IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
WILLIAM J. CARROLL,
Immigration and Naturalization Service
Predecessor in Interest to:
Deputy Field Office Director
Department of Homeland Security,
U.S. Immigration and Customs Enforcement
PETITIONERS ALEXANDRE KONANYKHINE AND ELENA GRATCHEVA'S
AMENDED EMERGENCY MOTION
TO ENFORCE SETTLEMENT AGREEMENT
AND TO STAY DEPORTATION, OR ALTERNATIVELY,
AN APPLICATION FOR A WRIT OF HABEAS CORPUS, OR
ALTERNATIVELY, A MOTION FOR A PRELIMINARY INJUNCTION
Alexandre Konanykhine and his wife, Elena Gratcheva, by and through
their attorneys, J.P. Szymkowicz, and the Law Firm of Szymkowicz
& Szymkowicz, LLP, by special and limited appearance for this
emergency motion only, respectfully files the instant amended emergency
motion requesting that this Honorable Court enforce certain provisions
of the August 21, 1997 Settlement Agreement in the above-referenced
matter and stay Petitioners Konanykhine and Gratcheva's deportation
and release Petitioners Konanykhine and Gratcheva from detention.
The amendment of the original motion is filed pursuant to F. R.
Civ. P. 15 (a). Alternatively, Petitioners Konanykhine and Gratcheva
respectfully request that this Motion be treated as an Application
for a Writ of Habeas Corpus. As a second alternative, Petitioners
Konanykhine and Gratcheva respectfully request that this Motion
be treated as a Motion for a Preliminary Injunction pursuant to
F. R. Civ. P. 65 (a).
1. Petitioner Konanykhine and his wife, Elena Gratcheva, are Russian
nationals who are seeking political asylum in the United States of
2. Konanykhine entered this country via Antigua.
3. In 1996, Konanykhine, who was incarcerated for immigration fraud,
filed a habeas corpus action.
4. As the result of the habeas corpus action, the Honorable T.S. Ellis,
III found Konanykhine's arrest to be unlawful and ordered Konanykhine
released from incarceration.
5. The Immigration and Naturalization Service, then immediately re-arrested
Konanykhine on the same grounds.
6. Konanykhine filed a second habeas corpus action.
7. In a settlement agreement related to the second habeas corpus action
dated August 21, 1997 that resulted in the release of Konanykhine
from incarceration, the Office of Immigration Litigation and Konanykhine
|Respondent [Immigration and Naturalization Service]
agrees to parole petitioner [Konanykhine] pending final resolution
of his immigration proceedings, including any direct judicial
appeals thereof, so long as petitioner engages in _____ [indecipherable
in copy] conduct, or so long as no other circumstances arise,
which warrant revocation of his parole under 8 C.F.R. §
212.5. See Exhibit 1.
8. In an Order dated February 19, 1999, issued by United States Immigration
Judge John Milo Bryant, Konanykhine and his wife were granted political
asylum in the United States.
9. Judge Bryant's February 19, 1999 Order stated
|[t]he Court finds that Applicant [Konanykhine]
and Respondent [Gratcheva] have a well-founded fear of persecution
on account of their political opinion if they are returned to
Russia. Furthermore, it is apparent that the men who seek to
harm them cannot be controlled by the Russian authorities. Accordingly,
Applicant [Konanykhine] and Respondent [Gratcheva] have met
the statutory requirement for a grant of asylum.
to demonstrating statutory eligibility for asylum, an alien
must also show that he or she merits a favorable exercise
of the Court's discretion. There exists no substantial facts
which would cause the Court to exercise its discretion negatively.
Accordingly, the Court will grant to Applicant [Konanykhine]
and Respondent [Gratcheva] the refuge of asylum in the United
States in the exercise of its discretion. See Exhibit 2 .
10. The Immigration and Naturalization Service [now called "Department
of Homeland Security, U.S. Immigration and Customs Enforcement"]
appealed Judge Bryant's Order dated February 19, 1999 to the Board
of Immigration Appeals.
11. On November 20, 2003, the Board of Immigration Appeals issued
an Order that stated
In conclusion, we agree with the Immigration Judge that the applicant
[Konanykhine] is not excludable from the United States as an alien
who procured or sought to procure a visa or other immigration benefit
by fraud or willful misrepresentation of a material fact. However,
we disagree with the Immigration Judge's conclusion that the applicant
[Konanykhine] and the respondent [Gratcheva] have a well-founded
fear of persecution in Russia on account of any protected ground.
Thus, the Immigration Judge's decision will be reversed to the extent
that it granted asylum to the applicant [Konanykhine] and respondent
[Gratcheva]. The applicant [Konanykhine] appears ineligible for
any other form of relief from exclusion, and therefore he will be
deported to Russia. The respondent [Gratcheva] will be accorded
the privilege of voluntary departure.
ORDER: The appeal is sustained in part.
FURTHER ORDER: The Immigration Judge's February 19, 1999 decision
is sustained in part and reversed in part.
FURTHER ORDER: The applicant's [Konanykhine's] and respondent's
[Gratcheva's] applications for asylum and withholding of exclusion/deportation
FURTHER ORDER: It is ordered that the applicant [Konanykhine] be
excluded from the United States and deported to Russia.
FURTHER ORDER: In accordance with our decision in Matter of Chouliaris,
16 I&N Dec. 168 (BIA 1977), the respondent [Gratcheva] is permitted
to depart from the United States voluntarily within 30 days from
the date of this order or any extension beyond that time as may
be granted by the district director; and in the event of failure
so to depart, the respondent [Gratcheva] shall be deported to Russia.
See Exhibit 3.
12. On or about November 24, 2003, Konanykhine's immigration counsel,
Michael Maggio, Esquire filed a "Petition for Review" of
the Board of Immigration Appeals' November 20, 2003 Order with the
United States Court of Appeals for the Fourth Circuit.
See Exhibit 4.
13. Konanykhine's counsel in the instant matter does not believe that
the United States Court of Appeals for the Fourth Circuit has issued
any decision with regard to the Petition for Review (although a Motion
to Stay Deportation was denied).
14. In December 2003, Konanykhine consulted with a Canadian immigration
attorney who advised him that entry into Canada under Canadian law
as a refugee status claimant is not considered an admission into Canada,
and therefore, Konanykhine would remain under the jurisdiction of
the United States until he was granted refugee status in Canada.
15. On December 18, 2003, Canadian attorney John J. Somjen, Esquire,
stated in a letter to the United States Department of Justice
I am writing to you at the behest of Mr. Michael Maggio, of
the law firm of Maggio Kattar of Washington, D.C., who represents
the above clients in their United States immigration matters.
I have been a member of the Bar in Toronto, Ontario, since
1971, and have devoted the majority of my practice to immigration
matters during that time.
I understand that the United States authorities have the
above clients in detention at this time.
It is my opinion that the above individuals are eligible
to make an asylum claim in Canada pursuant to the provisions
of our current governing statute, the Immigration and Refugee
Protection Act. My opinion is based on the fact that the claimants
can properly identify themselves, have never been recognized
as Convention Refugees by any other country to date, and have
never been convicted of any offenses by any Court outside
On December 4, 2003, an appointment was arranged at the Canadian
Port of Entry located at the Canadian side of the Peace Bridge
in Fort Erie, Ontario, Canada for the above clients to be
interviewed for eligibility to make their asylum claim in
Canada. This appointment was arranged by me through the Director
General of Immigration, Ontario Region, and was booked by
Canadian Immigration Officer Annette Tennier of the Refugee
Unit at the Peace Bridge Port of Entry, Fort Erie, Ontario,
Canada. Annette Tennier's telephone number is 1(905)871-5632.
