II. GROUNDS FOR HABEAS CORPUS RELIEF
A. DETENTION WAS OBTAINED AND PROSECUTION WAS INSTITUTED FOR ILLEGITIMATE PURPOSE
C. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY PERVASIVE FRAUD UPON THE UNITED STATES
D. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY PERJURY
E. DETENTION WAS OBTAINED BY PERVASIVE FRAUD UPON THIS COURT
F. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY INTIMIDATION AND PERSECUTION OF WITNESSES
I. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY WILLFUL USE OF FORGED AND ALTERED EVIDENCE
K. RESPONDENT IMPROPERLY PLACED PETITIONER IN EXCLUSION PROCEEDINGS AND CONSEQUENTLY IN DETENTION
L. DETENTION WAS OBTAINED BY UNLAWFUL USE OF 8. C.F.R. 212.5(d)
M. EVEN IF PETITIONER WERE PROPERLY PLACED IN CUSTODY, HE IS ELIGIBLE FOR PAROLE
N. DETENTION OF PETITIONER IS UNCONSTITUTIONAL AND SHOULD BE TERMINATED
O. DETENTION OF PETITIONER BY RESPONDENT IS BASED ON ILLEGITIMATE REASON
P. DETENTION AND PROSECUTION OF PETITIONER BY RESPONDENT ARE MALICIOUS
Q. DETENTION OF PETITIONER REPRESENTS ABUSE OF DISCRETION BY RESPONDENT
R. PROSECUTION OF PETITIONER IS IN-FACT CRIMINAL PROSECUTION CONDUCTED ILLEGALLY
T. DETENTION AND PROSECUTION OF PETITIONER WERE UNDERTAKEN BY RESPONDENT IN BAD FAITH
U. DETENTION AND PROSECUTION OF PETITIONER ARE AGAINST THE PUBLIC INTEREST
V. DETENTION AND PROSECUTION OF PETITIONER VIOLATE THE "FAIR PLAY" PRINCIPLE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRE P. KONANYKHINE
Clarke-Frederick-Winchester Regional Adult Detention Center
141 Fort Collier Rd. Winchester, VA 22603
Petitioner
v.
WILLIAM J. CARROLL
Immigration and Naturalization Service District Director, Washington District Office
4420 N. Fairfax Drive, Room 510, Arlington, VA 22203
Respondent.
PETITION FOR WRIT OF HABEAS CORPUS
Petition for issuance of Writ of Habeas Corpus of appropriate relief of unlawful detention and prosecution, due to: unlawful arrest, malicious prosecution, malicious abuse of legal process by Respondent, abuse of discretion by Respondent, willful misrepresentation of material facts by Respondent and his agents (perjury and fraud), and an array of due process and Constitutional violations.
Petitioner, Alexandre Konanykhine, acting pro se, hereby petitions this Court to issue a Writ of Habeas Corpus to require his release from unlawful detention by the United States Immigration and Naturalization Service ("INS"). Petitioner alleges that he is unlawfully imprisoned, detained, and restrained of his liberty by the Respondent, William J. Carroll, District Director of the INS Washington District Office, as particularly described below.
STANDARD
Petitioner is an unrepresented indigent prisoner. His access to law materials is severely limited; he has no access to the Rules of this Court. Petitioner has no legal education nor English language-education. Therefore, should the Petition be not in full compliance with the Rules, Petitioner respectfully request the Court's leniency and prays the Court not to dismiss it on this ground.
The legislative history of Habeas Rule 2(e) suggests that judges should use sparingly the power to reject petitions on formalistic grounds. Congress' intent to give prisoners, particularly pro se prisoners, considerable leeway with respect to the form of their petition is manifested by Congress': (1) rejecting proposed Habeas Rule 2 insofar as it would have required compliance with a specified form petition and delegated to court clerks the unsupervised power to return defective petitions (2) forbidding "too much emphasis upon a strict compliance" with form, which might lead "to a rejection of otherwise meritorious claim on the ground of failure to adhere strictly to … form". H.R. Rep. No 1471 94th Cong. 2d. Sess. 4. (1976).
The Courts have heeded Congress' admonition against undue formalism and, especially, in cases involving a pro se litigant when the court can deduce what the litigant intends by the pleading, have allowed rather wide deviation from the form specified by some local rules. Such decisions conform to the traditional rule that pro se Habeas Corpus petitions should be viewed "with greatest liberality" and that substance, not form, should govern the availability of Habeas Corpus relief. See, e.g., U.S. v. Eatinger, 902 F.2d 1383, 1384085 (pro se documents "must be liberally construed" to invoke available procedures), Balisteri v. Pacifica Police Dep't, 901 F.2d 696, 699 (federal court "has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements).
[1] This Court has jurisdiction to consider this petition pursuant to 28 U.S.C. � 2241 et. seq.
[A]lien due process claims are generally exempt from exhaustion of administrative remedies requirement, because Board of Immigration Appeals does not have authority to adjudicate constitutional issues. Castaneda-Suarez v. I.N.S., C.A. 7 1993m 993, F.2d 142;
[2] No prior petition for Writ of Habeas Corpus has been filed by Petitioner in regard to this detention and restraint complained of herein. However, on August 7, 1996, Petitioner filed with this Court a Petition to Issue a Writ of Habeas Corpus to require his release from previous detention by Respondent. Petition was granted on August 16, 1996, on one of the three grounds of Petition. See Order on Petition for Writ of Habeas Corpus dated August 16, 1996. (Exhibit 1). On August 19, 1996, Petitioner filed with the Court a Motion for Reconsideration and for an Evidentiary Hearing seeking the reconsideration of the Court's ruling on the two grounds of his initial petition. Respondent opposed the motion, stating that the matter had been considered by the Court, which granted the Writ, and the he had complied with the Writ by releasing Petitioner. Respondent suggested that consideration of the release from the second detention could be done only as a new proceeding. The Court denied the Petitioner's Motion for Reconsideration. Petitioner has not until now moved for any proceedings concerning the release from the second incarceration.
This Petition contains 22 grounds for immediate release of Petitioner. Though the reasons fr both arrests of Petition have some similarity they are not identical. That's why the denial on "illegitimate reasons" ground during the hearing related to previous arrest may not prejudice consideration of a similar ground in this Petition. It is especially true, because::
a) the transcript of the immigration hearing of Petitioner's case has been released by the Immigration Court and it contains evidence that the actions of Respondent constitute malicious prosecution of Petitioner and violation of due process of law;
b) according to 8 C.F.R. � 212.5(d)(2) different standards now apply to the decision of paroling Petitioner, even if he were properly in exclusion proceedings;
d) the previous decision of the Court was influenced by willful misrepresentation of material facts by Respondent, such that if the true facts were known the different decision could have been reached;
e) due to lack of contact between detained Petitioner and his counsel Donald T. Bucklin, who did not participate in the immigration hearing and had no working knowledge of immigration law, several crucial misrepresentations made by Respondent to this Court and other issues were not and could not be adequately addressed.
[3] Respondent, William J. Carroll, is the District Director of the Washington District Office of the INS, which encompasses the District of Columbia and the Commonwealth of Virginia and its office is located in Arlington, Virginia. 8 C.F.R. � 100.4(b)(25) (1995). Respondent's authority has been delegated to him by the Attorney General of the United States and the Commissioner of the INS pursuant to 8 U.S.C. � 1103(1995) et. seq. and 8. C.F.R. � 100, et. seq. (1995). Respondent is unlawfully detaining Petitioner at the Clarke-Frederick-Winchester Adult Detention Center. Accordingly, venue is properly in this District.
[4] Petitioner, Alexandre Konanykhine, Russian, is a 30-year-old business executive who has resided in the United States in a lawful status since September 1992. For a short period of time during this period he resided in Antigua for reasons related to his employment in the United States. In Russia, as well as elsewhere in Europe, Petitioner was a successful businessman. In 1992, when Petitioner was 25 years old, his assets exceeded $300 million dollars. While living in Moscow he was the beneficial owner of numerous Russian enterprises and financial institutions, including Russian Exchange Bank.
[5] Petitioner, and his wife, Elena Gratcheva, first arrived in the United States in June 1992 as members of the official delegation of President of the Russian Federation Boris Yeltsin. In 1993-1997 they owned the apartment in Washington, D.C. at the Watergate Apartments, 2510 Virginia Avenue, N.W.
[6] On September 2, 1992, Petitioner was kidnapped in Budapest, Hungary, by a major Russian Mafia group associated with the KGB. [Though since 1991 the KGB has been several times re-named and subdivided, Petitioner, to avoid confusion, addresses both the KGB itself and its successor agencies as KGB.] On September 3, 1992, after his escape from the kidnappers, Petitioner and his wife entered the United States in B-1 business and B-2 tourist status respectively. Petitioner immediately mounted a campaign for an investigation in Hungary and Russia. Petitioner wrote numerous letters pleading for assistance to the Russian authorities. Following Petitioner's escape, the Russian Mafia and the KGB officers involved in the kidnapping converted Petitioner's assets, including residence and automobiles, to their own use. They also illegally assumed control of the enterprises and financial institutions owned by entities controlled by Petitioner.
[7] During the Fall and Winter of 1992 Petitioner also explored business opportunities in the united States for a Russian advertising agency, Greatis. Petitioner had been working with Greatis as a director in Moscow and Budapest. On February 26, 1993, the INS granted Petitioner a change of nonimmigrant classification from B-1 (business) to L-1A (intracompany transferee) based upon Petitioner's prior employment with Greatis, and the position he was offered as the President of Greatis' wholly-owned subsidiary, Greatis USA, a Delaware corporation based in Washington, D.C. Greatis USA was incorporated as a wholly-owned subsidiary of Greatis by legal firm Jones, Day, Reavis & Pogue.
[8] In July 1993, the Russian Government responded to Petitioner's pleas for an investigation by initiating the investigation by the Ministry of Security of the Russian Federation. Also a Military Prosecutor, Lt. Colonel A.V. Volevodz was ordered to investigate illegal activities of the KGB officers reported by Petitioner, since KGB officers had to be prosecuted by the Military Procuracy. On several occasions Petitioner met with the Ministry of Security investigators when they requested such meetings. Petitioner also responded in writing to all voluminous inquiries from Lt. Colonel Volevodz who did not request personal meeting. Petitioner made no attempt to hide his whereabouts; on the contrary, he kept the Russian and the U.S. government informed of his whereabouts. In October 1993 the Ministry of Security of the Russian Federation was liquidated. Its successor, the Federal Counterintelligence Agency, was banned from participation in domestic investigations and did not continue the investigation requested by Petitioner.
[9] On March 5, 1994, the INS extended L-1 A petition filed by Greatis USA on behalf of the Petitioner so that he could continue to work as the President of Greatis USA.
[10] On May 2, 1994, the INS approved an Immigrant Petition for Alien Worker filed by Greatis USA on behalf of the Petitioner pursuant to 8 U.S.C. 1143 (b)(1)(C)(1995).
[11] In 1994, Military Prosecutor Volevodz suddenly began accusing Petitioner of committing crimes. While at that Volevodz used forged documents and testimonies of the very people that had been involved in Petitioner's kidnapping, the conversion of his assets in Russia, and the taking of control of Petitioner's business. These were the same people Petitioner accused of illegal activities in Russia and in Hungary in 1992. Lacking any jurisdiction over Petitioner (the Russian Law bans the Military Procuracy from investigating civilians), Lt. Colonel Volevodz started illegal prosecution of Petitioner. Lt. Colonel Volevodz secured the assistance of several corrupt Russian officials, including Russian Prosecutor General Alexei Ilyushenko (since February 1996 Ilyushenko has been in jail on corruption charges), two Deputies of Prosecutor General (both have been dishonorably discharged for corruption; prior to that one of them, Oleg Gaidanov, succeeded Ilyushenko as Russian Prosecutor General) and Chief Military Prosecutor Valentin Panichev (who lacks jurisdiction over Petitioner).
In September 1994, Lt. Colonel Volevodz requested the assistance of the United States government in the form of Letters Rogatory with respect to his military "investigation" of Petitioner. He requested assistance in accumulating financial information relating to Petitioner. He also requested that United States authorities arrest Petitioner and extradite him to Russia, that his residence be searched, and all property seized and sequestered. Dating back to 1994, Petitioner, personally and through his counsel, has cooperated with the United States government in its investigation related to the Letters Rogatory. In 1995 United States authorities declined the Russian military prosecutor's request to arrest and extradite Petitioner based on the lack of any extradition treaty; and also declined to search and seize his assets in the United States. Throughout the last two years, Petitioner has been in contact, personally and through several attorneys, with the government of the United States and Russia. At no time did he flee any jurisdiction or attempt to conceal his whereabouts from the authorities.
[12] In Spring of 1995 the representatives of the Department of Justice and the Federal Bureau of Investigations contacted the associates and the counsel of Petitioner (who was abroad on a business trip) and asked them to inform Petitioner that the Federal Bureau of Investigations had learned of the existence of a "contract" on the life of Petitioner placed in the USA by the Russian Mafia, and that Petitioner's life was in extreme danger. See Letter of Donald T. Bucklin dated July 25, 1995 (Exhibit 2). The counsel of Petitioner was also informed that the FBI confirmed the kidnapping of Petitioner in Hungary in 1992.
The representatives of the Department of Justice of the United States strongly advised to not reveal his whereabouts to anyone connected with the Russian investigation. Id. They handed over to the Petitioner's counsel the documents the corrupt Russian military prosecutor submitted to the Department of Justice.
In December 1995, Lt. Colonel Volevodz formally accused U.S. law enforcement agencies of obstructing the justice: "some representatives of U.S. law enforcement bodies have disclosed information representing the investigative secret of this case and has committed actions aimed at helping Konanykhine to escape from Russian law enforcement bodies, as well as hampering the lawful prosecution of the subject." See Memorandum of Volevodz (Exhibit 15) at 2.
[13] On October 9, 1995, Petitioner, acting through his Russian counsel, requested a Moscow court to order the termination of the illegal prosecution. The court dismissed the petition, after the Main Military Procuracy replied that Petitioner had no right to be represented by a counsel, nor was he indicted of any crime. See Letter from the Main Military Procuracy of the Russian Federation to T.A. Borodina, counsel for Petitioner, dated November 28, 1995 (Exhibit 13).
[14] On March 5, 1996, Petitioner and his wife filed applications for adjustment of status to permanent resident with the INS pursuant to 8 U.S.C. � 1255(a)(1995). Petitioner and his wife also applied for a travel authorization from the INS known as "advance parole". On March 6, 1996, Petitioner was granted advance parole by the INS. See Authorization for Parole of an Alien into the United States (Exhibit 3). Petitioner's advance parole document reads:
Advance Parole authorized by the Washington District Office for valid business reasons. This authorization will permit you to resume your application for adjustment of status on your return to the United States.
On or about June 10, 1996 the Petitioner left the United States on a business trip to Antigua. He left with permission to re-enter the United States in the form of his advance parole. Petitioner returned to the United States three days later on June 13, 1996. Petitioner presented his re-admission permission to the immigration inspector upon his return. After inspection the INS officer authorized Petitioner to enter the United States and issued him an I-94 Arrival/Departure document. This document stated that Petitioner was "paroled until completion of Adj. [Adjustment of status] proceedings section 245". [Immigration and Nationality Act � 245 is found at 8 U.S.C. � 1255.] See Arrival/Departure Form (Exhibit 4). Petitioner's wife did not accompany him on his brief trip abroad.
[15] In 1995 the FBI had been receiving unprecedented pressure from Lt. Colonel Volevodz to deliver Petitioner to him. As earlier noted, the Letters Rogatory contained the unusual request that Petitioner be arrested and extradited to Russia. In December 1995, FBI special agent diPretoro, the U.S. legal attach� in Moscow, sent a telex to the Washington FBI office stating that the Russian Prosecutor General (subsequently dishonorably discharged for corruption) was demanding that the United States turn over Petitioner as a quid pro quo payment for Russian cooperation on the extradition of individuals to the United States and on other matters extremely important to the FBI. In fact, the Russian Prosecutor General threatened to discontinue the assistance of the Russian government to the USA unless Konanykhine was extradited to Russia. See Teletype from FBI legal attach� Moscow to the Director of the FBI dated December 4, 1995 (Exhibit 5). This document also discusses a "rehearsed tirade" by Lt. Colonel Volevodz because the United States Government had not complied with Volevodz's demand for Petitioner's arrest and extradition. See Id. at 2. In response to this pressure legal attach� suggested that "technical" immigration violations could be used to circumvent the law and to satisfy Volevodz's desire to have the United States government facilitate Petitioner's extradition to Russia in absence of the extradition treaty. See Id. at 3.
[16] In June, 1996, FBI Special Agent diPretoro, the U.S. legal attach� in Moscow, arranged for Russian military prosecutor Lt. Colonel Volevodz a trip to Washington, paid for by the U.S. government. Since the extradition of Petitioner could not be arranged due to the lack of the extradition treaty and illegal character of the military prosecution of Petitioner, it was decided to circumvent the law by employing for this purpose immigration procedures. In June, 1996, Lt. Colonel Volevodz, accompanied by FBI representatives, visited the Washington District Office of the INS and requested the INS to arrest and deliver Petitioner and his wife to Russia for the purpose of prosecution by the Main Military Procuracy of the Russian Federation.
[17] On June 27, 1996, numerous INS and police agents raided the Petitioner's apartment and arrested Petitioner and his wife. During the arrest INS agents illegally searched the Petitioner's apartment and seized a number of documents without warrant or permission. Petitioner and his wife were not advised of their rights; they were explicitly prohibited to contact their counsel. The INS agents told Petitioner and his wife that they were being arrested because their visas had expired, and that therefore they were subject to deportation for "overstay", i.e. for remaining in the United States longer than authorized. Petitioner and his wife immediately provided the INS agents with proof that they had properly filed for adjustment of status to permanent residence before the expiration of their nonimmigrant visas, and that indeed they were in a lawful status. Nonetheless, Respondent's agents seized Petitioner and his wife. Petitioner has been detained illegally in the custody of Respondent since that date.
[18] After being contacted by the Petitioner's counsel, Respondent, who did not have a legal basis for detaining Petitioner and his wife, immediately sought to fabricate a plausible pretext for the arrest his agents had carried out. To make Petitioner and his wife "out of status" Respondent prepared a decision dated June 27, 1996, which he served upon Petitioner and his wife in the afternoon on June 28, 1996, summarily denying their adjustment of status applications. The same day Respondent also issued a Notice of Intent to Revoke Immigrant Visa Petition filed on behalf of Petitioner. This notice of intent to revoke permitted Petitioner thirty days to present rebuttal evidence. Nonetheless, the notice of denial of adjustment of status decision alleged that Petitioner obtained an L-1A nonimmigrant classification, extensions of stay as an L-1 nonimmigrant, and his immigrant classification by "fraud and willful misrepresentation of material facts." In particular, Respondent stated in his decision that Petitioner "obtained these benefits by falsely claiming that [Petitioner was] employed by a multi-national company named Greatis USA which is located in Moscow...[and that Petitioner] provided fraudulent documents to support these assertions."
[19] Pursuant to INS practice, as stated above, Petitioner and Greatis had thirty days to respond to the notice of intent to revoke the immigrant visa petition before Respondent could issue a notice of denial of adjustment of status application. As stated in [14] Petitioner was admitted into the United States until completion of adjustment of status proceedings. Thus, as long as Petitioner had a pending adjustment of status application, he was "in status" and therefore not subject to arrest. In order to achieve their goal of arresting Petitioner despite the fact that he was "in status", the INS unlawfully bypassed its practice by ignoring the thirty-day opportunity to respond, claimed the visa petition to be fraudulent, and improperly issued the denial of adjustment of status. This served as the post-arrest pretext for Respondent unlawfully detaining Petitioner in custody.
[20] Respondent alleged fraud by Petitioner regarding his L-1A nonimmigrant visa and his immigrant visa petition even though, as a matter of law, an L-1A nonimmigrant visa petition, an L-1A extension, and an employment-based immigrant visa petition for an executive can only be filed by the petitioning employer on behalf of an employee. 8 C.F.R. � 214.2 (l)(1)(i); 8 C.F.R. � 204.5(j) (1995). Thus, even though the information provided to Respondent in those visa petitions was provided by his employer, Greatis USA, and not Petitioner, fraud by Petitioner was alleged as a pretext for Petitioner's detention by Respondent.
[21] On June 28, 1996, Petitioner also was served by Respondent's agents with a Notice to Applicant for Admission Detained for Hearing before Immigration Judge, Form I-122. This document charged him with inadmissibility for alleged visa fraud and placed him in exclusion proceedings pursuant to 8 U.S.C. � 1226 (1995) and 8 C.F.R. � 236 (1995). Petitioner's wife, on the other hand, was placed in deportation proceedings pursuant to 8 U.S.C. � 1251 (1995) and 8 C.F.R. � 241 (1995) on the ground that her application for adjustment of status was dependent on her husband's, and that, therefore, it was denied automatically. Based on this post-arrest denial, Respondent claimed that Ms. Gratcheva had been staying in the United States not in valid immigration status. She was placed in deportation, rather than exclusion proceedings, because, unlike Petitioner, she did not depart the United States after filing for adjustment of status even though she, too, had been issued an advance parole document by Respondent on March 6, 1995.
