' campaigns and willingly complied with official campaigns to obliterate dissent. All this was monitored and documented by Amnesty International."

Pages 12-13
A wide spectrum of political violence has run alongside the evolution of legal institutions, and fallen outside their reach. Public figures have been assassinated - in the street, in their homes, and at work - including eight members of the federal parliament killed by unknown assailants since the new State Duma was convened in 1994. Journalists investigating stories of regional or central corruption have been another target. Businesspeople have also been murdered, often when shares were being privatized or companies were changing ownership. In most of these cases, those responsible for the killings have never been prosecuted. Some cases have not even been investigated. The number of such unpunished killings since 1991 suggests that brute force pays for certain people - and deeply undermines the rule of law.

Political violence and continuing problems in the justice system show that despite the strides made by the Russian Federation since 1991, much still needs to be done to protect people's fundamental human rights and to ensure that everyone has an effective remedy if their rights are violated.

Page 27
At the close of the Soviet era in 1990, the courts were reportedly acquitting 0.3 per cent of the people who came before them. In France for the same year the acquittal rate was reported to be 10 per cent. Although the scope and caseload of courts in the Russian Federation has grown since 1991, the acquittal rate has stayed the same, according to Ministry of Justice figures for 2001.

Taken a face value, this conviction rate might suggest that victims of crime in the Russian Federation have had almost automatic redress. Legal reformers within the Russian Federation discount this interpretation and attribute the high conviction rate to an intrinsic bias in the criminal justice system and a presumption of guilt stamped through the Criminal Procedure Code (CPC) that was in use until July 2002.

Under the old CPC, suspects were invariably deprived of their liberty and could remain in detention for months or even years with no right of access to a court of a defence lawyer until state investigators deemed their case was complete and ready to go to court. During this long pre-trial phase, detainees were exclusively in the hands of the agencies bringing the case against them: the procuracy and bodies such as the Ministry of Internal Affairs, which also administered the police cells and remand prisons where the detainees were held. Outside this closed circle, suspects had no right of face-to-face contact with anyone.

Amnesty International and other human rights organizations inside the Russian Federation and elsewhere documented reports of ill-treatment and torture before trial that were commonplace under the old CPC. Since 1998, when control of the prison system was transferred to the Ministry of Justice, Amnesty International has continued to document torture of suspects in police cells, which remain under the control of the Ministry of Internal Affairs.

Under the old CPC, suspects had little chance of release - unless another suspect came to light for the same offence. They also had no remedy through the national courts if they had been wrongfully detained, no matter how long their detention.

Page 30
All male defendants have their heads shaved like convicts. International observers have said such practices prejudice the right to be presumed innocent until convicted by a court.

Page 70
Since 1998 the Ministry of Justice has been responsible for administering the penitentiary system in the Russian Federation. Nevertheless, it has left the control of prison disorders in the hands of riot squads who are outside the prison system and not answerable to it. By abdicating from its responsibility for this aspect of prison management, the Ministry of Justice may be putting unarmed prisoners at risk of extreme, random and gratuitous violence. The remedies available to prisoners are too limited and too ineffective to redress effectively such violation of their human rights.

Page 75
Conditions for prisoners serving life sentences in the Russian Federation are so harsh that they amount to cruel, inhuman or degrading treatment or punishment, and in some cases possibly even torture.

Life imprisonment is a new punishment in the Russian Federation and is best understood in the context of the death penalty debate that divided the country in the 1990s.

Although obliged to abolish the death penalty since the Russian Federation joined the Council of Europe in 1996, the State Duma has failed to do so. Reluctantly, it introduced an alternative punishment to death - life imprisonment, which the authorities have made as harsh as possible.

Page 76-77
Life imprisonment means imprisonment for the duration of a prisoner's natural life. Contrary to international standards for the treatment of people in custody, in the Russian Federation life imprisonment is organized around the prisoner's almost total isolation. This isolation, along with other hardships, leads Amnesty International to believe that their rights under Articles 7 and 10 of the ICCPR [International Covenant on Civil and Political Rights] are being violated.

Life sentence prisoners serve their time on 'special regime,' which is the harshest category of imprisonment in the system of corrective labour colonies. According to the 1997 Punishment-Implementation Code, they are kept separately from other 'special regime' prisoners, who serve their sentences in barracks.

Every aspect of imprisonment for prisoners serving life sentences is designed to ensure their isolation from the outside world and from other prisoners. They are held in cells, either alone or in the company of one other prisoner. They exercise in a separate enclosed yard outside their cell for 90 minutes each day, and are given work assignments to do inside a separate workshop. They are entitled to study, but may not take part in education classes with other prisoners, studying instead in principle to have only a three-hour visit twice a year and to receive one parcel and one small package a year. The money they earn on work assignments can be spent each month on items from the prison kiosk.

