The detailed facts necessary to support the Petition are contained within the Petition and shall not be repeated here.

A.   PETITIONER IS ENTITILED TO PROCEDURAL DUE PROCESS

Because during the immigration hearings Petitioner argued that the exclusion proceedings had been unlawfully initiated and must be terminated, he did not contest nor did he content “that he is properly in exclusion proceeding”.

B.   RESPONDENT IMPROPERLY PLACED PETITIONER IN EXCLUSION PROCEEDINGS AND CONSEQUENTLY IN DETENTION

3.   Petitioner was placed in exclusion proceedings after being re-admitted into the United States to resume his adjustment of status proceedings. In Joshi v. District Director, 720 F.2d 799 (4th Cir. 1983), the Fourth Circuit held that an adjustment applicant after returning to the United States on advance parole, should not be subject to the limits which come with exclusion proceedings. Id. at 84. The court refused to differentiate between aliens who re-entered the country pursuant to advance parole from those who had not left. Id. The court required the INS to treat both groups alike. Id. Finally, the Ninth Circuit has also held that the INS may not use the fact that someone temporarily left the United States with advance parole to place the person in exclusion proceedings when he would have been entitled to deportation proceedings but for the trip. Santana Navarro-Aispura v. Immigration and Naturalization Service, 53 F.2d 233, 233 (9th Cir. 1995).

4.   In Rosenberg v. Fleuti, 374 U.S. 449, 457-58, 10 L. Ed. 2d [*801] 1000, 83 S. Ct. 1804 (1983), the Supreme Court noted that Congress, reacting to the narrow judicial interpretation of “entry” when it enacted § 101(a)(13), wanted to ameliorate the harsh results visited upon aliens who had previously entered and resided in the United States. The Court stated, “We conclude, then, that it effectuates congressional purpose to construe the intent exception to § 101(a)(13) as meaning an intent to depart in a manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” The Supreme Court decided that an alien whose departure from the United States "was an innocent, casual and brief excursion" was not the subject to the consequences of entry. Its interpretation of the Act, the Supreme Court explained, gave recognition to congressional intent to protect aliens residing in the country from unexpected risks and unintended consequences of wholly innocent action. 374 U.S. at 462.

5.   Petitioner, through this attorney, advised Respondent of these facts in the Motion for Immigration Bond Hearing on July 3, 1996. In his Response to the Motion, Respondent claimed that the holding of the Fourth Circuit’s in Joshi was nullified by the promulgation of the current regulation at 8 C.F.R. § 245.2(a)(4)(ii)* and by the warning** of the face of the advance parole document.

*Under section 245… The departure [from the United States] of an applicant who is not under deportation proceedings shall be deemed an abandonment of his or her application constituting grounds for termination, unless the applicant was previously granted advance parole by the Service for such absence, and was inspected upon returning to the United States. If the application of an individual granted advance parole is subsequently denied, the applicant will be subject to the exclusion proceedings of section 236 of the Act. No alien granted advance parole and inspected upon return shall be entitled to a deportation hearing.

**"Warning Pursuant to 8 C.F.R. 245.3(a)(2). If your application for adjustment of status is denied, you will be subject to exclusion proceedings under Section 236 of the Immigration and Nationality Act."

6.   The warning on the face of Petitioner’s advance parole document is unlawful because it is based on 8 C.F.R. 245.3 which does not authorize the District Director to impose exclusion proceedings. 8 C.F.R. 245.3(a)(2), which Respondent based his warning on, does not exist.

7.   However, it is clear that both the warning and 8 C.F.R. § 245.2(a)(4)(ii) were designed to address exclusively the situation of an alien returning to the United States after his application for adjustment of status had been denied. Indeed, in such a case exclusion proceedings would be reasonable and logical, since at the moment of the alien’s coming to the border the advance parole would no longer be valid for admission into the United States because of the limitation stipulated in the warning; it would be valid then only as an authorization to an immigration officer to parole the alien under § 245(d)(5) pending exclusion proceedings. See Authorization for Parole of an Alien into the United States (Exhibit 3). However, it would be illogical, unreasonable and capricious to extend this rule on the aliens awaiting the adjustment of status to that of permanent residence within the United States after being admitted (inspected and authorized to enter) by an immigration inspector. The logic of the decisions of the United States Court of Appeals for the Fourth Circuit (Joshi) and the Supreme Court (Fleuti) is fully applicable to such aliens, including Petitioner.