[22] On June 28, 1996, on the joint news-conference held by Respondent and the Russian Military Procuracy on subject of the arrest of Petitioner and his wife Respondent repeatedly referred to Petitioner and his wife as "criminal nationals". The Press Release and the Statement of Respondent contain many instances of libelous statements against Petitioner and his wife. For example, Respondent's Press Release stated that "[the Russian authorities] were able to recover three million dollars of the embezzled [by the husband and wife team] eight million, but the couple fled to Antigua. The arrest of this couple is a prime example of INS maintaining a policy that is tough on criminal aliens." In fact, Petitioner and his wife have not committed or been convicted of any crime, they have not been indicted of found guilty of any crime. It was well known to Respondent that Petitioner and his wife had not been fugitives.
The Washington Post reported after the news-conference that the INS used a technical immigration violation to arrest Petitioner and his wife for the Russian Military because of "an unusual cooperative arrangement" between the INS and the Russian Military Procuracy. See "Russian Pair in Custody…" by Pamela Constable. The Washington Post, June 29, 1996 (Exhibit 7)
Respondent called the arrest "the demonstration of the ability of INS to assist international law enforcement agencies in the apprehension of criminal nationals", See INS Press Release and Statement of June 28, 1996 (Exhibit 12), thus unequivocally admitting that it was the arrest carried out for the Main Military Procuracy of the Russian Federation, where the INS had been an "assistant" of the Military Procuracy in the apprehension of Petitioner and his wife. The Russian military prosecutor stressed repeatedly that without help from the INS "the fugitives would never have been caught".
[23] INS regulations provide that an application for adjustment of status by an alien which has been denied by the INS may be renewed before an immigration judge. 8 C.F.R. � 236.4 (1995). Thus, once an application for adjustment of status has been denied by an INS District Director, it is not necessary for the applicant to file a new application before an immigration judge because the original application is merely renewed. Petitioner and his wife renewed their applications for adjustment of status before the Immigration Judge on July 2, 1996. Petitioner was admitted into the United States on June 13, 1996, for the purpose of completing his adjustment of status to that of permanent residence. Nonetheless, Petitioner was incarcerated by Respondent on June 27, 1996, when Petitioner's application for adjustment of status was pending before the INS, and then on August 16, 1996, when Petitioner's application for adjustment of status was pending before the Immigration Judge, and when Petitioner was in valid immigration status.
[24] On July 1, 1996, Petitioner, through counsel, sent Respondent a letter requesting that he and his wife be released from detention. On July 2, 1996, Petitioner appeared in Immigration Court with his wife to plea to the allegations of excludability and deportability and to request release from custody. Petitioner's wife was released upon payment of a $5,000 bond set by the Immigration Judge. The INS maintained, and the Immigration Judge agreed, that the Immigration Judge lacked jurisdiction to set a bond for Petitioner because he had been placed in exclusion, rather than deportation proceedings. Similarly, the Immigration Judge ruled that he did not have jurisdiction to consider Petitioner's argument that his immigration status remained valid until completion of adjustment of status proceedings because the advance parole document permits Petitioner to "resume [his] application for adjustment of status on...return to the United States." See Authorization for Parole of an Alien into the United States (Exhibit 3). The Immigration Judge ruled that he lacked authority to consider Petitioner's constitutional equal protection arguments.
[25] At their July 2, 1996, immigration hearing, Petitioner and his wife denied the allegations of excludability and deportability. Additionally, they advised the Immigration Court that they renewed their applications for adjustment of status to permanent residence, and that in the alternative, they would seek political asylum.
[26] On the same day the FBI complied with demand of Lt. Colonel Volevodz to conduct a search of Petitioner's apartment and to seize Petitioner's documents and business equipment. Lt. Colonel Volevodz was brought to the Watergate Apartments building, where he actively participated in the search and seizure, arranged by his request by the FBI officers.
Virtually all documents of Petitioner were seized, leaving him without adequate possibility to defend himself from false charges of Lt. Colonel Volevodz and Respondent, especially considering that Petitioner had "burden of proof" in the exclusion proceedings where Respondent unlawfully placed Petitioner in.
[27] For seven days between July 19 to August 2, 1996, Petitioner's exclusion hearing was conducted in Arlington, Virginia.
[28] The United States is unable to extradite Petitioner to Russia because there is no extradition treaty between the United States and Russia. 18 U.S.C. � 3184 (1994). If the government were able to attempt to extradite Petitioner, he would be entitled to a hearing at which the government would have to demonstrate probable cause that Petitioner committed the crimes for which he is allegedly charged. Berenguer v. Vance, 473 F. Supp. 1195, 1196 (D.D.C. 1979).
[29] On July 11, 1996, President of Greatis Russia Nickolai Menchukov and Petitioner's counsel Michael Maggio visited the Washington District Office of the INS and met with the INS Assistant District Counsel Antoinette Rizzi. Mr. Menchukov attested to the fact that Greatis USA is a subsidiary of Greatis Russia, that Petitioner was employed by these entities, and that the information supplied by the Russian military prosecutor was false and fraudulent. See Declaration of Nickolai Menchukov dated July 12, 1996 (Exhibit 16). Ms. Rizzi invited to the meeting Assistant District Director for Investigations James Goldman, who, having learned the substance of the testimony, threatened Mr. Menchukov with arrest without as much as thinking of a pretext. Intent to unlawfully arrest a witness, the prominent businessman, who had voluntarily come to the INS to save the INS from an embarrassment in Court clearly demonstrates malicious character of INS prosecution of Petitioner. Further employing this intimidation technique, the INS trial attorney threatened Mr. Menchukov with arrest at the day of his testimony in the Immigration Court. See Section F of this Petition.
[30] By letters to Respondent dated July 11 and July 12, 1996, Petitioner's immigration counsel provided additional evidence and information in support of Petitioner's request for release from custody pending since July 1, 1996. See Letter from Michael Maggio to William J. Carroll, dated July 11, 1996 (Exhibit 8) and Letter from Michael Maggio to William J. Carroll and Eloise Rosas dated July 12, 1996 (Exhibit 9). On July 15, 1996, Petitioner's immigration counsel was advised by Respondent's counsel, Eloise Rosas, that the INS was willing to release Petitioner on a $5,000 bond. Mr. Maggio accepted the offer. See Letter of Michael Maggio to Eloise Rosas dated July 16, 1996 (Exhibit 11).
[31] One hour later Respondent renounced this offer and stated that no bond would be set for Petitioner. Id. Respondent claimed that during this hour he learned that Petitioner was a fugitive. See Letter of William J. Carroll to Michael Maggio dated July 16, 1996 (Exhibit 18). In fact, Respondent gained no new information regarding Petitioner's status during that hour. All the "facts" on which he based his decision, he learned weeks and months earlier. In the Press Release dated more than two weeks before Respondent offered to release Petitioner on $5,000 bond, Respondent goes into great detail about the "facts" regarding the alleged crimes committed by Petitioner and the pursuit of the Russian authorities.
In fact, Petitioner is not a fugitive as it is well known to the U.S. government. As shown in the letters from Russian authorities to Petitioner's Russian counsel, Petitioner has not been indicted or legally charged with any crimes in Russia. See Letter from the Main Military Procuracy of the Russian Federation to T.A. Borodina, counsel for Petitioner, dated November 28, 1995 (Exhibit 13). Petitioner has sought to challenge the jurisdiction of the Russian military prosecutor over civilians and has been denied that opportunity. See Complaint filed by T.A. Borodina, counsel for Petitioner, in Khamovnichesky Intermunicipal Court dated October 30, 1995 (Exhibit 14). His whereabouts has been known to Russian and United States authorities, he had been in contact with the U.S. and Russian investigators and met with them whenever such meetings were requested. Additionally, in 1995 the U.S. government strongly advised Petitioner to not reveal his whereabouts to anyone connected with the Russian investigation. See Letter of Donald T. Bucklin dated July 25, 1995 (Exhibit 2).
[32] Petitioner does not present a risk of flight if released on the $5,000 bond originally offered by the INS. He is fighting the INS efforts to exclude him and is seeking to lawfully remain in the United States through permanent resident status or asylum in this country. Petitioner has continuously cooperated with U.S. authorities for over two years in the Letters Rogatory process; he owns property in the Washington, D.C. area; and he is an officer of a Washington based U.S. corporation.
[33] On August 7, 1996, Petitioner filed with this Court a Petition to Issue a Writ of Habeas Corpus to require his release from detention by Respondent. To prevent the Court from issuing the Writ of Habeas Corpus on the ground of abuse of discretion, Respondent and INS District Counsel Eloise Rosas committed pervasive fraud on this Court, as demonstrated hereinafter. Relying on the fraudulent statements of Respondent and District Counsel, the Court denied the Petition on the abuse of discretion ground, but granted it on the ground of violation of immigration procedures, committed by Respondent in order to unlawfully detain Petitioner.
[34] Following entry of the Court's order of August 16, 1996, granting Petitioner's Habeas Corpus petition, the INS issued a letter to Petitioner denying parole based on the claim that the purpose, his application for adjustment of status, had been completed. See Letter of William J. Carroll to Alexandre P. Konanykhine dated August 16, 1996 (Exhibit 44) at 1. This claim is directly contrary to this Court's finding that in fact the purpose of Petitioner's parole had not been competed. August 16, 1996, Order (Exhibit 1) at 11. On August 16, 1996, Respondent's agents unlawfully re-arrested Petitioner in jail, without advising him of his rights. Though Petitioner remains in valid immigration status, he is unlawfully detained by Respondent.
[35] On September 20, 1996, the Immigration Judge, misled by fraudulent statements made by Respondent and his agents and fraudulent documents submitted by Lt. Colonel Volevodz and Respondent, ordered deportation of Petitioner. Petitioner timely filed an appeal and the de novo consideration of the case by the Board of Immigration Appeals is expected in the end of 1997 - beginning 1998. During the period of consideration of his case by the Board of Immigration Appeals Petitioner has statutory and constitutional entitlement to be released on his own recognizance or on reasonable bond. Moreover, numerous and grave violations of U.S. laws committed by Respondent warrant termination of the proceedings.
II. GROUNDS FOR HABEAS CORPUS RELIEF
A. DETENTION WAS OBTAINED AND PROSECUTION WAS INSTITUTED FOR ILLEGITIMATE PURPOSE
B. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY USE OF EVIDENCE GAINED PURSUANT TO AN UNCONSTITUTIONAL SEARCH AND SEIZURE
Petitioner should be released and malicious prosecution should be terminated because of irreparable damage inflicted to due process of law by illegal search and seizure.
On June 27, 1996, during the arrest of Petitioner and his wife, the Respondent's agents, including ADDI Goldman and SA Trent, conducted search of the Petitioner's apartment and seized documents, which included travel and identification documents of Petitioner and his wife, title on Petitioner's automobile, originals of certificate of marriage and birth certificates, even storage receipt for a fur coat. Search warrant was neither produced nor had it been issued, i.e. the search and seizure were conducted in clear violation of the Constitution of the United States:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and not Warrants shall issue, but upon probable cause, supported by the oath or affirmation and particularly describing the place to be searched, and persons or things to be seized". The Fourth Amendment.
"No person shall be deprived of life, liberty or property, without due process of law." The Fifth Amendment.
Not only the Respondent's agents violated the Constitution of the United States, they willfully violated the specific and unequivocal INS regulation when they conducted illegal search and seizure in the Petitioner's apartment. Specifically, 8 C.F.R. � 1356(c) and 8 C.F.R. � 1357(a)(3) prohibit the INS officers to search dwellings even within a reasonable (up to 25m) distance form any external boundary of the United States.
By conducting illegal search and seizure Respondent inflicted irreparable damage to the due process rights of Petitioner and his wife, because the documents illegally seized were subsequently used by Respondent as important evidence during the Immigration and Habeas Corpus Hearings. For example, Petitioner's travel documents were used to support "risk of absconding" theory during the Habeas Corpus Hearing in order to obtain Petitioner's detention and "safe third country" theory during the Immigration Hearing in order to challenge the asylum claim.
Since "claim of unconstitutional search and seizure is cognizable [even] in proceedings to vacate sentence", Eagleston v. U.S., C.A. Okl. 1971 448 F 2d 1389, it certainly must be sufficient to terminate malicious administrative prosecution and unlawful detention of Petitioner.
C. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY PERVASIVE FRAUD UPON THE UNITED STATES
Pervasive fraud committed by Respondent and his agents strongly influenced the outcome of Immigration Hearing and led to prolonged unlawful detention of Petitioner. [Under the circumstances of Petitioner's detainment, his very limited access to the case record, and with no access to a word processor, Petitioner had to limit himself by analysis of only several instances of fraud by Respondent and his agents. It is unnecessary to analyze each and every instance of the fraud committed by Respondent and his agents, because even one instance would be sufficient to demonstrate the malicious character of the prosecution and warrant the release of Petitioner as well as the termination of the malicious prosecution.]
It is very ironic that in the "fraud" case brought by Respondent against Petitioner the only party which committed fraud was Respondent himself and his agents, whereas all Respondent's allegations of the immigration fraud by Petitioner were cooked by Respondent and his agents.
The "criminal deal" fraud
On July 17, 1996 District Counsel told to the Immigration Court:
"If you look at this person's [Petitioner] history, you will see an individual who went along in government; he had a couple of marriages; and then all of a sudden a deal was presented to him, and that deal involved crime. And he partook of that deal, he got involved with people". Transcript of Immigration Hearing at 85, lines 20-24.
District Counsel lied. There is nothing in the record (not even allegations) of any criminal deal which, in accordance with District Counsel, was presented to Petitioner, or Petitioner partook of; nor such deal ever existed.
The misrepresentation was willful, for District Counsel intended to present Petitioner to be a criminal, as she stated in her opening statement, even though she was well aware that the record does not support her allegations. The misrepresented fact was material, even crucial to the outcome of the hearing for a criminal would have to be denied adjustment of status and asylum as a matter of discretion. This willful misrepresentation of material fact constituted fraud upon the United States.
The "accomplices" fraud
On July 17, 1996 trying to explain how a military prosecutor could have jurisdiction over civilians, District Counsel stated to the Immigration Court:
"When you look at the affidavit of Mr. Konanykhine, the people that he started the business with were former KGB types. They became involved with Mr. Konanykhine in crime. And since they were former KGB types, it would be within the authority of the military prosecutor to examine those persons and then Mr. Volevodz and likewise. So, basically, he's being investigated by a military prosecutor, because of that connection."
Transcript of Immigration Hearing, at 87, line 23 to 88, line 5. In other words, District Counsel alleged that Petitioner was being investigated by a military prosecutor because KGB types were his accomplices. However, District Counsel stated to this Court during the first Habeas Corpus proceedings that she had studied the Resolution of the military prosecutor, i.e. she knew that the military prosecutor persecutes Petitioner alone, and that, according to the military prosecutor, Petitioner had no accomplices in alleged crime. It means that District Counsel knowingly and willfully misrepresented the information to the Immigration Court to lead it into believing that the military prosecution of Petitioner was legal.
The misrepresented fact was material, even crucial to the outcome of the hearing for if the Immigration Court concluded that prosecution of Petitioner by a military prosecutor was unlawful, i.e. represented persecution, it would most likely dismiss Respondent's case against Petitioner based exclusively on evidence provided by said military prosecutor. The Immigration Court would also likely grant Petitioner asylum because of military prosecution. This willful misrepresentation of material fact constituted fraud upon the United States by District Counsel.
The "employment history" fraud
In a desperate attempt to re-build the fraud charges after the documents the Russian military prosecutor submitted to the INS for that purpose had been proven false, District Counsel lied to the Immigration Court that the Affidavit executed by Petitioner on May 25, 1993 (See Exhibit 35) was "a minute chronology of what Mr. Konanykhine was doing at this time period. He never mentions Gratis. He never mentions Menchukov". Transcript of Immigration Hearing, at 100, lines 7-11.
Indeed, this statement now represents the cornerstone of the Respondent's case against Petitioner. It is also a characteristic illustration of how Respondent and his employees fabricated the charges against Petitioner. There is nothing in the record which indicates that the Affidavit is "a minute chronology of what Mr. Konanykhine was doing at this time period". Instead, the plain text of the Affidavit precludes such interpretation, describing exclusively the events related to one specific financial transaction; it can not in good faith be interpreted as Petitioner's resume. Any 'reasonable person of ordinary intelligence' would make a conclusion that it could not be "a minute chronology". For instance, Petitioner married in 1992, and this information was not in the Affidavit; neither the Affidavit mentions Greatis USA Inc., of which company Petitioner was the president. The Affidavit does not list most of the companies Petitioner owned. The unsupported attempt of Respondent to use the Affidavit is against basic logic and facts. See Declaration of Vladimir Lechtman (Exhibit 36). Also, Transcript of Immigration Hearing, Bucklin testimony at 395, lines 4-6.
District Counsel falsely stated that the paragraph four of page two of the Affidavit "mentions all the jobs which Mr. Konanykhine worked at in the period between September '90 through '91. He never mentions Greatis AO. He mentions all his other companies. Mr. Konanykhine never mentions - I mean, I think, you know, he might have had a hundred companies, but this paragraph indicates to me he's describing all the businesses". Transcript of Immigration Hearing at 142, lines 6-13. This statement is illustrative to the twisted logic of District Counsel. However, the text of the paragraph does not include jobs at all. The paragraph lists only some companies which Petitioner established through the only one holding company - the Russian Exchange Center. See Affidavit by Petitioner (Exhibit 35). Neither Greatis AO no Greatis USA Inc. have ever belonged to Petitioner, thus they could not have been mentioned in this particular paragraph. Nowhere in the Affidavit Petitioner provides the information on his employment history or all his companies or transactions.
The misrepresentation was willful, for District Counsel intended to undermine testimony of defense key witness and save the "immigration fraud" charges fabricated by Respondent and District Counsel, even though she was well aware that the record does not support her allegation. The misrepresented fact was material, even crucial to the outcome of the hearing, for after Mr. Menchukov, President of Greatis Russia, rebutted the "immigration fraud" charges fabricated by one Lt. Colonel Volevodz and brought in malice against Petitioner by Respondent, the "Affidavit is a resume" theory was Respondent's desperate bit to argue for the fraud charges. This willful misrepresentation of material fact constituted fraud upon the United States by District Counsel.
The "tax forms" fraud
On July 19, 1996 District Counsel stated to the Immigration Court: "Your honor, [Petitioner] has failed to file his U.S. tax forms". Transcript of Immigration Hearing, at 178, lines 9-10. This is a willful lie. There is nothing in the record confirming this lie; in fact Petitioner did file all his U.S. tax forms in full accordance with the U.S. tax legislation. District Counsel knew it was a lie, because just minutes later she claimed: "His tax forms show that he makes $25,000 a year." Id. at 180, lines 20-21. The misrepresentation was willful, for District Counsel intended to present Petitioner to be a tax-evader, as she stated in her opening statement, even though she was well aware that the record does not support her allegations. The misrepresented fact was material, even crucial to the outcome of the hearing for a tax-evader would have to be denied adjustment of status and asylum as a matter of discretion. This willful misrepresentation of material fact constituted fraud upon the United States.
The "manufactured business" fraud
On July 19, 1996 District Counsel stated to the Immigration Court: "[Petitioner] manufactured a business here that allowed him to come in here". Transcript of Immigration Hearing, at 180, lines 16-17.
This a willful lie. District Counsel knew and stated it in the "Statement of the Case" that Petitioner entered the United States on B-1 visa, which visa was completely unrelated to then non-existent Greatis USA.
The misrepresented fact was material, even crucial to the outcome of the hearing where Respondent intended to demonstrate that Petitioner was an illegal alien who committed immigration fraud and therefore was excludable. This willful misrepresentation of material fact constituted fraud upon the United States.
The criminal character of District Counsel is clearly illustrated by the pervasive fraud upon this Court and the United States, and her illegal assistance to the Russian organized crime.
The "unedited minutes" misrepresentation
Trying to prove that "minutes of interrogation" of witness Uruvaev, submitted by Lt. Colonel Volevodz were unedited minutes of the 10-hour-long interrogation, Assistant District Counsel stated to the Immigration Court that the document was "approximately nine or ten pages; at least an eight or nine page document. Transcript of Immigration Hearing, at 511, line 2, and 511, lines 11-12. In fact, the document is 5 pages long and obviously can not represent what it was intended to represent, i.e. minutes of the 10-hour-long interrogation.
D. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY PERJURY
The "documents from Volevodz" perjury
On July 19, 1996 in an attempt to conceal that his investigation was driven by the Russian Military, INS SA Trent committed perjury by testifying under oath in the Immigration Court that he was given no documents from the Russian prosecutors, that the documents were "always from the FBI or the DOJ or U.S. Attorney's office or from our embassy in Moscow". Transcript of Immigration Hearing, Trent testimony at 238, line 24 to 239, line 4.
Later SA Trent testified that he had received many documents from the Russian military prosecutor directly:
Q [Mr. Maggio]: What documents did [Mr. Volevodz] provide you that made you –
A [Mr. Trent]: "The corporate document that showed, for Greatis Russia that showed that they didn't have a subsidiary. The tax documents from Russia that showed that they didn't have any subsidiaries that the statement from, taken from some guy named Rudakov that's some sort of vice chairman or vice president of Greatis Russia that says Konanykhine doesn't work for us, never worked us."
Transcript of Immigration Hearing at 303, lines 2-9. This misrepresentation was made under oath and was a willful attempt to cover up the fact crucial to the case, that the immigration case against Petitioner was requested by one Lt. Colonel Volevodz and was based on evidence he submitted. Covering up this fact, SA Trent and District Counsel tried to dodge issues of credibility of Volevodz, his jurisdiction, necessity of his examination, admissibility of evidence he submitted, and some related due process violations. District Counsel was well aware of the role of Volevodz and the source of documents, yet she knowingly and willfully used the perjured testimony of Respondent's agent.