The provisions isolating life sentence prisoners contravene those recommended by international standards, and the way they are put into practice makes them even harsher.

Page 78
[One prison, Institution OE 265/5] accommodates 156 people with commuted death sentences, according to statistics provided by the Ministry of Justice to a delegation of State Duma deputies visiting the prison in February 2001. Since the first prisoner arrived in the colony in February 1994, the Ministry reports that 32 prisoners have died, four of whom have committed suicide. This is a mortality rate of around 20 per cent in six years.

Opponents of abolishing the death penalty have used figures like these to argue that execution is more humane than what they call the 'slow death' of life imprisonment. In Amnesty International's view, the figures indicate that the condition in which life sentence prisoners are held violate their right to be treated with humanity and not to be subjected to torture or other cruel, inhuman or degrading treatment - and that the conditions should be improved without delay.

Page 79
According to some of the letters that prisoners have managed to send from the island, even this picture does not match reality. Work is not always available, so prisoners without work have no way of occupying their time and have no source of income with which to buy essentials such as soap, toothpaste, shaving tools and envelopes.

Prisoners serving life sentences face major difficulties in maintaining contact with loved ones, especially given the enormous size of the Russian Federation and the severe limitations placed on the frequency and length of visits.

Page 79
[The large distances between prisons and the prisoners' homes] can mean life sentence prisoners have no personal contact, since not every family can afford the time or expense of such a long journey. In the Vremia MN article, the journalist noted that out of 156 inmates, only 40 'maintain contact' with relatives, which could amount to just one letter a year.

This imposes extreme physical and psychological isolation on life sentence prisoners and also makes them utterly dependent on the fairness and professionalism of the people administering their punishment. If this professionalism is missing, the prisoner's only direct channel for redress is writing to the procuracy, which is responsible for ensuring that legality is observed in the region, or too the regional ombudsman, if there is one.


Konanykhine's Former Business Partner, Khordokovsky's Legal Problems

                  As previously stated, Konanykhine was former business partners with Mikhail Khordorkovsky. Mr. Khordorkovsky is allegedly Russia's richest man and head of its largest oil corporation.

See Russia's Arrest of Its Oligarchs, The Michigan Journal of International Affairs, University of Michigan, Ann Arbor, Michigan, found at http://www.umich.edu/~ias/mjia/dec2003/editorial12032.htm. Mr. Khordorkovsky's company also funds the largest democratic opposition party in Russia. Id. An October 30, 2003 Washington Post article entitled "Prosecution Puts Russian 'Rule of Law' on Trial; Billionaire's Case Invites Scrutiny of Justice System" describes in detail the lack of due process afforded to criminal defendants who are accused of committing crimes in the Russian Federation. The article is reprinted in full:

 

In the midst of a tense, big-money dispute with Yukos oil company in 1998 and 1999, businessman Yevgeny Rybin was twice targeted by gunmen trying to kill him. Rybin suspected that someone affiliated with Yukos was behind the murder attempts and told Russian prosecutors. But they never acted on his suspicions.

Then this summer, long after Rybin had given up and left the country in fear for his life, he received an urgent call from the Russian prosecutor's office asking him to return to Moscow to formally repeat, on paper, some of the same allegations he had made five years earlier.

The sudden revival of interest in old allegations against the oil company run by billionaire Mikhail Khodorkovsky is characteristic of the politically charged investigation that last weekend landed him in prison on charges of tax evasion, fraud and forgery.

Even Rybin's lawyer, who has fought Yukos in court several times and expresses no love for Khodorkovsky, said the prosecutors' call to his client demonstrated that the pursuit of Russia's richest man stems from politics, not law enforcement. "Why after five years?" said the lawyer, Alexander Dobrovinsky. "What's changed? To me it gives an absolutely clear picture that this is a political case."

President Vladimir Putin insisted this week that the case against Khodorkovsky was about establishing the rule of law in Russia. But many lawyers, politicians and analysts counter that the legal proceedings against him so far amount to a case study in lack of due process in the country's largely unreconstructed justice system.

Even his supporters concede Khodorkovsky may be guilty of some of the financial crimes he has been charged with, although he denies that. But the investigations that began unfolding in July during a political dispute between Khodorkovsky and the Kremlin have struck many observers as selective prosecution in a country where virtually every big business tycoon accumulated wealth as state companies were sold in corrupt deals in the 1990s.

Critics include the U.S. ambassador, Alexander Vershbow, who told the Interfax news agency that the arrest could negatively affect the investment climate in Russia.

The investigations, they add, have been conducted with little regard for the standards Putin publicly espouses -- authorities have searched the office of Khodorkovsky's main lawyer in the case and have demanded the school records of the businessman's 12-year-old daughter.

