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					                  UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF NEW YORK

--------------------------------------------X

Yanhong Isenberg, a.k.a. Yanhong HU
75 711 795

                          Plaintiff,
        -against-

Alberto Gonzales,
United States Attorney General,

Michael Chertoff,
Secretary, Department of Homeland Security,

Michael J. Garcia,
Assistant Secretary of the Bureau of
Immigration And Customs Enforcement,

Eduardo Aguirre, Jr., Director
U.S. Citizenship and Immigration Services

Mary Ann Gantner
Director, New York City
Bureau of Citizenship and Immigration Services,

Jack Barnes,
Assistant District Director,
Adjudications, New York District,
Bureau of Citizenship and Immigration Services,

                           Defendants.
--------------------------------------------X



             COMPLAINT FOR MANDAMUS AND DECLARATORY JUDGMENT


        1.       Plaintiff , Yanhong Isenberg hereby requests this Court to declare that she is eligible
to file for adjustment of status based on her marriage to U.S. citizen Ralph Isenberg, that she is

eligible to file for political asylum based on fear of forced sterilization in the People‟s Republic of

China.

                                          JURISDICTION

         2.    Jurisdiction is proper in this Court pursuant to 28 USC § 1331 (federal question

jurisdiction); the Administrative Procedure Act, 5 USC § 701 et seq.; Fed. R. Civ. P. 81 et seq., and

declaratory judgment and mandamus, brought pursuant to 28 USC § 2201, 28 USC § 1361. In

addition, this Court has jurisdiction over issues of due process and questions of law. See St. Cyr v.

INS, 533 U.S. 289, 308 (2001).

                                               VENUE

         3.    Venue is proper in this court, which exercises jurisdiction in actions filed by

persons residing within the jurisdiction of this court.

                                              PARTIES

         4.    Mrs. Isenberg is a native and citizen of the People‟s Republic of China and is

married to Ralph Isenberg, a United States citizen. She is married to United States citizen Ralph

Isenberg, and they have a United States child, Niraya Isenberg. Mr. Isenberg has adopted Yayue

Isenberg, Mrs. Isenberg‟s daughter from a prior marriage.

         5.    Defendant, Alberto Gonzales, is the duly appointed, qualified, and confirmed

Attorney General of the United States, and as such is the official charged with the enforcement of

the laws of the United States.

         6.    Defendant, Michael Chertoff, is the duly appointed, qualified, and confirmed

Secretary of the Department of Homeland Security, as such is the official charged with the

enforcement of the immigration laws of the United States.
        7.     Defendant Michael J. Garcia is the duly appointed, qualified, and confirmed

Assistant Secretary of the Bureau of Immigration and Customs Enforcement, and

        8.     Defendant Eduardo Aguirre, Jr., is the Director of U.S. Citizenship and

Immigration Services (USCIS), and is an Under Secretary in the Department of Homeland

Security.

        9.     Defendant Mary Ann Gantner, is the Director of the New York District, U.S.

Citizenship and Immigration Services (USCIS), and as such is in charge of administering

adjudication of applications for adjustment of status and applications for political asylum in New

York.

        10.    Defendant Jack Barnes is the Assistant District Director, Adjudications, New York

District, Bureau of Citizenship and Immigration Services, and as such is in charge of administering

adjudication of applications for adjustment of status.



                                    FACTUAL BACKGROUND

        11.            Mr. Isenberg married Yanhong (“Nicole”) Isenberg

on March 13, 2004 in Dallas, Texas.                      The couple has been

attempting to adjust her status in the United States ever since.

 Mrs. Isenberg had then recently been released from unlawful

detention by the Bureau of Immigration and Customs Enforcement

(“ICE”) of Dallas.

        Mrs. Isenberg’s Immigration History

        12.    Mrs. Isenberg entered the United States first in

December 1999 under her maiden name, Yanhong HU, on a tourist

visa.        This visa was extended once to July 22, 2000.
    13.   Mrs. Isenberg applied for political asylum based on

forced IUD insertion, and Falun Gong participation, in June 15,

2000 in California.    Her case was referred to immigration court,

and she appeared before an immigration judge in Los Angeles in

September 2000.    In March, 2001, her California attorney appeared

again with her, and moved to change venue to Dallas.    The order

changing venue had Mrs. Isenberg’s correct Dallas address on the

order itself.

