MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

A. PETITIONER IS ENTITILED TO PROCEDURAL DUE PROCESS B. RESPONDENT IMPROPERLY PLACED PETITIONER IN EXCLUSION PROCEEDINGS AND CONSEQUENTLY IN DETENTION C. UNLAWFUL PLACEMENT IN EXCLUSION PROCEEDINGS VIOLATED SUBSTANTIAL RIGHTS OF PETITIONER 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 F. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY DENIAL OF PETITIONER’S RIGHT TO CROSS-EXAMINE THE KEY WITNESS G. UNLAWFUL ARRESTS AND DETENTION PREJUDICED PETITIONER H. CRUEL AND UNUSUAL PUNISHMENT I. THE DETENTION AND PROSECUTION OF PETITIONER SHOULD BE TERMINATED UNDER 5 U.S.C. § 706 CONCLUSION UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRE P. KONANYKHINE Clarke-Frederick-Winchester Regional Adult Detention Center 141 Fort Collier Rd. Winchester, VA 22603 pro se, detained, indigent Petitioner v. WILLIAM J. CARROLL

Immigration and Naturalization Service District Director, Washington District Office 4420 N. Fairfax Drive, Room 510, Arlington, VA 22203 Respondent. MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS 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 Due process is: An orderly proceeding wherein a person is served with notice, actual or constructive, and has an opportunity of be heard and to enforce and protect his rights before a court having power to hear and determine the case. Kazubowski v. Kazubowski, 45 Ill. 2d 405, 259 N.E.2d 282, 290. Phrase means that no person shall be deprived of life, liberty, property or of any right granted him be statute, unless matter involved first shall have been adjudicated against him upon trial conducted according to established rules regulating judicial proceedings, and it forbids condemnation without a hearing. Pettit v. Penn, La.App., 180 So.2d 66, 69. The law is clear on that Petitioner is entitled to due process of law provided by the Constitution of the United States: This [Fifth] amendment as well as Amend. 14 protects aliens from deprivation of life, liberty or property without due process of law. Mathews v. Diaz, Fla.1976, 96 S.Ct. 1883, 426 U.S. 67, 48 L.Ed.2d 478. Amend. 1 and the due process clause of Amend. 14 and this [Fifth] amendment extend their inalienable privileges to all persons, whether citizens or resident aliens, against any encroachment on those rights by federal or state authority. Kwong Hai Chew v. Colding, N.Y.1953, 73 S.Ct. 472, 344 U.S. 590, 97 L.Ed. 576. In areas which are under jurisdiction of the United States and to which this [Fifth] amendment is applicable, alien is

entitled to its protection to same extent as a citizen. U.S. v. Husband R. (Roach), C.A. Canal Zone 1971, 453 F2d 1054, certiorari denied 92 S.Ct. 1785, 406 U.S. 935, 32 L.Ed.2d 136. See also, De Malherbe v. International Union of Elevator Constructors, D.C.Cal.1977, 438 F.Supp. 1121; Holt v. Klosters Rederi A/S, D.C. Mich.1973, 355 F.Supp. 354. Policies pertaining to entry of aliens and their right to remain here are peculiarly concerned with political conduct of government, and in enforcement of those policies, executive branch of government must respect procedural safeguards of due process. Galvan v. Press, Cal.1954, 74 S.Ct. 737, 347 U.S. 522, 98 L.Ed. 911, rehearing denied 75 S.Ct. 17, 348 U.S. 852, 99 L.Ed. 671. Rights conferred by this [Fifth] amendment are not limited to citizens of the United States but extend to all persons within the borders. Diaz v. Haig, D.C. Wyo 1981, 594, F.Supp. 1. In absence of legitimate, countervailing state concerns, even illegal aliens are entitled to guarantees of Fifth and Fourteenth Amendments. Lynch v. Cannatella, C.A. 5(La.) 1987, 810 F.2d 1363, on remand 122 F.R.D. 195. The rights to due process of law for an alien who, as Petitioner, would be subject to physical persecution in his native country are also confirmed by the following decision: Under 8 U.S.C.A. § 1253, leaving to Attorney General whether to stay deportation because alien would be subject to physical persecution in native country, alien has right to have application considered in conformity with regulations and to procedural due process, and his application may not be denied arbitrarily or capriciously. Blazina v. Bouchard, C.A.N.J.1961, 286 F.2d 507, certiorari denied 81 S.Ct. 1904, 366 U.S. 950, 6 L.Ed.2d 1242. 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