On Monday, the Russian president hailed the arrest as the work of a "democratic and legally well-balanced system" and refused to intervene, saying "it is only the court that can decide this matter."

Putin, who signed into law last year a new criminal procedure code that theoretically gives defendants like Khodorkovsky expanded rights and seeks to curb the overwhelming advantages of prosecutors in the Russian system, also offered a lecture on the principle of equality before the law.

It doesn't matter, he said, whether the accused is "a modest clerk, a government official or a top businessman, regardless of how many billions of dollars there are in his personal or corporate accounts."

With his statements, Putin practically invited scrutiny of a law enforcement system that has no tradition of an independent judiciary and is rampantly corrupt.

"There is no 'rule of law' state in this country," said Sergei Pashin, a former federal judge who has publicly advocated comprehensive legal reforms. "The Khodorkovsky case is another case in which the law works the way someone wants it to."

Pashin and other experts see parallels to the misuses of the legal system during the Soviet period, when Communist-written laws appeared on paper to offer guarantees of fairness but were either impossible to abide by or so selectively applied that they served only as a tool to reinforce the authorities' control. Some call the tactics used against Khodorkovsky "Stalinist."

"It's a very Stalinist style of management. From time to time, you need a demonstration of power by punishing someone publicly," Pashin said. "Selective application of the law is a tradition."

Gleb Pavlovsky, a political consultant who helped Putin win election in 2000, said on the Ekho Moskvy radio station that authorities were organizing a "show trial" of the Yukos chief, and he ridiculed the notion that "any action the prosecution chooses to take is legitimate by definition." Such a view is "unacceptable," he said, "even if it is made by the president of the Russian Federation."

Even some of those who support the Kremlin's goal of eliminating the power of the so-called oligarchs such as Khodorkovsky in Russian politics have expressed fears in recent days about Putin's methods.

"We know oligarchic capitalism is very bad for Russia and that Vladimir Putin has to crush this system," said Sergei Markov, a Kremlin-connected political analyst. But he said he was against Khodorkovsky's arrest, primarily because of the inconsistency with which the law is applied here. "First they must make a law which we can follow," he said. At present, "every person in Russia can say 'I want to be loyal to the law, but I cannot.' "

Khodorkovsky's arrest by armed, masked secret service agents has revived concerns among Western investors about doing business in a country where law enforcement authorities often interfere in financial disputes.

"Putin has left himself face to face with a 'due process' which is in fact a travesty," said a report from a Russian brokerage firm, United Financial Group, which recommended that he fire Prosecutor General Vladimir Ustinov or propose "radical" reform of the law enforcement system to save his presidency "from ignominious failure."

Lawyers in the Yukos case have a long dossier of what they contend are violations of Russian rules or international legal standards in the investigation, which began in July as a probe into a nearly decade-old privatization deal but has mushroomed into a broad series of accusations, including that Khodorkovsky evaded personal taxes and that a top company official ordered a murder. So far, Khodorkovsky and two other Yukos billionaires have been charged.

Both Khodorkovsky and top adviser Platon Lebedev were denied access to their lawyers for days after their arrests and held on white-collar charges that in the United States would rarely result in lengthy detention before trial. Lawyers for Yukos security official Alexei Pichugin say that authorities injected him with psychotropic drugs in an attempt to extract a confession.

Masked agents have raided a wide variety of locations associated with Yukos, including an orphanage and a public relations firm that works for a political party funded by the Khodorkovsky team, often without proper search warrants and without allowing Yukos representatives to monitor the searches, according to defense attorneys.

In one of the most controversial moves, prosecutors searched the offices of Anton Drel, the lead attorney for Lebedev and Khodorkovsky, and summoned him for interrogation, which Russian lawyers say violates attorney-client privilege. Drel refused to appear for questioning but his associates believe his jailhouse conversations with Lebedev have been intercepted by authorities.

And most hearings in the case have been held behind closed doors, with the public and the news media barred. At one hearing for Lebedev, even the Yukos lawyers were locked out of the courtroom. "They were literally left knocking on the door of the Basmanny Court while the prosecutor and the judge were talking about the legitimacy of his arrest and whether he's going to be held or not," said Sanford M. Saunders Jr., a Washington lawyer hired by the Khodorkovsky team.


