4:17-cv-11544-LVP-APP Doc # 1 Filed 05/15/17 Pg 1 of 9 Pg ID 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

Demecio Flores-Martinez, ) No.

)
Petitioner, ) DHS No.: 075-411-153
)
v. ) Honorable Judge _________________
)
DAVID HARLOW, Director, )
United States Marshals Service; )
REBECCA ADDUCCI, Detroit Field Office )
Director, Immigration and Customs Enforcement; )
THOMAS D. HOMAN, Director of )
Immigration and Customs Enforcement, )
Washington, D.C.; and TIM DONNELLON, )
Saint Clair County Sheriff )
)
Respondents. )
)

Shahad J. Atiya (P80947)

Attorney for Petitioner
2040 Monroe St.
Suite 209
Dearborn, MI 48124
(248)790-5128

PETITION FOR WRIT OF HABEAS CORPUS AND REVIEW OF

ENFORCEMENT OF REMOVAL ORDER

1. Petitioner, Demecio Flores-Martinez, hereby petitions this Court pursuant to 28

U.S.C. 2241 to issue a writ of habeas corpus to review the lawfulness of the enforcement of a

removal order. Mr. Flores-Martinez contends that this deportation order is improvidently issued

and that he has been subject to a deportation order, and he lawfully complied with his prior election

of voluntary departure.

2. Mr. Flores-Martinez respectfully requests that the Court order Respondents to a)

STAY his impending removal, and b) ASSUME jurisdiction and REVIEW the lawfulness of the

enforcement of an impending deportation.

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3. In support of this petition, Mr. Flores-Martinez states as follows:

SUBJECT MATTER JURISDICTION

4. This Court has habeas corpus jurisdiction pursuant to 28 U.S.C. 2241 et seq., Art.

1, 9, Cl. 2 of the United States Constitution (Suspension Clause). Zadvydas v. Davis, 533 U.S.

678, 688, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001); Rosales-Garcia v. Holland, 322 F.3d 386,

394 (6th Cir. 2003); Castillas v. Holder, No. 09-3831 (6th Cir, Decision September 2, 2011).

VENUE

5. Venue lies in the Eastern District of Michigan, the judicial district in which Mr.

Flores-Martinez is detained. Rumsfeld v. Padilla, 542 U.S. 426, 124 S. Ct. 2711, 2718 n.8, 159 L.

Ed. 2d 513 (2004). Mr. Flores-Martinez is detained at the Saint Clair County Jail in Port Huron,

Michigan.

PARTIES

6. Petitioner Demecio Flores-Martinez is 38-year-old citizen of Mexico.

7. Respondent Rebecca Adducci is the Field Office Director for the Detroit District of

Immigration and Custom Enforcement and is sued in her official capacity. The Field

Office Director has responsibility and authority over custody decisions in Michigan.

See Roman v. Ashcroft, 340 F.3d 314, 319-321 (6th Cir. 2003).

8. Respondent David Harlow is the Director of the United States Marshals Service. The

United States Marshals Service is in charge of transporting federal detainees across

state lines.

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9. Respondent Thomas D. Homan is the Director of Immigration and Customs

Enforcement Washington, D.C.

10. Respondent Tim Donnellon is the Saint Clair County Sheriff. Petitioner is detained at

the Saint Clair County Jail.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

11. Mr. Flores-Martinez has no administrative remedies available to him at this time. His

only remedy is by way of this petition for writ of habeas corpus. Baidas v. Jennings,

123 F. Supp. 2d 1052, 1056-67 (E.D. Mich. 2000). Castillas v. Holder, No. 09-3831

(6th Cir, Decision September 2, 2011).

FACTS AND LEGAL BACKGROUND

12. Mr. Flores-Martinez first came to the United States, without inspection at 16 years of

age.

13. In November 1997, Mr. Flores-Martinez was issued an order of removal from the

United States.

14. Subsequently, Mr. Flores-Martinez re-entered the United States.

15. Mr. Flores-Martinez resided in the United States continuously since his last return.

16. Petitioner is openly gay and enjoys cross-dressing. As such, when he arrived at Monroe

County Jail, correctional officers there thought he was transgendered and was receiving

hormone replacement therapy to change from male to female. See Petitioners Photos

as a Cross-Dresser attached as Exhibit A.

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17. On July 2, 2014, Mr. Flores-Martinez became eligible for a U-Visa1 as he fell victim to

a spiked drink otherwise known as being roofied, kidnapping outside a known gay

club in Detroit by the name of Gigis, battery using a gun, and assault with a deadly

weapon. Petitioners friend who was also a victim on that night successfully filed for

his U-Visa application and is currently awaiting relief based on his claim as a result of

the event in 2014. See Police Report Listing Petitioner as Victim 2 attached as Exhibit

C. See Also U-Visa Fingerprint Notice for Petitioners Friend attached as Exhibit D.

18. On February 9, 2017, Mr. Flores-Martinez was arrested by Oakland County officers.

He was told that there was a warrant issued for his arrest.

19. On April 19 2017, Mr. Flores-Martinez appeared before Honorable Judge Bernard A.

Friedman of the United States District Court, Eastern District of Michigan in Detroit.