    14.         Lack of Notice and Deportation Order.   Mrs.

Isenberg retained counsel in Dallas, Mr. Jerry Goh, who filed a

letter indicating his representation with the immigration court

in Los Angeles.    Subsequently, the Dallas court incorrectly

mailed notice to the California attorney.    The California

attorney, who had himself moved to withdraw representation in

favor of Mr. Goh, failed to notify Mrs. Isenberg of the date to

appear in court.    On May 2, 2001, the Dallas court issued an

order of removal in absentia!    Mr. Goh was later misleadingly

informed by the Dallas court that the case had been “closed” and

Mrs. Isenberg did not learn of the absentia order until she was

detained on December 17, 2003.

    15.   Based on a marriage to a naturalized United States

citizen, originally from Taiwan, Mrs. Isenberg filed an

application to adjust to lawful permanent residence status with

the Dallas immigration service in February 2001.     That
application was pending until it was withdrawn on January 19,

2005.

      16.          With that application pending, Mrs. Isenberg filed

for, and was granted advance permission to leave and reenter the

United States so that she could briefly visit her ailing mother in

China.   Mrs. Isenberg was readmitted to the United States based on

the   “advance    parole”    application    on   February     2002,    thereby

executing the removal order, Matter of Palma, 14 I. & N. 486, 1973 BIA LEXIS 62

(BIA 1973).    Additionally,    she   applied    for,   and   received      work

authorization cards from the Dallas immigration authorities.

      17.          The third time she visited the Dallas immigration

office to pick-up her work authorization card, on December 17,

2003, she was unlawfully detained for 52 days, on the improper

basis of the no longer effective absentia removal order.                   In

fact, at that time she was then still a “parolee” with a still

pending adjustment of status application.

      18.     On December 19, 2003, Dallas attorney Joel Vera moved

to reopen the absentia order based on lack of notice.                 On

January 5, 2004, IJ Anthony Rogers ruled that Mrs. Isenberg had

“self-deported” which means that the order having been self-

executed, did not exist.       Acting as a prosecutor, IJ Rogers’s

order improperly suggested to the Assistant Chief Counsel that

they have the option to put her again into new removal

proceedings, which that office promptly did by filing a new

Notice to Appear on January 7, 2004.
    19.    The new Notice to Appear charged Mrs. Isenberg, inter

alia, with coming to the United States to “engage in prostitution

or having engaged in prostitution within the past ten years” and

charging (wholly incorrectly) that she had been convicted of

prostitution on December 3, 2001 in Dallas.

    20.    Former counsel Mr. Joseph Reina, who had not ever once

spoken to Mrs. Isenberg, and who advertized himself as a personal

friend and former college roommate of Paul Hunker, the District

Counsel of Dallas, conceded the prostitution charge.   He was

immediately discharged by the Isenbergs for that misconduct.

    22.    The conditions of Mrs. Isenberg’s detention were

deplorable, with lack of medical and dental care, inappropriate

medication for Mrs. Isenberg’s non-functioning gall-bladder, lack

of privacy between male and female detainees, lewd and lascivious

conduct of male detainees in the presence of Mrs. Isenberg, and a

period of interrogation over an approximately ten-hour period

(from the afternoon and continuing after mid-night) concerning

“contraband” (a rubber band), and general sleep deprivation.     She

was strip-searched in front of a male guard (and strip-searched

twice with only a female present).   She was kept mixed with a

population of criminal inmates.

    23.    Coerced by the intolerable conditions of the unlawful

detention, Mrs. Isenberg agreed to “withdraw her application for

admission” to the United States, and released on bond for

$50,000.   The time for Mrs. Isenberg to leave was extended three
times for medical reasons, finally to August 15, 2005, due to her

pregnancy and birth of daughter Niraya, who was born July 1,

2005.

       24.             Insensed by the prison conditions his wife and

other immigration detainees were kept in, Mr. Isenberg undertook

a course of investigation and reporting about conditions in the

Rolling Plains Regional Detention Center, which resulted in TV and press

coverage.        Mr. Isenberg believes that it is his investigation

which is the cause of his wife not being allowed to adjust status

in Dallas.



       Rejection of Attempted Filing of Green Card Application in Dallas, July 9, 2004

       25.     In May, 2004, Dallas Bureau of Citizenship and Immigration Services (BCIS)

initiated the “DORA” (Dallas Office Rapid Adjustment) program, whereby adjustment applicants

could bring an application for adjustment of status to Dallas BCIS and receive an adjudication the

same day (or if not approved, then referred to the normal „slow track‟). Attorney Joel Vera advised

the couple that they were eligible for adjustment, and on July 9, 2004, Mr. Isenberg attempted to file

a Petition for Alien Relative (form I-130) and Mrs. Isenberg attempted to simultaneously file an

Application for Adjustment of Status (I-485). The Dallas Dallas Chief Adjudcator for the “DORA”

program personally threatened Mr. Isenberg and his wife that if he “filed one more form” he would

personally make sure Mrs. Isenberg be immediately detained, and deported to China the next day.