The concept of due process of law as it is 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.

8.   Respondent tried to construe that advance parole is a parole under 8 C.F.R. § 212(d)(5). However, the inherent difference between advance parole and parole was established by the United States Court of Appeals for the Fourth Circuit in Joshi v. District Director, 720 F.2d 799 (4th Cir. 1983): “Section 212(d)(5), however, does not address the consequences of departure and return of an alien in Joshi’s situation. Joshi’s admission to the country after his business trip was not for “emergent reasons or for reasons deemed strictly in the public interest” as specified by 212(d)(5). His advance parole was in reality a form of permission granted pursuant to C.F.R. 245.2(a)(3) authorizing him to travel to India and upon his return to resume his application for a change of status. Even though the Service called his permission an advance parole, we believe its consequences should not be dictated by literal application of 212(d)(5) which does not purport to deal with authorization for foreign travel or with re-admittance to the country to resume prosecution of a pending motion”.

Immigration law make a distinction between aliens seeking admission and those already in the United States, and those seeking admission are subject to exclusion, but those already in are subject to expulsion, and if alien is being expelled he is entitled to a hearing to determine deportability, but if he is being denied entry he is afforded a hearing of a more limited score. U.S. ex rel. Lam Fo Sang v. Espendy, D.C. N.Y. 1962 210, F.Supp 786.

15.   Clearly, Petitioner, admitted into the United States after inspection and authorization by an immigration officer, is “already in the United States” and thus “entitled to hearings to determine deportability”.

16.   The Immigration Judge agreed with Petitioner that Respondent’s claim that Petitioner was not entitled to the relative benefits of deportation proceeding was illogical: “I agree with your position, I think it is correct, it is just not the correct statement of the law, namely from a fairness perspective, I see no reason to artificially distinguish between an applicants and respondents and like I said about four minutes ago, Congress is in the process of rectifying that artificial distinction and when this Immigration Bill passes then I will have jurisdiction over this person because he will be in removal proceedings no longer in exclusion proceeding”. (Transcript of Immigration Hearing at 649, line 19 to 650, line 1). Congress did rectify the INA, eliminating the ambiguity which allowed Respondent to make unfair artificial distinction.

17.   The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 defined that: “The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”. INA (1996), 101(13)(A). It is absolutely clear that Petitioner was admitted to the United States, because he entered the United States lawfully, after an immigration officer duly inspected him and authorized such an entry. As an admitted alien Petitioner could not be lawfully placed in exclusion proceedings.

18.   The only exception to the INA (1996), 101(13)(A): “An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewmen shall not be considered to have been admitted”, INA (1996), 101(13)(B), is not applicable to Petitioner. Petitioner was not paroled under section 212(d)(5), because this section is related exclusively to the aliens, applying for admission into the United States and paroled into the United States “for urgent humanitarian reasons or significant public benefit”. Only “such parole of such alien” shall not be regarded as an admission. Petitioner was not applying for admission when the advance parole was authorized by Respondent for “valid business reasons”, not “for urgent humanitarian reasons or significant public benefit”. Similarly, an immigration officer authorized Petitioner’s entry into the United States for completion of adjustment of status proceedings, not “for urgent humanitarian reasons or significant public benefit” under section 212(d)(5). See Arrival/Departure Form I-94 (Exhibit 4). Thus, section 101(13)(B) does not apply to Petitioner.

19.   Moreover, section 212(d)(5) applies only to the aliens taken in custody: “when the purposes of such parole shall … have been served the alien shall forthwith return or be returned to the custody from which he was paroled” (emphasis added), i.e. this section has nothing to do with Petitioner who was not paroled from custody but was lawfully admitted into the United States to resume his adjustment of status to that of permanent resident, in accordance with the valid travel permission authorized for “valid business reasons”. Since Petitioner was admitted, he could not have been lawfully placed in exclusion proceedings.

20.   Some confusion arises from the fact that, admitting Petitioner into the United States, the immigration officer chose to call the admission “parole for adjustment of status”. This form of admission does not represent parole from custody under INA § 212(d)(5) and constitutes admission. The legislative history of the parole statute confirms what Congress intended it to mean:

The committee believes that the broader discretionary authority [in § 212(d)(5)] is necessary to permit the Attorney General to parole inadmissible aliens into the United States in emergency cases, such as the case of an alien who requires immediate medical attention before there has been an opportunity for an immigration officer to inspect him, and in cases where it is strictly in the public interest to have an inadmissible alien present in the United States, such as, for instance, a witness or for purpose of prosecution. H.R. Rep. No. 1365, 2d Cong., 2d Sess. 52, reprinted in 1952 U.S. Code Cong. & Ad. News 1653, 1706.