1. In Joshi v. District Director, 720 F.2d 799 (4th Cir. 1983), Mr. Joshi was an adjustment of status applicant who received an advance parole and was placed in exclusion proceedings. The United States Court of Appeals for the Fourth Circuit (the Circuit within which the instant case arises) ordered that exclusion proceedings were not proper and held that Mr. Joshi was entitled to the benefits of deportation proceedings. “In sum, we conclude that an alien who seeks permission to travel and return to the United States pursuant to 8 C.F.R. § 245.2(a)(3) should be given the same consideration afforded similarly situated aliens who are favorably readmitted to the country after leaving without permission. In both instances, their applications for status adjustment should be adjudicated without regard to departure and absence. We therefore hold that when Joshi returned from his business trip and was readmitted to the United States after inspection, his application should have been adjudicated in deportation proceedings. This conclusion is consistent with 8 C.F.R. § 245.2(a)(3) which deals with the departure and return of aliens seeking an adjustment of status. It is consistent also with the principles that undergird the Supreme Court’s decision in Rosenberg v. Fleuti, 374 U.S. 449, 10 L. Ed. 2d 1000, 83 S. Ct. 1804 (1983)”. 2. Identically, Petitioner is an adjustment applicant who received an advance parole and was placed in exclusion proceedings. Petitioner respectfully submits that he, too, is entitled to the deportation proceedings and that he was improperly placed in exclusion proceedings by Respondent. 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”. 9. 8 C.F.R. § 245.2(a)(4)(ii) applies only to arriving aliens, not to aliens who have been admitted into the United States. It is evident from the fact that § 245.2(a)(4)(ii) subjects aliens not to exclusion proceedings, but to "the exclusion provisions of section 236 of the Act", which section is designed for "arriving aliens who have been detained for further inquiry under section 235 ["Inspection by Immigration Officers"]", i.e. at arrival to the United States by an immigration officer. INA 236(a). 8 C.F.R. § 245.2(a)(4)(ii) would be unreasonable, arbitrary and capricious if extended on aliens whose adjustment of status application was denied after they legally entered the United States using advance parole. 10. Literally, the warning on the face of the advance parole document means that an alien granted advance parole would be subject to exclusion proceedings regardless of whether he/she used this document for entry or not. The warning does not read, “…if you leave the country and re-enter using this parole.” It reads, “If your application for adjustment of status is denied, you will be subject to exclusion proceedings.” However, Respondent stated that: “If [Petitioner] wished to preserve any right to a deportation hearing, he had the choice of not departing the United States.” Service Response to Applicant’s Immediate Bond Hearing at 4. Thus, Respondent is well aware that the clause is not applicable to the aliens within the United States but solely to the aliens coming to the border after their applications had been denied. 11. Petitioner had no warning that he might be placed in exclusion proceedings in violation of the Immigration and Nationality Act and the common law after being lawfully admitted into the United States.