British Rulings on Extraditions to Russia

                          On November 13, 2003, the Bow Street Magistrates' Court in London, United Kingdom, declined the Russian Federation's request to extradite the Chechen envoy, Akhmed Zakayev on the grounds that Zakayev's ethnicity and political beliefs made it likely that he would not receive a fair trial and would be tortured if returned to the Russian Federation. See BBC News World Edition, dated November 13, 2003, found at http://212.58.226.18/2/hi/uk_news/3266325.stm. Judge Timothy Workman, who presided over the hearing in Zakayev, ruled that "[i]t would be unjust and oppressive to return Mr. Zakayev to Russia." Id. Judge Workman further ruled that "I have come to the inevitable conclusion that if the [Russian] authorities are prepared to resort to torturing witnesses, there is a substantial risk that Mr. Zakayev would himself be subject to torture." Id. In reporting on the Zakayev case, the BBC noted that "[t]his is the third time in recent months that Britian has turned down a Russian request for the extradition of one of its citizens. The wealthy businessman, Boris Berezovsky, and his business associate Yuly Dubov recently had their extradition cases thrown out, and both were granted political asylum." Id.


Senators McCain and Lieberman's Proposed Legislation Urging the President to
Suspend Russia's Membership in the Group of Eight Industrialized Democracies

                         On November 21, 2003, Senators McCain and Lieberman introduced legislation urging President Bush to suspend Russia's membership in the Group of Eight (G-8) industrialized democracies until the Russian Government adheres to "democratic norms and standards, including the rule of law; a court system free of political influence and manipulation; a free and independent media; a political system open to participation by all citizens and which protects freedom of expression and association; and the protection of universally recognized human rights." See Press Release entitled, McCain, Lieberman Urge Suspension of Russia G-8 Membership, found at http://mccain.senate.gov/index.cfm?fuseaction=Newscenter.ViewPressRelease&Content_id=1190.

President Bush's Changing Views On Russia

                        Another Washington Post article, this one entitled "Bush Changing Views on Putin; Administration that Hailed Russian Leader Alters Course" and published on December 14, 2003, noted that

 

President Bush, who publicly credited Russian President Vladimir Putin just 10 weeks ago for promoting freedom and democracy, has protested to the Russian leader since then for moving in the opposite direction, according to senior U.S. officials.

Bush and his foreign policy team have begun to question Putin's intentions - and their own approach - after the abrupt imprisonment of Russian oil tycoon Mikhail Khodorkovsky and parliamentary elections derided by European monitors as an unfair government-orchestrated triumph. . . .

Administration officials say Bush, in recent telephone conversations with Putin, has raised complaints about evidence that Putin has fallen far short of his promises to deliver pluralism and a fair legal system.. . .

Meanwhile, an emerging debate within Republican circles spilled into the open after Khodorkovsky's Oct. 25 arrest. He was charged with tax evasion and fraud, but Putin critics and Bush administration officials view the case as a Kremlin-orchestrated political attack on a powerful business figure who has presented himself as a reformer.

 

I. THIS HONORABLE COURT HAS AUTHORITY TO SUMMARILY ENFORCE THE 1997 AGREEMENT THAT SETTLED THE PRIOR HABEAS CORPUS MATTER WITHOUT THE NEED TO FILE A NEW COMPLAINT.

This Honorable Court has authority to summarily enforce the 1997 agreement that settled the prior habeas corpus matter without the need to file a new complaint. In Hensley v. Alcorn Laboratories, Inc., 277 F.3d 535, 540 (4th Cir. 2002), the court held that "[c]ourt-facilitated settlements are an important aspect of the judicial process and of its purpose in providing an orderly and peaceful resolution of controversies." The Hensley court also held that

 

[a]lthough resolution of a motion to enforce a settlement agreement draws on standard contract principles, it may be accomplished within the context of the underlying litigation without the need for a new complaint. To this extent, district courts have inherent authority, deriving from their equity power, to enforce settlement agreements. The exercise of this authority has the 'practical effect' of entering a judgment by consent. Id., citing Millner v. Norfolk & W. Ry. Co., 643 F.2d 1005, 1009 (4th Cir. 1981).


In the instant proceeding, Konanykhine and the ICE agreed that

 

Respondent [Immigration and Naturalization Service] agrees to parole petitioner [Konanykhine] pending final resolution of his immigration proceedings, including any direct judicial appeals thereof, so long as petitioner engages in _____ [indecipherable in copy] conduct, or so long as no other circumstances arise, which warrant revocation of his parole under 8 C.F.R. § 212.5. See Exhibit 1 of Petitioners' Original Emergency Motion filed on December 19, 2003.


This agreement was clear and unambiguous. Moreover, the parties have honored this agreement for over six years, prior to the events of December 18, 2003 at the Peace Bridge. This Honorable Court may enforce the settlement agreement at issue in the instant proceeding summarily. With regard to summary enforcement of a settlement agreement, the Hensley court stated, "if an agreement for complete settlement of the underlying litigation, or part of it, has been reached and its terms and conditions can be determined, the court may enforce the agreement summarily as long as the excuse for nonperformance of the agreement is 'comparatively insubstantial.'" Hensley, 277 F.3d at 540, citing Millner, 643 F.2d at 1009. In conclusion, the Hensley court held "to exercise its inherent power to enforce a settlement agreement, a district court (1) must find that the parties reached a complete agreement and (2) must be able to determine its terms and conditions." Hensley, 277 F.3d at 540-41.