The "risk of absconding" perjury
To justify the arrest of Petitioner and his wife, the INS falsely claimed that Petitioner was "a risk of absconding". However, because the information in possession of Respondent demonstrated that Petitioner had always informed the INS of his address, lived and worked openly in the heart of D.C. and cooperated with Russian and U.S. law enforcement agencies, Respondent and his agents resorted to perjured testimony at their desperate bit to support the false "risk of absconding" claim.
During the immigration hearings INS SA Trent, who was the INS investigator-in-charge of this case in the USA, testified, "It looked like [Petitioner and his wife] were very much in preparation at leaving very shortly to go somewhere", because 'we did note … two packed suitcases sitting in the hallway and there were also plane tickets laying out on the – either a side table to coffee table in the living room area, and we took that into concern that, you know, these people looked like they were apparently getting ready to leave very shortly on a trip to we didn't know where". Transcript of Immigration Hearing, at 211, line 17 to 212, line 1.
SA Trent claimed that the "tickets" and the suitcases became the reason for the arrest of Petitioner and his wife:
Q [Mr. Maggio]: Is there a reason why you decided to arrest Mr. Konanykhine and his wife instead of asking them to come into your office the next day or later in the day to talk about their immigration status?
A [Mr. Trent]: I thought there'd be a good possibility that they wouldn't – they wouldn't show up; that they would leave.
Q: Why was that?
A: Because the – well, up until that point, I don't think they were aware that the Immigration Service was, uh, investigation them. And, now, it was obvious we were, and we were quite seriously investigating them. Also, the fact that it looked like they were very much in preparation of leaving very shortly to go somewhere.
Id.at 213, line 14 to 214, line 1. SA Trent also testified that he never reviewed those "tickets":
Q [The Judge]: Special Agent, you testified that there were suitcases and what purported to be airline tickets. Did you review those tickets once you took them into your custody?
A [Mr. Trent]: Uh, I didn't – I never picked up the tickets. Uh, another agent brought it to my attention that he saw them laying there. Uh, I just went over –
Q: Did you seize those documents?
A: No, I did not, Your Honor.
Q: You left them there on the table?
A: Yes, sir.
Id. at 212, line 16 to 213, line 1. This testimony of INS SA Trent is a perjury. Petitioner, when requested to produce the passport before the arrest, explained to SA Trent that he had just returned from a business trip from Miami and the passport was in his briefcase. SA Trent observed Petitioner retrieving the passport and the ticket receipt from the briefcase; SA Trent carefully examined the ticket receipt and placed it on the table, apparently realizing that he could not use it as the pretext for the unlawful arrest. There were no unused tickets on the table or elsewhere in the apartment. There were no suitcases, but only one garment bag in the hallway.
SA Trent and other Respondent's agents conducted an illegal search of the Petitioner's premises and illegally seized from suitcases even such unrelated to immigration matters documents as the title for the Petitioner's automobile and the receipts for storage of his wife's fur coat. It is completely unbelievable Mr. Trent's false claim that conducting that illegal search of Petitioner's apartment he did not look at those "tickets", the "existence" of which he used as the pretext for the unlawful arrest.
Petitioner also contends that even if he and his wife were going to a planned trip, it would not constitute the intent to abscond. Petitioner had informed the INS that he did have to travel on business, and obtained from the INS the permission for such travels in the form of advance parole authorized by Respondent. What was really relevant to the determination of the likelihood of absconding was the fact that Petitioner always informed the INS about his whereabouts, knowing that he was being investigated by U.S. law enforcement agencies on request of the Russian Military Procuracy. Petitioner was officially informed of that investigation by the Department of Justice and the FBI as early as 1994, but never tried or intended to abscond. Rather, he informed the Department of Justice and the FBI about his willfulness to cooperate with the investigation. See Letter of Donald T. Bucklin dated July 12, 1996 (Exhibit 10).
The record of the immigration hearing proves beyond any doubt that the testimony of SA Trent constituted perjury:
Q [Attorney Maggio]: Had you been monitoring his whereabouts? I mean, did you pick that day because you knew that he was home?
A [Mr. Trent]: No, I didn't know his whereabouts.
Q: So, you didn't know that [Petitioner] just returned form a business trip from Florida the night before?
A: I found out, uh, well I didn't find out. I – I knew he – well – I don't know if he just returned, but I know that there were, uh, a ticket receipt laying on the table in the living room.
Transcript of Immigration Hearing, at 261, lines 8-16. Now it is a ticket receipt, not airline tickets anymore, as Mr. Trent testified earlier. Id. Trent testimony at 211, lines 22-23, and 212, lines 16-22. It proves that SA Trent did examine the document and established that it was a ticket receipt, not airline tickets. Having made this determination, SA Trent could not have escaped the conclusion that the garment bag must have been used for completed trip, not for planned escape. The "tickets" lie was very material. Indeed, Petitioner and his wife could not possibly flee using airline ticket receipt, that is why SA Trent lied about airline tickets.
This willful misrepresentation made under oath was material, even crucial to obtaining prolonged detention of Petitioner, because should it be established that Respondent and his agents arrested and detained Petitioner and his wife without basis, the detention might have been terminated by the Court.
The "surveillance" perjury
SA Trent committed perjury testifying that he had not monitored Petitioner's whereabouts and to unbelievable fact that he didn't even know if Petitioner was at home when he came to execute the arrest with numerous INS and police officers, TV crew, and his boss, Assistant District Director on Investigations Goldman.
Q [Attorney Maggio]: Had you been monitoring his whereabouts? I mean, did you pick that day because you knew that he was home?
A [Mr. Trent]: No, I didn't know his whereabouts.
Transcript of Immigration Hearing, at 261, lines 8-12. Three days after this testimony SA Trent in fact admitted that he lied under oath in regard to the monitoring of the Petitioner's whereabouts:
Q [Attorney Maggio]: So [Mr. Konanykhine's] residence was under surveillance?
A [SA Trent]: True.
Id. at 452, lines 14-15. Still Mr. Trent persisted in lying that he did not know about the Petitioner's return from a trip a night before the arrest, even though the residence was under surveillance and even though Petitioner had informed him so and gave the airline ticket receipt which SA Trent examined. Id. at 261, lines 8-16.
To make the arrest appear to be made without knowing of the Petitioner's returning from a trip (which would break the cooked "suitcases/tickets" absconding theory) SA Trent lied that the Arrest Warrant and the Order to Show Cause were prepared on the day of the arrest or on the previous day (Id. at 207, line 24), whereas they were prepared three days before the arrest, on June 24, 1996. See Arrest Warrant (Exhibit 41).
The deliberate lies SA Trent, the INS investigator-in-charge of Petitioner's case, made to the Immigration Court under oath reveal that the detention of Petitioner and the prosecution are malicious, "cooked" by Respondent and his agents and should be terminated.
E. DETENTION WAS OBTAINED BY PERVASIVE FRAUD UPON THIS COURT
To preclude this Court from releasing Petitioner on bond, Respondent and District Counsel Rosas willfully misrepresented to this Court material facts(5), such that if the true facts were known, the Court well might have set bond for Petitioner, i.e. Respondent and District Counsel committed pervasive fraud upon this Court. [ Under the circumstances of Petitioner's detainment, his very limited access to the case record, and with no access to a word processor, Petitioner had to limit himself by analysis of only several instances of fraud by Respondent and his agents. It is unnecessary to analyze each and every instance of the fraud committed by Respondent and his agents, because even one instance would be sufficient to demonstrate the malicious character of the prosecution and warrant the release of Petitioner as well as the termination of the malicious prosecution.]
Respondent, reacting on the Court's strong opinion on the intolerance of illegal extradition, on August 12, 1996, submitted to the Court his completely revised justification of the detention of Petitioner. Petitioner's counsel Mr. Bucklin advised the Court that this revised set of claims contained misrepresentations and mischaracterization. Transcript of Court's August 12, 1996, Hearing at 14, lines 22-23. Mr. Bucklin advised the Court that he was not in the position to adequately rebut the misrepresentations in the new position of Respondent, since the said counsel did not participate in the immigration hearing and did not have a chance to review the new position of Respondent with the detained Petitioner. Id. at 14, line 24 to 15, line 1, and 15, lines 8-12, and 20, lines 7-15. Nevertheless, the Petitioner's counsel did point out on some willful misrepresentations, made by Respondent Id. at 15, line 21 to 18, line 25. The Court took the issue of these misrepresentations by Respondent seriously and questioned at length INS District Counsel Eloise Rosas on this subject. The Court was seeking truthful information from District Counsel, because her answers were crucial for the Court's determination if the prosecution of Petitioner by Respondent was bona fide or malicious. However, instead of answering the Court's questions truthfully, District Counsel committed extensive fraud upon the Court, willfully misrepresenting material facts.
The "undisputed child" fraud
On the Court's question, "I take it there is a dispute over whether that's his child or not?" District Counsel said,
"Your Honor, in the Immigration Court he did not dispute that it was his child."
Transcript of Court's August 12, 1996, Hearing, at 37, line 24 to 38, line 1. [Mistakenly assigned in the transcript to Mr. Bucklin. Mr. Bucklin's statement on this issue was, "There was testimony on [the child issue] specifically, and this statement is based on information that the INS received from this military prosecutor, Volevodz. Mr. Konanykhine at the trial, specifically got on the stand and denied that he was the father of any [natural born] child". Transcript of Court's August 12, 1996, Hearing at 16, lines 5-10 (6).]
This was a willful lie, because Petitioner during the immigration hearing several times denied having any children and challenged validity of the birth certificate, produced by the Main Military Procuracy. Petitioner testified before the Immigration Court the following:
Q [Mr. Maggio]: "Do you have any children?"
A [Mr. Konanykhine]: "No"
Q: "Any natural born children?"
A: "No".
Transcript of Immigration Hearing at 1845, lines 6-9. This fraud committed upon the Court by District Counsel influenced the outcome of the hearing, for if the Court established that new detention justifications were not a bone fide one, but consisted of willful misrepresentations of material facts, the Court could have granted the Writ of Habeas Corpus on the ground of abuse of discretion by Respondent.
This willful misrepresentation reveals that the new detention justifications Respondent listed to the Court are not bona fide, but the false reasons fabricated by Respondent. It is a prove of the malicious nature of the INS prosecution of Petitioner, which should be terminated.
The "divorce record" fraud
The Court questioned District Counsel:
Q [The Court]: And it said that he did not submit records of divorce from his first wife. Me. Bucklin says he did.
A [Ms. Rosas]: Mr. Bucklin may not be aware that Mr. Konanykhine has had three wives. He submitted a divorce for the second wife. In court, he stated he had a first wife, and in terms of –
Q: Is that a significant fact, that he did not submit a record of divorce from his first wife?
A: It is significant in that his present wife is seeking immigration benefits from him. So, in that respect it is significant, because the regulations for adjustment expressly require –
Transcript of Court's August 12, 1996, Hearing at 38, lines 6-8, and at 38, lines 12-25, and at 39, lines 21-25. However, both divorce certificates were duly submitted to the Immigration Court, and are listed as Documentary Evidence 108 and 22. See Exhibit Master List from the Applicant (Exhibit 33).
The seriousness of this fraud committed by District Counsel upon the Court is underlined by her own statement that the allegation was "significant". This fraud influenced the outcome of the hearing, for if the Court established that new detention justifications were not a bone fide ones, but consisted of willful misrepresentations of material facts, the Court could have granted the Writ of Habeas Corpus on the ground of abuse of discretion by Respondent.
This willful misrepresentation reveals that the new detention justifications Respondent listed to the Court are not bona fide, but the false reasons fabricated by Respondent. It is a prove of the malicious nature of the INS prosecution of Petitioner, which should be terminated.
The "tax payments" fraud
The next question the Court asked District Counsel was:
Q: It says next that, "He has failed to submit any evidence that he has paid his federal, state or local taxes." Again, Mr. Bucklin says that is not true. He submitted evidence that he paid federal, state and local taxes. But, again, you were there, he wasn't there. Did he do so?
A: That's actually an issue of letters that we have had with Mr. Maggio, and he did not supply his '93 taxes, and he did not –
Q: He did not supply what?
A: 'Ninety-three.
Q: Did he supply '94?
A: He supplied '94.
Q: Well, then, that's not a correct representation, is it?
A: Well, it's just not – he did supply '94.
Q: So, it's imprecise then.
A: It's imprecise.
Transcript of Court's August 12, 1996, Hearing at 40, line 9 to 41, line 9. The Court did establish that the representation of District Counsel was not correct, but did not have enough information to fully appreciate the cynicism of the misrepresentation.
Petitioner did provide Respondent with the prove that he paid the federal and state taxes in 1993 (before 1993 Petitioner had had no US-originated income nor had he been a subject of U.S. taxation), 1994, 1995 and 1996, by providing Respondent with financial documents of Greatis USA Inc., the company where Petitioner was employed and which duly paid the federal and state taxes for Petitioner. Thus, District Counsel's statement that Petitioner had not submitted his '93 taxes was willful misrepresentation of material facts. See Exhibit Master List from the Applicant (Exhibit 33) Documentary Evidence 5, 19, 21. Petitioner also provided Respondent with the most recent personal tax return for year of 1994, and informed him that Petitioner was not a subject of U.S. taxation for year 1995.
Obviously, when Respondent claimed that "[Petitioner] failed to submit any evidence that he has paid his federal, state or local taxes", it was willful misrepresentation of material facts, a mockery on good faith requirement, characteristic for the whole prosecution of Petitioner by Respondent.
Petitioner contends that even if the evidence were not submitted, it would not be a good faith reason to hold Petitioner in jail, because:
a) Petitioner had duly and timely filed his tax return forms with the proper US government agency - the IRS;
b)the personal copies of the Petitioner's IRS filings were in the possession of another US government agency - FBI, and the INS was informed of that by Petitioner;
c)Respondent deprived Petitioner of possibility to access his records by unlawfully detaining him.
Respondent requested from Petitioner the evidence that Petitioner "had paid his federal, state or local taxes" after putting Petitioner in jail, and after all business and financial documents were seized from Petitioner, i.e. after Petitioner was deprived of possibility to access his records. The counsel of Petitioner on several occasions informed Respondent of the reasons which made Petitioner unable to access his records. Transcript of Immigration Hearing at 92, line 3 to 93, line 10. Petitioner contends that Respondent's attempts to hold him responsible for not having access to the records when it was Respondent himself who deprived such an access, is nothing more then malicious entrapment.
Still, Respondent, INS, IRS, and FBI did possess the evidence that Petitioner did pay taxes in the USA in compliance with the laws, i.e. the statements of Respondent and District Counsel to the contrary constituted fraud upon the Court, which was aimed to and did influence the outcome of the hearing, for if the Court established that new detention justifications were not bone fide ones, but consisted of willful misrepresentations of material facts, the Court could have granted the Writ of Habeas Corpus on the ground of abuse of discretion by Respondent.
This willful misrepresentation reveals that the new detention justifications Respondent listed to the Court are not bona fide, but the false reasons fabricated by Respondent. It is a prove of the malicious nature of the INS prosecution of Petitioner, which should be terminated.
The "character evidence" fraud
The Court asked District Counsel
Q: It says here that, "He has not submitted any evidence of letters of good moral character," and Mr. Bucklin said he did.
A: Your Honor –
Q: Did he or didn't he?
A: -- he submitted letters from a 1993 application for – to purchase an apartment at the Watergate. The Service actually checked those records, and the persons – at least one of the persons was not – number one, they were letters from '93, and they weren't prepared for this hearing. Number two, one of the people, the supposed affiant, stated that he had not prepared that letter for this purpose.
Q: So, it was falsified?
A: It was false – well, it was not – well, there were some falsification elements involving those two people. But he had not prepared the letter to support that Mr. Konanykhine did, in fact, have good moral character.
Transcript of Court's August 12, 1996, Hearing at 43, line 5 to 44, line 5. Again, District Counsel willfully lied to the Court in order to cover up the fraud she and Respondent had perpetrated in order to prolong unlawful detention of Petitioner.
Petitioner had never been asked by the INS to submit any letters or evidence of good moral character. Thus, even if Petitioner had not submitted non-requested evidence or letters, it could not be used as a reason for his incarceration, other than in bad faith. Nevertheless, though such letters or evidence was not required, Petitioner had submitted voluminous evidence of good moral character and letters of good moral character, so Respondent's statements, "He has not submitted any evidence or letters of good moral character" was a cynical lie, very illustrative to the way Respondent and District Counsel "cooked" their case by request of corrupt Russian military prosecutor.
The "Exhibit Master List from the Applicant" (See Exhibit 33) demonstrates that Petitioner submitted numerous evidence and letters of good character, including:
[14] Character reference letters on behalf of Alexandre Konanykhine.
[122] An original facsimile transmission of the character reference letter from Mr. Vladimir Malakhov, a principal artist of the American Ballet Theatre, dated August 9, 1996. This letter confirms the good moral character of Mr. Konanykhine and Ms. Gratcheva.
[25] Copies of photographs and a postcard of the statute erected in one of the central squares in Moscow in honor of the Sacred Saints of the Russian Orthodox Church who invented the Cyrillic alphabet. Alexandre Konanykhine provided the sculptor with the funds to produce the work of art. The back of the statue reads: "This monument was erected through the funding by Russian citizen Konanykhine Alexandre Pavlovich."
[26] A copy of the Certificate of State Registration of the Konanykhine Fund, dated June 10, 1992, with English translation. This document evidences the establishment by Alexandre Konanykhine of a philanthropic foundation in Russia. The abstracts of the charter states as the goals and objectives of the Fund that: "[t]he goal and objective of the Fund shall be philanthropic activity on the Territory of the Russian Federation which facilitates the revival of culture and the development of education, economics, and public health."
[27] A copy of the set of souvenir postcards of the "Royal Portraits" exhibit at the State Museum of the Moscow Kremlin sponsored by the Konanykhine foundation. These documents evidence Alexandre Konanykhine's philanthropic activity in Russia.
[56] A copy and English translation of the article "We Will Be Saved by Love and Unity", published in Birzhevye Vedomosti on June 12, 1992. This report confirms the donation by Alexandre Konanykhine of his personal funds for a memorial monument.
[62] A copy and English translation of the article entitled "I'm Tired of Living Surrounded By Men With Automatic Weapons," published in Nezavisimaya Gazette in late 1993 written by Alexandre Konanykhine. In this article, Alexandre Konanykhine sharply criticizes the Russian government officials of failure to punish organized criminals, in particular, emphasizing the fear among Russian businessmen for their safety.
[64] A copy and English translation of the article entitled "The Main Thing is the Interests of the Stockholders at the Annual Report of the All-Russian Exchange Bank", published in Birzhevye Vedomosti in 1992. This document shows Alexandre Konanykhine as the President of the All-Russian Exchange Bank.
[65] A collection of copies of the letters sent by Alexandre Konanykhine to many Russian government officials. These letters were sent to President Boris Yeltsin, vice President Rutskoy, the Mayor of Moscow, the Prime Minister of Russia, the Minister of Security, the Minister of Finance, the Attorney General, the Minister of the Interior, the Chairman of the Central Bank of Russia, the Chief of Staff to President Boris Yeltsin, and other officials.
[11] A letter from Donald T. Bucklin, Esq., addressed to counsel but submitted to INS District Director William Carroll, which discusses Mr. Bucklin's representation of Mr. Konanykhine in the United States regarding the allegations of Russian Military Prosecutor Volevodz.
These and other documents and letters demonstrate that Petitioner was a respectable banker, deeply involved in a philanthropic activity, with clearly stated anti-Mafia and anti-corruption position, who made everything possible to prevent the advance of the organized crime and corruption in Russia and who cooperated with U.S. law enforcement agencies.
Among these numerous evidence and letters there were two character references (See Id. [14]) provided to Petitioner by two highly respectable individuals in 1993, which Petitioner had indeed submitted to the Watergate Inc. Predictably, both letters certified that Petitioner had good moral character, not good moral character only in regard to the purchase of the apartment. If District Counsel is willing to keep in jail everyone who used his references for more than one addressee, District Counsel would have to put in jail the vast majority of the Americans, who provide copies of the same reference letters to many potential employers, etc.
These letters were dated 1993, and in no case did Petitioner attempt to deceive the INS by suggesting that those 1993 letters were written exclusively for the 1996 immigration hearing. That's why the District Counsel's discovery, "Number two, one of the people stated that he had not prepared that letter for this [exclusion] purpose" was just an attempt to confuse the Court and cover up one of her previous willful misrepresentations to the Court.
Petitioner respectfully suggests that the Court review the enclosed character letters (See Exhibit 34) to see that the District Counsel's statement that the letters "had not been prepared to support that Mr. Konanykhine did, in fact, have good moral character" was yet another lie to the Court.
Petitioner further suggests that being unlawfully put in jail by Respondent and District Counsel he was deprived of the possibility to approach his colleagues and acquaintances to obtain updated letters. Petitioner contends that unlawful libel and defamation campaign, undertaken by Respondent with use of international press-release, news-conference, unlawful arrest, cooked charges, etc. made it impossible for Petitioner to approach many people, who normally would not hesitate to provide him with reference letters.
Nevertheless, among the documents provided by Petitioner to the INS and to the Immigration Court, was also a letter of good moral character executed by a highly reputable person especially for the immigration proceeding, See Exhibit Master List from the Applicant, Documentary Evidence 122 (Exhibit 33), i.e. District Counsel's statement to the contrary was a blunt fraud upon this Court, committed to cover up her earlier fraud.