Her colleague, Ms. Tone Lalonde, is also apprised of these
The appointment booked for 8:30 a.m. today. I am advised
on today's date by Ms. Toni Lalonde that the clients never
showed up for their appointment this morning.
It is my opinion, for the above reasons, that if they were
interviewed in the manner described above, the above clients
would be routinely allowed to enter Canada as eligible Refugee
Claimants, and their cases would be scheduled to be heard
by the above-describe tribunal around one year from now. This
is an everyday event that occurs at the Peace Bridge and at
every other busy Canadian Port of Entry.
If you have any further questions or concerns, please do
not hesitate to contact the writer.
Yours very truly,
SOMJEN AND PETERSON
John J. Somjen See Exhibit #5.
16. Pursuant to the appointment described in Attorney Somjen's December
18, 2003 letter, Konanykhine and Gratcheva traveled to the Peace Bridge
between New York and Ontario in order to file their refugee status
claims with the Canadian Immigration authorities.
17. While in their automobile on the Peace Bridge, prior to crossing
into Canada, a large team of U.S. Bureau of Immigration and Customs
Enforcement officers swarmed Konanykhine and Gratcheva's automobile,
forced them out and detained them.
18. Within ninety minutes of their detention, Konanykhine and Gratcheva
were taken to an airport and flown to Washington Reagan National Airport.
19. Upon their arrival at Washington Reagan National Airport, Konanykhine
and Gratcheva were taken to the Russian Embassy on Wisconsin Avenue
in Washington, DC and advised that they would be flown to Russian
immediately without the right to call their attorneys.
20. The Russian Embassy was not able to issue special travel documents
that would enable Konanykhine and Gratcheva to be flown to Russia.
21. Konanykhine and Gratcheva left the Russian Embassy and were taken
to the Immigration and Naturalization Service office in Arlington,
Virginia, where they were held for a few hours pending transfer to
the Arlington County Detention Center.
22. The next day, Friday December 19, 2003, the special travel documents
were issued by the Russian Embassy and Konanykhine and Gratcheva were
flown from the Washington, DC area to New York in order to board a
New York to Moscow flight.
23. While on the domestic flight, this Honorable Court issued a temporary
stay of Konanykhine and Gratcheva's deportation and set the matter
for hearing on Monday December 22, 2003 at 3:00 p.m.
24. Around the same time as this Honorable Court was hearing argument
on the temporary stay, the Fourth Circuit issued an order denying
Konanykhine and Gratcheva's Motion for a Stay of Deportation which
had been filed in that Court.
25. On December 19, 2003, Neil R. Acri, Deputy See Exhibit 6.
Konanykhine's Affidavit in Response to the ICE's Parole Revocation
Letter dated December 19, 2003
filed an Affidavit in response to the Department of Homeland Security,
U.S. Immigration and Customs Enforcement Branch's [hereinafter "ICE"]
parole revocation letter dated December 19, 2003. This Affidavit states
I verify under the penalties of perjury that following is true:
1. My name is Alexandre Konanykhine.
2. I have read the letter
from Neil R. Acri, Deputy Field Office Director, Washington
D.C. Field Office, U.S. Immigration and Customs Enforcement
dated December 19, 2003 regarding the revocation of my parole.
3. I have never "failed to consistently report to the
Assistant Director for Detention and Removal by phone."
In fact, I have reported to the designated agent in a timely
manner each and every time I was required to, not only because
I was required to, but also because my failure to do so, could
result in my detention and deportation, two things which I
did not want to have happen. The last time I was required
to report, was November 22, 2003 and I did report on this
date as required. As I am required to report approximately
once every two months, I was not required to report again
until late-January 2004.
4. I did not "[fail] to request permission to move from
[my] authorized residence [in the Washington, DC area] to
another state [New York]." In fact, in or before 1999,
I was given explicit permission to move from the Washington,
DC area to the New York City area, where my wife and I have
continuously lived since at least 1999.
5. I did "[change] residence without notifying or requesting
permission from the Service this past month." However,
my lease of my New York City apartment, located at 170 West
73rd Street, had been scheduled to end on November 30, 2003
for many months. I had planned to rent another apartment in
the New York City area prior to the Board of Immigration Appeals
decision dated November 20, 2003, but the legal effect of
this November 20, 2003 decision made it impractical for me
to sign a long term lease of an apartment.
6. From approximately, November 30, 2003 until December 18,
2003, my wife and I stayed with friends or stayed in hotels
in the New York City area.
7. Neither my 1997 settlement agreement referenced in the
December 19, 2003 letter at issue nor the 1999 amendment to
this agreement [which allowed me to move to the New York City
area] required me to inform the agent to whom I was directed
to report of these temporary residences, since they were not
8. The next date on which I was required to report to the
agent to whom I was directed to report was in late-January
9. I was "apprehended as [I] was attempting to enter
Canada on December 18, 2003. However, neither my 1997 settlement
agreement referenced in the December 19, 2003 letter at issue
nor the 1999 amendment to this agreement [which allowed me
to move to the New York City area] prevented me from doing
10. My wife and I attempted to enter Canada on the morning
of December 18, 2003 in order to be interviewed by the Office
of the Canadian Director General of Immigration at 8:30 a.m.
at the Peace Bridge Port of Entry, Fort Erie, Ontario, Canada
with regard to an asylum claim to be filed under the Canadian
Immigration and Refugee Protection Act.
11. This December 18, 2003 meeting was scheduled in early-December,
2003 by my Canadian attorney, John J. Somjen, Esquire.
12. My wife and I hold current valid passports from Uruguay,
but these passports are in the possession of the U.S. Immigration
and Customs Enforcement Department and have been since at
least 1997. These passports do not expire until 2004.
13. I respectfully request that this Honorable Court issue
a stay of my and my wife's deportation and release my wife
and I from detention pending the resolution of all appeals
of the Board of Immigration Appeals' November 20, 2003 order
as stated in the 1997 settlement agreement.
14. Alternatively, I respectfully request that this Honorable
Court allow my wife and I to voluntarily depart the United
States of America in order to travel to other countries, including,
but not limited to, Canada, Mexico and Antigua, in order to
pursue immigration and/or asylum claims in these countries.
15. I know that if I am deported to Russia, I will be tortured
and die without due process or fair jury trial.
16. I also know that my wife will be tortured and may die
if she is deported to Russia.
17. My former business partner, Mikhail Khordokovsky, has
been the subject of numerous articles in newspapers around
the world due to his recent illegal arrest on, what I believe,
are politically motivated charges.
18. Prior to my death, I am sure that I will be tortured
in order to produce, from my own mouth, evidence which I know
is not true, but which will lead to Mr. Khordokovsky's illegal
conviction and execution.
19. After leaving Russia, my wife and I traveled to Germany,
Austria, Antigua and Uruguay, in addition to other countries.
20. I am not aware that my wife or I have ever broken any
laws of any countries, broken any rules of the Immigration
and Naturalization Service or its successors or violated the
terms of my 1997 settlement agreement or the 1999 agreement
amending the 1997 settlement agreement [except, with the possible
exception of minor traffic offenses such as speeding].
21. I also ask that my wife and I be allowed to be present
in the courtroom when the instant matters are addressed in
order to provide rebuttal and explanation testimony and assistance
to my counsel.
I swear and affirm under the penalties of perjury that the
statements contained in the instant Motion are true and correct.
See Exhibit 7.