21.   It is clear that Petitioner is in situation completely different from those of the aliens whose rights to deportation proceedings Congress intended to curtail. Petitioner was not inadmissible, on the contrary, he had been admitted into the United States on numerous occasions, including his last entry. None of these admissions was related to “emergency, such as immediate medical attention before there has been an opportunity for in immigration officer to inspect him”. On June 13, 1996, Petitioner was duly inspected by an immigration officer and admitted for completion of adjustment of status to that of permanent resident in accordance with the re-admission permission, granted to Petitioner because of “valid business reasons”. Thus, the attempt of Respondent to apply § 212(d)(5) of the INA to Petitioner clearly contradicts not only its text but also the intent of Congress of the United States and should be cured by granting Writ of Habeas Corpus, terminating unlawful exclusion proceeding initiated by Respondent against Petitioner, and unlawful detention of Petitioner.

22. The definition of term “parole” (Webster Dictionary. INA does not contain any special definition of the term "parole") is “a conditional release from prison”. Petitioner was not in prison nor in any other form of custody when he requested and Respondent authorized the advance parole for “valid business reasons”. Petitioner was not in custody either when an immigration inspector authorized his entry into the United States. According to the clear text on the face of the advance parole document, it represented a multiple entry permit to return to the United States and “to resume the application for adjustment of status upon the return”. According to this re-admission permission document (Joshi v. District Director, 720 F.2d 799 (4th Cir. 1983)) Petitioner was admitted into the United States, i.e. “lawfully entered the United States after inspection and authorization by an immigration officer.” INA (1996) § 101(13)(A). (As demonstrated earlier, exception 101(13)(B) is not applicable to Petitioner.) The definition of admission clearly indicates that fact of admission does not depend on how an immigration officer chooses to call the authorization of the entry: “admission”, “welcoming”, “inclusion”, or “parole until completion of adjustment proceedings”, as long as it is not “parole for ‘emergency’ or ‘public interest’ reasons under section 212(d)(5) of the INA”. Since Petitioner was entering the country with valid entry permission, the immigration officer had no reason to place him in exclusion proceedings and to take Petitioner into custody, or parole him pursuant to § 212(d)(5) of INA.

23.   The only limitation of the Petitioner’s multiple-entry return permission stated on face on the document warned that if Petitioner’s application for adjustment of status were denied that Petitioner would be subject to exclusion proceedings. Should Petitioner be trying to obtain admission into the country after his petition had been denied, he would be placed in exclusion proceedings at the border. Since aliens in exclusion proceedings should be taken into custody unless paroled by the District Director pursuant to section 212(d)(5) of INA, the District Director authorized the immigration officer to parole* Petitioner under this section should the contingency described in the Warning occur. The purpose of this authorization was to ensure Petitioner’s liberty during the exclusion proceedings, where Petitioner could renew his application for adjustment of status before the Immigration Judge. However, the contingency described in the Warning did not occur: at the time of Petitioner’s entry on June 13, 1996, the application for adjustment of status had not been denied, thus Petitioner was not subject to exclusion proceedings and the immigration officer had no reason either to place Petitioner into custody or to parole Petitioner from said custody pursuant to INA 212(d)(5) as he had been authorized to do by Respondent. Instead, the immigration officer, after inspection, authorized Petitioner to lawfully enter the United States until completion of adjustment of status proceedings under section 245, i.e. admitted Petitioner into the United States.

*Subject to presentation of the original advance parole document prior to December 31, 1996. On June 13, 1996, the immigration inspector, after inspection of Petitioner, authorized his entry into the United States not as "parole for emergency or public interest reasons under section 212(d)(5) of the INA", but as "parole until completion of adjustment proceedings under sec. 245."

24.   The Respondent’s interpretation of “advance parole” and “parole until completion of adjustment proceedings under sec. 245” as a parole pursuant to INA 212(d)(5) contradicts, among other things, the findings of Joshi, the plain text of INA 101(13)(A) and (B) and INA 212(d)(5). The Respondent’s interpretation of 8 C.F.R. 245.2(a)(4) contradicts, as demonstrated above, the INA and numerous judicial decisions. Even if Respondent’s interpretation were correct, the Immigration and Nationality Act (an act of Congress) would override the contradicting provisions of C.F.R. (executive regulation).