II. GRATCHEVA WAS A THIRD-PARTY OR INTENDED BENEFICIARY OF KONANYKHINE'S 1997 SETTLEMENT AGREEMENT, AND THUS MAY NOT BE DEPORTED PENDING RESOLUTION OF ALL JUDICIAL APPEALS OF HER ASYLUM CLAIM.
 

                      Gratcheva was a third-party or intended beneficiary of Konanykhine's 1997 settlement agreement and thus may not be deported pending resolution of all judicial appeals of her asylum claim. As Konanykhine's wife, and also as a fellow Russian citizen, Gratcheva was intrinsically tied to her husband's immigration proceedings. The ICE, knew, at the time of the 1997 settlement agreement that Konanykhine and Gratcheva were physically separated due to Konanykhine's detention. The ICE could also reasonably infer that since Konanykhine alone was detained, and not his wife as well, that it would have been illogical to enter into a settlement agreement whereby Gratcheva could be deported pending judicial appeal of her immigration status, but her husband, Konanykhine could not be deported pending judicial appeal. In MNC Credit Corporation v. Sickels, 255 Va. 314, 334 (1998), the court held that "[i]n order to proceed on a third-party beneficiary contract theory, the party claiming the benefit must show that the parties to a contract clearly and definitely intended to confer a benefit upon him." By entering into a contract with Gratcheva's husband, Konanykhine, whereby it agreed to release him from detention and parole him "pending final resolution of his immigration proceedings, including any direct judicial appeals thereof," the ICE clearly and definitely intended to confer a benefit upon Gratcheva, namely, that she would share her husband's parole pending the direct judicial appeals.


III. SINCE THE UNITED STATES AND RUSSIA HAVE NOT ENTERED INTO AN EXTRADITION TREATY, IT IS NOT APPROPRIATE FOR THE ICE TO ACCOMPLISH AN DE FACTO EXTRADITION BY DEPORTING THE KONANYKHINES TO RUSSIA.


                      Since the United States and Russia have not entered into an extradition treaty, it is not appropriate for the ICE to accomplish an de facto extradition by deporting the Konanykhine family to Russia. In U.S. v. Oudovenko, 2001 U.S. Dist. LEXIS 2549, *10 (E.D.N.Y. 2001), the court stated, "there is no extradition treaty with Russia." Petitioners are not aware that the United States and Russia have entered into an extradition treaty since the Oudovenko decision. In U.S. v. Alvarez-Machain, 504 U.S. 655, 664 (1992), the court stated "[i]n the absence of an extradition treaty, nations are under no obligation to surrender those in their country to foreign authorities for prosecution." Therefore, since it would not be appropriate for the ICE to extradite the Konanykhine family to satisfy the Russian government's purported desire to criminally prosecute Konanykhine for economic crimes since the United States and Russia have not entered into an extradition treaty, it is not appropriate for the extradition occur under a different name -"deportation."


IV. HABEAS CORPUS PROCEEDINGS ARE AVAILABLE TO KONANYKHINE AND GRATCHEVA WITH REGARD TO THEIR CLAIMS THAT THEY ARE BEING UNLAWFULLY DETAINED AND DEPORTED.
 

                      Habeas corpus proceedings are available to Konanykhine and Gratcheva with regard to their claims that they are being unlawfully detained and deported.

In Zadvydas v. Davis, 533 U.S. 678, 688 (2001), the court held that "habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention." This is because "the Due Process Clause applies to all "persons" within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent" and because "the Due Process Clause protects an alien subject to a final order of deportation." Id. at 693-94. In the instant matter, the Board of Immigration Appeals has denied Konanykhine and Gratcheva's asylum request. The ICE has taken extraordinary measures to handover the couple to the Russian authorities based on this administrative ruling. In Zadvydas, the court held that "the Constitution may well preclude granting "an administrative body the unreviewable authority to make determinations implicating fundamental rights." Id. at 692. Should the ICE take the position that habeas corpus relief is not permitted in the instant matter, it must provide explicit evidence of such position because "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear" and "where a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress' intent." Demore v. Kim, 538 U.S. 510, *14 (April 29, 2003). Since there the ICE can point to no such evidence, Konanykhine and Gratcheva respectfully request that this Honorable Court grant their application for a writ of habeas corpus.


V. HABEAS CORPUS IS AVAILABLE TO KONANYKHINE AND GRATCHEVA SINCE THEIR CONSTITUTIONAL RIGHTS WERE VIOLATED AND SINCE THE WRIT IS THE ONLY EFFECTIVE MEANS OF PRESERVING THEIR RIGHTS.