Affidavit which he Prepared in Passaic County Jail
also filed an Affidavit stating certain facts. This Affidavit was
written on December 21, 2003 while Konanykhine was confined in the
Passaic County Detention Center. This Affidavit states
December 21, 2003
I, Alexandre P. Konanykhine, are [sic] stating under penalty
1. On December 18, 2003 my wife and I were arrested by the
BICE officers while trying to cross the Peace Bridge for an
appointment with Canadian authorities, which was scheduled
because my wife had been ordered by BIA to leave the country
within 30 days. The arresting officers did not allow my wife
or myself to enter Canada, stating that we "were wanted
by Russia". We were not allowed to call our attorney
and were almost immediately flown to Washington, DC and immediately
taken to the Russian Embassy. The accompanying officers explained
that they were flying us to Moscow immediately thereafter.
2. The Russian counsul [sic] explained to the INS that he
would not be able to issue travel documents the same day because
he needed to go through verification of our citizenship. For
a period of at least one hour Assistant Deputy Director of
the BICE Neil Clark was yelling and screaming on the Russian
council [sic] demanding immediate issue of travel documents
and stressing that it was paramount that we were sent to Russia
the same day, and that senior Russian officials were promised
3. The next day we were taken to New York JRK airport for
connecting flight to Moscow. We arrived to [sic] Reagan National
Airport too late to board the last possible flight through
normal means. To secure the seats on that plane BICE officer
Green stated to Delta Airlines Representatives and the Airport
Police that a federal court ordered that we would be on that
very flight. A lot of pressure was applied. We were advised
by BICE officers that if the court were still in session at
the time of the flight byt [sic] no stay was issued, we would
be flown to Moscow. Our baggage was checked in and partially
flown to Moscow.
4. It was evident that extraordinary measures were being
employed to deliver us to Moscow and that it was caused by
a deal with the Russian government.
5. In 1992-1995 I served as Vice President of Mr. Khordorkovsky
for International Affairs. Recent arrest of Mr. Khordorkovsky
is a major event in Russia and caused major international
outcry, including concern expressed by President Bush and
pending bill in U.S. Congress requesting removal of Russia
from G-8 group of countries. Deputies of Mr. Khordorkovsky
has [sic] been jailed as a part of this obvious political
persecution. If delivered to Russia, I have no doubt, that
I will be tourtured [sic] to make up incriminating statements
on Mr. Khordorkovsky and to incriminate myself.
6. I have never committed any crime or immigration violation.
In fact, charges of immigration violations have been prooven
[sic] wrong and I was cleared of them. The immigration judge
also found that "the Russian government fabricated charges
against me to conceal its own corruption". That decision
caused a lot of international coverage in media. I have no
doubt that Russian government will employ tourture [sic] to
force me to incriminate myself because of that decision of
the U.S. immigration court and the resulting media coverage.
7. My wife has never committed any crimes or violations,
nor has she ever been charged. Her only "fault"
is that she fallen [sic] in love with me, so now the Russian
government requested her to have more leverage on me. Facing
threats to her and tourture, [sic] I would most certainly
have to falsely incriminate myself and face a show trial following
[sic] by sub human condition [sic] in Russian preason [sic]
and likely death - as practically all experts agree.
Signed (under penalty of perjury)
See Exhibit 8
BACKGROUND OF RUSSIAN
Amnesty International's Findings
In ROUGH JUSTICE: The law and human rights in the Russian Federation,
a 100 page book published in 2003, Amnesty International analyzed
the Russian legal system with regard to human rights and abuses
of the Russian legal system that lead to violation of human rights.
See ROUGH JUSTICE: The law and human rights in the Russian Federation,
Amnesty International Publications, London, U.K., 2003.
The preamble to ROUGH JUSTICE, describes Amnesty International as
|" is a worldwide movement of people who campaign
for internationally recognized human rights.
vision is of a world in which every person enjoys all of the
human rights enshrined in the Universal Declaration of Human
Rights and other international human rights standards.
In pursuit of this vision, Amnesty International's mission
is to undertake research and action focused on preventing
and ending grave abuses of the rights to physical and mental
integrity, freedom of conscience and expression, and freedom
from discrimination, within the context of its work to promote
all human rights." ROUGH JUSTICE, preamble at page i.
The very beginning of ROUGH JUSTICE states that
it is "important that no one should be returned to a country
where they would be at risk of torture, execution or unfair trial."
ROUGH JUSTICE, Page 2. This rule should be applied in the Konanykhine
and Gratcheva matter as the effect of the ICE's deportation would
be a de facto criminal extradition without authority based on a
treaty between the United States and Russian Federation - an extradition
that would certainly place the young couple at risk of torture,
execution or unfair trial. The following passages from ROUGH JUSTICE
highlight the areas where the Russian legal system fails to comply
with minimum international standards:
"The legacy of the Union of Soviet
Socialist Republics (USSR) has placed massive obstacles in the
way of the Russian Federation's self declared goal of becoming
a society based on the rule of law. One of these is the insignificant
role that courts played in the past.
The Bolsheviks came
to power in 1917 intent upon abolishing law and the courts
altogether. They modified their position when it became clear
that a state without law deprives itself of legitimacy. What
evolved in the USSR was an 'administered society.' The power
to resolve disputes lay not with the courts but with Communist
Party and government functionaries. In this context, the courts
posed no independent challenge to the ruling system and were
little more than appendages to it.
Close to its point of collapse in 1991, the USSR had a population
of 260 million people, but only 15,781 judges. This was approximately
the same number as in what was then the Federal Republic of
Germany, a country with a quarter of the USSR's population.
Soviet judges were reputedly the least qualified of the nation's
jurists. Membership of the Communist Party was obligatory
for judges, and the Ministry of Justice - an arm of the executive
- controlled allocation of resources in a way perceived as
open to political pressure and thereby undermining independence.
Until 1989 the promotion of judges depended on the recommendation
of Communist Party officials. From 1989 to 1991 the power
to appoint and promote judges was transferred to members of
the parliament - the Congress of Soviet People's Deputies
- but judges were still not independent. Always predominantly
female, the profession became mostly young and inexperienced
after the economic deterioration of the mid-1980s left many
judges too poor to stay in their job.
The status of Soviet Judges was so low that they commanded
virtually no respect. Professionally, they played what has
been described as a 'supporting role' in the system of Soviet
justice. The state prosecution service - the procuracy - was
the body officially charged with ensuring that the law was
respected in every area of Soviet life, even to the extent
of 'protesting' court decisions it disagreed with. Because
administrative solutions were preferred in the USSR, the range
of issues that came before the courts was limited compared
with courts in many other countries. The incestuous relationship
between judges and the Communist Party meant that judges were
required to attend party meetings at their place of work,
to implement directives from the party apparatus and to place
political loyalty above the law. Courts were mobilized behind
'law and order' campaigns and willingly complied with official
campaigns to obliterate dissent. All this was monitored and
documented by Amnesty International."
A wide spectrum of political violence has run alongside the
evolution of legal institutions, and fallen outside their
reach. Public figures have been assassinated - in the street,
in their homes, and at work - including eight members of the
federal parliament killed by unknown assailants since the
new State Duma was convened in 1994. Journalists investigating
stories of regional or central corruption have been another
target. Businesspeople have also been murdered, often when
shares were being privatized or companies were changing ownership.
In most of these cases, those responsible for the killings
have never been prosecuted. Some cases have not even been
investigated. The number of such unpunished killings since
1991 suggests that brute force pays for certain people - and
deeply undermines the rule of law.
Political violence and continuing problems in the justice
system show that despite the strides made by the Russian Federation
since 1991, much still needs to be done to protect people's
fundamental human rights and to ensure that everyone has an
effective remedy if their rights are violated.