25.   Even if the ambiguities existed in the INA, under established doctrine ambiguities in the law are to be interpreted in favor of the alien. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Fong Haw Tan v. Phelan, 333 U.S. 6 (1948).

26.   Thus, Respondent’s argument that Petitioner should be in exclusion proceedings has no adequate ground neither in logic not in law. Therefore, Petitioner respectfully requests the Court to issue the Writ of Habeas Corpus terminating unlawful exclusion proceeding initiated by Respondent against Petitioner, and unlawful detention of Petitioner.

C.   UNLAWFUL PLACEMENT IN EXCLUSION PROCEEDINGS VIOLATED SUBSTANTIAL RIGHTS OF PETITIONER

1.   Respondent in Supplemental Memorandum in Opposition to the Petition for Writ of Habeas Corpus tried to convince the Court that his decision to put Petitioner in exclusion proceedings instead of deportation proceedings did not violate the Petitioner’s rights, because there were not much of the difference between the exclusion and deportation proceedings:

“The only real distinction indicated between deportation and exclusion proceedings as pertains to petitioner is that in a deportation proceedings he could have sought review by the immigration judge of the District Director’s initial custody determination.” (Order on Petition for a Writ of Habeas Corpus dated August 16, 1996.)

3.   Contrary to what Respondent led the Court to believe, if “an alien is entitled to deportation proceedings, he would have many substantive and procedural benefits not available to an excludable alien.” Joshi. In fact, it is a life and death difference in case of Petitioner, who in exclusion proceedings will be sent by Respondent to Russia to face torturous death from the organized criminal group which requested the extradition. In deportation proceedings Petitioner would be able, unlike in exclusion proceedings, to choose the country of deportation or seek voluntary departure. INA § 241.

4.   The standards for bond and for deportation orders decisions are also entirely different for excludable and deportable aliens. Respondent made, and the Court reviewed the custody determination for Petitioner under extremely stringent “exclusion proceedings” standard which required Petitioner to prove that he could not possibly flight and it was strictly in public interest to release him. This standard is virtually impossible to meet. However, Petitioner could well have been released if the standard were the one applicable to deportable aliens. That is why the unlawful exclusion proceedings should be terminated and Petitioner should be released from custody.

D.   RESPONDENT’S DENIAL OF BOND WAS AN ABUSE OF DISCRETION BECAUSE HE LACKS A FACIALLY LEGITIMATE BONA FIDE REASON TO REFUSE TO RELEASE PETITIONER

E.   PETITIONER SHOULD BE RELEASED BECAUSE HIS DETENTION AND PROSECUTION BY RESPONDENT ARE A RESULT OF ONGOING CONSPIRACY TO COMMIT ILLEGAL EXTRADITION

The Respondent’s statement is unequivocal on the fact that the arrest was carried on by the INS for other government agency, namely, Russian Military Procuracy, as an assistance in apprehension of “criminal nationals”. However,

Immigration officers may not arrest persons for other government agencies. U.S. ex. rel. Martinez-Angosto v. Mason, C.A. N.Y. 1965, 344 F 2d 673.

The Navy and Immigration and Naturalization Service agents and investigators who furnished all assistance for pursuit, arrest and detention of alleged deserter from Spanish war ship were not “competent national or local authorities” for performing such acts not for making determinations of law and facts upon which detention was predicated. Id.

Even after this Court strongly expressed its opinion that arrest for the purpose to deliver Petitioner to his persecutors in Russia was not permissible or tolerable, Respondent refused to state that he was not going to deport Petitioner to Russia.

Petitioner respectfully requests the Court to terminate the unlawful detention and the malicious prosecution and not allow Respondent to turn the INS into an arresting accessory of the KGB successors.

When the initial false charges (“overstay”) against Petitioner had been rebutted, and after the Petitioner’s counsel stated to the Immigration Court that Respondent was maliciously prosecuting Petitioner, Respondent submitted to the Immigration Court the documentary evidence which was intended to certify that the malicious abuse of legal process had been requested by certain officers of the Department of Justice. The documents, submitted by Respondent, and the testimony of the INS representatives clearly prove that the immigration prosecution of Petitioner resulted solely from the demands of the Russian prosecutors to deliver Petitioner to Russia for the military criminal prosecution, and that these demands were endorsed by certain officers of the Department of Justice, who asked the INS to deliver Petitioner to Russia.