                      Habeas corpus is available to Konanykhine and Gratcheva since their constitutional rights were violated and since the writ is the only effective means of preserving their rights. Pursuant to 28 U.S.C. § 2241 (a) and (c), this Honorable Court has jurisdiction to grant Petitioners' writ of habeas corpus since Konanykhine and Gratcheva are "in custody under or by color of the authority of the United States," or are "in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States," or are "in custody in violation of the Constitution or laws or treaties of the United States." As previously stated, Konanykhine and Gratcheva are in the custody of the ICE pursuant to the November 20, 2003 order of the Board of Immigration Appeals.

In Kuhlmann v. Wilson, 477 U.S. 436, 446 (1986), the court stated, "habeas review is available for claims of disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights." Moreover, the Kuhlmann court observed that "habeas corpus has traditionally been regarded as governed by equitable principles." Id. at 447. In Kuhlmann, the court also found that habeas corpus

 

"should be available to afford relief to those persons whom society has grievously wronged in light of modern concepts of justice. Just as notions of justice prevailing at the inception of habeas corpus were offended when a conviction was issued by a court that lacked jurisdiction, so the modern conscience found intolerable convictions obtained in violation of certain constitutional commands."

A. Konanykhine and Gratcheva respectfully request this Honorable Court to order that the ICE produce them at all hearings related to the instant action in order to actively participate in the prosecution of their claims and in order to assist their attorneys in presenting their case.

Konanykhine and Gratcheva respectfully request this Honorable Court to order that the ICE produce them at all hearings related to the instant action in order to actively participate in the prosecution of their claims and in order to assist their attorneys in presenting their case. This case is extremely technical and involves a timeline of facts that lasts for over ten years. It is essential for Konanykhine and Gratcheva to assist their attorneys sift through the massive amounts of evidence and present their case in a logical manner. Pursuant to 28 U.S.C. § 2246, the Petitioners respectfully request that evidence in this matter be taken orally. Pursuant to 28 U.S.C. §2247, the Petitioners respectfully request that all previous documentary evidence and transcripts of oral testimony on all prior habeas corpus hearings be admissible into evidence.

B. Konanykhine and Gratcheva's detention and deportation violates their due process rights guaranteed under the Fifth, Sixth and Eighth Amendments to the United States Constitution.

                 Konanykhine and Gratcheva's detention and deportation violates their due process rights guaranteed under the Fifth, Sixth and Eighth Amendments to the United States Constitution. The Fifth Amendment provides

 

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Sixth Amendment provides

 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The Eighth Amendment provides

 

Excessive bail shall not be required, no excessive fines imposed, nor cruel and unusual punishments inflicted.

                 Konanykhine and Gratcheva have not been to Russia in many years, yet are the subject of many serious allegations involving financial impropriety in the Russian Federation. These allegations could result, at the very least, in a very long and harsh prison sentence. Prior to that sentence being imposed, there are no procedural safeguards in the Russian legal system that would allow grand jury indictments as required by the Fifth Amendment to the U.S. Constitution, speedy petit jury trials as required by the Sixth Amendment to the U.S. Constitution or what Americans would consider to be due process rights during the trial itself. Before and after the trial, Konanykhine and Gratcheva could be made to suffer cruel and unusual punishment at the hands of their Russian countrymen which would certainly violate the Eight Amendment if it occurred in the United States. Simply put, the effect of Konanykhine and Gratcheva's deportation would be the de facto extradition of the couple to a country whose legal system is inherently flawed and can not provide even the most basic of procedural safeguards to individuals accused of serious crimes. This de facto extradition is especially unnerving considering the fact that the United States and Russian Federation have not entered into an extradition treaty. Also, there are other countries to which Konanykhine and Gratcheva could be deported - Antigua, Germany and Austria (where the couple have traveled prior to locating in the United States); Uruguay (where the couple visited several times and whose valid passport the couple still holds-although the passport has been in the possession of the ICE since at least 1997) and Canada (where the couple had an appointment to meet with immigration officials regarding an asylum application). Instead of permitting the couple to leave the United States with any of these countries as destinations, the ICE has taken extreme and unprecedented measures to return the couple to Russia. In theory, if the couple is deportable, the ICE should not care to which country the couple is deported. In fact, Konanykhine and Gratcheva were doing the ICE a favor (and saving them the time and aggravation of addressing the instant litigation) by leaving the country for Canada on December 18, 2003. Therefore, this Honorable Court should grant the Petitioners' application for a writ of habeas corpus and release them from detention and the ever present threat of deportation pending all direct judicial appeals of the November 20, 2003 Board of Immigration Appeals order and permit them to either remain in this country or depart this country for another country willing to permit their entry.