At the close of the Soviet era in 1990, the courts were reportedly
acquitting 0.3 per cent of the people who came before them.
In France for the same year the acquittal rate was reported
to be 10 per cent. Although the scope and caseload of courts
in the Russian Federation has grown since 1991, the acquittal
rate has stayed the same, according to Ministry of Justice
figures for 2001.
Taken a face value, this conviction rate might suggest that
victims of crime in the Russian Federation have had almost
automatic redress. Legal reformers within the Russian Federation
discount this interpretation and attribute the high conviction
rate to an intrinsic bias in the criminal justice system and
a presumption of guilt stamped through the Criminal Procedure
Code (CPC) that was in use until July 2002.
Under the old CPC, suspects were invariably deprived of their
liberty and could remain in detention for months or even years
with no right of access to a court of a defence lawyer until
state investigators deemed their case was complete and ready
to go to court. During this long pre-trial phase, detainees
were exclusively in the hands of the agencies bringing the
case against them: the procuracy and bodies such as the Ministry
of Internal Affairs, which also administered the police cells
and remand prisons where the detainees were held. Outside
this closed circle, suspects had no right of face-to-face
contact with anyone.
Amnesty International and other human rights organizations
inside the Russian Federation and elsewhere documented reports
of ill-treatment and torture before trial that were commonplace
under the old CPC. Since 1998, when control of the prison
system was transferred to the Ministry of Justice, Amnesty
International has continued to document torture of suspects
in police cells, which remain under the control of the Ministry
of Internal Affairs.
Under the old CPC, suspects had little chance of release
- unless another suspect came to light for the same offence.
They also had no remedy through the national courts if they
had been wrongfully detained, no matter how long their detention.
All male defendants have their heads shaved like convicts.
International observers have said such practices prejudice
the right to be presumed innocent until convicted by a court.
Since 1998 the Ministry of Justice has been responsible for
administering the penitentiary system in the Russian Federation.
Nevertheless, it has left the control of prison disorders
in the hands of riot squads who are outside the prison system
and not answerable to it. By abdicating from its responsibility
for this aspect of prison management, the Ministry of Justice
may be putting unarmed prisoners at risk of extreme, random
and gratuitous violence. The remedies available to prisoners
are too limited and too ineffective to redress effectively
such violation of their human rights.
Conditions for prisoners serving life sentences in the Russian
Federation are so harsh that they amount to cruel, inhuman
or degrading treatment or punishment, and in some cases possibly
Life imprisonment is a new punishment in the Russian Federation
and is best understood in the context of the death penalty
debate that divided the country in the 1990s.
Although obliged to abolish the death penalty since the Russian
Federation joined the Council of Europe in 1996, the State
Duma has failed to do so. Reluctantly, it introduced an alternative
punishment to death - life imprisonment, which the authorities
have made as harsh as possible.
Life imprisonment means imprisonment for the duration of a
prisoner's natural life. Contrary to international standards
for the treatment of people in custody, in the Russian Federation
life imprisonment is organized around the prisoner's almost
total isolation. This isolation, along with other hardships,
leads Amnesty International to believe that their rights under
Articles 7 and 10 of the ICCPR [International Covenant on
Civil and Political Rights] are being violated.
Life sentence prisoners serve their time on 'special regime,'
which is the harshest category of imprisonment in the system
of corrective labour colonies. According to the 1997 Punishment-Implementation
Code, they are kept separately from other 'special regime'
prisoners, who serve their sentences in barracks.
Every aspect of imprisonment for prisoners serving life sentences
is designed to ensure their isolation from the outside world
and from other prisoners. They are held in cells, either alone
or in the company of one other prisoner. They exercise in
a separate enclosed yard outside their cell for 90 minutes
each day, and are given work assignments to do inside a separate
workshop. They are entitled to study, but may not take part
in education classes with other prisoners, studying instead
in principle to have only a three-hour visit twice a year
and to receive one parcel and one small package a year. The
money they earn on work assignments can be spent each month
on items from the prison kiosk.
The provisions isolating life sentence prisoners contravene
those recommended by international standards, and the way
they are put into practice makes them even harsher.
[One prison, Institution OE 265/5] accommodates 156 people
with commuted death sentences, according to statistics provided
by the Ministry of Justice to a delegation of State Duma deputies
visiting the prison in February 2001. Since the first prisoner
arrived in the colony in February 1994, the Ministry reports
that 32 prisoners have died, four of whom have committed suicide.
This is a mortality rate of around 20 per cent in six years.
Opponents of abolishing the death penalty have used figures
like these to argue that execution is more humane than what
they call the 'slow death' of life imprisonment. In Amnesty
International's view, the figures indicate that the condition
in which life sentence prisoners are held violate their right
to be treated with humanity and not to be subjected to torture
or other cruel, inhuman or degrading treatment - and that
the conditions should be improved without delay.
According to some of the letters that prisoners have managed
to send from the island, even this picture does not match
reality. Work is not always available, so prisoners without
work have no way of occupying their time and have no source
of income with which to buy essentials such as soap, toothpaste,
shaving tools and envelopes.
Prisoners serving life sentences face major difficulties
in maintaining contact with loved ones, especially given the
enormous size of the Russian Federation and the severe limitations
placed on the frequency and length of visits.
[The large distances between prisons and the prisoners' homes]
can mean life sentence prisoners have no personal contact,
since not every family can afford the time or expense of such
a long journey. In the Vremia MN article, the journalist noted
that out of 156 inmates, only 40 'maintain contact' with relatives,
which could amount to just one letter a year.
This imposes extreme physical and psychological isolation
on life sentence prisoners and also makes them utterly dependent
on the fairness and professionalism of the people administering
their punishment. If this professionalism is missing, the
prisoner's only direct channel for redress is writing to the
procuracy, which is responsible for ensuring that legality
is observed in the region, or too the regional ombudsman,
if there is one.
Konanykhine's Former Business Partner, Khordokovsky's
previously stated, Konanykhine was former business partners with
Mikhail Khordorkovsky. Mr. Khordorkovsky is allegedly Russia's richest
man and head of its largest oil corporation.
See Russia's Arrest of Its Oligarchs, The Michigan Journal of International
Affairs, University of Michigan, Ann Arbor, Michigan, found at http://www.umich.edu/~ias/mjia/dec2003/editorial12032.htm.
Mr. Khordorkovsky's company also funds the largest democratic opposition
party in Russia. Id. An October 30, 2003 Washington Post article
entitled "Prosecution Puts Russian 'Rule of Law' on Trial;
Billionaire's Case Invites Scrutiny of Justice System" describes
in detail the lack of due process afforded to criminal defendants
who are accused of committing crimes in the Russian Federation.
The article is reprinted in full:
In the midst of a tense, big-money dispute
with Yukos oil company in 1998 and 1999, businessman Yevgeny
Rybin was twice targeted by gunmen trying to kill him. Rybin
suspected that someone affiliated with Yukos was behind the
murder attempts and told Russian prosecutors. But they never
acted on his suspicions.
Then this summer, long after Rybin had given up and left
the country in fear for his life, he received an urgent call
from the Russian prosecutor's office asking him to return
to Moscow to formally repeat, on paper, some of the same allegations
he had made five years earlier.
The sudden revival of interest in old allegations against
the oil company run by billionaire Mikhail Khodorkovsky is
characteristic of the politically charged investigation that
last weekend landed him in prison on charges of tax evasion,
fraud and forgery.