The "destination of deportation" fraud
The issue of whether or not the prosecution of Petitioner by Respondent was in fact malicious abuse of legal process by Respondent, undertaken for the purpose of illegal extradition of Petitioner to Russia, was the central issue of the Habeas Corpus hearings before this Court, which took place on August 9-August 20, 1996. Indeed, after making itself familiar with the facts which indicated that illegal extradition appeared to be the likely purpose, the Court inquired from District Counsel Rosas:
The Court: So far as I can read this, it says that he is not going to be released from custody because he is a fugitive from criminal proceedings in Russia. That's the reason, isn't it, Ms. Rosas?
Attorney Rosas: Yes, Your Honor.
Transcript of Court's August 9, 1996, Hearing at 10, line 24 to 11, line 5. This unambiguous admission and the evidence made it clear to the Court that the Russian prosecution was the only reason for detention of Petitioner:
The Court: The fact that he committed, or is alleged to have committed fraud in the immigration, is not the reason they are holding him. The reason they are holding him – they might parole him if that's all they are looking into. The reason they are holding him is because he is a fugitive from criminal proceedings in Russia.
Id. at 12, line 23 to 13, line 7. This understanding was unequivocally confirmed to the Court by the Respondent's Counsel:
The Court: Ms. Rosas, your contention, I take it, is that the reason given, namely fugitive from criminal proceedings in Russia, is a valid reason.
Attorney Rosas: Yes, Your Honor.
Id. at 29, line 22 to 30, line 2. After the Court's initial conclusion was so unequivocally confirmed twice by District Counsel, the Court strongly expressed its feelings on the intolerable character of illegal extradition which caused the Petitioner's incarceration:
The Court: Let me ask you this: Suppose that the facts were that what this really is, is a political matter in which somehow or other the INS had been directed from higher political positions to say, "Hold this fellow, and we are going to use the deportation proceedings as a means of extraditing him, even though we don't have a treaty." That wouldn't be valid, would it?
Attorney Rosas: I don't think – (pause)
The Court: I wouldn't want to live in a country –
Attorney Rosas: -- it would be valid –
The Court: -- that would do that. Would you, Ms. Rosas?
Attorney Rosas: No, your Honor. I don't think that would be valid –
The Court: I don't think it is valid.
Id. at 31, line 10 to 32, line 4, which forced District Counsel to change her position completely:
Attorney Rosas: -- to look at it just that way. I don't – but no, I totally agree with you. However –
The Court: You don't think that has happened in this case.
Attorney Rosas: You Honor, I know that it hasn't happened.
Id. at 32, lines 5-12. Yet, the Court's concern over the possibility that the detention and the prosecution of Petitioner were caused by the intention to commit illegal extradition, that it stated its concern on numerous occasions:
The Court: Well, I guess my point to you, Ms. Rosas – and I want to you address it because I now understand that you are an important – that you were important in the decision-making here – we don't put people in jail in this country just because some other government goes looking for them, and just because some other country thinks they have committed a crime. You know, when we talk about Russian Government, we talking about people over there.
Attorney Rosas: Right.
The Court: And if we don't have a treaty with them, then we don't extradite people,. We don't put people in jail here, typically, if there were some dispute about whether he was in violation of the immigration laws. … For example, you certainly wouldn't simply hold somebody here because some government issued a warrant for an arrest, and that's it, you didn't know why and didn't know whether there was any basis for it. You couldn't keep somebody in jail for that; is that right?
Attorney Rosas: That is certainly right. You are correct, your Honor.
Transcript of Court's August 9, 1996, Hearing at 36, line 12 to 37, line 5, and at 37, line 22 to 38, line 5.
The Court: We don't operate – our public interest here in our law is in the interest of the United States. We are not out here to further any Russian interest or any interest of any other country.
Id. at 28, lines 15-19.
The Court: Suppose he did embezzle $8 million from Russia. Why not release him here, if you don't have an extradition treaty? Why does that convert deportation into extradition when you don't have a treaty?
Attorney Rosas: Well, that –
The Court: You are familiar, of course, that there are probably dozens, if not hundreds, of folks living in this country who are wanted by people overseas. Isn't that right?
Attorney Rosas: That's right.
The Court: And we don't go out and arrest them and deliver them unless there is a treaty, do we?
Id. at 42, line 19 to 43, line 8.
The Court: But there are plenty of people in this country, residing here lawfully, who are wanted by other governments with whom we don't have a treaty, whom we do not go out and arrest and deliver to the other government.
Id. at 44, line 22 to 45, line 1.
The Court: I asked you whether merely being wanted in some other country with whom we do not have an extradition treaty is a basis for going out and arresting people. And the answer you gave me was, "No." Of course, that's the correct answer. We have no idea what – we have some idea, and it is probably distasteful in many instances, about the legal systems of other countries, and we would not incarcerate people in this country based on that. We certainly wouldn't have done it when it was the Soviet Union.
Id. at 62, lines 2-13.
The Court: But I want to go back to this reason why he was locked up. It is clear to the Court that he ought not to be locked up just because he is being wanted by some other government with whom we don't have a treaty.
Id. at 64, lines 14-18.
To make sure that the exclusion procedure would not be misused maliciously for illegal extradition, the Court asked District Counsel if the deportation must by done necessarily to Russia. District Counsel tried to dodge the direct answer, but the Court, unsatisfied with her unclear answer, demanded clarification:
The Court: Well, that's fine, but you don't have any interest in where he goes, do you?
Attorney Rosas: I –
The Court: You do have an interest in him going back to Russia?…I don't want to have your personal opinion. I'm talking about the United States. Your personal opinion doesn't interest me.
Attorney Rosas: Yes, your Honor. I think the person should be called to answer the charges against then when there are criminal charges, and I think that would probably be the view of the district director.
Id. at 73, lines 1-6, and at 73, lines 11-19, which revealed the truth, i.e. that the malicious prosecution of Petitioner was indeed an attempt to commit an illegal extradition. This revelation caused the Court, concluding the first day of hearing, to express his opinion in strong terms:
The Court: All right. That suggests to me that that is what's afoot, then. I think that's what is afoot, Ms. Rosas, and I will think long and hard about that. I don't think you're interested in this fellow for fraud or for anything else. I think there is some interest in the fact that ultimately the Russians persuaded you all that he was a criminal, and they wanted him back, and you are going to give him back. And maybe the law permits you to do it. We will see.
Id. at 73, line 20 to 74, line 6. Facing such unequivocal intolerance by the Court of the malicious abuse of legal process, Respondent and District Counsel conspired to commit fraud upon the Court in order to prevent the Court from granting Petitioner the Writ of Habeas Corpus, which would hamper their illegal extradition arrangements with the Russian Military. When the Court raised the issue of country of deportation again on the second day of the hearings:
The Court: Where are you going to send him? It is a perfectly sensible question, in light of the allegations being made by the petitioner. I think the law is clear that there would be – there might well be a violation of the law if he were handed over to the Russians. Transcript of Court's August 12, 1996, Hearing at 5, lines 15-21.
The Court: You see, I was taken aback on Friday when I asked you where he was going to go. And you were quite right to point out that that is not a matter directly before the Court now. That's perfectly appropriate for you to point that out. It's accurate, I think. But it gives me a queasy feeling when you say, "He is going back to Russia, " when I look at statutes and the regulations and it doesn't necessarily reflect that. So I say to myself: Is there something else going on here? Do you see what I am saying? Id. at 45, line 17 to 46, line 4.
District Counsel answered: "Your Honor, on Friday I pointed out the statute provided that the first country of return for Mr. Konanykhine in fact was Antigua". Id. at 46, lines 5-8. And again:
The Court: And if he were, if the immigration judge found against him and if he were to be excluded, then pursuant to the various statutes that apply in this case, he would wither be sent to Antigua or to some other place, in accordance with those statutes.
Attorney Rosas: Yes, your Honor. Again, the first country would be Antigua. it is kind of like a step-ladder. You start at the top and you work on down.
Id. at 55, lines 10-20. This lie was also stated on the Respondent's undated letter, composed after the first day of hearing, addressed to Mr. Bucklin and Mr. Maggio, and submitted to the Court:
"…if Mr. Konanykhine is found excludable and is denied asylum or withholding of deportation by the immigration judge, the Service would follow the provisions of sections 237(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a) … the first country of deportation … would be Antigua." See Letter of William J. Carroll (Exhibit 32).
It was the pivotal point of the hearing. After the Court was assured by District Counsel and Respondent himself that the exclusion would be done to Antigua, the Court dismissed the "illegal extradition" issue and denied the Writ of Habeas Corpus on this ground.
Clearly, if Respondent and District Counsel told the Court that the deportation would be not to Antigua, but to Russia, the Court would not so easily dismissed the issue of illegal extradition and could have granted the Writ of Habeas Corpus terminating the unlawful detention of Petitioner. Indeed, the Court stated that:
"…it can never be in the public interest to subvert the parole process by allowing political considerations to displace the statutory scheme. Manipulation of proceedings to achieve an extradition not otherwise possible would not only exceed any discretion the statute confers on the district director, but would also undermine the legitimate operations of the INS in enforcing and administering the immigration laws." See Order on Petition for Writ of Habeas Corpus dated August 16, 1996 (Exhibit 1) at 6.
and
"I think if the Court were persuaded it was a sham, Mr. Bucklin, I would issue a writ, again".
Transcript of Court's August 23, 1996, Hearing at 36, lines 21-24. In fact, the belief that Petitioner was not facing deportation to Russia was a cornerstone of the Court's denial of Writ of Habeas Corpus on the "abuse of discretion" ground:
The Court: …if Mr. Konanykhine is ultimately excluded, there is a specified statutory procedure and regulations that provide for where he would be excluded to. I would expect the INS to comply punctiliously with those requirements – and I think [District Counsel] said, [District Counsel] assured the Court, of course, that it would – and that those don't involve turning Mr. Konanykhine over to Russian officials at Kennedy airport or anything else. I think the statute provides that he would be, he would be sent initially to the last country the came from, which in this case would be Antigua in the Caribbean. And then, if he is excluded, he can then do as he wishes from there. Am I correct in that regard, Ms. Rosas?
Id. at 38, lines 3-17. Continuing to perpetrate fraud upon the Court, District Counsel replied:
Ms. Rosas: Your Honor, as I mentioned to the Court at an earlier hearing, it's like a stepladder. That's the first step. When we deport him or exclude him, we have to get travel documents. So we go through a series of countries. Antigua is the first country. But at this point, it would to go through…
The Court: Well, when you say it goes to Antigua first, I take it you then inquire of Antigua whether they will accept him.
Ms. Rosas: The Detention and Deportation Unit has all sorts of contacts and requirements that they have – they have to get travel documents. And if –
The Court: Well, the –
Ms. Rosas: -- you don't get Antigua, then you go to the next country in the statute.
Id. at 38, line 18 to 39, line 9. Respondent and District Counsel could not be unaware that according to the provisions of sections 237 (a) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(1), "the deportation shall be to the country in which alien boarded the vessel or aircraft on which he arrived in the United States, unless the alien boarded such vessel or aircraft in foreign territory contiguous to the US or on any island adjacent thereto or adjacent to the United States and the alien is not a native, citizen, subject or national of, or does not have a residence in such foreign contiguous territory or adjacent island." Petitioner is not a native, citizen, subject or national of Antigua, nor does he have a residence in Antigua, which is, according to 8 U.S.C.A. � 1101(b)(5), an adjacent island, i.e. the law prohibits the deportation of Petitioner to Antigua.
The deportation of illegal aliens, many, if not most of whom come to the United States from or through adjacent islands and contiguous territories, is the main job of Respondent and District Counsel; they also reviewed the relevant regulation, as the letter of Respondent demonstrates. See Exhibit 32. Thus, Respondent and District Counsel definitely knew that the deportation to adjacent islands is not permitted, which means that they deliberately misinformed the Court.
The regulation (sections 237(a) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)) is explicit as to where Petitioner shall be deported if Respondent secures the final order of deportation. Contrary to the false statement of District Counsel, there is no "stepladder"; Petitioner shall be deported to Russia. Only if Respondent believes that deportation of Petitioner to Russia is "impracticable, inadvisable or impossible", Respondent may chose to deport Petitioner to any country which is willing to accept Petitioner into its territory (8 U.S.C. 1227(a)(2)):
If the government of the country designated in paragraph (1) will not accept the alien into its territory, the alien's deportation shall be directed by the Attorney General, in his discretion and without necessarily giving any priority or preference because of their order as herein set forth, either to -
(A) the country of which the alien is a subject, citizen, or national;
(B) the country in which he was born;
(C) the country in which he has a residence; or
(D) any country which is willing to accept the alien into its territory, if deportation to any of the foregoing countries is impracticable, inadvisable, or impossible.
Respondent, through District Counsel, strongly and unequivocally stated to this Court that he viewed the deportation of Petitioner to Russia practicable, advisable and possible:
The Court: Well, that's fine, but you don't have any interest in where he goes, do you?
Attorney Rosas: I –
The Court: You do have an interest in him going back to Russia?…I don't want to have your personal opinion. I'm talking about the United States. Your personal opinion doesn't interest me.
Attorney Rosas: Yes, your Honor. I think the person should be called to answer the charges against then when there are criminal charges, and I think that would probably be the view of the district director.
Transcript of Court's August 9, 1996, Hearing at 73, lines 1-6, and at 73, lines 11-19. The arbitrary decision of Respondent to designate Russia as the destination of the deportation is virtually impossible to challenge in the Court. Undoubtedly, Respondent had that in mind, when decided to misrepresent to the Court material facts on the destination of the deportation.
Petitioner submits to the Court that there is no alternative country "willing to accept him into its territory", due to malicious prosecution of Respondent. Petitioner had never been denied visas to any country and he had traveled extensively around the world. Now he is in very, very different situation, because:
a) Respondent maliciously defamed Petitioner, wide-spreading the false libelous information about Petitioner internationally through news-conference, press release, interviews, distribution of the video tapes of Petitioner's arrest, fabricating charges against him, and so on;
b) Respondent unlawfully put Petitioner in the exclusion proceedings on the fabricated charges;
c) Respondent unlawfully detained Petitioner.
There is no country known to Petitioner which is willing to accept into its territory a notorious embezzler deported from the United States for fraud after long time in jail; and that's exactly the image Respondent and his agents have maliciously created for Petitioner by libel, fraud, and malicious prosecution. Unlawfully detaining Petitioner, Respondent deprived him the liberty to visit any embassies.
Thus, the only place of the deportation of Petitioner by Respondent, should Respondent secure final order of deportation, will be Russia, to the Russian Mafia, whose delivery request Respondent is willfully executing. To achieve this unlawful goal, Respondent committed the fraud upon the Court. If the Court knew that there is no alternative to Russia as the destination of deportation, the Court might have not dismissed the Petitioner's petition without closer examination and might have granted the Habeas Corpus Petition on the ground of abuse of discretion, and Petitioner could be a free man now. This willful misrepresentation is also a prove of the malicious nature of the INS prosecution and detention of Petitioner which should be terminated.
The "procedure of determining the destination of deportation" fraud
Trying to cover up the attempt to commit illegal extradition of Petitioner to Russia, Respondent, through District Counsel, besides the "Antigua" and "stepladder" fraud also lied to the Court on the process of determination of the deportation, stating falsely that this issue was before the Immigration Judge:
Attorney Rosas: [Immigration Judge] could still say, "Well, we can deport him, but we cannot deport him to Russia". Those are all issues in front of the Immigration Judge.
The Court: And if he were, if the Immigration Judge found against him and if he were to be excluded, then pursuant to the various statutes that apply in this case, he would either be sent to Antigua or to some other place, in accordance with those statutes.
Attorney Rosas: Yes, your Honor. Again, the first country would be Antigua. It is kind of like a step-ladder. You start at the top and you work on down."
Transcript of Court's August 12, 1996, Hearing at 55, lines 5-20. This willful misrepresentation led the Court to believe that there was no conspiracy on the part of Respondent to deliver Petitioner to Russia; that the destination of deportation would be decided by the Immigration Judge.
In fact, the destination of deportation was not before the Immigration Judge. On the contrary, the destination of deportation is determined solely and arbitrarily by Respondent, in accordance with the provisions of sections 237(a) of the Immigration and Nationality Act, 8 U.S.C. 1227(a).
Respondent and District Counsel proved to be very thorough in challenging Immigration Court and this Court on their jurisdiction to consider the issues related to the Petitioner's case, such as bond and destination of the deportation issues, and were well aware that their statement on the procedure of determining the destination of deportation to the Court was a lie. The Respondent's and District Counsel's knowledge of the truth in this issue is proved by the letter, composed by District Counsel (Id. at 37, lines 3-12), signed by Respondent and submitted to this Court:
The Immigration Judge will first determine whether Mr. Konanykhine is admissible to the United States… If Mr. Konanykhine is found excludable, the Service will follow the provisions of sections 237(a) of the Immigration and Nationality Act, 8 U.S.C. 1227(a) in determining the country to which he should be deported. (Emphasis added).
See Letter from William J. Carroll (Exhibit 32).
Immediately after writing this letter, i.e. being fully aware that the issue of destination of deportation was not before the Immigration Judge, District Counsel knowingly and willfully lied to the Court, claiming that this issue was before the Immigration Judge, in order to manipulate the Court into dismissing the Petitioner's petition. Transcript of Court's August 12, 1996, Hearing at 55, lines 5-20. If the Court know true fact that Respondent himself would arbitrarily designate the destination of deportation, the Court might have not dismissed the Petitioner's petition without closer examination and might have granted the Habeas Corpus Petition on the ground of abuse of discretion, and Petitioner could be a free man now. This willful misrepresentation is also a prove of the malicious nature of the INS prosecution and detention of Petitioner which should be terminated.
F. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY INTIMIDATION AND PERSECUTION OF WITNESSES
Intimidation of witness Nickolai Menchukov
On July 12, 1996, the prominent Russian advertising executive, president of AO Greatis Nickolai Menchukov voluntarily visited the INS offices in order to inform Respondent that Lt. Colonel Volevodz had provided the INS with fabricated documents. This meeting was a courtesy toward the INS, and attempt to save a U.S. government agency from an embarrassment during court hearings. The information provided by Mr. Menchukov to the INS trial attorney is summarized in Exhibit 16 (Declaration of Nickolai Menchukov dated July 12, 1996).
As soon as this information was provided to INS Assistant District Director on Investigations Goldman, he, in presence of Petitioner's Counsel Mr. Maggio and INS trial attorney Ms. Rizzi threatened Mr. Menchukov with arrest. There were no lawful grounds for arrest whatsoever; its only purpose was suppressing the truth, intimidating a witness in order to continue the malicious prosecution of Petitioner and his wife demanded by Lt. Colonel Volevodz. ADDI Goldman did achieve his criminal goal: Mr. Menchukov was indeed intimidated by the arrest threat, for he knew that ADDI Goldman had unlawfully arrested Petitioner and his wife by request of a corrupt Russian military prosecutor.
Despite the intimidation by the Respondent's assistant, Mr. Menchukov did appear in the court as a witness for the defense, where immediately before his examination the INS trial attorney threatened him with an unlawful arrest. Transcript of Immigration Hearing at 1110, lines 4-19. INS intimidating technique achieved its malicious goal: Mr. Menchukov was very intimidated by the arrest threats. His emotional state changed immediately and his following nervousness was so obvious that resulted in the Immigration Judge disregarding Mr. Menchukov's testimony. Thus, the repeated intimidation of Mr. Menchukov caused irreparable damage to Petitioner's defense.
After Petitioner's counsel had indicated to the INS trial attorney that the blunt intimidation of witnesses with arrests may result in legal actions against the INS, Id. at 1110, the INS trial attorney said that she "was not serious". Clearly, such "jokes" are neither less intimidating, nor more excusable that assault threats by a Mafia boss towards a judge or a prosecutor with forced "just joking" an hour later.
The following events demonstrated that the INS was dead serious in its threats to Mr. Menchukov. Respondent's employee, Lt. Colonel Volevodz, urgently cooked criminal case against Mr. Menchukov, accusing him in being a fugitive from justice. The organized criminal group Lt. Colonel Volevodz belonged to destroyed the business of Mr. Menchukov in Russia and gunned down his brother-in-law, whom Lt. Colonel Volevodz had contacted prior to Mr. Menchukov's testimony in the Immigration Court. See Declaration of Nikolai Menchukov dated March 15, 1997 (Exhibit 17).
Intimidation of witness Val Kulkov
Respondent also unlawfully arrested, detained, and deported another defense witness, Mr. Kulkov, and threatened to arrest his wife and ten-year-old daughter. Only expedited self-departure of his wife and daughter saved them from being maliciously put to jail by Respondent.
Intimidation of witnesses in Moscow, Russia
The way Respondent arranged intimidation and persecution of witnesses in Russia is astonishing.
In 1994 Petitioner learned that Lt. Colonel Volevodz started to persecute him on behalf of the KGB and the Mafia. In 1995 it was independently confirmed by the U.S. government, which strongly advised Petitioner "not to reveal his whereabouts to anyone connected to the Russian investigation" conducted by Mr. Volevodz. See Letter of Donald T. Bucklin dated July 25, 1995 (Exhibit 2). When in June 1996, after the unlawful arrest by the INS, Petitioner learned that the arrest of his wife and him was arranged by Lt. Colonel Volevodz who arrived to Washington for the purpose of persecuting of Petitioner, Petitioner applied for political asylum. Petitioner indicated that the unlawful persecution by Lt. Colonel Volevodz was one of the most important instances of the persecution of Petitioner by the Mafia, and Petitioner named to the INS witnesses who had the first-hand knowledge of malicious character of the military persecution and asked the INS to depose them in Moscow.