Petitioner pleaded guilty to the offense of Illegal Re-entry, 8 U.S.C. 1326(a). Judge

Friedman accepted Petitioners plea, released him on $100 bond and supervision but

1
According to the United States Citizenship and Immigration Services, U-Visa is:
The U nonimmigrant status (U visa) is set aside for victims of certain
crimes who have suffered mental or physical abuse and are helpful
to law enforcement or government officials in the investigation or
prosecution of criminal activity. Congress created the U
nonimmigrant visa with the passage of the Victims of Trafficking
and Violence Protection Act (including the Battered Immigrant
Womens Protection Act) in October 2000. The legislation was
intended to strengthen the ability of law enforcement agencies to
investigate and prosecute cases of domestic violence, sexual assault,
trafficking of aliens and other crimes, while also protecting victims
of crimes who have suffered substantial mental or physical abuse
due to the crime and are willing to help law enforcement authorities
in the investigation or prosecution of the criminal activity. The
legislation also helps law enforcement agencies to better serve
victims of crimes.
See USCIS Website with U-Visa Application Description attached as Exhibit B.

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Petitioners custody was remanded to the United States Marshals Service. See Judge

Friedmans Judgment attached as Exhibit E.

20. Petitioner is currently HIV positive, requires ongoing medical treatment indefinitely

and will suffer harassment due to his sexual orientation if returned to Mexico. See

Petitioners Laboratory Results Confirming his Medical Condition attached as Exhibit

F.

21. The basis for the Court's habeas jurisdiction to review the issue whether Immigration

and Customs Enforcement may enforce a deportation order which is not valid is found

28 U.S.C. 2241, the general grant of habeas jurisdiction bestowed on the federal

district courts. Rosales-Garcia, 322 F.3d at 394. Castillas v. Holder, No. 09-3831 (6th

Cir, Decision September 2, 2011).

22. The Court may also exercise jurisdiction pursuant to 28 U.S.C. 1331 and may grant

relief pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201 et seq. and the All

Writs Act, 28 U.S.C. 1651.

23. The Respondents actions are in violation of applicable law, regulations, and precedent.

FIRST CLAIM FOR RELIEF

Humanitarian Relief Based on Medical Condition

24. Petitioner realleges and reasserts the foregoing paragraphs as if set forth fully herein.

25. As a result of Petitioners diagnosis of being HIV positive, Petitioners medical

condition requires ingestion of a cocktail of medications. Petitioner is currently taking

five different medications on a daily basis to treat his HIV.

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26. Petitioners medications are Epsicon, Prezista, Narviar, Vead, and Bactrum. The

average cost for these medications is $4,000 per month. See Medicine Information and

Price in the United States attached as Exhibit G.

27. Petitioner was diagnosed with HIV approximately 13 years ago. Petitioner is being

treated and is under medical supervision at all times. As a result, Petitioner is considered

HIV Positive and undetectable. Petitioner did not develop AIDS.

28. Petitioner does not reside in Mexico. As such, Petitioner does not qualify for medical

care or medical insurance provided by the the Mexican government.

29. Additionally, the lack of employment opportunities affects Petitioners eligibility for

medical care because he does not have an employer to provide social security or

medical care for Petitioner. In the case where Petitioner is able to secure employment,

Petitioner will have to wait at least three (3) months from his date of hire to obtain

medical coverage. Three (3) months for an HIV Positive patient could signify the

difference between life and death. Such a situation is disastrous in Petitioners case.

SECOND CLAIM FOR RELIEF

Humanitarian Relief Based on Sexual Orientation

30. Petitioner realleges and reasserts the foregoing paragraphs as if set forth fully herein.

31. Mr. Flores-Martinezs sexual preference will expose him to gang violence and constant

harassment. If Petitioner is deported to Mexico, Petitioner will be sent to a small village

in Mexico known as Pastoria in Ojocaliente. This village is in the province of

Zacatecas, Mexico.

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32. Furthermore, Petitioner will be sent to a town and a country which is foreign to him.

That country is plagued with drug cartels and is described by locals as a war zone.

Specifically, Zacatecas where the Petitioner will reside is consider one of the worst

states in Mexico according to the Department of State Travel Warning. See U.S.

Department of State Mexico Travel Warning issued on December 16, 2016 attached as

Exhibit H.

THIRD CLAIM FOR RELIEF

Relief Based on the U-Visa Application

33. Petitioner realleges and reasserts the foregoing paragraphs as if set forth fully herein.

34. Petitioner is entitled to the relief of U-Visa and is currently actively pursuing that option

by submitting his application for relief with the United States Citizenship and

Immigration Services. Petitioners friend, and other victim on the same incident, has

filed his U-Visa Application and is currently awaiting his approval. See Victims

Statement, Police Reports of the Incident, and Receipts for Application Submission

attached as Exhibit I.

PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that the Court grant the following relief:

A. That it ASSUME jurisdiction over this matter;

B. That it issue an order STAYING Mr. Flores-Martinezs imminent removal;

C. That it award reasonable attorneys fees and costs to Petitioner for being required

to bring this action;

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D. That it grant other such relief that may become available through a change in the

law; and

E. That it grant such other relief that is just and equitable.

Dated this 15 day of May 2017.

________________________________
Shahad J. Atiya (P80947)
ATTORNEY FOR PETITIONER

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VERIFICATION

Pursuant to 28 U.S.C. 2242, the undersigned certifies under penalty of perjury that he has

reviewed the foregoing petition and that the facts stated therein are true and accurate to the best of

my knowledge. I also depose and say that I have reviewed the attachments to Petition for Writ of

Habeas Corpus and that they are true and correct copies of the originals to the best of my

knowledge and belief.

Dated this 15 day of May 2017.

____________________________________
Shahad Atiya (P80947)