Even Rybin's lawyer, who has fought Yukos in court several
times and expresses no love for Khodorkovsky, said the prosecutors'
call to his client demonstrated that the pursuit of Russia's
richest man stems from politics, not law enforcement. "Why
after five years?" said the lawyer, Alexander Dobrovinsky.
"What's changed? To me it gives an absolutely clear picture
that this is a political case."
President Vladimir Putin insisted this week that the case
against Khodorkovsky was about establishing the rule of law
in Russia. But many lawyers, politicians and analysts counter
that the legal proceedings against him so far amount to a
case study in lack of due process in the country's largely
unreconstructed justice system.
Even his supporters concede Khodorkovsky may be guilty of
some of the financial crimes he has been charged with, although
he denies that. But the investigations that began unfolding
in July during a political dispute between Khodorkovsky and
the Kremlin have struck many observers as selective prosecution
in a country where virtually every big business tycoon accumulated
wealth as state companies were sold in corrupt deals in the
Critics include the U.S. ambassador, Alexander Vershbow,
who told the Interfax news agency that the arrest could negatively
affect the investment climate in Russia.
The investigations, they add, have been conducted with little
regard for the standards Putin publicly espouses -- authorities
have searched the office of Khodorkovsky's main lawyer in
the case and have demanded the school records of the businessman's
On Monday, the Russian president hailed the arrest as the
work of a "democratic and legally well-balanced system"
and refused to intervene, saying "it is only the court
that can decide this matter."
Putin, who signed into law last year a new criminal procedure
code that theoretically gives defendants like Khodorkovsky
expanded rights and seeks to curb the overwhelming advantages
of prosecutors in the Russian system, also offered a lecture
on the principle of equality before the law.
It doesn't matter, he said, whether the accused is "a
modest clerk, a government official or a top businessman,
regardless of how many billions of dollars there are in his
personal or corporate accounts."
With his statements, Putin practically invited scrutiny of
a law enforcement system that has no tradition of an independent
judiciary and is rampantly corrupt.
"There is no 'rule of law' state in this country,"
said Sergei Pashin, a former federal judge who has publicly
advocated comprehensive legal reforms. "The Khodorkovsky
case is another case in which the law works the way someone
wants it to."
Pashin and other experts see parallels to the misuses of
the legal system during the Soviet period, when Communist-written
laws appeared on paper to offer guarantees of fairness but
were either impossible to abide by or so selectively applied
that they served only as a tool to reinforce the authorities'
control. Some call the tactics used against Khodorkovsky "Stalinist."
"It's a very Stalinist style of management. From time
to time, you need a demonstration of power by punishing someone
publicly," Pashin said. "Selective application of
the law is a tradition."
Gleb Pavlovsky, a political consultant who helped Putin win
election in 2000, said on the Ekho Moskvy radio station that
authorities were organizing a "show trial" of the
Yukos chief, and he ridiculed the notion that "any action
the prosecution chooses to take is legitimate by definition."
Such a view is "unacceptable," he said, "even
if it is made by the president of the Russian Federation."
Even some of those who support the Kremlin's goal of eliminating
the power of the so-called oligarchs such as Khodorkovsky
in Russian politics have expressed fears in recent days about
"We know oligarchic capitalism is very bad for Russia
and that Vladimir Putin has to crush this system," said
Sergei Markov, a Kremlin-connected political analyst. But
he said he was against Khodorkovsky's arrest, primarily because
of the inconsistency with which the law is applied here. "First
they must make a law which we can follow," he said. At
present, "every person in Russia can say 'I want to be
loyal to the law, but I cannot.' "
Khodorkovsky's arrest by armed, masked secret service agents
has revived concerns among Western investors about doing business
in a country where law enforcement authorities often interfere
in financial disputes.
"Putin has left himself face to face with a 'due process'
which is in fact a travesty," said a report from a Russian
brokerage firm, United Financial Group, which recommended
that he fire Prosecutor General Vladimir Ustinov or propose
"radical" reform of the law enforcement system to
save his presidency "from ignominious failure."
Lawyers in the Yukos case have a long dossier of what they
contend are violations of Russian rules or international legal
standards in the investigation, which began in July as a probe
into a nearly decade-old privatization deal but has mushroomed
into a broad series of accusations, including that Khodorkovsky
evaded personal taxes and that a top company official ordered
a murder. So far, Khodorkovsky and two other Yukos billionaires
have been charged.
Both Khodorkovsky and top adviser Platon Lebedev were denied
access to their lawyers for days after their arrests and held
on white-collar charges that in the United States would rarely
result in lengthy detention before trial. Lawyers for Yukos
security official Alexei Pichugin say that authorities injected
him with psychotropic drugs in an attempt to extract a confession.
Masked agents have raided a wide variety of locations associated
with Yukos, including an orphanage and a public relations
firm that works for a political party funded by the Khodorkovsky
team, often without proper search warrants and without allowing
Yukos representatives to monitor the searches, according to
In one of the most controversial moves, prosecutors searched
the offices of Anton Drel, the lead attorney for Lebedev and
Khodorkovsky, and summoned him for interrogation, which Russian
lawyers say violates attorney-client privilege. Drel refused
to appear for questioning but his associates believe his jailhouse
conversations with Lebedev have been intercepted by authorities.
And most hearings in the case have been held behind closed
doors, with the public and the news media barred. At one hearing
for Lebedev, even the Yukos lawyers were locked out of the
courtroom. "They were literally left knocking on the
door of the Basmanny Court while the prosecutor and the judge
were talking about the legitimacy of his arrest and whether
he's going to be held or not," said Sanford M. Saunders
Jr., a Washington lawyer hired by the Khodorkovsky team.
British Rulings on Extraditions to Russia
November 13, 2003, the Bow Street Magistrates' Court in London,
United Kingdom, declined the Russian Federation's request to extradite
the Chechen envoy, Akhmed Zakayev on the grounds that Zakayev's
ethnicity and political beliefs made it likely that he would not
receive a fair trial and would be tortured if returned to the Russian
Federation. See BBC News World Edition, dated November 13, 2003,
found at http://126.96.36.199/2/hi/uk_news/3266325.stm.
Judge Timothy Workman, who presided over the hearing in Zakayev,
ruled that "[i]t would be unjust and oppressive to return Mr.
Zakayev to Russia." Id. Judge Workman further ruled that "I
have come to the inevitable conclusion that if the [Russian] authorities
are prepared to resort to torturing witnesses, there is a substantial
risk that Mr. Zakayev would himself be subject to torture."
Id. In reporting on the Zakayev case, the BBC noted that "[t]his
is the third time in recent months that Britian has turned down
a Russian request for the extradition of one of its citizens. The
wealthy businessman, Boris Berezovsky, and his business associate
Yuly Dubov recently had their extradition cases thrown out, and
both were granted political asylum." Id.
Senators McCain and Lieberman's Proposed Legislation Urging the
Suspend Russia's Membership in the Group of Eight Industrialized
November 21, 2003, Senators McCain and Lieberman introduced legislation
urging President Bush to suspend Russia's membership in the Group
of Eight (G-8) industrialized democracies until the Russian Government
adheres to "democratic norms and standards, including the rule
of law; a court system free of political influence and manipulation;
a free and independent media; a political system open to participation
by all citizens and which protects freedom of expression and association;
and the protection of universally recognized human rights." See
Press Release entitled, McCain, Lieberman Urge Suspension of Russia
G-8 Membership, found at http://mccain.senate.gov/index.cfm?fuseaction=Newscenter.ViewPressRelease&Content_id=1190.