However, Respondent was not interested in finding the truth, which would reveal that he was participating in a Mafia-ordered persecution of Petitioner. On the opposite, Respondent was interested in suppressing this truth. To suppress the truth, Respondent decided to arrange intimidation and persecution of the witnesses; to this end Respondent put the Russian military prosecutor, whom Petitioner was seeking asylum from, in charge of the Petitioner's asylum case investigation in Moscow. Respondent provided the Russian military prosecutor with the list of the witnesses of the malicious character of the illegal military prosecution conducted by the said military prosecutor, and list of documents to arrange:
A: [Mr. Walsh] At least two people had to be interviewed. … Well, we, the first day we met with Mr. Volevodz and Igor, we sat down and we had a list of documents that the District Counsel requested. We went through that list and explained to Mr. Volevodz exactly what documents they needed to get and we explained to them and we went through the list and they said that would be no problem getting those documents. It might take some time but they could procure all the documents that were requested of them. So we went down the list and then we set a tentative time, say, when they would get these documents by.
Transcript of Immigration Hearing at 483, lines 12-13 and at 483, line 22 to 484, line 5. It is clear that no honest official would put an alleged Mafia persecutor in charge of investigating this prosecutor's affiliation with the organized crime, or lawfulness of his persecution. Yet, it was exactly what Respondent did.
Respondent succeeded in the intended goal of intimidation and persecution of witnesses by sending a powerful Lt. Colonel of the feared Russian Military Procuracy to interrogate witnesses regarding this military prosecutor's Mafia affiliation. For example, one of the witnesses, Mr. Uryvaev, deputy CEO of Greatis, Moscow, was interrogated by Lt. Colonel Volevodz and Lt. Colonel Nisuev in the office of the Main Military Procuracy for ten hours without a break, and was extremely intimidated by the threats of Mafia persecution and malicious government persecution which were made by Lt. Colonel Volevodz. This witness, as all others interrogated on Respondent's request by his military enforcers, was forced to sign the documents Respondent used for the purpose of malicious prosecution of Petitioner.
To justify such outrageous actions, INS officer Walsh lied in the Immigration Court that the INS was not allowed to participate in the INS investigation conducted by the Russian military prosecutor:
Mr. Walsh: And I was told by Mr. Volevodz that it would, it was possible that I accompany them when they get these documents and conduct interviews but it would take, he claimed a minimum of two to three months to get clearance from his superiors for me to, to accompany him during this investigation. … We asked them - we originally requested that I attend - accompany [Mr. Volevodz] on the interview, and he said that's not possible. Id. at 482, lines 5-13, and at 565, lines 19-21.
Q: So didn't Mr. Volevodz' basically taking over your investigation strike you as strange?
A [Mr. Walsh]: No, it did not.
Id. at 547, lines 20-22.
However, immigration officer Walsh admitted that he personally conducted many INS investigations:
Q [Ms. Rizzi]: And have you ever had an occasion to investigate any other types of documents or any other types of fraud?
A [Mr. Walsh]: Yes, I have.
Q: What types?
A: I've done a number of I-140 petition investigations. We receive requests from New York, Cleveland, Los Angeles offices to go out in the field and conduct investigations involving individuals who said they worked in Russian businesses. And these are businesses located in Moscow.
Id. at 480, lines 5-14. Moreover, Mr. Walsh admitted that he had the authority, and exercised it, to conduct interviews in the course of INS investigations, without obtaining any clearance from the Russian authorities:
Q: [Mr. Maggio] Were you able to go out and talk to companies previous --, other companies in other cases without the assistance of a Russian official?
A: [Mr. Walsh] Yes, I --. Yes, I did in the past.
Id. at 482, lines 18-21. The participation of Lt. Colonel Volevodz was not at all required, other than for fabricating evidence and intimidating and persecuting the witnesses. INS officer Walsh also admitted that he was ordered not to follow regular practice, that he "was told" that he "would be working with two individuals from the Ministry of Internal Affairs to get these documents. Those two individuals was a gentleman named Alexander Volevodz and another individual named Igor." Id. at 481, lines 13-23. Mr. Walsh also stated that the Russian investigators were working for the INS conducting the INS investigation, Id. at 547, lines 5-15, but refused to let the INS officers to participate in the "INS-directed investigation". Id. at 568, lines 13-22. Also at 567, lines 2-7. Immigration officer Walsh stated that the Russian military prosecutor claimed that INS officers required clearance from the Russian Military Procuracy to participate in the INS investigation of INS cases, such as interview of an individual about her alleged past marital relations with Petitioner, or interview with the executive of a commercial company about facts of Petitioner's past employment, i.e. exactly the types of investigations Mr. Walsh had successfully conducted many times without any Russian military clearance. INS officer Walsh could not have failed to conclude that the Russian military prosecutor lied to him.
Immigration officer Walsh stated that "At least two people had to be interviewed." Id.at 483, lines 12-13. This was exactly what Mr. Walsh had done in the past many times, as he admitted:
Mr. Walsh: And when I conducted other investigations I just went out and just did interviews… I just went out and spoke to individuals (483:2-4). I conducted investigations involving INS violations and all I've done is go out and interview people orally.
Id. at 548, lines 4-6. No witnesses were located in government buildings as the INS tried to suggest, with the purpose to mislead the Immigration Court: [Ms. Rizzi] "any official from the United States just cannot go roaming around or go into government buildings just at a willy-nilly as someone would say and certain clearances or other things need to be obtained and Mr. Walsh testified that he was told that it would take a few months". Id.at 514, lines 6-11.
In fact immigration officer Walsh under the cross-examination of Petitioner's counsel admitted that he could have interviewed the witnesses and obtained the documents, but he did not try because his officer in charge ordered him not to conduct the investigation in a normal way:
Q [Mr. Maggio]: You certainly could have interviewed the officials of the Menatep Bank and the Negociant Bank that Mr. Volevodz interviewed. Could you not?
A [Mr. Walsh]: I could have interviewed them if I could have located them.
Q: Isn't the Menatep Bank one of the biggest banks in Russia?
A: It's, I believe, one of the five largest banks in Russia.
Q: So presumably you could locate the president of one of the five largest banks in Russia. He is not hiding I assume?
A: Yes, I could if he would voluntarily agree to an interview.
Q: Did you make an effort to interview him?
A: No, I did not. I am given directives by my officer in charge.
Id. at 556, line 18 to 557, line 10. The malicious prosecution of Petitioner by Respondent could have been the only reason for directives to an immigration officer not to investigate the matter and let it do the Russian Military.
Mr. Walsh, INS officer stationed in Moscow, testified that from his years of experience working with the Service, a foreign government has never before taken over an INS investigation. Id. at 547, lines 16-19. Petitioner contends that Respondent purposefully employed the Russian military prosecutor, who was known to the U.S. government as a Mafia-associated official, to intimidate witnesses, fabricate false evidence in order to make the legal defense of Petitioner in the immigration proceedings impossible. This action inflicted irreparable damage to the due process of law. The witnesses were shown that mere agreement to testify to the true facts would result in severe persecution by Respondent (in the United States) or by Lt. Colonel Volevodz (in Russia), and may include arrest (as in case of Mr. Kulkov), arrest threats (Mr. Menchukov), gunning down relatives (Mr. Menchukov), threats to arrest family members, including minors (Mr. Kulkov), all-day long intimidation sessions in the Main Military Procuracy (Mr. Uruvaev), Mafia and military threats (Mr. Menchukov, Mr. Uruvaev), destruction of business (Mr. Menchukov, Mr. Uruvaev), fabricating false tax criminal charges (Mr. Menchukov). The intimidation is not limited to the witnesses directly intimidated, for it has become widely known. Because of this Petitioner prays the Court to terminate the unlawful detention and malicious prosecution by granting him the political asylum.
G. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY DENIAL OF PETITIONER'S RIGHT TO CROSS-EXAMINE THE KEY WITNESS
Since the INS prosecution of Petitioner was initiated at the behest of one Lt. Colonel Volevodz and is based on the forged documents he had submitted, the counsel for Petitioner repeatedly requested the INS to make this investigator available for cross-examination. In fact, the counsel for Petitioner formally requested the Immigration Court to subpoena Lt. Colonel Volevodz. (The Immigration Court failed to rule on the written Motion). In response, Respondent declared that the Russian law prohibited Lt. Colonel Volevodz to testify.
The record proves that this statement of the INS was a willful lie. An expert witness testified that the Russian law in no way prevented Lt. Colonel Volevodz from testifying. The fact that both Lt. Colonel Volevodz and Respondent did know that there were no restriction for Lt. Colonel Volevodz testifying in the Immigration Court was also evident from the fact that on July 2, 1996, the INS stated to the Immigration Judge:
"Your Honor, the Service would like to advice the court that the is a Russian investigator here from Russia with information regarding certain facts… The Service would like to make a request … to have testimony taken from this witness. We would at least like to inform the court that this witness is necessary with regard to proving the fraud allegations. If the court find that it needs more time we can bring back this witness in the future. But we wanted to inform the Court if there is a possibility that the Court could take testimony from this witness this week, we're making this request" Transcript of Immigration Hearing at 31, lines 5-20.
and
Q [Mr. Maggio]: When will your witness be coming back? [Re: Lt. Colonel Volevodz]
A[Ms. Rizzi]: It depends on what the Court orders." Id. at 35, lines 3-5.
However, after the counsel of Petitioner informed the Immigration Court that "we believe [Lt. Colonel Volevodz] in nothing more than a corrupt government official and are prepared to prove that with testimony" (Id. at 32, lines 8-10. Also, at 47, lines 11-22) the investigator, who had been willing to testify, suddenly became unavailable because of "the law obstacles", which the expert witness prove to be false. The fact that "unavailability" of Lt. Colonel Volevodz was arranged by the INS is evident from the INS' refusal to take any steps to obtain the testimony, which they initially claimed was "necessary with regard to proving the fraud allegations." Id. at 31. District Counsel stated on July 22, 1996, "We would not be involved in the execution of the service of a subpoena [on Lt. Colonel Volevodz]. In terms of our accommodating his ability to – at the off --, at the INS office in Moscow, I, we're not prepared to take any additional steps on that." Id. at 423, lines 13-18.
H. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY UNCONSTITUTIONAL FAILURE OF RESPONDENT TO DISCLOSE TO PETITIONER EVIDENCE FAVORABLE TO PETITIONER
Respondent failed to provide Petitioner with a copy of the Certificate of Appreciation he issued to corrupt Russian military prosecutor Lt. Colonel Volevodz; moreover, Respondent declined to provide Petitioner with a copy even after Petitioner first requested it under the Freedom of Information Act.
Clearly, the Certificate is very relevant and important to the proceedings, because it demonstrates the extreme bias of Respondent. Petitioner contends that this Certificate of Appreciation is one of the reasons why Respondent has been covering up by fraud and other illegal deeds of Lt. Colonel Volevodz, who is known to the FBI and the Department of Justice as a corrupt officer, affiliated with the Russian organized crime. Should this bias be evident to the Court or to the Immigration Judge, the outcome to hearings might have been different.
I. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY WILLFUL USE OF FORGED AND ALTERED EVIDENCE
To support the false accusations of Petitioner of embezzling $8,1 million from Petitioner's own bank, Respondent submitted to the Immigration Court the Conclusion of the Forensic Laboratory of the Ministry of Defense of Russia. The examination of this document by an FBI expert proved that this document was fabricated by the Russian military prosecutor who acted as the INS investigator-in-charge of the Petitioner's INS case in Russia. The findings of the FBI expert, See Exhibit 40, had been submitted to the Immigration Court and to Respondent. Respondent has never indicated that he found the FBI expert's conclusion inaccurate. However, he used the fabricated Conclusion of the Forensic Laboratory of the Ministry of Defense of Russia in his Closing Statement, as a ground to demand the exclusion of Petitioner.
It is the knowing use by Government of false evidence that constitutes denial of due process. Hoffa v. U.S., D.C. Tenn. 1972, 339 F.Supp. 388, affirmed 471 F.2d 391, certiorari denied 94 S.Ct. 159, 414 U.S. 880, 38 L.Ed. 2d 125.
Petitioner through his Counsel urged Respondent to use the INS or the FBI forensic facilities to re-confirm that conclusion on the Russian Military Forensic Laboratory was false, as the FBI expert demonstrated. Transcript of Immigration Hearing at 184, lines 19-23. The fact that Respondent ignored the suggestion indicates that he knew that he was using fabricated documents and false accusations to maliciously prosecute Petitioner. The "fugitive from justice" claim based on this false document was willfully used by Respondent to obtain detention of Petitioner.
Similarly, Respondent knowingly used several more false pieces of evidence, including the ones purported to be letters of company called Greatis AO which had been found to be false, forged documents after the examination by the President of Greatis AO. See Exhibit 16. This false evidence was nevertheless used by Respondent in his Closing Statement as a ground to request the Petitioner's exclusion. The "immigration fraud" claim based on this false document was willfully used by Respondent to obtain detention of Petitioner.
Similarly, Respondent used an altered bank statement (See Exhibit 30), also submitted by the Russian military prosecutor in charge of the INS investigation in Russia. Petitioner's counsel submitted genuine statements obtained from the originating bank. See Exhibit 31. The "doctored" statement was used by Respondent as a "proof" of alleged fraud by Petitioner. Instead, it demonstrated fraud by Respondent and his agents. The "fugitive from justice" claim based on this false document was willfully used by Respondent to obtain detention of Petitioner.
Similarly, Respondent used a bank statement, also submitted by the Russian military prosecutor, from the Russian Exchange Banks which ceased to exist before the document was fabricated. The statement is signed "Chairman of the Board Kurguzov", though this person had never been a lawful Chairman of the Board of the bank. See Exhibit 28. The "immigration fraud" claim based on this false document was willfully used by Respondent to obtain detention of Petitioner.
The knowing use by Respondent of false evidence constituted denial of due process to Petitioner, demonstrated the bad faith of Respondent and the malicious character of the prosecution and the detention of Petitioner. Therefore, Petitioner respectfully requests the Court to terminate the unlawful detention and malicious persecution.
J. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY USE OF EVIDENCE OBTAINED PURSUANT TO UNLAWFUL ARREST
Respondent's agents willfully violated the Constitution of the United States and the due process of law procedures during the unlawful (as found by this Court) arrest of him and his wife on June 27, 1996. A U.S. Appeal Court stipulated that:
Alien was denied due process where arresting officers did not advise him of charges against him, or that any statements he made might be used against him, and he was not advised of his fight to counsel or that he would have opportunity to examine and object to evidence against him, to present evidence, and to cross-examine witnesses. Attoh v. Immigration and Naturalization Service, 1979, 606 F.2d 1273, 196 U.S. App. D.C. 366". (1112)
1. The INS officers executing the arrest, among them Assistant District Director for Investigations Goldman and Special Agent Trent, did not advice Petitioner, nor his wife, that any statement they made might be used against them, as required by 8 C.F.R. � 242.8, 8 C.F.R. � 242.2(c)(2) and 8 C.F.R. � 287. Instead they questioned Petitioner and his wife, and the information so obtained was used against him and his wife during the trial.
Petitioner and his wife were questioned on their immigration status, travel documents, their status in certain countries. Not being duly advised of his rights Petitioner fully answered the questions, thus revealing the information which was used against him. For example, if Petitioner had not informed the arresting officers that he and his attorney were in possession of copies of valid advance parole authorizations, Respondent would not have replaced initial false charges ("overstay") with other false charges ("fraud") and Petitioner could have long as won the case. It was also because of this information that Petitioner was placed in exclusion proceedings and deprived of the relative benefits of the deportation procedure, where the Respondent's agents initially intended to place Petitioner in.
Should the due process not been violated, and should Petitioner been properly advised that any statement he made might be used against him, he would now be a free man. By violating the due process the INS officers inflicted irreparable damage to the due process of law in this case; because of it alone Petitioner should be released from unlawful detention, and the malicious prosecution should be terminated.
2. The arresting officers did not advice Petitioner, nor his wife, of their right to counsel, as required by 8 C.F.R. � 242.8, 8 C.F.R. � 242.2(c)(2) and 8 C.F.R. � 287.
On the contrary, during the arrest Petitioner addressed SA Trent the question, "May I call my attorney?" on which SA Trent, in presence of Assistant District Director on Investigations Goldman and Petitioner's wife (there was also one of the INS officers present), answered, "No, you may not. He will screw everything up." Surprised with such an answer Petitioner re-stated the question, "So, I am not allowed to contact my attorney?" and received clear and unequivocal answer of SA Trent, "No, you are not."
This violation of due process resulted in Petitioner making to the INS officers statements which were used against him (as explained in clause 1), psychological torture of Petitioner and his wife (as explained in clause 4), and in the defense less effective than one which Petitioner could have had should he been advised of his right to counsel. This violation of due process alone should result in release of Petitioner from the unlawful detention.
3. 8 C.F.R. � 287.8(c)(2) requires the designated immigration officer at the time of the arrest to state that the person is under arrest and the reason for the arrest "as soon as it is practical and safe to do so." Instead, SA Trent, ADDI Goldman and other arresting officers concealed their intention to arrest Petitioner and his wife until after the illegal search of the apartment, illegal seizure of property of Petitioner and his wife, and unlawful interrogation. Transcript of Immigration Hearing at 209, line 20 to 212, line 14. These violations inflicted irreparable damages to the due process of law for if Petitioner were aware of being taken under arrest and duly informed of his rights, he would have insisted on the presence of his attorney during the interrogation and might have been now a free man.
4. The arresting officers did not advise Petitioner, nor his wife, that he/she would have opportunity to examine and object to evidence against him, to present evidence and to cross-examine witnesses.
Instead, SA Trent advised the Petitioner's wife that the INS intended to send Petitioner to Moscow within a few days, and she related this information to Petitioner. Both Petitioner and his wife knew that such deportation would result in torturous death of Petitioner in hands of the Russian Mafia. Uninformed by the arresting officers that they would have opportunity to examine and object to evidence against them, to present evidence and to cross-examine witnesses, they were in fact subjected to an elaborate psychological torture. Imagine feelings of a young woman who was told that her beloved husband would be unlawfully and unfairly executed by the Mafia within a few days! Imagine feeling of someone being informed that he would be unlawfully executed by Mafia within a few days.
The FBI advised Petitioner that persecution by the Russian Mafia represented an extreme danger to Petitioner, even in Hungary and the USA, and as an important safety measure strongly advised him "to not reveal his whereabouts to anyone connected with the Russian investigation" conducted by Lt. Colonel Volevodz. There could be no doubt that in Russia, where the Mafia is all-powerful and effectively controls the country, Petitioner would have no chance of avoiding the painful death by Mafia thugs, after being delivered by Respondent to Lt. Colonel Volevodz, i.e. to the Russian Mafia.
Petitioner contends that these violations of due process were made willfully to break him and his wife psychologically and thus decrease the possibility of their effective defense.
5. 8 C.F.R. � 287.5 provides that "the arrest warrant should be served on the alien". Neither Petitioner nor his wife has ever been served a warrant.
6. The day this Court granted Petitioner's Petition of Habeas Corpus - August 16, 1996 - Petitioner was "released" and immediately re-arrested by the Respondent's agents inside the Clarke-Frederick-Winchester regional jail, where he had been incarcerated by Respondent. During this arrest the arresting officers did not advised Petitioner that any information he provided could be used against him, nor did they advised him on his rights to be represented by a counsel; however, they did question Petitioner in regard to the allegations brought against him by the Russian Military Procuracy and Respondent. These actions of Respondent constituted grave violation of the due process of law.
Basically, the Respondent's agents violated all basic procedures of arrest, interrogation, search, seizure. This clearly and beyond any doubt demonstrate the unlawful and malicious prosecution of Petitioner and his wife.
It is impossible to imagine that neither Assistant District Director for Investigations nor Special Agent Trent nor other arresting officers who had executed hundreds of arrests and had been duly trained and educated about arrest, search and seizure procedures knew the very basic rules of these procedures. Their deliberate violations of due process inflicted irreparable damage to the due process rights of Petitioner and his wife and can be cured only by terminating the unlawful detention and the malicious prosecution.
K. RESPONDENT IMPROPERLY PLACED PETITIONER IN EXCLUSION PROCEEDINGS AND CONSEQUENTLY IN DETENTION
By definition ["Exclusion - denial of entry or admittance". Black's Law Dictionary], exclusion proceedings apply only to people who have not entered the country, but only seeking the entry. It was absolutely improper for Respondent to place Petitioner, who had been lawfully admitted into the United States, in exclusion proceedings.
The exclusion proceedings are designed by Congress for the aliens with no ties with the country, for whom non-admission does not mean actual removal from the country where they have been lawfully residing; who do not have strong ties to the country, like real estate, other property, permanent employment, etc. Petitioner, on the other hand, had been lawfully residing in the United States for four and a half preceding years, owned an apartment in Washington D.C., which was the place of his residence, was permanently employed by a U.S. company, located in Washington, D.C. Since 1992 Petitioner has not maintained any real estate anywhere abroad.
Clearly, it would be wholly irrational to deny the immigrant, who had lawfully entered the United States on numerous occasions, had been residing in the country for years, had for years been an employee of a U.S. company, the due process rights, which even illegal aliens are entitled to.
Even though Respondent attempted to use ambiguities in C.F.R. to justify his decision, his dubious justifications must be disregarded, because:
While power of Congress to prescribe terms and conditions on which aliens may come into this country and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is not without limit, where no substantive constitutional right is impaired, federal regulation of aliens must be upheld unless wholly irrational. Campos v. F.C.C., C.A.Ill.1981, 650 F.2d 890.