12. Respondent in his Supplemental Memorandum in Opposition to the Petition for Writ of Habeas Corpus asserts that Fleuti analysis was made in regard of aliens in permanent resident status and is “not applicable in contect of an alien returning with advance parole.” INS Supplemental Memorandum in Opposition to the Petition for Writ of Habeas Corpus. The Respondent’s argument is misplaced. Petitioner was not “returning”, he had returned and was adjusting his status to that of permanent resident according to the I-140 Priority Worker Petition, approved by the INS in 1994. Further, the deportation proceedings are not designed for removing from the country exclusively “aliens in lawful permanent resident status.” In fact, even aliens, who unlawfully obtained admission into the United States, are subject to deportation proceedings. Clearly, Petitioner, who had resided and worked in the United States since 1992, who had been found by the INS eligible to the lawful permanent residence status in May 1994, and who was awaiting the adjustment to that status is much closer to the aliens in permanent residence status, than to illegal immigrants, and may not be denied the deportation proceedings. 13. Respondent in his Supplemental Memorandum in Opposition to the Petition for Writ of Habeas Corpus claims that “Petitioner’s previous nonimmigrant stay in the United States was obtained through fraud perpetrated by the Petitioner.” The abundant evidence proves that Respondent willfully and knowingly fabricated the fraud charges against Petitioner by request of the Russian Military. Even if Respondent had any bona fide reasons to suspect fraud, denied by Petitioner, than it would be the subject of deportation proceedings to establish if the allegations were true of false. 14. Contrary to the Respondent’s claims that Petitioner was not admitted (this unsupported claim of Respondent contradicts even the plain and clear definition of the word. “Admit - allow to enter”. Webster Dictionary) and “was still knocking at the door of the United States,” Petitioner had entered the United States after inspection and authorization by an immigration officer in accordance with the multiple entry re-admittance permission granted by Respondent, and had the status of the alien, lawfully admitted into the United States and adjusting his status from that of priority worker to that of lawful permanent resident. 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 proceedings has no adequate ground neither in logic Petitioner respectfully requests the Court to issue the terminating unlawful exclusion proceeding initiated Petitioner, and unlawful detention of Petitioner. should be in exclusion not in law. Therefore, Writ of Habeas Corpus by Respondent against

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: While a Petitioner in exclusion proceedings is not afforded the opportunity under statute and regulation to have the immigration judge redetermine his custody status after the INS District Director makes an initial determination, he does have the opportunity for a federal district court to review the determination. Petitioner has not been precluded from having the District Director’s determination reviewed and indeed he has now exercised his right to do so. INS Supplemental Memorandum in Opposition to the Petition for Writ of Habeas Corpus at 15. 2. This misrepresentation by Respondent caused the Court to believe that: “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 This Court has jurisdiction to review the decision of Respondent to deny parole and release on bond in the context of a petition for habeas corpus. Bertrand v. Sava, 684 F.2d 204, 210, 211 (2d Cir. 1982). Respondent’s refusal to release Petitioner pending the de novo review of his case by the Board of Immigration Appeals is an abuse of discretion because Respondent lacks a facially legitimate bona fide reason to support his decision. Respondent initially caused the arrest and detention of Petitioner on June 27, 1996, and re-arrested him on August 16, 1996. He subsequently denied Petitioner any bond. The Immigration Judge assigned to the proceedings has ruled that he lacks jurisdiction to set a bond for Petitioner. Respondent subsequently offered to release Petitioner on a $5,000 cash bond and Petitioner agreed on such bond through his counsel, but within an hour of making that agreement Respondent reneged on it claiming that he had learned that Petitioner was a fugitive. Later Respondent claimed that Petitioner was a "risk of absconding". In fact, Respondent knew that to be false. Petitioner has never been charged or convicted of any crime. Petitioner has sought to challenge the authority of the Russian military prosecutor Lt. Colonel Volevodz to initiate charges against him on the ground that, as a military prosecutor, Lt. Colonel Volevodz lacks jurisdiction over Petitioner, who is a civilian. See Federal Act on Prosecutor Office of Russian Federation, Art. 46, Item 4 ("The bodies of Military Procurator Office exercise their powers over Armed Forces of Russian Federation, other troops and military units, constituted under the Federal Law.") (Exhibit 23). Petitioner’s claims have been rejected by Russian authorities based on the fact that no charges are pending against him. The Main Military Procuracy of the Russian Federation advised Petitioner’s counsel as follows: According to the Criminal Code of Practice of Russian Federation, Article 47, the counsel for the defense is allowed to access the trial after lawful charge has been stated, or, in the case where the person was wither taken into custody as offense suspect, or imprisonment has been elected for him/her as suppression measure, after wither the warrant of his/her arrest or a legal degree providing such a