President Bush's Changing Views On Russia
Washington Post article, this one entitled "Bush Changing Views
on Putin; Administration that Hailed Russian Leader Alters Course"
and published on December 14, 2003, noted that
President Bush, who publicly credited Russian
President Vladimir Putin just 10 weeks ago for promoting freedom
and democracy, has protested to the Russian leader since then
for moving in the opposite direction, according to senior
Bush and his foreign policy team have begun to question Putin's
intentions - and their own approach - after the abrupt imprisonment
of Russian oil tycoon Mikhail Khodorkovsky and parliamentary
elections derided by European monitors as an unfair government-orchestrated
triumph. . . .
Administration officials say Bush, in recent telephone conversations
with Putin, has raised complaints about evidence that Putin
has fallen far short of his promises to deliver pluralism
and a fair legal system.. . .
Meanwhile, an emerging debate within Republican circles spilled
into the open after Khodorkovsky's Oct. 25 arrest. He was
charged with tax evasion and fraud, but Putin critics and
Bush administration officials view the case as a Kremlin-orchestrated
political attack on a powerful business figure who has presented
himself as a reformer.
I. THIS HONORABLE COURT HAS AUTHORITY TO SUMMARILY
ENFORCE THE 1997 AGREEMENT THAT SETTLED THE PRIOR HABEAS CORPUS MATTER
WITHOUT THE NEED TO FILE A NEW COMPLAINT.
|This Honorable Court has authority to summarily enforce the 1997
agreement that settled the prior habeas corpus matter without the
need to file a new complaint. In Hensley v. Alcorn Laboratories, Inc.,
277 F.3d 535, 540 (4th Cir. 2002), the court held that "[c]ourt-facilitated
settlements are an important aspect of the judicial process and of
its purpose in providing an orderly and peaceful resolution of controversies."
The Hensley court also held that
[a]lthough resolution of a motion to enforce
a settlement agreement draws on standard contract principles,
it may be accomplished within the context of the underlying
litigation without the need for a new complaint. To this extent,
district courts have inherent authority, deriving from their
equity power, to enforce settlement agreements. The exercise
of this authority has the 'practical effect' of entering a
judgment by consent. Id., citing Millner v. Norfolk &
W. Ry. Co., 643 F.2d 1005, 1009 (4th Cir. 1981).
In the instant proceeding, Konanykhine and the ICE agreed that
Respondent [Immigration and Naturalization
Service] agrees to parole petitioner [Konanykhine] pending
final resolution of his immigration proceedings, including
any direct judicial appeals thereof, so long as petitioner
engages in _____ [indecipherable in copy] conduct, or so long
as no other circumstances arise, which warrant revocation
of his parole under 8 C.F.R. § 212.5. See Exhibit 1 of
Petitioners' Original Emergency Motion filed on December 19,
This agreement was clear and unambiguous. Moreover, the parties
have honored this agreement for over six years, prior to the events
of December 18, 2003 at the Peace Bridge. This Honorable Court may
enforce the settlement agreement at issue in the instant proceeding
summarily. With regard to summary enforcement of a settlement agreement,
the Hensley court stated, "if an agreement for complete settlement
of the underlying litigation, or part of it, has been reached and
its terms and conditions can be determined, the court may enforce
the agreement summarily as long as the excuse for nonperformance
of the agreement is 'comparatively insubstantial.'" Hensley,
277 F.3d at 540, citing Millner, 643 F.2d at 1009. In conclusion,
the Hensley court held "to exercise its inherent power to enforce
a settlement agreement, a district court (1) must find that the
parties reached a complete agreement and (2) must be able to determine
its terms and conditions." Hensley, 277 F.3d at 540-41.
II. GRATCHEVA WAS A THIRD-PARTY OR INTENDED
BENEFICIARY OF KONANYKHINE'S 1997 SETTLEMENT AGREEMENT, AND THUS MAY
NOT BE DEPORTED PENDING RESOLUTION OF ALL JUDICIAL APPEALS OF HER
was a third-party or intended beneficiary of Konanykhine's 1997
settlement agreement and thus may not be deported pending resolution
of all judicial appeals of her asylum claim. As Konanykhine's wife,
and also as a fellow Russian citizen, Gratcheva was intrinsically
tied to her husband's immigration proceedings. The ICE, knew, at
the time of the 1997 settlement agreement that Konanykhine and Gratcheva
were physically separated due to Konanykhine's detention. The ICE
could also reasonably infer that since Konanykhine alone was detained,
and not his wife as well, that it would have been illogical to enter
into a settlement agreement whereby Gratcheva could be deported
pending judicial appeal of her immigration status, but her husband,
Konanykhine could not be deported pending judicial appeal. In MNC
Credit Corporation v. Sickels, 255 Va. 314, 334 (1998), the court
held that "[i]n order to proceed on a third-party beneficiary
contract theory, the party claiming the benefit must show that the
parties to a contract clearly and definitely intended to confer
a benefit upon him." By entering into a contract with Gratcheva's
husband, Konanykhine, whereby it agreed to release him from detention
and parole him "pending final resolution of his immigration
proceedings, including any direct judicial appeals thereof,"
the ICE clearly and definitely intended to confer a benefit upon
Gratcheva, namely, that she would share her husband's parole pending
the direct judicial appeals.
III. SINCE THE UNITED STATES AND RUSSIA HAVE NOT ENTERED INTO AN EXTRADITION
TREATY, IT IS NOT APPROPRIATE FOR THE ICE TO ACCOMPLISH AN DE FACTO
EXTRADITION BY DEPORTING THE KONANYKHINES TO RUSSIA.
the United States and Russia have not entered into an extradition
treaty, it is not appropriate for the ICE to accomplish an de facto
extradition by deporting the Konanykhine family to Russia. In U.S.
v. Oudovenko, 2001 U.S. Dist. LEXIS 2549, *10 (E.D.N.Y. 2001), the
court stated, "there is no extradition treaty with Russia."
Petitioners are not aware that the United States and Russia have
entered into an extradition treaty since the Oudovenko decision.
In U.S. v. Alvarez-Machain, 504 U.S. 655, 664 (1992), the court
stated "[i]n the absence of an extradition treaty, nations
are under no obligation to surrender those in their country to foreign
authorities for prosecution." Therefore, since it would not
be appropriate for the ICE to extradite the Konanykhine family to
satisfy the Russian government's purported desire to criminally
prosecute Konanykhine for economic crimes since the United States
and Russia have not entered into an extradition treaty, it is not
appropriate for the extradition occur under a different name -"deportation."
IV. HABEAS CORPUS PROCEEDINGS ARE AVAILABLE
TO KONANYKHINE AND GRATCHEVA WITH REGARD TO THEIR CLAIMS THAT THEY
ARE BEING UNLAWFULLY DETAINED AND DEPORTED.
corpus proceedings are available to Konanykhine and Gratcheva with
regard to their claims that they are being unlawfully detained and
In Zadvydas v. Davis, 533 U.S. 678, 688 (2001), the court held that
"habeas corpus proceedings remain available as a forum for
statutory and constitutional challenges to post-removal-period detention."
This is because "the Due Process Clause applies to all "persons"
within the United States, including aliens, whether their presence
here is lawful, unlawful, temporary, or permanent" and because
"the Due Process Clause protects an alien subject to a final
order of deportation." Id. at 693-94. In the instant matter,
the Board of Immigration Appeals has denied Konanykhine and Gratcheva's
asylum request. The ICE has taken extraordinary measures to handover
the couple to the Russian authorities based on this administrative
ruling. In Zadvydas, the court held that "the Constitution
may well preclude granting "an administrative body the unreviewable
authority to make determinations implicating fundamental rights."