1. Konanykhine and Gratcheva's detention and extradition are unlawful since they violate the terms of the 1997 settlement agreement that released Konanykhine from detention six years ago.

                 Konanykhine and Gratcheva's detention and extradition are unlawful since they violate the terms of the 1997 settlement agreement that released Konanykhine from detention six years ago. This settlement agreement is certainly relevant to the instant matter since it was the result of a previous habeas corpus application. As previously stated, this settlement agreement prevents the ICE from detaining or deporting Konanykhine (and, as previously alleged by Petitioners, Gratcheva as well) while his direct judicial appeals of his immigration matters are pending. Since the Fourth Circuit has not yet ruled on the couple's petition for review, the ICE was without legal grounds to detain the couple and was certainly without legal grounds to take the extraordinary steps it attempted to take to deport the couple.


2. Gratcheva's detention and extradition are unlawful since they violate the terms of the Board of Immigration Appeals decision that allows her to voluntarily depart the United States for a period of thirty days from the date of the decision.


                 Gratcheva's detention and extradition are unlawful since they violate the terms of the Board of Immigration Appeals decision that allows her to voluntarily depart the United States for a period of thirty days from the date of the decision. Since that thirty day period had not yet expired, the ICE was without legal justification to detain and attempt to deport Gratcheva.


3. The ICE's revocation of Konanykhine's parole was dated the day after it detained and attempted to deport him. Furthermore, the revocation falsely accused Konanykhine of failing to report to ICE officials.


                 The ICE's revocation of Konanykhine's parole was dated the day after it detained and attempted to deport him. Furthermore, the revocation falsely accused Konanykhine of failing to report to ICE officials. The fact that the revocation letter was not issued until the day after Konanykhine attempted to leave the United States cannot justify his detention the day before the letter was issued. Had there been grounds to revoke his parole prior to the detention, the ICE would have done so. This letter is a futile attempt to "legalize" the detention.


VI. PETITIONERS KONANYKHINE AND GRATCHEVA RESPECTFULLY REQUEST THIS HONORABLE COURT TO TREAT THE INSTANT AMENDED MOTION AS A MOTION FOR A PRELIMINARY INJUNCTION PENDING THE FINAL RESOLUTION OF ALL OF PETITIONERS DIRECT JUDICIAL APPEALS OF THE NOVEMBER 20, 2003 BOARD OF IMMIGRATION APPEALS DECISION, AS AN ALTERNATIVE TO THE FOREGOING THEORIES, PURSUANT TO F. R. CIV. P. 65 (A).


                 Petitioners Konanykhine and Gratcheva respectfully request this Honorable Court to treat the instant amended Motion as a Motion for a Preliminary Injunction pending the final resolution of all of Petitioners direct judicial appeals of the November 20, 2003 Board of Immigration Appeals decision, as an alternative to the foregoing theories, pursuant to F. R. Civ. P. 65 (a). In deciding whether to issue a preliminary injunction, a court must consider "(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the requested relief is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest." Newsom v. Albemarle County School Board, 2003 U.S. App. LEXIS 24295, *11 (4th Cir. December 1, 2003). It is clear that, in following the Newsom test, a preliminary injunction should issue.

                 First, if the motion for preliminary injunction is denied, Konanykhine and Gratcheva will be on an airplane back to Russia before the ink could dry on the paper. It is unlikely that either Konanykhine or Gratcheva will ever be permitted to leave the Russian Federation again, much less travel to the United States. That is, if they are not housed in jail awaiting trial for many years. Second, the ICE will not suffer from Konanykhine and Gratcheva's release from detention. The couple have been free from detention for over six years and have become productive members of society. The couple have started a fairly successful business and pay taxes. In fact, it would be a severe economic hardship were the couple to relocate. The only reason that Konanykhine and Gratcheva attempted to travel to Canada on December 18, 2003 was to pursue a claim for asylum in light of the Board of Immigration Appeals order dated November 20, 2003. Had it not been for this order, the Konanykhine family would not have, in all likelihood, any reason to leave the United States. Third, it is likely that Konanykhine and Gratcheva's Fourth Circuit petition for review of the Board of Immigration Appeals order will succeed since the climate with regard to the American view of the Russian legal system has changed in the several weeks since the original publication of the order due to Senators McCain and Lieberman's very public statement on the Russian internal affairs and also due to the Russian Federation's prosecution of Konanykhine's former business partner, Mr. Khodorkovsky. Also, the Fourth Circuit may look with favor on the findings of fact of the Immigration Judge whose decision was overturned by the Board of Immigration Appeals. Typically, findings of fact should be respected by the appellate body, such as Judge Bryant's findings that Konanykhine would suffer based on his political views if returned to Russia. Finally, the public interest in Konanykhine and Gratcheva's case remains strong since coverage of their immigration proceedings has appeared in newspapers such as the Washington Post and on CBS-TV's "60 Minutes" program. Therefore, it is appropriate to grant a preliminary injunction releasing Konanykhine and Gratcheva from detention and preventing the ICE from deporting the couple to Russia.