suppression measure to him/her had been presented before him/her, but not since the moment (as you wrongly affirmed) when the decree is issued to instigate the legal action against he person. …. Since up to now Mr. A.P. Konanykhine has been neither indicted not taken into custody as offense suspect or imprisoned, so soliciting in his defense goes beyond the scope of your powers, as set up by the Criminal Code of Practice of Russian Federation, Article 51. See Letter from the Main Military Procuracy of the Russian Federation to T.A. Borodina, counsel for Petitioner, dated November 28, 1995 (Exhibit 13). Moreover, in Marczak v. Greene, 971 F.2d 521 (10th Cir. 1992), even though the District Director listed risk of flight as his reason, the court found his analysis lacking because he failed to articulate the evidence supporting his decision. Thus, even if "risk of flight" were the real reason of the District Director’s decision, it would be insufficient because the District Director failed to support this allegation. For this reason, this Court should grant Petitioner’s Habeas Corpus Petition and order Petitioner’s release on his own recognizance or on reasonable bond sufficient to ensure his continued attendance at required immigration hearings. 1. Standard of review for denial of parole and release on bond. Like any federal agency, the INS is limited by the Administrative Procedure Act. Moret v. Karn, 746 F.2d 989, 991 (3rd Cir. 1984). Thus, this Court may set aside Respondent’s actions if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Id. (quoting 5 U.S.C. § 706(2)(A)). In order to determine whether the District Director has abused his discretion to grant parole and release Petitioner, this Court must determine whether the District Director has "articulated some individualized facially legitimate and bona fide reason for denying parole, and some factual basis for that decision." Marczak v. Greene, 971 F.2d 510, 518 (10th Cir. 1992) (emphasis omitted). Thus the determination is a three part test. First, the District Director’s reasons for denying parole must be facially legitimate. Id. In other words, the District Director cannot act for an inappropriate reason. Second, the proffered reason for action must be the bona fide reason for acting. Id. That means that the District Director must be acting in good faith. Li v. Greene, 767 F.Supp. 1087, 1090 (D. Colo. 1991), aff’d, 1992 U.S. App. LEXIS 22373. Finally, the court must examine the decision to ensure that a sufficient factual record supports it. Marczak, 971 F.2d at 518. INS regulations provide guidelines for the exercise of discretion by the District

Director. 8 C.F.R. § 212.5 (1995). These guidelines provide the only facially legitimate reasons for determining which aliens should get parole. Li, 767 F.Supp. at 1901. The District Director should parole Petitioner unless is his opinion the public interest requires continued detention. 8 C.F.R. § 212.5(a)(2) (1995). Courts have confirmed that this regulation means "that the district director should grant parole unless continued detention serves the public interest." Li, 767 F.Supp. at 1090. "Accordingly, a denial of parole should be based on an affirmative determination that the public interest warrants continued detention." Id. Respondent has never demonstrated that the public interest warrants continued detention of Petitioner. As demonstrated below, Petitioner does not present any security risk. Further, there is no evidence that Petitioner presents a risk of absconding, given that his goal is to lawfully remain in the United States. Appropriate measures can be imposed to ensure that Petitioner remains in the United States, it that is a legitimate concern of Respondent. Petitioner’s whereabouts can be controlled by a monitoring device. Finally, continued detention of Petitioner served no legitimate public interest. 2. Petitioner should be paroled and released on bond because the Respondent’s purported reason for refusing to do so was not his actual reason, and thus the decision was not made in good faith Respondent’s purported reason for denying Petitioner’s request for release was that he was "a risk of flight". In any event, the purported reason for denying release, even if accurate, does not support Respondent’s decision because it was not his actual reason, and, therefore, it is not a bona fide basis. On July 15, 1996, the District Director’s office offered to release Petitioner on $5,000 bond. One hour later, Respondent renounced this offer because of "documentary evidence showing that Mr. Konanykhine is a fugitive from criminal proceedings in Russia." See Letter of William J. Carroll to Michael Maggio dated July 16, 1996 (Exhibit 18). In fact, Respondent did not learn anything new during that hour regarding Petitioner relating to his alleged status of "fugitive". Respondent used "the fugitive" claim in his Press Release dated more than two weeks prior to his denial of bond. See INS Press Release and Statement of June 28, 1996 (Exhibit 12). By relying on a false rationalization in denying Petitioner’s request for release, Respondent failed to act in good faith. For this reason, this decision should be reversed. Li, 767 F.Supp. at 1091 (setting aside denial of parole because district director failed to act in good faith). In fact, Respondent’s entire proceeding against Petitioner lacks good faith. The immigration laws are being used inn order to commit illegal extradition of Petitioner to Russia in absence of the extradition treaty. Respondent has subrogated his office to that of a pawn for a KGB successor agency determined to get Petitioner on behalf of the Russian Mafia. The exchange of correspondence and demands of the Russian military prosecutor demonstrates Respondent’s true motive. Respondent seeks to