Id. at 692. Should the ICE take the position that habeas corpus
relief is not permitted in the instant matter, it must provide explicit
evidence of such position because "where Congress intends to
preclude judicial review of constitutional claims its intent to
do so must be clear" and "where a provision precluding
review is claimed to bar habeas review, the Court has required a
particularly clear statement that such is Congress' intent."
Demore v. Kim, 538 U.S. 510, *14 (April 29, 2003). Since there the
ICE can point to no such evidence, Konanykhine and Gratcheva respectfully
request that this Honorable Court grant their application for a
writ of habeas corpus.
V. HABEAS CORPUS IS AVAILABLE TO KONANYKHINE
AND GRATCHEVA SINCE THEIR CONSTITUTIONAL RIGHTS WERE VIOLATED AND
SINCE THE WRIT IS THE ONLY EFFECTIVE MEANS OF PRESERVING THEIR RIGHTS.
corpus is available to Konanykhine and Gratcheva since their constitutional
rights were violated and since the writ is the only effective means
of preserving their rights. Pursuant to 28 U.S.C. § 2241 (a)
and (c), this Honorable Court has jurisdiction to grant Petitioners'
writ of habeas corpus since Konanykhine and Gratcheva are "in
custody under or by color of the authority of the United States,"
or are "in custody for an act done or omitted in pursuance
of an Act of Congress, or an order, process, judgment or decree
of a court or judge of the United States," or are "in
custody in violation of the Constitution or laws or treaties of
the United States." As previously stated, Konanykhine and Gratcheva
are in the custody of the ICE pursuant to the November 20, 2003
order of the Board of Immigration Appeals.
In Kuhlmann v. Wilson, 477 U.S. 436, 446 (1986), the court stated,
"habeas review is available for claims of disregard of the
constitutional rights of the accused, and where the writ is the
only effective means of preserving his rights." Moreover, the
Kuhlmann court observed that "habeas corpus has traditionally
been regarded as governed by equitable principles." Id. at
447. In Kuhlmann, the court also found that habeas corpus
"should be available to
afford relief to those persons whom society has grievously
wronged in light of modern concepts of justice. Just as notions
of justice prevailing at the inception of habeas corpus were
offended when a conviction was issued by a court that lacked
jurisdiction, so the modern conscience found intolerable convictions
obtained in violation of certain constitutional commands."
A. Konanykhine and Gratcheva respectfully
request this Honorable Court to order that the ICE produce them
at all hearings related to the instant action in order to actively
participate in the prosecution of their claims and in order to assist
their attorneys in presenting their case.
Konanykhine and Gratcheva respectfully request this
Honorable Court to order that the ICE produce them at all hearings
related to the instant action in order to actively participate in
the prosecution of their claims and in order to assist their attorneys
in presenting their case. This case is extremely technical and involves
a timeline of facts that lasts for over ten years. It is essential
for Konanykhine and Gratcheva to assist their attorneys sift through
the massive amounts of evidence and present their case in a logical
manner. Pursuant to 28 U.S.C. § 2246, the Petitioners respectfully
request that evidence in this matter be taken orally. Pursuant to
28 U.S.C. §2247, the Petitioners respectfully request that
all previous documentary evidence and transcripts of oral testimony
on all prior habeas corpus hearings be admissible into evidence.
B. Konanykhine and Gratcheva's detention and deportation violates
their due process rights guaranteed under the Fifth, Sixth and Eighth
Amendments to the United States Constitution.
and Gratcheva's detention and deportation violates their due process
rights guaranteed under the Fifth, Sixth and Eighth Amendments to
the United States Constitution. The Fifth Amendment provides
No person shall be held to
answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor
shall any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use,
without just compensation.
The Sixth Amendment provides
In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial,
by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence.
The Eighth Amendment provides
Excessive bail shall not be
required, no excessive fines imposed, nor cruel and unusual
and Gratcheva have not been to Russia in many years, yet are the
subject of many serious allegations involving financial impropriety
in the Russian Federation. These allegations could result, at the
very least, in a very long and harsh prison sentence. Prior to that
sentence being imposed, there are no procedural safeguards in the
Russian legal system that would allow grand jury indictments as
required by the Fifth Amendment to the U.S. Constitution, speedy
petit jury trials as required by the Sixth Amendment to the U.S.
Constitution or what Americans would consider to be due process
rights during the trial itself. Before and after the trial, Konanykhine
and Gratcheva could be made to suffer cruel and unusual punishment
at the hands of their Russian countrymen which would certainly violate
the Eight Amendment if it occurred in the United States. Simply
put, the effect of Konanykhine and Gratcheva's deportation would
be the de facto extradition of the couple to a country whose legal
system is inherently flawed and can not provide even the most basic
of procedural safeguards to individuals accused of serious crimes.
This de facto extradition is especially unnerving considering the
fact that the United States and Russian Federation have not entered
into an extradition treaty. Also, there are other countries to which
Konanykhine and Gratcheva could be deported - Antigua, Germany and
Austria (where the couple have traveled prior to locating in the
United States); Uruguay (where the couple visited several times
and whose valid passport the couple still holds-although the passport
has been in the possession of the ICE since at least 1997) and Canada
(where the couple had an appointment to meet with immigration officials
regarding an asylum application). Instead of permitting the couple
to leave the United States with any of these countries as destinations,
the ICE has taken extreme and unprecedented measures to return the
couple to Russia. In theory, if the couple is deportable, the ICE
should not care to which country the couple is deported. In fact,
Konanykhine and Gratcheva were doing the ICE a favor (and saving
them the time and aggravation of addressing the instant litigation)
by leaving the country for Canada on December 18, 2003. Therefore,
this Honorable Court should grant the Petitioners' application for
a writ of habeas corpus and release them from detention and the
ever present threat of deportation pending all direct judicial appeals
of the November 20, 2003 Board of Immigration Appeals order and
permit them to either remain in this country or depart this country
for another country willing to permit their entry.
1. Konanykhine and Gratcheva's detention and
extradition are unlawful since they violate the terms of the 1997
settlement agreement that released Konanykhine from detention six
and Gratcheva's detention and extradition are unlawful since they
violate the terms of the 1997 settlement agreement that released
Konanykhine from detention six years ago. This settlement agreement
is certainly relevant to the instant matter since it was the result
of a previous habeas corpus application. As previously stated, this
settlement agreement prevents the ICE from detaining or deporting
Konanykhine (and, as previously alleged by Petitioners, Gratcheva
as well) while his direct judicial appeals of his immigration matters
are pending. Since the Fourth Circuit has not yet ruled on the couple's
petition for review, the ICE was without legal grounds to detain
the couple and was certainly without legal grounds to take the extraordinary
steps it attempted to take to deport the couple.
2. Gratcheva's detention and extradition are
unlawful since they violate the terms of the Board of Immigration
Appeals decision that allows her to voluntarily depart the United
States for a period of thirty days from the date of the decision.
detention and extradition are unlawful since they violate the terms
of the Board of Immigration Appeals decision that allows her to
voluntarily depart the United States for a period of thirty days
from the date of the decision. Since that thirty day period had
not yet expired, the ICE was without legal justification to detain
and attempt to deport Gratcheva.
3. The ICE's revocation of Konanykhine's parole was dated the day
after it detained and attempted to deport him. Furthermore, the revocation
falsely accused Konanykhine of failing to report to ICE officials.
ICE's revocation of Konanykhine's parole was dated the day after
it detained and attempted to deport him. Furthermore, the revocation
falsely accused Konanykhine of failing to report to ICE officials.
