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Motion for Release, Preliminary Injunction and Expedited Briefing
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Filed May 14, 2002
MAZEN AL NAJJAR,
Petitioner,
vs.
JOHN ASHCROFT, Attorney General, United States Department of Justice; JAMES ZIGLAR, Commissioner, Immigration and Naturalization Service; ROBERT WALLIS, District Director, Miami District of the INS; and DONALD McKELVY, Warden, Federal Correctional Complex Coleman, Coleman, Florida,
Respondents.
____________________________________/
Emergency Motion for Release and Preliminary Injunction and Request for Expedited Briefing and Oral Argument
Petitioner Mazen Al Najjar hereby moves for his immediate release from detention, and a preliminary injunction barring Respondents from detaining him absent new evidence establishing that he violates reasonable conditions imposed upon his release. In light of the clearly ultra vires nature of Al Najjar's detention beyond May 14, 2002, and the irreparable harm that he will suffer each day that he remains in unlawful detention, Petitioner respectfully requests that this Court issue an expedited briefing and oral argument schedule.
Dr. Al Najjar has been subject to a final and executable order of deportation since November 13, 2001. The INS re-arrested Al Najjar on November 24, 2001. It did so on the basis of an immigration statute ? 8 U.S.C. ?1252(c) (1995) ? that authorizes the INS to detain aliens for a maximum period of six months after the final order of deportation becomes executable. As previously noted by this Court, as of May 14, that six month period has expired. Al Najjar v. Ashcroft, 186 F.Supp.2d 1235, 1242 (S.D. Fla. 2002) ("Petitioner's deportation order became final on November 13, 2001; thus, his detention is presumed lawful until May 14, 2002."). Despite the expiration of this period, respondents continue to detain Al Najjar in violation of the INA.
In addition, there is no significant likelihood that Dr. Al Najjar will be deported in the reasonably foreseeable future, and he poses no danger to the community or risk of flight. Hence, continued detention of Al Najjar violates the Due Process Clause of the Fifth Amendment to the United States Constitution.
The grounds for his emergency motion are set forth in detail in the accompanying Memorandum of Law, and are further supported by the Petition for Habeas Corpus and Complaint for Injunctive and Declaratory Relief.
Petitioner seeks emergency relief because every day that he is unlawfully detained imposes further irreparable harm. He therefore requests that the Court set an expedited briefing schedule and hearing in the above matter.
Respectfully Submitted,
David Cole, Esq.
Georgetown University Law Center
600 New Jersey Avenue NW
Washington, DC 20001
(202) 662-9078
(202) 662-9408 (fax)
Randall C. Marshall, Esq.
Florida Bar No. 181765
American Civil Liberties Union
Foundation of Florida, Inc.
4500 Biscayne Boulevard, Suite 340
Miami, FL 33137
(305) 576-2337
(305) 576-1106 (fax)
Joseph C. Hohenstein, Esq.
Nationalities Service Center
1300 Spruce Street
Philadelphia, PA 19107
(215) 893-8400
(215) 735-9718 (fax)
Nancy Chang, Esq.
Center for Constitutional Rights
666 Broadway ? 7th Floor
New York, NY 10012
(212) 614-6420
(212) 614-6499 (fax)
Ira J. Kurzban, Esq.
Florida Bar No. 225517
Kurzban Kurzban Weinger & Tetzell
2650 SW 27 Avenue
Miami, FL 33133-3003
(305) 444-0060
(305) 444-3503 (fax)
Martin B. Schwartz, Esq.
Florida Bar No. 880371
Law Office of Martin B. Schwartz
Premier North Executive Building
3816 West Linebaugh Avenue, Suite 401
Tampa, FL 33624
(813) 269-7421
(813) 269-7562 (fax)
Certificate of Conference Re: Service of Process
I certify that on this 14th day of May, 2002, I conferred by telephone with Douglas E. Ginsburg, Esq., who agreed to accept service for each of the named defendants.
Randall C. Marshall
Certificate of Service
I certify that a true and accurate copy of the forgoing document has been furnished by overnight delivery, this 14th day of May, 2002, to the following counsel:
Robert D. McCallum, Jr., Esq.
Michael P. Lindemann, Esq.
Douglas E. Ginsburg, Esq.
U.S. Department of Justice
Office of Immigration Litigation, Civil Division
1331 Pennsylvania Avenue NW
Washington, DC 20530
I further certify that a true and accurate copy of the forgoing document has been furnished by hand delivery, this 14th day of May, 2002, to the following counsel:
Guy Lewis, Esq.
Dexter Lee, Esq.
U.S. Attorney's Office
99 NE 4th Street
Miami, FL 33132
______________________________
Randall C. Marshall