deliver Petitioner to the Russian military prosecutor because of a quid pro quo payment demand made by the said military prosecutor. Extradition is not possible in this case because there is no treaty between the United States and Russia. Had the government proceeded via extradition, Petitioner would be entitled to a hearing at which the government would have to prove that the existence of probable cause that Petitioner committed the crimes which the Russian military prosecutor alleges that he has committed. Berenguer v. Vance, 473 F.Supp. 1195, 1196 (D.D.C. 1979). By proceeding via immigration procedures, the government attempts to avoid this burden. In addition, Respondent has ignored INS procedures in order to detain Petitioner, as was determined by this Court on August 16, 1996. 3. Petitioner should be released on a $5,000 bond because, but for the illegitimate reason, Respondent had agreed to release Petitioner on such a bond When the District Director’s office originally considered Petitioner’s request to be released on July 15, 1996, they agreed that Petitioner could be released on the condition that he post a $5,000 bond. Since that time, Respondent has not learned any additional information regarding Petitioner that should properly impact Respondent’s decision. For this reason, Petitioner asks that the Court order that he be released under the terms thought reasonable by the District Director’s office prior to the improper considerations discussed above. By so ordering, this Court can return the parties to the status quo ante. It would ensure that Petitioner be the beneficiary of a fair determination of the merits of his bid to be released. 4. Even if Petitioner were lawfully detained he is entitled to be released on bond This Court has the authority to review Respondent’s refusal to set bond and to set bond itself. United States v. Shaughnessy, 212 F.2d 128, 129 (2d Cir. 1954). In deportation proceedings, "the determination to release an alien pending deportation proceedings is ‘not a discretionary form of relief’ but rather ‘an alien should be detained or required to post bond, only if he is a threat to national security or is a poor bail risk.’" O’Rourke v. Warden, Metropolitan Correction Center, 539 F.Supp. 1131, 1135 (S.D.N.Y. 1982). An alien detained pending an administrative procedure is entitled to a liberal review of his bond request. United States v. Esperdy, 279 F.Supp. 880, 881 (S.D.N.Y. 1967). Such a review presumptively favors release. Id. Respondent has not alleged that Petitioner is a threat to national security. Board of Immigration Appeals enumerated ten factors to determine whether an alien is a poor bail risk: 1) family ties in the United States, 2) employment history,