Aliens seeking admission through adjustment of status are entitled to due process, see e.g.,

American-Arab Anti-Discrimination Committee v. Reno, 70 F3d 1045, 1067-68 (9th Cir. 1995).

       26.     Mrs. Isenberg, represented by undersigned counsel, has now filed for adjustment of
status with the Chicago Service Center, and filed for political asylum with the New York Asylum

Office. Those applications are pending.

         27.    Mr. and Mrs. Isenberg have filed a request with Mr. Hunker and the Dallas District

Director to rescind the agreement to “withdraw application for admission” based on unlawful

detention, ineffective assistance and malfeasance of prior counsel Reina, based on her lawful status

as a parolee pending adjustment of status at the time this “withdrawal” was entered into, and based

on international and domestic law obligations to protect family unity, and international and domestic

obligations to protect aliens from persecution and torture.



                                         IRREPARABLE HARM

         28.    The Bureau of Citizenship and Immigration Services and New York Asylum Office

will not process Mrs. Isenberg‟s applications without a declaration of this court of her eligibility to

do so.

         29.    As the Second Circuit explained in Zhao v. INS, 265 F.3d 83, 92 (2001):

         China has repeatedly cracked down on those who resist forced sterilization. It
         treats them as political and ideological criminals, and as enemies of the state. On
         that rationale, the PRC has inflicted harsh punishment on refugees who are
         returned, such as beatings and being sent to forced labor camps, and being
         sentenced to prison.


         30.    Plaintiff faces arrest, detention, torture on account of her violation of China‟s one-

child family planning policy. See e.g., Chang v. INS, 119 F.3d 1055, 1067 (3d. Cir. 1997) (“Chinese

law provides that violations of exit laws alone can result in a year of punishment, and those who

express political opposition to the Chinese government may face imprisonment and torture.”), and

irreparable harm to her six-week old baby if she is detained or removed from this country without an
opportunity to proceed with her applications.

       WHEREFORE, YOUR PLAINTIFF PRAYS THIS HONORABLE COURT:

I      That the Court enter an order declaring the Mrs. Isenberg is

eligible to file applications for adjustment of status and for

political asylum;

II     That the Court enter an order declaring that the respondents

have no basis to detain Mrs. Isenberg or to put her into removal

proceedings pending the adjudications of her applications;

III    That the Court enter an order staying any removal of Mrs.

       Isenberg by respondent;

IV     That the Court grant any other and further relief may be fit

       and proper.

Dated:               New York, New York
               August 16, 2005

                                                _________________________________
                                                THEODORE N. COX, ESQ.
                                                Attorney for Petitioner
                                                401 Broadway, Suite 1802
                                                New York, NY 10013
                                                (212) 925-1208
                                 AFFIRMATION OF SERVICE

      THEODORE N. COX, an attorney duly admitted before the bar of the courts of the State
of New York, hereby affirms under penalties of perjury:

       On April 22, 2011, I served the within Petition for Habeas

Corpus, by hand upon:

U.S. Attorney‟s Office, Eastern District
1 Pierrepont Plaza,
Brooklyn, NY, 11201

and by first-class mail upon:

Alberto Gonzales
Attorney General of the United States
10th St. & Constitution Avenue, NW
Washington, D.C. 20530

Michael Chertoff,
Secretary, Department of Homeland Security
Washington, D.C. 20528

Michael J. Garcia,
Assistant Secretary of the Bureau of
Immigration And Customs Enforcement,
425 I St. NW, Rm. 3260
Washington, D.C. 20536

Eduardo Aguirre, Jr., Director
U.S. Citizenship and Immigration Services
425 I St. NW,
Washington, D.C. 20536

Mary Ann Gantner
Director, New York City
Bureau of Citizenship and Immigration Services,
26 Federal Plaza
New York, NY 10278

and



                                             10
Jack Barnes,
Assistant District Director, Adjudications, New York District,
Bureau of Citizenship and Immigration Services,
26 Federal Plaza
New York, NY 10278



                                             __________________________
                                             Theodore N. Cox
                                             Attorney for Plaintiff
                                             401 Broadway, Suite 701
                                             New York, New York 10003




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