Respondent maintains that the only reason why, unlike his wife, Petitioner was placed in exclusion rather than in deportation proceedings was the fact that he made a short, casual and innocent business trip authorized by Respondent. Service Response to Applicant's Immediate Bond Hearing at 4. It is fundamentally unfair and wholly irrational to deny Petitioner the rights accorded to an individual in deportation proceedings when the sole basis for treating Petitioner in this manner is that he was granted travel permission by the INS, and used it in compliance with the immigration law.
L. DETENTION WAS OBTAINED BY UNLAWFUL USE OF 8. C.F.R. 212.5(d)
8 C.F.R. � 212.5(d) is not applicable to Petitioner
Respondent in his letter to Petitioner dated August 16, 1996 stated that Petitioner was to be detained because Petitioner's "parole was terminated [on August 16, 1996]" in accordance with 8 C.F.R. � 212.5(d)". However, 8 C.F.R. � 212.5(d) is only applicable to aliens paroled from custody and not applicable to Petitioner, who had been lawfully admitted into the United States. Thus, the decision of Respondent to detain Petitioner was unlawful.
Even if 8 C.F.R. � 212.5(d) were applicable Respondent violated its provisions to unlawfully detain Petitioner
Even if Petitioner were in parole status after his last entry on June 13, 1996, the termination of parole upon written notice might be done by a District Director not on whim but only "upon accomplishment of the purpose for which parole was authorized or when in the opinion of the District Director neither emergency nor public interest warrants the continued presence of the alien in the United States" (8 C.F.R. � 212.5(d)(2)(i)), where the "emergency" and the "public interest" provisions are obviously related only to the aliens paroled under INA � 212(d)(5) for "emergency" or for "public interest" reasons respectively. They are not applicable to Petitioner, who was admitted for completion of the adjustment of status proceedings according to the re-admission permission authorized for "valid business reasons".
Therefore, Respondent, by his letter dated August 16, 1996, sought to terminate Petitioner's parole on "upon accomplishment of the purpose" provision, stating that Petitioner's "application for adjustment of status to that of a lawful permanent resident was denied on June 27, 1996." See Letter from William J. Carroll to Alexandre P. Konanykhine dated August 16, 1996 (Exhibit 44) at 1. However, the adjustment of status proceedings had been renewed before the Immigration Judge on July 2, 1996, and were pending on August 16, 1996, i.e. the purpose of parole had not been accomplished, and Respondent could not have terminated parole "upon accomplishment of the purpose for which parole was authorized" as he perpetrated to do. Thus, the termination of parole was unlawful, i.e. Petitioner still remains in valid parole status and is unlawfully detained.
Respondent's claim that the purpose of parole had been completed is directly to the contrary to this Court's finding that the purpose of Petitioner's parole had not been completed. See August 16, 1996, Order (Exhibit 1) at 11.
M. EVEN IF PETITIONER WERE PROPERLY PLACED IN CUSTODY, HE IS ELIGIBLE FOR PAROLE
Even if Petitioner were properly placed in custody, he is eligible for parole because prolonged detention of Petitioner is not required by the public interest
"If the exclusion order can not be executed by deportation within a reasonable time, the alien shall again be released on parole unless in the opinion of the District Director the public interest requires that the alien be continued in custody". 8 C.F.R. � 212.5(d)(2)
Petitioner has already been detained for more than nine months, and the exclusion order can not be executed by deportation within a reasonable time. On the appeal before the Board of Immigration Appeals, which in not likely to be concluded before 1998, the exclusion proceedings are likely to be terminated as wrongly initiated by Respondent, as this Court stated in its order:
Because notice was deficient, the termination of petitioner's parole by the district director was unlawful. In other cases, notice deficiencies have necessitated the termination of exclusion proceedings until formal notice has been delivered, Matter of O, 16 I. & N. Dec. 344, 351 (B.I.A. 1977), but the propriety of the exclusion proceedings presently before the immigration judge is not before the Court." See August 16, 1996, Order (Exhibit 1) at 13.
In fact, Respondent indicated that Petitioner could be detained as long as eight years. INS Closing Memorandum at 50. Respondent has never shown the public interest in not releasing Petitioner. Instead, on July 16, 1996, he established that it was "in public interests" to parole Petitioner on $5,000 bond.
The immigration regulation may not be used by Respondent for prolonged detention in exclusion proceedings:
Immigration and Nationality Act does not authorize indefinite detention of excludable aliens. Sanches v. Kindt, S.D. Ind. 1990 752 F.Supp. 1419.
District Court had power to release from custody an alien who had been detained an unreasonably long period of time by the DOJ after it had become apparent that warrant for his deportation could not have been effectuated. U.S. ex rel. Janavaris v. Nicols, D.C. Mass. 1942, 47, F. Supp. 201.
Petitioner respectfully requests that the Court instructed Respondent to parole him pursuant to 8 C.F.R. � 212.5(d)(2).
Even if Petitioner were properly placed in custody, he is eligible for parole on $5,000 bond because it is in public interest
On July 16, 1996, Respondent determined that parole of Petitioner on $5,000 bond "was in public interest" and that Petitioner was not a "risk of absconding". Based on this determination, Respondent proposed (�) to parole Petitioner from detention on $5,000 bond. Such an action could have been based only on the mentioned determination. 8 C.F.R. 212.5(a).
[(�) Respondent admits that he proposed $5,000 bond, but falsely claims that Petitioner declined the offer of $5,000 bond and preferred to have an exclusion hearing. See Letter from Respondent to Michael Maggio dated July 16, 1996 (Exhibit 18). The Respondent's lie is preposterous, especially considering that Petitioner has first requested to be released on such a bond during the hearing before the Immigration Judge as early as July 2, 1996, and has been trying to have the bond set ever since, the attempts including his Habeas Corpus Petition to this Court in August 1996.]
Respondent falsely claims that within an hour of making the offer of a $5,000 bond he established that Petitioner "was evading criminal prosecution in Russia". See Letter from William J. Carroll to Michael Maggio dated July 16, 1996 (Exhibit 18). This reason could not override the Respondent's bona fide determination that Petitioner was eligible for parole. There is no provision in law that such determination, even if correct, may result in detention of an alien otherwise eligible for parole.
N. DETENTION OF PETITIONER IS UNCONSTITUTIONAL AND SHOULD BE TERMINATED
The concept of due process of law as it embodied in Fifth Amendment demands that a law shall not be unreasonable, arbitrary or capricious and the means selected shall have a reasonable and substantial relations to the object being sought. U.S. v. Smith, D.C. Iowa, 249 F. Supp. 515, 516.
The only object which can be legally sought by the INS in exclusion proceedings is the removing illegal aliens from the USA. However, on July 7, 1996 the INS informed the Immigration Court that it was not a purpose of the detention of Petitioner. INS District Counsel Eloise Rosas informed the Immigration Court that the INS would not be satisfied if Petitioner were outside the USA as an excluded alien (Transcript of Immigration Hearing at 27, lines 19-20) and that Petitioner's detention was not necessitated by this object. Instead, the INS Counsel declared that Petitioner was detained because he "committed a fraud" and "should be found as having committed fraud". Id. at 27, line 19 and 28, line 23.
On August 27, 1996, Mr. Maggio, the counsel for Petitioner, pointed out that the INS justification of continuing detention of Petitioner contradicted common sense, because "As you know, if Mr. Konanykhine did not appear in Immigration Court after being paroled and placed in exclusion proceedings, he would be ordered excluded in absentia". Respondent in his letter dated August 28, 1996, replied that Petitioner must remain detained, because in case of Petitioner's absconding Petitioner might be considered "excluded", instead of being "excluded for fraud". (Emphasized by Respondent). See Exhibit 19 at 2.
The immigration hearings is an administrative procedure not designed to establish guilt or innocence in regard with infamous crimes or to punish for such alleged crimes by incarceration; the Respondent's decision to use it for the purpose other than removing an alien (in this case - for finding the alien guilty in fraud) and to use the prolonged detention as punishment represents malicious abuse of legal process. District Counsel in fact admitted (Id.) that should the Respondent's objects have been limited to removing Petitioner from the United States as an excluded alien, the detention would be unnecessary, i.e. the means selected (the detention) did not have a reasonable or substantial relations to the object which could be lawfully sought by Respondent (removal). Thus, according to Smith, the detention is a clear violation of due process of law.
Additionally, the Respondent's decision to treat Petitioner, who had for years resided in the USA, in the same way as an alien who has never put his foot on the U.S. soil, and unlike the other aliens who have similarly resided in the USA, only because of a very short, casual and innocent business trip is "unreasonable, arbitrary and capricious", thus, according to Smith, would contradict the Constitution, i.e. would be invalid.
Aside from all else, "due process" means fundamental fairness and substantial justice. Vaughn v. State, 3 Tenn. Crim. App. 54, 456, S.W. 2d, 879, 883.
Petitioner respectfully submits to the Court that it is fundamentally unfair to put an alien in jail for years, based on the investigation which, as Respondent's agents claimed, failed to discover the very basic facts related to the Petitioner's immigration status; the investigation which was mostly conducted by a Russian military prosecutor, whom the U.S. government has enough reasons to consider to be affiliated with the Russian organized crime.
Prolonged incarceration of Petitioner is especially unfair and unjust considering that the only violation Respondent alleged in the Petitioner's actions was providing wrong information about his employment.
The detention prevented and still prevents Petitioner from adequately defending himself. He could not meet with his counsels as the extreme voluminous of the case materials required; his access to his case materials and to legal resources is severely limited; his possibility to collect evidence and make a research is nil; he is unable to take care of his financial affairs so he could be able to retain a counsel. Petitioner can not even use a word processor or a copier for working on his case. In fact, he is very limited in writing paper and writing instruments. Such denial of possibility to adequately defend himself in the case where charges ostensibly involved are limited to a shaky INS suspicion of past employment misinformation, but the punishment is torturing death, can not possibly be substantial justice.
Prolonged incarceration of Petitioner in a regional jail is the cruel and unusual punishment. Petitioner is an international businessman who is confined with indicted murderers and drug dealers; he has almost no exercising or educational possibilities, even those which are norm for criminal convicts. The punishment is cruel and unusual, because even murderers have much more educational, legal, exercising, nutrition, and other privileges than Petitioner.
It is fundamentally unfair to deny bond and pursue a prolonged incarceration of a person, charges against whom are limited to a shaky INS suspicion of Petitioner providing the INS with wrong information on his employment, when bond is routinely set for drug dealers and indicted murderers.
O. DETENTION OF PETITIONER BY RESPONDENT IS BASED ON ILLEGITIMATE REASON
The only legitimate concern of the INS could be removing from the country Petitioner as an allegedly illegal alien. The INS could not detain Petitioner for any purpose other then that, especially not because of the illegal military persecution Petitioner faces in Russia, and not for ensuring his deportation specifically to Russia to his persecutors. Yet, as clearly and unequivocally stated in the INS letter, signed on July 16, 1996 by Respondent, the only reason for Petitioner's detention is that "the Service made the final determination that [Petitioner] is evading criminal prosecution in Russia", See Letter of William J. Carroll dated July 16, 1996 (Exhibit 18), not because there were reasons to believe that Respondent established that Petitioner was in violation of the U.S. immigration laws, or that the detention was necessary to ensure his removing from the country. There is no law which require or empower an INS District Director to arrest and detain people solely because he "made the final determination that" they might be "evading criminal prosecution in Russia". Thus, Respondent's decision to deprive Petitioner of liberty is unlawful.
Petitioner respectfully requests that the Court terminate his detention, which is in clear violation of the Constitution of the United States, which provides that "no person shall be deprived of life, liberty or property without due process of law". Detention because of Respondent's opinion that Petitioner was "evading criminal prosecution in Russia" does not constitute due process of law.
P. DETENTION AND PROSECUTION OF PETITIONER BY RESPONDENT ARE MALICIOUS
The false (as admitted by the INS) reason for the arrest of Petitioner and his wife ("overstay"); the unlawful (as established by this Court) arrest and following unlawful detention indicate malicious prosecutionby Respondent. Black's Law Dictionary defines malicious prosecution as one, which "begun in malice without probable cause to believe the charges can be sustained." Respondent, who had personally issued Petitioner and his wife re-admission permissions valid until December 31, 1996, could not possibly believe that the "overstay" charges could be sustained. Indeed, should Respondent believed the charges were bone fide and could be sustained, he would have followed the INS procedures and notified Petitioner of the intent to revoke parole, instead of making unlawful arrest. Petitioner suggests that it would be completely irrational to believe that the senior officers of the Washington District Office of the INS, including Respondent, District Counsel, Assistant District Director for Investigations, and several Special Agents who participated in the "investigation" and the arrest of Petitioner could be all so ignorant about the INS procedures that they did not understand unlawful character of the arrest of Petitioner and his wife and multiple violations of law and procedures they committed.
Even if it were not Respondent himself who issued Petitioner and his wife re-admission permissions, it still would be impossible for his agents in the course of the "very serious investigation" (as SA Trent claimed to the Immigration Court) not to find the information immediately available to any U.S. border immigration officer, namely that Petitioner and his wife were in the lawful status. Thus, Respondent and his agents could not possibly believe that the charges against Petitioner could be sustained.
The prosecution begun in malice without probable cause from the demand of a Russian military prosecutor to commit an illegal extradition. Thus, prosecution of Petitioner and his wife by Respondent is a malicious prosecution.
Even if Respondent and his agents were so incompetent that they did not establish Petitioner's immigration status, no honest law enforcement agent having learned prior to the arrest that his investigation was so poorly conducted that it failed to uncover the very basic facts it was supposed to uncover could in good faith arrest people based on the results of such an investigation. Yet, District Counsel Rosas and SA Trent, the INS officer-in-charge of the investigation and the arrest, testified during the immigration hearing that:
a) the arrest warrants had been issued because the INS investigation had established that Petitioner and his wife overstayed their visas. Transcript of Immigration Hearing at 94, 95, 209;
b) during the arrest Petitioner produced the documents, which proved findings of the investigation to be completely wrong. Id. at 95, 210;
c) ADDI Goldman and SA Trent decided to proceed with the arrest nevertheless. Id. at 95, 96.
In other words, the arrest was made "without probable cause to believe the charges could be sustained". The unlawful arrest of Petitioner and his wife represented an "intentional doing of wrongful act, without just cause or excuse, with an intent to inflict an injury", which is the definition of malice according to Black's Law Dictionary. Malice in law is not necessarily personal hate or ill will. Thus, the arrest and the following detention and prosecution of Petitioner and his wife constituted clear cases of malicious arrest and malicious prosecution. Petitioner respectfully ask the Court to terminate the malicious prosecution and detention.
Petitioner also contends that the U.S. government should not deprive people of their liberty for not surrendering to a Russian military prosecutor, whom the U.S. government had earlier advised to avoid. The deprivation of liberty in such a way represents entrapment, malicious prosecution and malicious detention, and should be terminated.
Petitioner stated to this Court in August of 1996 that he was prepared to use a monitoring device. The denial of Respondent to consider even this measure underscored the ultimate truth: Respondent is interested in continuing detention of Petitioner because of his obligations before Lt. Colonel Volevodz, not because of any reasons related to any immigration procedure.
Q. DETENTION OF PETITIONER REPRESENTS ABUSE OF DISCRETION BY RESPONDENT
Even if the detention of Petitioner did not represent a part of malicious prosecution of Petitioner by Respondent, it still undoubtedly represents an abuse of discretion by Respondent.
Abuse of discretion is synonymous with a failure to exercise a sound, reasonable, and legal discretion. It does not imply intentional wrong or bad faith, or misconduct, …, but means the clearly erroneous conclusion and judgment - one is that clearly against logic and effect of such facts as are presented in support of the application and against the reasonable and probable deduction to be drawn from the facts disclosed upon the hearing: an improvident exercise of discretion; an error of law. State v. Draper, 83 Utah 115, 27 P.2d 39; Ex parte Jones, 246, A/a. 433, 20 So.2d 859, 862. Or "a decision exercised to an end or purpose not justified by and clearly against reason and evidence." Beck v. Wings Field, Inc., C.C.A. Pa., 122 F.2d 114, 116, 117.
Before arresting Petitioner, Respondent had been well informed that Petitioner had never avoided the U.S. law enforcement agencies, See Letter of Donald T. Bucklin dated July 12, 1996 (Exhibit 10). On the contrary, Petitioner always met with the U.S. investigators on their request, even coming from abroad with the sole purpose of meeting with the U.S. investigators. Petitioner's determination to cooperate with U.S. law enforcement agencies had no been influenced by the fact that Petitioner had long since been informed by the Department of Justice of the ongoing investigations of his case by the U.S. authorities and by the Russian Military Procuracy. In fact, there has been not a single accident when U.S. law enforcement officers requested a meeting with Petitioner which Petitioner tried to avoid.
On numerous occasions Petitioner met with the Russian investigators. Respondent alleged that Petitioner was "a fugitive", because Petitioner did not fly to Moscow to one Lt. Colonel Volevodz. However, Petitioner's coming to Moscow to surrender to Lt. Colonel Volevodz, who was executing illegal (�) investigation of Petitioner on behalf of the Russian Mafia, would be completely irrational, unjustified, and against the strong advice of the U.S. government "to not reveal his whereabouts to anyone connected with the Russian investigation". See Letter of Donald T. Bucklin dated July 25, 1995 (Exhibit 2). Moreover, Lt. Colonel Volevodz had never requested Petitioner to come to Russia nor could he make such requests lawfully. Clearly, Respondent's decision to deny Petitioner bond because of the allegation that Petitioner was a fugitive, See Letter of William J. Carroll to Michael Maggio dated July 16, 1996 (Exhibit 18), could have been made only in bad faith, and was "not justified by and clearly against reason and evidence", i.e. represented abuse of discretion. Beck.
[(�) Avoiding an illegal persecution may not constitute being fugitive from justice. Clearly, should the Russian military prosecutor prosecuted Respondent, Respondent would argue that he is not a fugitive, because a Russian military prosecutor has not jurisdiction to prosecute him.]
Similarly, Respondent's arrest of Petitioner on August 16, 1996, based on Respondent's allegation that Petitioner was "fugitive" and "risk of absconding" was "clearly against logic and effect of such facts as are presented in support of the application and against the reasonable and probable deduction to be drawn from the facts disclosed upon the hearing", i.e. represented abuse of discretion. Id.
In his testimony INS SA Trent admitted that the INS from the very beginning of the immigration prosecution of Petitioner had known that Petitioner had been aware of the Volevodz' "investigation" and FBI and DOJ investigations demanded by Volevodz, but did cooperate with U.S. law enforcement agencies:
[Mr. Trent] "the FBI had mentioned to me that there was an affidavit filed on behalf of – or filed by Mr. Konanykhine by his attorney, Mr. Bucklin, with the U.S. attorney's Office in answer to the letter rogatory or in response to the letter rogatory, because evidently Mr. Bucklin had become aware of the letter rogatory and the appointment of Mr. Seikaly, and filed an affidavit".
Transcript of Immigration Hearing at 207, lines 10-14. It reveals that the unlawful arrest of Petitioner was completely unjustified: Petitioner had never avoided U.S. law enforcement agencies. It also demonstrates that libelous statements that Petitioner was "a fugitive form justice" were made by the Respondent and his agents maliciously with full knowledge of them being false.
The "fugitive from justice" accusation, the primary accusation against Petitioner brought by Respondent, could not have been made in good faith. Indeed, Petitioner was arrested in his own apartment in the Watergate building, the address of which Petitioner submitted to the INS on his numerous applications. Respondent went to such extremes as to describe as a fugitive the person who had for more than three years lived under his own name in his own apartment at the building, full of Secret Service agents; who voluntarily met with the U.S. investigators in his office in the Willard building; who shortly before the arrest came to the very same Washington District Office of the INS in order to let the INS take his pictures and fingerprints, yet again submitting his address!
To support "risk of absconding" theory, Respondent and his agents had to resort to perjury, fraud, and use of fabricated "evidence" as has been demonstrated in this Petition.
It is beyond doubt that the detention of Petitioner is completely unnecessary for the immigration procedure purposes. Petitioner will appear at all the immigration proceedings, as he had always done in respect with investigations by the FBI, Department of Justice and Federal Reserve, initiated on request of the same Lt. Colonel Volevodz. Denying the bond for Petitioner, Respondent clearly commits abuse of discretion.
Detention of Petitioner for many years to ensure his removal from the country, because of fear that otherwise Petitioner would self-deport (abscond abroad, as suggested in the letter of Respondent, dated August 16, 1996 (Exhibit 20) is utterly ridiculous, clearly against reason and evidence, i.e. represents abuse of discretion. Should Petitioner leave the country, he would be in the same position physically (outside the USA) and legally (excluded, for self-deportation automatically results in this status).
Petitioner, however, stresses that he will not abscond. It is demonstrated by his record that he has never evaded any lawful legal proceedings, including those conducted by the Federal Bureau of Investigations, Department of Justice, Federal Reserve, Russian Ministry of Security. Petitioner has never violated law; there are no reasons for him to try to evade the Appeal or Habeas Corpus proceedings; on the contrary, it is in his utmost interest to clear himself of the accusations maliciously brought by the corrupt Russian military prosecutor and by Respondent, manipulated by the said military prosecutor.