3) community roots and ties in the United States, 4) length of time in the United States, 5) availability of relief from deportation, 6) length of time for completion of deportation proceedings, 7) criminal record within or without the United States, 8) prior history of immigration violations[,] 9) manner of entry into the United States and 10) record of appearance at court proceedings. O’Rourke, 539 F.2d at 1136. These factors taken together favor releasing Petitioner. First, Petitioner has close family ties in the United States. Petitioner’s wife lives in the United States in the local area. Second, Petitioner has been employed in a position of high authority and trust at Greatis Russia and then Greatis USA for the past six years. Third, Petitioner has substantial community ties to the United States and the Washington, D.C. area in particular, including business interests that he operates from the area. Moreover, Petitioner has provided the INS with his address on each application that he filed with it. Fourth, Petitioner originally came to the United States five years ago and has resided here continuously, except for a brief period in 1995. In addition, he has applied for permanent resident status, thus demonstrating an intention to foster greater ties with this country. Fifth, Petitioner has every incentive to continue in his proceedings with the INS given his strong defenses to exclusion. Sixth, Petitioner has never been formally charged with, much less convicted of, any crime in the United States or elsewhere. Seventh, Petitioner has committed no immigration violations, and even Respondent’s allegations are limited to the allegation of Petitioner’s employer providing incorrect information about Petitioner’s employment in Russia in 1991. Eighth, Petitioner legally entered this country. Finally, Petitioner has never missed a court appearance. More importantly, his record of activity over the past three years indicates a willingness to make himself available to government inquiry and to cooperate fully with the United States government. 5. Bond should be set in the amount of $5,000 Although, given the above factors, Petitioner, who was turned into an indigent prisoner by malicious prosecution by Respondent, should be released without bond, he is willing to accept the original amount agreed to by the District Director’s office. This agreement demonstrates that release on a $5,000 bond is reasonable. That amount is sufficient to ensure his attendance at all hearings. Five thousand dollars is also the amount of Petitioner’s wife bond. E. PETITIONER SHOULD BE RELEASED BECAUSE HIS DETENTION AND PROSECUTION BY RESPONDENT ARE A RESULT OF ONGOING CONSPIRACY TO COMMIT ILLEGAL EXTRADITION The facts demonstrate that the real purpose of the malicious prosecution by Respondent is the execution of the illegal extradition of Petitioner to Russia.

Respondent himself admitted it on his news-conference on June 28, 1996, which he held upon the Petitioner’s arrest together with a representative of the Main Military Procuracy of the Russian Federation, and in his press release, distributed internationally. Respondent stated, “This case demonstrates the ability of INS to assist international law enforcement authorities in apprehension of criminal nationals.” (emphasis added). See INS Press Release and Statement dated June 28, 1996 (Exhibit 12), i.e. that the INS was just an arresting tool of Russian Military Procuracy. There is no reason not to believe the Respondent’s own statement that the INS executed the arrest of Petitioner for Russian Military Procuracy as an assistance. 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.

Respondent submitted evidence that on December 4, 1995, the US legal attaché in Moscow, FBI Special Agent diPretoro, reported to the Director of the FBI that the Prosecutor General of the Russian Federation in fact blocked the legal assistance of Russia to the USA until Konanykhine was extradited 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. The “Ivankov case” was reported by FBI Director Freeh to the Congress of the USA as one of the FBI’s most important cases. The Director stated that the case was “aided greatly by the Russian Ministry of Interior and … the FBI Legat participation was critical”. See Exhibit 43 at 7. The failure of the legal attaché could result in a disaster to his career. Quid pro quo, according to the Black’s Law Dictionary, means “The giving one valuable thing for another. It is nothing more, than the mutual consideration which passes between the parties of a contract and which renders it valid and binding.” In this case quid pro quo meant binding contract of exchanging the Konanykhines for the information and assistance, important to the legal attaché career. The FBI SA diPretoro, U.S. legal attaché in Moscow, in his testimony to the Immigration Court clearly stated the essence of his quid pro quo negotiation with the Russian Prosecutor General’s office: "[T]he procurate general’s office is saying that even though we don’t have an extradition treaty they were able to find a way to send to the United States either what you call a deportation or rendition people that are wanted by the United States and in turn, the United States should be able to find ways in the absence of an extradition treaty to return fugitives that are wanted here in Russia." Transcript of Immigration Hearing at 981, line 21 to 982, line 2. leaving no doubt that the subject of the quid pro quo deal was committing illegal extradition of Petitioner and his wife to repay similar services of corrupt Russian government.