The fact that the revocation letter was not issued until the day
after Konanykhine attempted to leave the United States cannot justify
his detention the day before the letter was issued. Had there been
grounds to revoke his parole prior to the detention, the ICE would
have done so. This letter is a futile attempt to "legalize"
VI. PETITIONERS KONANYKHINE AND GRATCHEVA RESPECTFULLY REQUEST THIS
HONORABLE COURT TO TREAT THE INSTANT AMENDED MOTION AS A MOTION FOR
A PRELIMINARY INJUNCTION PENDING THE FINAL RESOLUTION OF ALL OF PETITIONERS
DIRECT JUDICIAL APPEALS OF THE NOVEMBER 20, 2003 BOARD OF IMMIGRATION
APPEALS DECISION, AS AN ALTERNATIVE TO THE FOREGOING THEORIES, PURSUANT
TO F. R. CIV. P. 65 (A).
Konanykhine and Gratcheva respectfully request this Honorable Court
to treat the instant amended Motion as a Motion for a Preliminary
Injunction pending the final resolution of all of Petitioners direct
judicial appeals of the November 20, 2003 Board of Immigration Appeals
decision, as an alternative to the foregoing theories, pursuant
to F. R. Civ. P. 65 (a). In deciding whether to issue a preliminary
injunction, a court must consider "(1) the likelihood of irreparable
harm to the plaintiff if the preliminary injunction is denied, (2)
the likelihood of harm to the defendant if the requested relief
is granted, (3) the likelihood that the plaintiff will succeed on
the merits, and (4) the public interest." Newsom v. Albemarle
County School Board, 2003 U.S. App. LEXIS 24295, *11 (4th Cir. December
1, 2003). It is clear that, in following the Newsom test, a preliminary
injunction should issue.
if the motion for preliminary injunction is denied, Konanykhine
and Gratcheva will be on an airplane back to Russia before the ink
could dry on the paper. It is unlikely that either Konanykhine or
Gratcheva will ever be permitted to leave the Russian Federation
again, much less travel to the United States. That is, if they are
not housed in jail awaiting trial for many years. Second, the ICE
will not suffer from Konanykhine and Gratcheva's release from detention.
The couple have been free from detention for over six years and
have become productive members of society. The couple have started
a fairly successful business and pay taxes. In fact, it would be
a severe economic hardship were the couple to relocate. The only
reason that Konanykhine and Gratcheva attempted to travel to Canada
on December 18, 2003 was to pursue a claim for asylum in light of
the Board of Immigration Appeals order dated November 20, 2003.
Had it not been for this order, the Konanykhine family would not
have, in all likelihood, any reason to leave the United States.
Third, it is likely that Konanykhine and Gratcheva's Fourth Circuit
petition for review of the Board of Immigration Appeals order will
succeed since the climate with regard to the American view of the
Russian legal system has changed in the several weeks since the
original publication of the order due to Senators McCain and Lieberman's
very public statement on the Russian internal affairs and also due
to the Russian Federation's prosecution of Konanykhine's former
business partner, Mr. Khodorkovsky. Also, the Fourth Circuit may
look with favor on the findings of fact of the Immigration Judge
whose decision was overturned by the Board of Immigration Appeals.
Typically, findings of fact should be respected by the appellate
body, such as Judge Bryant's findings that Konanykhine would suffer
based on his political views if returned to Russia. Finally, the
public interest in Konanykhine and Gratcheva's case remains strong
since coverage of their immigration proceedings has appeared in
newspapers such as the Washington Post and on CBS-TV's "60
Minutes" program. Therefore, it is appropriate to grant a preliminary
injunction releasing Konanykhine and Gratcheva from detention and
preventing the ICE from deporting the couple to Russia.
VII. THE RUSSIAN LEGAL SYSTEM IS SUBJECT TO
ABUSE BY THOSE IN POWER AND DOES NOT GRANT ANY DEFENDANT ANY GUARANTEES
OF PROCEDURAL DUE PROCESS IN THE IMPLEMENTATION OF THE CRIMINAL JUSTICE
previously stated in the background section of the instant filing,
the Russian legal system is subject to abuse by those in power and
does not grant any defendant any guarantees of procedural due process
in the implementation of the criminal justice system. Therefore,
deportation to Russia would violate Konanykhine and Gratcheva's
due process rights.
|Petitioners Alexandre Konanykhine and Elena Gratcheva respectfully
this Honorable Court to
1a. summarily enforce the 1997 settlement agreement by issuing an
order to the Department of Homeland Security, U.S. Immigration and
Customs Enforcement Branch to release Petitioner Konanykhine and Petitioner
Gratcheva from detention and order them paroled pending final resolution
of their immigration proceedings, including any direct judicial appeals
thereof as stated in the 1997 settlement agreement; and
Petitioner Konanykhine and Petitioner Gratcheva's deportation pending
final resolution of their immigration proceedings, including any
direct judicial appeals thereof as stated in the 1997 settlement
2a. treat the instant amended motion as an Application for a Writ
of Habeas Corpus and order the Department of Homeland Security,
U.S. Immigration and Customs Enforcement Branch to release Petitioner
Konanykhine and Petitioner Gratcheva from detention and order them
paroled pending final resolution of their immigration proceedings,
including any direct judicial appeals thereof as stated in the 1997
settlement agreement; and
2b. treat the instant amended motion as an Application for a Writ
of Habeas Corpus and stay Petitioner Konanykhine and Petitioner
Gratcheva's deportation pending final resolution of their immigration
proceedings, including any direct judicial appeals thereof as stated
in the 1997 settlement agreement; or
3a. treat the instant amended motion as a Motion for a Preliminary
Injunction pursuant to F. R. Civ. P. 65 (a) and issue an order to
the Department of Homeland Security, U.S. Immigration and Customs
Enforcement Branch to release Petitioner Konanykhine and Petitioner
Gratcheva from detention and order them paroled pending final resolution
of their immigration proceedings, including any direct judicial
appeals thereof as stated in the 1997 settlement agreement; and
3b. treat the instant amended motion as a Motion for a Preliminary
Injunction pursuant to F. R. Civ. P. 65 (a) and stay Petitioner
Konanykhine and Petitioner Gratcheva's deportation pending final
resolution of their immigration proceedings, including any direct
judicial appeals thereof as stated in the 1997 settlement agreement.
In addition, Petitioner Konanykhine and Petitioner Gratcheva respectfully
request that this Honorable Court order the Department of Homeland
Security, U.S. Immigration and Customs Enforcement Branch to pay
their legal fees incurred in filing and arguing this pleading.
J.P. Szymkowicz (#39120)
SZYMKOWICZ & SZYMKOWICZ, LLP
1220 19th Street, NW, Suite 400
Washington, DC 20036-2438
Attorney for Alexandre Konanykhine and
swear and affirm under the penalties of perjury that the statements
contained in the instant Motion are true and correct.
(signed by Attorney J.P. Szymkowicz acting on behalf of Alexandre
Konanykhine since Alexandre Konanykhine is in detention in New
(signed by Attorney J.P. Szymkowicz acting on behalf of Elena
Gratcheva since Elena Gratcheva is in detention in New Jersey).
Certificate of Service
hereby certify that on December 22, 2003, I delivered, via hand delivery,
a copy of the foregoing Amended Motion and all exhibits (except Exhibits
1-5) to: Kathleen Pepper, Esquire, Office of the United States Attorney,
2100 Jamieson Avenue, Alexandria, Virginia 22314 (703) 299-3700. The
first five exhibits were not delivered on agreement of counsel since
they were already attached to the original motion.
J.P. Szymkowicz (#39120)