Since the decisions of Respondent to arrest Petitioner and to deny Petitioner parole pending lengthy appeal procedure is arbitrary, capricious and abuse of discretion, the Court may and ought to grant the Writ of Habeas Corpus:
Alien properly sought writ of Habeas Corpus on ground that decision of District Director of United States Immigration and Naturalization Service, denying him parole pending adjudication by Service of his application for political asylum and for visa based upon his marriage to US citizen, was arbitrary, capricious and abuse of discretion. St. Fleur v. Sava, D.C. N.Y. 1985, 617 F. Supp. 403
Therefore, Petitioner respectfully asks the Court to terminate the unlawful and unjust detention and malicious prosecution.
R. PROSECUTION OF PETITIONER IS IN-FACT CRIMINAL PROSECUTION CONDUCTED ILLEGALLY
The only possible legitimate purpose of the INS in initiating the exclusion proceedings could be removing an alien from the United States should he be found an illegal immigrant. It is beyond the scope of the INS legitimate goals or the INS power to try Petitioner for any alleged criminal actions with the sole purpose to find Petitioner guilty of such criminal actions. Yet, Respondent admitted that his real purpose is to find Petitioner guilty of committing fraud, not to have Petitioner removed from the United States.
On August 27, 1996, Mr. Maggio, the counsel for Petitioner, pointed out that the INS justification of continuing detention of Petitioner contradicted common sense, because "As you know, if Mr. Konanykhine did not appear in Immigration Court after being paroled and placed in exclusion proceedings, he would be ordered excluded in absentia". Respondent in his letter dated August 28, 1996, replied that Petitioner must remain detained, because in case of Petitioner's absconding Petitioner might be considered "excluded", instead of being "excluded for fraud". (Emphasized by Respondent). See Exhibit 19 at 2.
Thus, Respondent admitted unequivocally that the purpose of his prosecution of Petitioner is to find Petitioner guilty of fraud by a court, i.e. Respondent's prosecution of Petitioner is in fact a criminal persecution, disguised as an immigration case. However: "The employment of process where probable cause exists, but where the intent is to secure object other than those intended by law represent malicious abuse of legal process." Hughes v. Swinehart, D.C. Pa., 376 F.Supp. 650, 652.
Thus, even if Petitioner were excludable, the detention and prosecution of Petitioner by Respondent represent malicious abuse of legal process. Therefore, Petitioner respectfully requests that the Court terminated the unlawful detention and the malicious prosecution.
The actions of Respondent violated the U.S. Constitution, which says that: "No person shall be held to answer for a … infamous crime, unless on a presentment or indictment of a Grand Jury…" (The Fifth Amendment). Respondent admitted that he had imprisoned and was trying Petitioner for fraud, which is an infamous crime. Yet, Respondent neglected to obtain a presentment or indictment of a Grand Jury; thus, Respondent violated the due process of law and the Constitution of the United States.
The Fifth Amendment also provides that "No person shall be deprived of life, liberty or property without due process of law", and Petitioner is deprived of liberty by Respondent in clear violation of the due process of law and the Constitution of the United States.
Therefore, Petitioner respectfully requests that the Court discontinue unconstitutional deprivation of liberty for alleged fraud of Petitioner, which was undertaken by Respondent in violation of due process.
S. DETENTION AND PROSECUTION OF PETITIONER CONSTITUTE CAPRICIOUS DISREGARD OF PUBLIC INTEREST BY RESPONDENT
In the letter to Petitioner's counsel, which Respondent executed on August 28, 1996, Respondent states his concern that:
"[Mr. Konanykhine] might possibly avoid an order finding him excludablefor fraud [emphasized by Respondent], if the immigration court determined not to reach that issue in the interests of judicial economy".
i.e. Respondent was afraid that, acting in the public interest, Immigration Court would decide that the issue of alleged immigration fraud by an excluded alien may not justify additional court time. This additional time could not be substantial, since the decision would be made in absentia, i.e. unopposed and not appealed. Knowing that the Immigration Court might find it not in public interest to spend even a small amount of taxpayers money on such an issue, Respondent decided to not allow the public interest to prevail. He chose to spend hundreds of thousands of dollars of taxpayers money on prolonged detention of Petitioner and lengthy and complicated legal proceedings. It may not be characterized otherwise than capricious disregard of public interest. Black's Law Dictionary defines public interest as "Something in which the public has come pecuniary interest". Capricious disregard is
A willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result. Unemployment Compensation Bd. of Review v. Kessler, 27 Pa. Cmvlth. 1, 365 A.2d 459, 462.
Obviously, anyone of ordinary intelligence could not possibly have avoided the conclusion that if the Immigration Court was likely to find the issue not worthy even small amount of the taxpayers money, that it is definitely against the public pecuniary interest and against the principle of judicial economy to waste on this issue hundreds of thousands dollars.
The malicious prosecution and the continuing detention of Petitioner is clearly against the public interest, and represents capricious disregard of the public interest by Respondent. Therefore, Petitioner respectfully requests that the Court terminated the unlawful detention and the malicious prosecution.
T. DETENTION AND PROSECUTION OF PETITIONER WERE UNDERTAKEN BY RESPONDENT IN BAD FAITH
The record shows that Respondent arranged the prosecution of Petitioner and arrested him in bad faith, based on fabricated evidence, fraud upon the Immigration court and the United States, perjured testimony, suppressed evidence, intimidation and persecution of witnesses, as described in the Petition and the Memorandum. However:
The decision of immigration authorities excluding alien must be after a hearing in good faith, however summary, and must find adequate support in the evidence. O'Connell ex. rel. Kwong Han Foo v. Ward, C.C.A. Mass 1942, 126 F. 2d 615.
There is no evidence on the record that supports the false accusations Respondent brought against Petitioner, other than the false evidence fabricated by Respondent and his agents, including that from the Russian Military. For that reasons, according to Foo, the unlawful detention and prosecution of Petitioner should be terminated.
U. DETENTION AND PROSECUTION OF PETITIONER ARE AGAINST THE PUBLIC INTEREST
The prosecution of Petitioner is based solely on the fraud and perjury of Respondent and his agents and on the false and forged documents submitted by one Lt. Colonel Volevodz, whom the US government had had reasons to consider affiliated with the Russian organized crime. Moreover, this prosecution was undertaken on demand of Lt. Colonel Volevodz. Clearly, the practice of U.S. law enforcement agencies blindly obeying requests of corrupt Russian security officers is against the public interest. It would be strictly in public interest to terminate the detention and prosecution of Petitioner, resulted from manipulation of the INS by a Russian security service.
The record demonstrates that Respondent willfully and knowingly executes the will of Russian Military Procuracy, a body closely integrated with the KGB. In 1993 the Main Military Procuracy merged with the investigative department of the KGB. The record also demonstrates that KGB officers drive the military prosecution of Petitioner. In fact Respondent has been openly acting as an eager agent (or an "asset") of a KGB successor agency. However, it is against the public interest to let the INS officials become the agents of the Russian security or intelligence services because of anti-American activities of these agencies and because of the well known "involvement of former KGB and military officers in organized crime". See, Statement of the R. James Woolsey, Director of the CIA, to U.S. Congress (Exhibit 38) at 2. The KGB and the Russian Procuracy (of which the Military Procuracy is a part) are totally corrupt to the top level. In fact, even "during the Soviet era, criminal groups often functioned as an extension of the KGB. KGB used criminal groups to further its own goals and enrich itself". Id. at …
In his press-release Respondent admitted that the arrest of Petitioner and his wife was the assistance to the Russian Military Procuracy, i.e. the INS was used as mere arrest agent in the Russian military prosecution. During his testimony INS SA Trent and INS officer Walsh admitted that the Military Procuracy has done both the initial investigation of the Petitioner's immigration case and the following investigation of Petitioner's political asylum case (Transcript of Immigration Hearing at 197, 198, 201, 203, 204, 205, 252), one of the main reasons for which was the illegal prosecution of Petitioner by the very same Military Procuracy.
The Respondent's agents at least twice visited the Russian Embassy (Id. at 460, lines 9-14), apparently to get instructions from the Russian officers. When the Russian military prosecutor requested the information from the Petitioner's INS file, not only it was promptly provided to him, but the officers of the Washington District Office of the INS spent with him at least "six to eight meetings over the documents that were contained in the visa file and validity of them and so on and so forth". Id. at 472, lines 5-8.
Such manipulation of the U.S. government agencies by Russian special agencies is clearly against the public interest and should be terminated by the Court.
In its order of August 16, 1996, the Court indicated that Respondent would have abused his discretion if he had denied bond to Petitioner in order to assist Russia in getting Petitioner to Russia to stand trial. See August 16, 1996, Order (Exhibit 1) at 6. The Court stated in its decision from the bench that such a purpose would not be a facially legitimate reason for denying bond. Transcript of Court's August 12, 1996, Hearing at 69, lines 14-17. The Court stated that it had "the nagging feeling that the Court only knows some part of what is really going on, and not really the whole story." Id. at 67, lines 4-6.
The Court stated that it:
"cannot imagine anything to be more in the public interest than not to have our immigration system manipulated by some foreign power for political purposes." Transcript of Court's August 12, 1996, Hearing at 69, lines 3-7.
The Court also stated:
"I would be very concerned, and it would not be in the public interest, if all the INS was doing, for some political reasons we don't know, is to seek him, find him, incarcerate him, to hand him over to the Russians. That would certainly not be in the public's interest". Id. at 71, lines 5-10.
At the hearing the Court inquired of Eloise Rosas, District Counsel: "Can you represent to the Court that this is not a political scheme or device to hand this person over to the Russians in the absence of any extradition treaty?" Id. at 42, lines 5-8. Ms. Rosas responded evasively by not actually answering the question. Id. at 42, lines 9-15. The Court later said that Ms. Rosas had stated that Respondent had "assured [her] that his concern was the fraud in the application, and to exclude Mr. Konanykhine." Id. at 45, lines 1-5. Later, the Court renewed its question: "But what troubled me on Friday is that your reason for going out and arresting him seemed to be that the Russians wanted him arrested. And I want you to assure me that that's not the case". Id. at 51, line 25 to 52, line 4 (emphasis added).
This time Ms. Rosas answered that Court's query: "Your Honor, I can assure you of that." Id. at 52, line 5 (emphasis added). The Court relied on this representation. However, INS District Counsel lied. Respondent's actual purpose in denying bond is to do the bidding of Lt. Colonel Volevodz to bring Petitioner back to Russia, as Petitioner's counsel, Michael Maggio, was told by INS Deputy Assistant Counsel Antoinette Rizzi. See Declaration of Michael Maggio (Exhibit 37). The reason Respondent refused to release Petitioner on bond "was that such a release would jeopardize the relationship and substantial effort expended in cooperating with the Russian military prosecutor regarding the criminal charges pending in Russia and INS's return of Mr. Konanykhine to the Russian." See Id. �4. Ms Rizzi stated that after the Respondent's office agreed to release Petitioner, Mr. Goldman intervened by calling from his vacation and told Respondent that he should not release Petitioner because of the relationship with the Russian military prosecutor. See Id.
The Court held that these motives would not be in the public interest and would not be a legitimate reason to detain Petitioner. Transcript of Court's August 12, 1996, Hearing at 67, lines 4-6 and 71, lines 5-10. If the Court finds that Respondent incarcerated Petitioner in order to deliver him to the Russian military prosecutor, Petitioner will have established a public interest requiring his release and will have established that Respondent did not act for a facially legitimate reason. Should the Court so find, Petitioner would be entitled to release. Marczak v. Greene, 971 F.2d 510, 518 (10th Cir. 1992).
Extensive evidence demonstrates that Respondent started malicious prosecution of Petitioner by demand of Lt. Colonel Volevodz and in order to commit and illegal extradition of Petitioner to Russia.
Petitioner asks the Court to attach substantial weight to the statements Ms. Rizzi made to Mr. Maggio for several reasons. First, the statements had been made close in time to the events they relate. Ms. Rizzi talked to Mr. Maggio almost immediately after witnessing the conversations in question. Further, Ms. Rizzi made her statements before the INS position solidified during litigation. Moreover, Ms. Rizzi should be believed because her statements undercut her own client's position. Clearly, she lacked any incentive to fabricate damaging information regarding the INS.
Manipulated by a corrupt Russian security officer into the Mafia-ordered persecution of Petitioner, Respondent has already provided the Russian Mafia with a number of services, including:
By initiating the malicious INS prosecution, the Russian organized crime achieved its goal: Respondent has destroyed the Petitioner's life, "neutralized" him by unlawfully detaining and breaking financially. Respondent is working on arranging the delivery of Petitioner to Russia to the Russian organized crime, which seeks murder of Petitioner and his wife.
Respondent can not be unaware of being used by the Russian organized crime, because:
Even if Respondent were misinformed and did not realize that he was being used by the Russian organized crime, he and his agents bent, disregarded, ignored and violated the US laws governing extradition, arrests, search, exclusion, etc. After Petitioner provided Respondent with the evidence that Lt. Colonel Volevodz submitted false information to the INS and was affiliated with the Russian organized crime; after Lt. Colonel Volevodz refused to testify in the Immigration Court; after the FBI experts proved that Volevodz submitted to the INS forged documents - any honest official would at least question Volevodz' credibility, apologize for clearly libelous statements made to the international media, examine the documents which Petitioner demonstrated had been forged by the Russian military prosecutor. The honest officers would have checked the jurisdiction of the Military Procuracy over Petitioner, and other important issues raised by Petitioner and supported by voluminous evidence he had submitted. Respondent did not undertake these actions, or if he did, he suppressed the findings, for they would demonstrate that he had been used by the Russian organized crime. Respondent chose to hide all the violations of the U.S. laws maliciously committed by him and his agents behind smoke-screen Respondent and his agents created by fraud, perjury, foul rhetoric, and use of fabricated "evidence", thus becoming willful participants in the Mafia-ordered persecution and murder attempt. Petitioner is seeking a Writ of Habeas Corpus in this Court as a protection from the malicious prosecution, undertaken by Respondent on behalf of the Russian Mafia, i.e. against public interest.
V. DETENTION AND PROSECUTION OF PETITIONER VIOLATE THE "FAIR PLAY" PRINCIPLE
To achieve their unlawful goal of arresting, detaining and extraditing Petitioner at the request of Lt. Colonel Volevodz, Respondent willfully disregarded numerous immigration regulations. For example, Respondent violated the normal process of revoking the immigrant visa petition, which included a parole revocation notice and 30-day period to rebut charges as a pre-condition to denying the adjustment of status. This Court found on August 16, 1996, that because of the violation of the immigration law the arrest and the following detention of Petitioner had been unlawful, and granted Writ of Habeas Corpus. Several more violations have been described earlier in this Petition.
Were the violations of immigration law by Respondent not willful ignoring and disregarding of the regulation in order to commit unlawful arrest, detention and extradition of Petitioner, Respondent would have corrected it after he was advised on July 7, 1996, by the Petitioner's Counsel about them. Transcript of Immigration Hearing at 23, lines 17-18.
Petitioner respectfully submits to the Court that the malicious proceedings against him must be terminated, because they were initiated in bad faith in violation of due process of law:
Notion of fair play animating the Fifth Amendment precludes agency from promulgating regulating regulation affecting individual liberty or interest and then with impunity ignoring or disregarding regulation as it sees fit". (emphasis added). Montilla v. I.N.S., C.A.2, 1991, 926, F.2d 162.
Respondent "ignored and disregarded regulation as he saw fit" for achieving his object of detention and extradition of Petitioner to Russia, i.e. in violation of the "fail play" principle of Fifth Amendment of the Constitution of the United States of America. Therefore, Petitioner respectfully requests the Court to terminate unconstitutional detention and prosecution by granting the Writ of Habeas Corpus.
W. OTHER CONSTITUTIONAL VIOLATIONS, WHICH WARRANT TERMINATION OF DETENTION AND PROSECUTION OF PETITIONER
1. Respondent improperly employed Lt. Colonel Alexander Volevodz as an INS investigator of Petitioner's case
During the immigration hearings of the Petitioner's case before the Immigration Court in Arlington, Virginia, which took place from July 2 to September 20, 1996, the immigration officer Walsh, stationed in Moscow, Russia, testified that Lt. Colonel Volevodz of the Russian Military Procuracy by request of the INS was in charge of the INS investigation of the INS case of Petitioner. According to INS testimonies, the activities which Lt. Colonel Volevodz had undertaken by request and on behalf of the INS included:
(a) interrogation of the witnesses;
(b) inspection of commercial companies;
(c) contacting Russian tax authorities and obtaining tax information on a commercial company;
(d) background check of the witnesses;
(e) obtaining banking records;
(f) consultations on Russian laws;
(g) public relation functions.
While heading the INS investigation in Russia, Lt. Colonel Volevodz maintained close contact with the officers of the Washington and Moscow offices of the INS. Lt. Colonel Volevodz made a long visit to the United States to personally meet with the senior officers of the Washington District Office of the INS. This trip was paid by the U.S. government.
For his work for the INS Lt. Colonel Volevodz was awarded by the INS with "Certificate of Appreciation".
Clearly, Lt. Colonel Volevodz must be considered as an employee of the INS, employed by the Service for managing the INS investigation related to the Petitioner's adjustment of status and political asylum applications. ["Employee of the government" includes officers or employees of any federal agency … and persons acting on behalf a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation. 28 U.S.C.A. � 2671 ("Definitions"). Definition of "[federal] employee" for purposes of Federal Claims Tort Act does not require that a person posses formal employee status, but includes any person acting on behalf of federal agency and in official capacity, temporarily or permanently in the service of the United States whether with or without compensation. Guccione v U.S., S.D.N.Y., 1987, 670 F.Supp. 527, affirmed 847 F.2d. 1031 rehearing denied 878 F.2d 32 ceriorari denied 110 S.Ct. 719, 493 U.S. 1020, 107 L.Ed. 2d 739.]
On July 2, 1996, the INS informed the Immigration Court, "We assert that these are all fraudulent based on documents thathave been given to us by the company in Moscow [A/O Greatis]" Transcript of Immigration Hearing at 15, lines 13-15. (Emphasis added). However, the INS later admitted that these documents were given by the person, who posed as an employee of the company (A/O Greatis) to Lt. Colonel Volevodz. Id. at 204, lines 19-25. Thus, it is evident that the INS considered the Russian military prosecutor as one of "them", an INS employee.
Further describing the INS allegations of the immigration fraud by Petitioner, the INS stated to the Immigration Court, "We also have investigator here from Moscow who has investigated the matter and who has reviewed all of the records of the company in Moscow relating to the relevant years of '91 through the present" (Id. at 15, lines 15-18), thus admitting that the Moscow investigator investigated the case of alleged immigration fraud for the INS, i.e. was an INS employee.
Lt. Colonel Volevodz actively participated in the authorized search of the apartment of Petitioner in Washington, D.C. (Id. at 93, lines 1-9), arranged at his behest. Definitely, the U.S. government would not permit participation in search and seizure to anyone but the employees of the U.S. government.
Lt. Colonel Volevodz and his assistant Nisuev were conducting their functions of the employees of the U.S. government in close co-ordination with many officials of the U.S. government. For example, when they were in Washington on expense of the U.S. government (Id. at 914, lines 1-2), they had meetings with representatives of the Federal Reserve, meetings at the FBI headquarters, meetings with representatives of the Department of Justice, and meetings with the U.S. Attorney's Office in Washington D.C. Id. Trent testimony at 460, lines 4-8. Also at 914, lines 3-11.
To facilitate the work of the Russian investigators as the investigators of an INS case, Respondent gave them full access to the INS file of Petitioner. Lt. Colonel Volevodz had at least six to eight meetings with the officers of the Washington District Office of the INS "over the documents that were contained in the visa file and the validity of them and so on and so forth". Id. Trent testimony at 472, lines 5-8. The INS stipulated that the purpose of these meetings was conducting an immigration investigation, "To see if [Petitioner] was out of status or, or deportable or he was an overstay, etc." Id. at 472, lines 13-15.
It is also clear that the interrogations of the witnesses conducted by Lt. Colonel Volevodz for the INS regarding past employment or marital status of Petitioner, as a part of the INS investigation, could not possibly be part of his responsibilities or his jurisdiction as a military prosecutor. It was work for the INS, by the request of the INS, i.e. the INS employed Lt. Colonel Volevodz for this particular investigation.
Petitioner contends that Respondent employed Lt. Colonel Volevodz solely because of the intimidating capabilities of the military prosecutor, for the INS was perfectly capable itself of conducting an immigration investigation. INS officer Walsh testified that he had conducted many immigration investigations in Moscow (Id. Walsh testimony at 480, lines 5-14), including interviewing people (Id. at 548, lines 4-6). He also testified that employment of a Russian military prosecutor for an INS investigation was unprecedented.
INS officer Walsh explained how the INS employed the Russian investigators for immigration investigation:
[Mr. Walsh]: "I received a request from my officer in charge, Ann Aries, and she had informed me that she had received a fax from the Washington District Office from the District Counsel requesting that documents be procured by our office. My officer in charge requested that I go out and get these documents.
Q: Did you go out and get these documents?
A: No, I did not. I was told that I would be working with two individuals from the Ministry of Internal Affairs to get these documents.
Q: And who were those two individuals?
A: Those two individuals was a gentleman names Alexander Volevodz and another individual named, I just know his first name, Igor."
Id. at 481, lines 7-20.
Q: Now, can you explain on how, what action you took with regard to the request and how you worked with Mr. Volevodz and Igor?
A [Mr. Walsh]: Well, we, the first day we net with Mr. Volevodz and Igor, we sat down and we had a list of documents that the District Counsel requested. We went through that list and explained to Mr. Volevodz exactly what documents they needed to get and we explained to them and we went through the list and they said that would be no problem getting those documents. It might take some time, but they could procure all the documents that were requested of them."