“On several occasions this matter has been raised as one of the most important cases referred to the FBI. Recently, the Acting Prosecutor General Oleg Gaidanov (also recently fired) raised this issue and evidenced displeasure at the lack of progress. Additionally, when legat Moscow requests assistance from the Procurate, i.e. Ivankov case, this matter is brought up as an example of bureaucratic and legal obstacles the Russian and American sides encounter in fulfilling requests. The General Procurate is still treating the liaison process on a quid pro quo basis”. (Emphasis added). See Exhibit 5 at 2.

“In the absence of an extradition law, are there any immigration violations outstanding allowing immigration authorities to deport Konanykhine to Russia to stand trial for the aforementioned embezzlement?” (Emphasis added). See Exhibit 5 at 3.

However, the “deportation to Russia to stand trial” constitutes an extradition:

“the surrender by one state or country to another of an individual accused or convicted of an offense outside its own territory and within the territorial jurisdiction of the other, which being competent to try and punish him, demands the surrender.” U.S. Constitution, Art. IV § 2; 18 U.S.C.A. § 3181.

“the employment of process where probable cause exists, but where the intent is to secure object other than those intended by law”. Hughes v. Swinehart, D.C. Pa., 376 F.Supp. 650, 652.

It means that even if Respondent did not fabricate false charges against Petitioner, even if probable cause existed, the exclusion proceedings where the intent is to secure extradition (deportation to Russia to stand trial), i.e. other than those intended by immigration law would still be malicious abuse of legal process.

Since the illegal extradition of Petitioner was a quid pro quo payment for services provided by the Russian government, when the INS investigation failed to reveal “any immigration violations outstanding”, Respondent had to proceed with the arrest on false, fabricated charges and in violation of law.

Additionally, Respondent submitted to the Immigration Court documentary evidence that the malicious abuse of legal process was also suggested by Daniel Seikaly, Assistant United States Attorney (“AUSA”), who wrote:

“In the absence of an extradition treaty between the United States and the Russian Federation, United States law enforcement officials do not have authority to arrest and extradite Konanykhin as requested by the Russian Prosecutor. Nevertheless, United States authorities may investigate Konanykhin to determine whether he is in violation of any U.S. immigration laws and, if so, we may attempt to expel or deport him from the United States to Russia. In such a case we would, of course, notify the Russian Prosecutor and take whatever steps were available under United States law to assist in making Konanykhin available to the Russian authorities.” (Emphasis added). See Letter of Daniel S. Seikaly, Assistant United States Attorney (Exhibit 6) at 3 .

2.   Petitioner sought nothing more than to cross-examine Volevodz as he is Petitioner’s principal accuser and the supplier of most of the evidence presented against him. Statutory, regulatory, and case law provide a right to cross-examination so that immigration hearings are fundamentally fair. The INA requires an opportunity to cross-examine witnesses in both exclusion and deportation proceedings. INA § 236.2(a), 8 U.S.C. § 1226(a); INA § 242(a), 8 U.S.C. § 1252(a); INA § 242(b)(3), 8 U.S.C. § 1252(b)(3). Regulations 8 C.F.R. §§ 236.2(a) and 242.16(a) regarding the advisals to be given by an Immigration Judge to the Applicant/Respondent read that:

It is well settled that immigration regulations which an immigration agency promulgates have the force and effect of law and are binding on the agency. Bridges v. Wixon, 326 U.S. 135, 153 (1945); Bilokumsky v. Tod, 263 U.S. 149, 155 (1923); Matter of A-, 3 I&N Dec. 714 (BIA 1949); cf. Vitarelli v. Seaton, 359 U.S. 535 (1959); Service v. Dulles, 354 U.S. 363 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Matter of Santos, 19 I&N Dec. 105 (BIA 1984); Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980). Nevertheless, Respondent denied Petitioner his right to cross-examine Volevodz.