VII. THE RUSSIAN LEGAL SYSTEM IS SUBJECT TO ABUSE BY THOSE IN POWER AND DOES NOT GRANT ANY DEFENDANT ANY GUARANTEES OF PROCEDURAL DUE PROCESS IN THE IMPLEMENTATION OF THE CRIMINAL JUSTICE SYSTEM.


                 As previously stated in the background section of the instant filing, the Russian legal system is subject to abuse by those in power and does not grant any defendant any guarantees of procedural due process in the implementation of the criminal justice system. Therefore, deportation to Russia would violate Konanykhine and Gratcheva's due process rights.


Conclusion

Petitioners Alexandre Konanykhine and Elena Gratcheva respectfully request

this Honorable Court to

1a. summarily enforce the 1997 settlement agreement by issuing an order to the Department of Homeland Security, U.S. Immigration and Customs Enforcement Branch to release Petitioner Konanykhine and Petitioner Gratcheva from detention and order them paroled pending final resolution of their immigration proceedings, including any direct judicial appeals thereof as stated in the 1997 settlement agreement; and

1b. stay Petitioner Konanykhine and Petitioner Gratcheva's deportation pending final resolution of their immigration proceedings, including any direct judicial appeals thereof as stated in the 1997 settlement agreement; or

2a. treat the instant amended motion as an Application for a Writ of Habeas Corpus and order the Department of Homeland Security, U.S. Immigration and Customs Enforcement Branch to release Petitioner Konanykhine and Petitioner Gratcheva from detention and order them paroled pending final resolution of their immigration proceedings, including any direct judicial appeals thereof as stated in the 1997 settlement agreement; and

2b. treat the instant amended motion as an Application for a Writ of Habeas Corpus and stay Petitioner Konanykhine and Petitioner Gratcheva's deportation pending final resolution of their immigration proceedings, including any direct judicial appeals thereof as stated in the 1997 settlement agreement; or

3a. treat the instant amended motion as a Motion for a Preliminary Injunction pursuant to F. R. Civ. P. 65 (a) and issue an order to the Department of Homeland Security, U.S. Immigration and Customs Enforcement Branch to release Petitioner Konanykhine and Petitioner Gratcheva from detention and order them paroled pending final resolution of their immigration proceedings, including any direct judicial appeals thereof as stated in the 1997 settlement agreement; and

3b. treat the instant amended motion as a Motion for a Preliminary Injunction pursuant to F. R. Civ. P. 65 (a) and stay Petitioner Konanykhine and Petitioner Gratcheva's deportation pending final resolution of their immigration proceedings, including any direct judicial appeals thereof as stated in the 1997 settlement agreement.

In addition, Petitioner Konanykhine and Petitioner Gratcheva respectfully request that this Honorable Court order the Department of Homeland Security, U.S. Immigration and Customs Enforcement Branch to pay their legal fees incurred in filing and arguing this pleading.

Respectfully submitted,

___________________________________
J.P. Szymkowicz (#39120)
SZYMKOWICZ & SZYMKOWICZ, LLP
1220 19th Street, NW, Suite 400
Washington, DC 20036-2438
(202) 862-8500

Attorney for Alexandre Konanykhine and
Elena Gratcheva


Petitioners' Verification

                 I swear and affirm under the penalties of perjury that the statements contained in the instant Motion are true and correct.

     
     
     
_____________________________ _____________________________ ______________________________________
Date Time Alexandre Konanykhine
(signed by Attorney J.P. Szymkowicz acting on behalf of Alexandre Konanykhine since Alexandre Konanykhine is in detention in New Jersey).
     
     
     
_____________________________ _____________________________ ______________________________________
Date Time Elena Gratcheva
(signed by Attorney J.P. Szymkowicz acting on behalf of Elena Gratcheva since Elena Gratcheva is in detention in New Jersey).

Certificate of Service

                 I hereby certify that on December 22, 2003, I delivered, via hand delivery, a copy of the foregoing Amended Motion and all exhibits (except Exhibits 1-5) to: Kathleen Pepper, Esquire, Office of the United States Attorney, 2100 Jamieson Avenue, Alexandria, Virginia 22314 (703) 299-3700. The first five exhibits were not delivered on agreement of counsel since they were already attached to the original motion.

 
 
 
____________________________
J.P. Szymkowicz (#39120)