The legal attaché goes on describing the pressure the Russian Procuracy applied on him to arrange the illegal extradition of Konanykhine, and inter alia points out that the Russians had “pre-paid” extradition of Konanykhine by extraditing six persons to the USA. Finally the legal attaché suggests: “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. Petitioner contends that this request of legal attaché and the following prosecution by Respondent constitutes clear case of malicious abuse of legal process, i.e. “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. The legal attaché justified his request of illegal extradition only by stating that “the Prosecutor General’s office again maintains that the absence of an extradition treaty should not be an obstacle [for extradition]”. See Exhibit 5 at 4. However, the request of corrupt Russian Prosecutor General to violate the U.S. laws is not sufficient to justify requested violation. 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 . It is clear suggestion to maliciously abuse legal process, i.e. “to employ the process [exclusion or deportation], where probable cause exists, but where the intent is to secure object [extradition, i.e. delivery to Russia to the persecutors] other than those intended by law [removal of an illegal alien]". Hughes v. Swinehart, D.C. Pa., 376 F.Supp. 650, 652. Obviously, Respondent, willing to please the AUSA, the legal attaché, and Lt. Colonel Volevodz, fabricated the charges against Petitioner when the INS investigation failed to reveal any violations of U.S. immigration laws by Petitioner. There is no reason not to believe Respondent, who unequivocally stated and proved by the documentary evidence that the intent of the U.S. government in placing Petitioner in exclusion proceedings was different from those intended by law, i.e. that the prosecution and detention were malicious. Therefore, Petitioner respectfully requests the Court to terminate the unlawful detention and malicious prosecution. Respondent, the legal attaché, and the AUSA sought to surrender Petitioner to the Russian government despite the absence of the extradition treaty between the USA and Russia. However, Executive is not empowered to surrender any person to a foreign government where an extradition treaty or convention does not provide for such surrender. Valentine v. U.S. ex. rel Neidecker, N.Y. 1936, 57 S.Ct. 100, 299, U.S. 5, 81 L.Ed. 5 This is especially true in regard of Petitioner, who has never committed any criminal act and is unlawfully persecuted by the military prosecutor only because the order from the Russian Mafia. However, it is true even for fugitive criminals:

The executive is without inherent power to seize a fugitive criminal and surrender him to a foreign nation. Argento V. Horn, C.A. Ohio 1957, 241 F2d 258, certiorari denied 78 S.Ct. 23, 355 U.S. 818, 2L.Ed.2d 35 rehearing denied 78 S.Ct. 145, 355 U.S. 885, 2L.Ed.2d 115 This rule is so inflexible that not only Respondent, an assistant U.S. attorney, or a legal attaché, but even "The President would not be justified in directing the surrender of a person, in order that he may be brought to trial in the country where he is supposed to have committed an offense, when there is no stipulation by treaty between the two governments for the mutual delivery of fugitives" 1831, 2 Op. Atty. Gen. 452. F. DETENTION AND DEPORTATION ORDER WERE OBTAINED BY DENIAL OF PETITIONER’S RIGHT TO CROSS-EXAMINE THE KEY WITNESS 1. The relevance and importance of Volevodz’s testimony is made clear by the record. For example, substantial evidence showed that Volevodz, as the Russian Military Prosecutor, has absolutely no authority to charge Mr. Konanykhine with criminal conduct. See Federal Act on Prosecutor Office of Russian Federation, Art. 46, Item 4 (Exhibit 23). Also Transcript of Immigration Hearing, Zinenko testimony at 353; Yasmann testimony at 635. This confirms that Mr. Konanykhine faces persecution rather than prosecution in Russia. Likewise, uncontroverted evidence by Mr. Lyndal L. Shaneyfelt, a former FBI agent, placed Volevodz’s credibility and actions at issue by revealing the unreliability of documents presented by Volevodz to the INS. See Exhibit 40. Volevodz obtained a report of the Russian Federation Ministry of Defense Central Forensic Medical Laboratory purportedly to show that Karol Miller’s signature on certain contracts were forged by Alexandre Konanykhine. Mr. Shaneyfelt’s examination revealed that, in the signatures of Karol Miller and Alexandre Konanykhine, “there appears to be more dissimilarity than similarity.” Furthermore, Mr. Shaneyfelt concluded that Volevodz’s report was internally inconsistent and that there is “no evidence of value to support” the conclusions of the report presented by Volevodz to the INS. See Exhibit 40. Additional, uncontroverted, evidence showed that Volevodz intimidated witnesses and falsified tax and birth documents. See, e.g., Exhibits 1, 41, HHH, III, JJJ, LLL, & YYY for the Immigration Hearing. Also Transcript of Immigration Hearing, Menchukov testimony at 873-74; 1041, 1044-45; 1052; & 1102-03; Konanykhine testimony at 1984. Also see Declaration of Menchukov dated March 15, 1997 (Exhibit 17). 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: he will have a reasonable opportunity to present evidence in his own behalf, to examine and object to evidence against him, and to cross-examine witnesses presented by the Government. 8 C.F.R. § 236.2(a); Cf. 8 C.F.R. § 242.16(a) (emphasis added). 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 crossexamination. Transcript of Immigration Hearing at 173, 420, & 422-23. The Board ruled: [w]here timely objection is made by an alien at a warrant hearing to the [introduction into evidence of the record], she has a right to be confronted with the witnesses for purposes of cross-examination and, where such witnesses are available and not produced, their statements are neither competent nor probative evidence to sustain a finding of deportability. Matter of M--- at 300. 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.” HernandezGarza 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: “There are few subjects, perhaps, upon which (the Supreme) Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.” Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965)... [i]t may not be an exaggeration to claim, as Wigmore does, that cross-examination “is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” United States of America v. Herbert L. Caudle , Jr. United States of America v. Russell Jack Hawke, Jr., 606 F.2d 451, 456 (4th Cir. 1979). 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 crossexamine 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). CONCLUSION Whereas the merits of the immigration case of Petitioner is not before this Court, the termination of unlawful detention and malicious prosecution are. It has been demonstrated in this Petition that grave and multiple violations of due process of law by Respondent deprived Petitioner of fair consideration of his immigration case. The witnesses were intimidated, prosecuted ad prejudiced by Respondent and his agents, libelous statements of Respondent were distributed worldwide and defamed Petitioner, the documents and the information unlawfully obtained by Respondent became important building bricks of the malicious persecution, and so on. In these circumstances the termination of the proceedings, which would allow Respondent to re-institute it immediately, may not adequately cure the due process deficiencies of the Respondent’s prosecution. This Habeas Corpus Petition covers many issues of Petitioner’s political asylum application, which is currently before the Board of Immigration Appeals, i.e. this Court has enough information and evidence to terminate the malicious prosecution by granting Petitioner political asylum. The issue of political asylum will otherwise most likely be brought before this Court after the ruling of the Board of Immigration Appeals, expected in 1999. The immigration case is likely to be terminated in 1998 by the Board of Immigration Appeals as unlawfully initiated by Respondent, and then to be re-initiated by Respondent. Thus, the decision of this Court to grant asylum to Petitioner would be entirely in accord with the principle of judicial economy and would save the American taxpayers the cost of two de novo reviews of this case by the Board of Immigration Appeals and one de novo review by the Immigration Judge, and consequentive review by this Court. The "exhaustion of administrative remedies" principle was intended to prevent the Federal Courts from spending their time and resources on consideration of the cases which could be solved administratively. However, since this Court during this Habeas Corpus proceeding will have reviewed enough information to grant the political asylum to Petitioner, and since this case is very unlikely to be solved

administratively, the decision to grant the asylum will serve the judicial economy principle. I verify under penalty of perjury that the foregoing is true and correct. Signed on March 31, 1997 Alexandre Konanykhine Home