3.   The right to cross-examination was analyzed by the Board in Matter of M---, 6 I&N Dec. 300 (BIA 1954). In that case, as in Petitioner’s immigration case, timely objections were made to the admission of evidence without an opportunity for cross-examination. Transcript of Immigration Hearing at 173, 420, & 422-23. The Board ruled:

The Board has also held that the use of documents from persons who are not available for cross-examination does not satisfy the constitutional test of fundamental fairness “unless the INS first establishes that despite reasonable efforts it was unable to secure the presence of the witness at the hearing.” Hernandez-Garza v. INS, 882 F.2d 945, 948 (5th Cir. 1989), citing, Martin-Mendoza v. INS, 499 F.2d 918 (9th Cir. 1974) and In re De Vera, 16 I&N Dec. 266 (BIA 1977). Similarly, in Hernandez-Garza v. INS, the court ruled: "[a]n alien is entitled to a reasonable opportunity to cross-examine government witnesses...particularly with regard to the witnesses' credibility." Hernandez-Garza at 948. By refusing Petitioner’s requests to examine Volevodz, Respondent deprive Petitioner a right which is central to a fair hearing.

4.   The United States Court of Appeals for the Fourth Circuit, in United States of America v. Herbert L. Caudle, Jr. United States of America v. Russell Jack Hawke, Jr., 606 F.2d 451 (4th Cir. 1979), describes the right to cross-examine witnesses as extremely important:

5.   In reviewing the right to cross-examination, the circuit courts agree that "the statutory purposes behind these provisions would be frustrated “'if the government's choice whether to produce a witness or to use a hearsay statement [were] wholly unfettered.'" Cunanan v. INS, 856 F.2d 1373, 1375 (9th Cir. 1988). For this reason, "the government must make a reasonable effort in INS proceedings to afford the alien a reasonable opportunity to confront the witnesses against him or her." Id., citing, Baliza v. INS , 709 F.2d 1231, 1234 (9th Cir. 1983); Bachelier v. INS, 625 F.2d 902, 904 (9th Cir. 1980). No such effort was made in this case by Respondent.

6.   In Cunanan, the Board was held to have abused its discretion because hearsay statements were admitted without providing the alien the opportunity to cross-examine the affiant. The court held that this reliance was fundamentally unfair and rendered the discretionary denial of relief an abuse of discretion. Similarly, in Petitioner’s immigration case, timely objections were made to the introduction of evidence provided by Volevodz. Transcript of Immigration Hearing at 173, 420, & 422-23. These objections were again made with the Court in [Petitioner’s] Memorandum On The Admissibility, And Appropriate Weights To Be Accorded Government’s Exhibits. See Exhibit 39.

7.   Thus, by intentionally denying Petitioner possibility to examine Lt. Colonel Volevodz Respondent deprived Petitioner of a fair trial and in this way obtained deportation order and prolonged detention of Petitioner, which Petitioner respectfully requests the Court to terminate.

G.   UNLAWFUL ARRESTS AND DETENTION PREJUDICED PETITIONER

Petitioner was unlawfully held in custody for months. Not only was Petitioner prejudiced by being unlawfully incarcerated, but this also deprived him of the ability to personally sort through computer records and documents to find evidence to support his case. He was further prejudiced because his exclusion proceedings were held in an expedited fashion due to his unlawful incarceration. In fact Petitioner was deprived of fair trial and of meaningful access to the courts by unlawful actions of Respondent.

H.   CRUEL AND UNUSUAL PUNISHMENT

Cruel and unusual punishment:

“As prohibited by Eighth Amendment, is such punishment as would amount to torture or barbarity, and any cruel and degrading punishment not known to the common law, and also any punishment so disproportionate to the offense as to shock the moral sense of the community”. In re Kemmler, 136 U.S. 436, 10 S.Ct. 930, 34 L.Ed. 519.

“Such punishment cannot be defined with specificity; it is flexible and tends to broaden as society tends to pay more regard to human decency and dignity and becomes, or likes to think that it becomes, more humane.” Holt v. Sarver, S.C.Ark., 309 F.Supp. 362, 365, 380.

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.

Cruel and unusual punishment is unconstitutional under Eighth Amendment of the Constitution of the United States.

I.   THE DETENTION AND PROSECUTION OF PETITIONER SHOULD BE TERMINATED UNDER 5 U.S.C. § 706

The detention and prosecution of Petitioner should be terminated under 5 U.S.C. § 706 as:

1. Arbitrary, capricious and abuse of discretion and otherwise not in accordance with law. 5 U.S.C. § 706(A);

2. Unconstitutional. 5 U.S.C. § 706(B);

3. In excess of statutory jurisdiction, authority and limitations. 5 U.S.C. § 706(C);

4. Without observance of procedure required by law. 5 U.S.C. § 706(D);

5. Unsupported by substantial evidence. 5 U.S.C. § 706(E);

6. Unwarranted by the facts. 5 U.S.C. § 706(F).