Id. at 483, line 19 to 484, line 4. Mr. Walsh stated that the Russian investigators were conducting not a Russian government investigation, but "an INS directed investigation", and confirmed that the INS directed the Russian investigators. Id. at 568, lines 13-22.
The officer-in-charge of the INS sub-office in Moscow, Ms. Arries, plainly admitted that she "requested the assistance" from the Russian investigators to get the extensive evidence for the INS (Id. at 1474, lines 7-12), i.e. employed them.
Petitioner contends that by employing Petitioner's persecutor, one Lt. Colonel Volevodz of the Russian Military Procuracy, to investigate Petitioner's political asylum case (based on persecution by Lt. Colonel Volevodz inter alia) and the INS case Respondent willfully violated due process of law, including normal INS procedures. Petitioner respectfully requests the Court to cure this grave violation by terminating the procedure and the detention of Petitioner.
2. Association of Respondent's agent Lt. Colonel Volevodz with Russian organized crime and his Mafia-ordered persecution of Petitioner
INS investigator Lt. Colonel Volevodz is engaged in continuing criminal activity, which purpose is executing of the Mafia-ordered persecution and assassination of Petitioner and his wife.
It is well-documented that starting 1992 the Russian Mafia has been trying to seize property of Petitioner and assassinate him. In 1995 the Department of Justice officials contacted Donald T. Bucklin, an attorney-in-law of Petitioner, and advised him that the Russian Mafia placed a contract of life of Petitioner, and that life of Petitioner was "in extreme danger". Petitioner was also strongly advised to "not reveal his whereabouts to anyone connected with the Russian investigation", headed by Volevodz. See Letter of Donald T. Bucklin dated July 25, 1995 (Exhibit 2). It is obvious that this advice could only mean that the U.S. government had established that Volevodz was acting on behalf of the Russian organized crime.
During the immigration hearing FBI SA Robert Levinson, an INS witness, confirmed that in 1992 Petitioner was kidnapped and afterwards pursued by assassins of the Solntsevskaya organized criminal group. This organized criminal group is reportedly the largest and the most influential organized criminal group in Russia, and operates internationally. SA Levinson also testified that Petitioner had also been targeted by certain Vyacheslav Ivankov, who, as FBI Director Louis J. Freeh stated to Congress of the United States, was "allegedly one of the most powerful Russian crime leaders in [the United States]". See Statement of Louis J. Freeh, Director of the FBI, to Congress (Exhibit 43) at 7.
It is also well-documented that in September of 1992 the Russian Mafia seized the banks and other companies, which constituted the private business holding of Petitioner, and that Petitioner made countless efforts trying to fight the advance of the organized crime in Russia, both before and after the kidnapping and seizure of his banks and companies. For example, in 1991 Petitioner established two major Russian anti-Mafia bodies, the Russian National Economic Security Service and the Russian Detective Agency, and financed their activities. After the kidnapping Petitioner contacted the President of Russia, the Ministry of Security, the Ministry of Interior, the Prosecutor General, other Russian officials, and the Russian Press, trying to initiate the investigation of the Mafia takeover of his holding and to alert the government and the people of the immense danger the organized crime and corruption posed for the Russian democracy. See Article "I am Tired of Living Surrounded by Men With Automatic Weapons" by Alexandre Konanykhine, "Nezavisimaya Gazette" dated September 8, 1993 (Exhibit 24). Also see "Former President of Russian Exchange Bank accuses the KGB", "Commersant", October 1992 (Exhibit 25). Also see Letters of Petitioner to President Yeltsin, Ministry of Security, Ministry of Interior, Prosecutor General (Exhibit 26) ("I am addressing this letter to you in order to warn you of a serious political danger - the seizure of large commercial organizations by Mafia … that will stop at nothing to achieve their ends."). Petitioner's anti-Mafia and anti-corruption political position and activity resulted in his persecution, which included kidnapping, seizure of his businesses and private property, assassination attempts, and unlawful military "investigation".
Petitioner contends that to protect the Mafia Lt. Colonel Volevodz initiated illegal military prosecution of Petitioner. This investigation is illegal because the jurisdiction of Military Procuracy in Russia is limited only to military personnel and military units. Two expert witnesses testified to that fact during the immigration hearing; a copy of relevant Russian law was submitted to the evidence. In his recent interview the Prosecutor General of Russia clearly confirmed this fact of law. See Interview of Prosecutor General Skuratov to the Argumenti and Fakti (Arguments and Facts), Fall 1996 (Exhibit 27). Neither the investigation of a civilian in respect to international financial transactions of a commercial bank, nor an INS investigation may be in jurisdiction of the Military Procuracy. Petitioner contends that the Mafia contracted a military prosecutor to persecute Petitioner because the documents related to a military investigation and to proceedings of court-martial are secret in Russia. The experts testified during the immigration hearing that Petitioner in such proceeding would not be entitled to the jury or assistance of his attorney.
To execute the Mafia request to persecute Petitioner Lt. Colonel Volevodz forged documents to fabricate false charges against Petitioner:
These examples clearly and unequivocally prove that Lt. Colonel Volevodz, whom Respondent in fact appointed his investigator of Petitioner's case and asylum claim, had been illegally persecuting Petitioner, falsifying for this purpose documents. They also demonstrate that Lt. Colonel Volevodz has committed pervasive fraud upon the United States of America, by knowingly supplying the Immigration Court and the INS with falsified documents. Exhibit 22 (Commentary of Petitioner to Letters Rogatory) contains description of more misrepresentations made by Lt. Colonel Volevodz in the course of malicious prosecution of Petitioner and his wife.
The Respondent's argument that Lt. Colonel Volevodz was trustworthy based solely on Volevodz' position in the Russian Military Procuracy and his "straightforward" appearance is astonishing, considering that the Russian Military and the KGB (part of which was merged with the Main Military Procuracy) have for decades been engaged in hostile actions, deceiving and misinforming of the U.S. government, are notoriously corrupt and infamous by its illegal persecution of millions people on fabricated charges.
Petitioner contends that Respondent was manipulated by the Russian Mafia representative Lt. Colonel Volevodz into conspiracy to murder Petitioner and his wife. Such conspiracy on behalf of the Russian organized crime is against the public interest and therefore Petitioner respectfully requests the Court to terminate the unlawful detention and prosecution.
3. Unlawful arrest of Petitioner
The unlawful arrest of Petitioner and his wife was executed by Respondent's agents on June 27, 1996, with full knowledge of the false character of the charges.
Though District Counsel lied, "When we arrested [Petitioner], we knew he was an alien out of status" (Transcript of Immigration Hearing at 96, lines 7-9), she later admitted that, "Again, when the INS investigators went to serve the warrant on the immigration arrest at his house, they said were are your immigration papers, and at that time [Petitioner] indicated that he was here under advanced parole; he showed us papers, and we became aware that all these other applications were pending."
The Order to Show Cause stated the sole reason for the arrest - "overstay". INS SA Trent, who was the arresting officer (Id. Trent testimony at 208, lines 12-16) admitted that Petitioner proved beyond doubt to the arresting officers immediately before the arrest that this charge was wrong (Id. at 209, line 20 to 211, line 13).
Petitioner contends Respondent and his agents knew beforehand that the "overstay" charges they fabricated against Petitioner and his wife were false, because, a) it was Respondent who himself issued Petitioner and his wife the advance parole documents which he later claimed to have no knowledge of; b) information of all entries, including the last one, of Petitioner was immediately available even for any immigration board officer, and definitely was immediately available to Respondent and his agents. Id. at 196, lines 3-21. Thus, the Respondent's agents acted in bad faith, i.e. they arrested Petitioner on charges they knew to be false, solely to execute the demand of Lt. Colonel Volevodz. It is impossible to believe that the "very serious investigation" of Petitioner (Id. at 213, line 24) which included numerous meetings of the senior officers of the Washington District Office of the INS with the senior FBI officers, Department of Justice officials, Federal Reserve officers and representatives of Russian Military Procuracy, including the meetings in the Russian embassy (Id. at 197, lines 2-22; at 254, line 25 to 255, line 7; at 435, lines 20-25; at 459, lines 9-20; at 460, lines 13-14); investigation with led to the arrest of Petitioner and his wife executed by ADDI and numerous officers, accompanied by a TV crew (Id. at 265, lines 7-19), and followed with the news-conference - it is impossible to believe that such an investigation failed to produce facts, immediately available for any immigration border officer, and originated by Respondent himself. The fact is that the Respondent's agents came to the Petitioner's Watergate apartment to knowingly arrest Petitioner and his wife on fabricated charges, and that's why the Petitioner's rebutting the charges did not have any effect on their determination to carry the unlawful arrest on.
The Petitioner's announcement that his attorney had copies of the immigration documents of Petitioner and his wife came as an unpleasant surprise to the arresting officers, who maliciously intended to ship Petitioner and his wife to Moscow in disregard of all necessary legal procedures. Only urgent actions of attorneys Donald Bucklin and Tod Rubin forced the INS conspirators to allow Petitioner to see the Immigration Judge. Their intervention also prompted Respondent to replace one false charges ("overstay") with other fabricated charges ("immigration fraud") which falseness would be more difficult to prove.
Respondent knowingly made the arrest on the arrest warrants with false charges, which violated the due process of law and demonstrated the malicious character of the prosecution; it also inflicted irreparable damage to the Petitioner's rights to due process and calls for the termination of the unlawful detention and the malicious prosecution. The illegal arrest and its circumstances intimidated potential witnesses and deprived Petitioner of the adequate possibility to defend himself. This Court found that t he arrest was unlawful in its decision of August 16, 1996.
4. Extreme bias of prosecution of Petitioner by Respondent
(a) Petitioner contends that one of the main reasons for his continuing prolonged detention is the Respondent's fear of being held responsible for his illegal actions against Petitioner, such as malicious prosecution and libel.
Before and during the immigration hearings, Petitioner, through his attorney, indicated that the Respondent's statements on the news-conference, which Respondent held together with the Russian military prosecutor, were libelous, and that Petitioner was considering appropriate legal actions, which necessity was amplified by the Respondent's refusing to apologize. Transcript of Immigration Hearing at 1456-1462.
Respondent was well aware (Id. at 1456-1462) that he defamed as a criminal someone who had never been indicted or found guilty in anything, and that the defamation inflicted to Petitioner high losses, i.e. that Respondent could well be found liable and ordered to compensate the damages. Certainly, Respondent, trying to avoid the legal responsibility for his unlawful actions, became interested in continuing detention and ultimate destruction and elimination of Petitioner. This interest prompted Respondent to engage in pervasive fraud upon the Court.
This bias of Respondent deprived Petitioner of the fair [i.e. having the qualities of impartiality and honesty; free from prejudice and self-interest (Black's Law Dictionary)] consideration of his immigration status and parole by Respondent.
(b) The bias of the malicious prosecution against Petitioner was so extreme that to succeed in this prosecution Respondent and his agents went as far as denying the very existence of the Mafia and organized crime in Russia. These testimonies of the INS entirely contradict the facts, and official reports on the Russian organized crime of the CIA and FBI Directors to Congress of the United States. On July 17, 1996, District Counsel of the INS stated:
"There is not a Russian Mafia. It is not akin to other groups. There are groups, there are gangs, there are bad people, you know I'll shoot you before you shoot me, you took my briefcase full of money, so I'm going to go in there and I'm going to break your knee, that kind of things…It's a disorganized crime, rather than organized crime. Yeah, disorganized crime".
Transcript of Immigration Hearing at 86, lines 5-10, and at 87, lines 2-6. Petitioner contends that only extreme bias might have caused District Counsel without adducing any proof to coach the Immigration Court on non-existence of Russian organized crime, which the FBI Director had named "the major threat to the national security of the United States". See Exhibit 42. The information on the official position of the U.S. government was available to District Counsel - a Department of Justice attorney. In fact, it is available to anyone from the Congressional records; this information is even placed on the Internet. For example, as early as June 27, 1994 the Hon. R. James Woolsey, Director of the CIA, stated to Congress of the United States:
Russian organized crime has quickly become an international menace, conducting operations far beyond Russian borders and reaching even our own shores. President Yeltsin stated that organized crime is now the number one problem facing Russia. In response to the question "Who controls Russia?" a plurality of 23% responded with "the Mafia", 22% responded with "no one", 19% responded "I don't know" and just 14% responded "President Yeltsin.
See Exhibit 38 at 3. This report is characteristic to numerous other reports on the subject of the Russian organized crime, made by the CIA and the FBI officials. Clearly, District Counsel disregarded the facts which were available to her, in order to mislead the Immigration Court and maliciously prosecute Petitioner.
Tellingly, the Russian organized crime does not exist for District Counsel only when she argues that Petitioner is not being persecuted by the Russian Mafia. In other instances District Counsel claims that Russian Mafia does exist:
Ms. Rosas: "And there was a recent criminal conviction in New York very recently of a major Russian Mafia type."
Transcript of Immigration Hearing at 94, lines 8-10.
(c) In his final, desperate bit to find any fraud on the part of Petitioner, Respondent accused Petitioner of fabricating evidence for the immigration hearing, namely an audio tape. See Letter from William J. Carroll of August 12, 1996 (Exhibit 32) at 7. Not only accusations of Respondent are false, they are patently absurd: Respondent must have believed that in his jail cell Petitioner was allowed to have an audio laboratory for fabricating audio tapes. In fact, Petitioner had not even had a possibility to hear the tape, because the jail regulation prohibits any cassette players or tape recorders. Understandably enough Respondent failed to produce the "strong evidence" he alluded to in his false accusations.
Petitioner respectfully submits to the Court that his detention, based on such absurd and obviously false "fraud" charges should be terminated.
Any mere arbitrariness by immigration authorities might afford evidence of bias affecting their judgment of exclusion. Ex parte Jew You On D.C. Cal 1926, 16 F2d 153.
Unlawful arrest of Petitioner's wife who has never been accused by Respondent of any violations other than "overstay" fabricated by Respondent after the arrest, is also an example of arbitrariness by Respondent and his agents, which demonstrate their extreme bias affecting their judgment in regard of detention and prosecution of Petitioner.
The multiple and pervasive fraud upon the Court and the United States by Respondent and his agents, and other components of the malicious prosecution of Petitioner demonstrate definitely criminal character of Respondent and his agents, who assisted the Russian organized crime very possibly for ill-gotten gains and their bias.
Petitioner therefore respectfully requests the Court to terminate the unlawful prosecution by Respondent, which is extremely unfair and biased, and order the release of Petitioner from unlawful detention.
The record of the immigration hearings also demonstrates extreme bias on part of an INS witness, the U.S. legal attach� in Moscow, who requested Respondent to commit illegal extradition of Petitioner. Though in 1995 the Department of Justice strongly "advised [Petitioner] not to reveal his whereabouts to anyone, connected with the Russian investigation", See Letter of Donald T. Bucklin dated July 25, 1995 (Exhibit 2), the legal attach� having received from the very same "investigators" a quid pro quo payment demand, prepaid with the services important for his well-being, See Teletype from FBI legal attach� Moscow to the Director of the FBI dated December 4, 1995 (Exhibit 5), provided those "investigators" with detailed information on the Petitioner's whereabouts. Transcript of Immigration Hearing at 203, line 17 to 204, line 15. It definitely benefited the legal attach�'s negotiations that, obeying the admonition of the Department of Justice, Petitioner had kept the information of his whereabouts confidential from the corrupt Russian military investigator. The legal attach� used the information on Petitioner's whereabouts which Petitioner always submitted to the U.S. government as a valuable bargaining chip his negotiations with the corrupt Russian officials. The legal attach� testified that he had checked neither credibility no jurisdiction of the "investigators", nor did he check validity of the charges they had brought against Petitioner, Transcript of Immigration Hearing at 969-970, and at 927-930, i.e. that he had not obtained the information which would override the information on which the Department of Justice based its admonition to avoid the corrupt investigators. It is clear that the legal attach� acted in bad faith, and that he initiated the INS prosecution of Petitioner in bad faith, and that such malicious prosecution of Petitioner and his detention should be terminated.
5. Libel and defamation
On June 28, 1996, Respondent held in Arlington, Virginia, a joint news-conference with Russian Military Procuracy on the arrest of Petitioner the day before. The same day Respondent distributed internationally its press-release on this subject.
In his Statement Respondent said, "Russian authorities have been tracking the couple since 1992 for embezzling 8 million dollars from a joint stock exchange." He also named Respondent and his wife "the husband and wife [criminal] team" and "criminal aliens." Respondent's Press Release states that "[The Russian authorities] were able to recover 3 million dollars of the embezzled eight million, but the couple fled to Antigua, West Indies."
This is libelous information. Neither Petitioner no his wife has ever stolen anything. Neither of them has been indicted or tried for any criminal offense. Neither of them has ever been a fugitive from justice. On the contrary, Petitioner had always informed the law enforcement agencies of his whereabouts, and had done extraordinary efforts to assist the law enforcement agencies in fighting organized crime.
Respondent further claimed that "While in Antigua Mr. Konanykhine established a business called "Greatis USA" under the guise that it was a subsidiary of "Greatis Russia" in Russia. "Greatis Russia" is a national company with no subsidiaries. … "Greatis USA" was used by Mr. Konanykhine to obtain non-immigrant visa for him and his wife to enter the United States." "The couple came to the United States in 1994 with non-immigrant visas that were obtained because of fraudulent statements made by the husband. "Greatis USA" was a hoax." These statements are willful lies made with malicious intent. Petitioner and his wife entered the United States first in June 1992, accompanying President Yeltsin as the members of his delegation; since September 3, 1992, they have resided in the United States. Greatis USA was a viable bona fide company. Petitioner's last entry to the USA from a business trip was in 1996. Since this information was well known to Respondent, these lies are intentional.
It is obvious that if Respondent had no malicious intent, he would have never called someone a criminal, without the guilt duly established by a court. Moreover, in no case information provided by KGB successor organization might have been considered reliable, for the KGB and related agencies are notorious for spreading misinformation, unlawful prosecutions of millions of people, fabricated cases, hostile actions against the USA, and similar practices.
Respondent's libel and defamation of Petitioner represent part of the malicious persecution. They prejudiced possible witnesses, inflicted Petitioner huge financial losses and thus made fair immigration trial impossible.
6. Providing confidential information to Russian security and intelligence officers
Respondent and his agents provided Lt. Colonel Volevodz of Russian Military Procuracy and his assistant Lt. Colonel Nisuev with complete content of INS file of Petitioner. Russian Military Procuracy in a KGB successor. In 1993 the Main Military Procuracy merged with the investigative department of the KGB. Lt. Colonel Volevodz is closely assiciated with a number of KGB officers and the Russian organized crime.
Petitioner contends that the content of INS files is confidential information, which may not be sold or given to foreign intelligence or security officers. By providing Russian security and intelligence officers with content of INS file of Petitioner, Respondent put lives of Petitioner and his wife in extreme danger, for since 1992 a number of KGB officers, closely associated with the Russian organized crime and with Lt. Colonel Volevodz have been relentlessly pursuing Petitioner internationally in order to assassinate him. In 1995 the Department of Justice informed Petitioner that his life was in extreme danger and strongly advised him "not to reveal his whereabouts to anyone connected to the Russian investigation". In 1996 the same corrupt Russian investigators successfully solicited the said information from Respondent.
Using this information, furnished to them by Respondent, the corrupt Russian "investigators" fabricated false documents, using which they manipulated Respondent into arresting Petitioner on behalf on the Russian Mafia. Using the furnished information they also manipulated Respondent into defamation and malicious prosecution of Petitioner, which resulted in huge financial losses and suffering for Petitioner and his wife.
The act of providing the Russian security officers with U.S. government dossier on Petitioner also constituted tortious invasion of privacy, i.e. violation of right which one has to be left alone and unnoticed if he so chooses [Black's Law Dictionary.] Petitioner wanted to be left alone and unnoticed by the Mafia and the corrupt KGB and security officers which sought to assassinate him. Respondent violated this right of Petitioner.
By his action of providing the Russian security officers with U.S. government dossier on Petitioner Respondent violated 5 U.S.C. � 552(a)(b) which subjects him to provisions of section 5 U.S.C. � 552(a)(i)(1).
WHEREFORE, for the reasons stated above and in the enclosed Memorandum Petitioner respectfully prays that the Honorable Court grant the following relief:
[1] To release Petitioner from unlawful detention granting Petitioner political asylum; or, should the Court deny that request,
[2] To release Petitioner from unlawful detention by terminating the prosecution by Respondent as malicious prosecution; or, should the Court deny that request,
[3] To release Petitioner from unlawful detention by terminating the prosecution by Respondent because the due process violations by Respondent made it impossible for Petitioner to have a fair immigration trial; or, should the Court deny that request,
[4] To release Petitioner from unlawful detention by terminating the prosecution by Respondent as improper exclusion proceedings and rule that Petitioner is entitled to deportation proceedings; or, should the Court deny that request,
[5] To release Petitioner from unlawful detention by terminating the exclusion proceedings as unlawfully initiated; or, should the Court deny that request,
[6] To release Petitioner from unlawful detention on its own recognizance; or, should the Court deny that request,
[7] To release Petitioner from unlawful detention on parole upon posting of a $5,000 bond, pending outcome of immigration proceedings.
[8] Petitioner also respectfully requests the Court for the reasons stated above to order that Petitioner be immediately released on his own recognizance or on $5,000 bond pending a determination of this Habeas Corpus petition.
[9] Any other relief as this Court may deem just and appropriate.
I verify under penalty of perjury that the foregoing is true and correct. Signed on March 31, 1997
Alexandre Konanykhine
Petitioner