Aden v. Nielsen

• Decision Date: 20 June 2019
• Docket Number: NO. C18-1441RSL,C18-1441RSL
• Citation: 409 F.Supp.3d 998
• Court: U.S. District Court — Western District of Washington
• Parties: Najib Ali ADEN, Petitioner, v. Kirstjen NIELSEN, et al., Respondents.

409 F.Supp.3d 998

Najib Ali ADEN, Petitioner,

v.Kirstjen NIELSEN, et al., Respondents.

NO. C18-1441RSL

United States District Court, W.D. Washington, at Seattle.

Signed June 20, 2019

ORDER GRANTING IN PART HABEAS PETITION

Robert S. Lasnik, United States District Judge

Najib Ali Aden, proceeding through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. #1. Petitioner claims that he has been ordered removed to Kenya, but that the U.S. Immigration and Customs Enforcement ("ICE") attempted to remove him to Somalia without giving him a hearing regarding his fear of persecution and torture in that country. Id. Petitioner is currently detained by ICE and seeks immediate release. In October 2018, the Court stayed petitioner's removal pending resolution of this matter.

The Court adopts the Background section of the Report and Recommendation as well as subsections A, B, C, and F of the Discussion section (Dkt. #11 at 1-14) as incorporated below:

I. BACKGROUND

Petitioner was born in a refugee camp in Kenya to Somali parents and was orphaned as an infant. Dkt. #2-1 at 1-2; Dkt. #8-1 at 1; Dkt. #8-2 at 1. He was raised by an aunt in the Kenyan camp and came to the United States as a refugee in 2007 when he was 15 years old. Dkt. #2-1 at 1; Dkt. #2-2 at 12-13; Dkt. #6-1 at 2-3; Dkt. #8-2 at 1. Petitioner applied for lawful permanent residence in December 2011, and his application was approved in May 2012. Dkt. #6-1 at 5-10.

A. Petitioner's removal proceedings

In 2014, petitioner was convicted of robbery offenses in King County, Washington. Dkt. #2-2 at 11. After he served his sentence, the Department of Homeland Security ("DHS") took him into custody and detained him at the Northwest Detention Center. Id. at 1-3, 10-12; see also Dkt. #6-1 at 17, 19. During an initial interview with an immigration officer on October 4, 2017, petitioner indicated that he is a native and citizen of Kenya and that his deceased parents were natives and citizens of Somalia. Dkt. #6-1 at 14. The same day, DHS initiated removal proceedings against him by filing a Notice to Appear ("NTA"), which alleged that he is removable based on his robbery convictions. Dkt. #2-2 at 1-3. The NTA alleged that he is a native and citizen of Kenya. Id. DHS determined that petitioner should be detained pending his removal proceedings. Dkt. #6-1 at 17; see also id. at 19.

During removal proceedings, petitioner admitted the allegations in the NTA, including that he is a native and citizen of Kenya. Dkt. #7 at ¶9. Petitioner designated Kenya as the country of removal. Dkt. #2-1 at ¶4; Dkt. #7 at ¶9. Somalia was not discussed during the removal proceedings as an alternative country of removal. Dkt. #2-1 at ¶4. On December 20, 2017, the immigration judge ("IJ") ordered petitioner removed to Kenya. Dkt. #2-1 at ¶4; Dkt. #7 at ¶9; Dkt. #7-1 at 18. Both parties waived the right to appeal the IJ's order. Dkt. #7-1 at 18.

B. ICE's efforts to remove petitioner

On January 9, 2018, U.S. Immigration and Customs Enforcement ("ICE") Deportation Officer Jose Alvarez submitted a travel document request to the Kenyan government on petitioner's behalf: the request asserted that petitioner was a native and citizen of Kenya.¹ Dkt. #7 at ¶11; Dkt. #7-2 at 2-3. On February 26, 2018, the Consulate General of the Republic of Kenya issued a determination finding that petitioner is not a citizen of Kenya and denying ICE's request for a travel document. Dkt. #7 at ¶14; Dkt. #7-2 at 8; Dkt. #10 at ¶6.

Subsequently, Officer Alvarez began to inquire about the possibility of removing petitioner to Somalia, where his parents were born. Dkt. #10 at ¶7. In March 2018, Officer Alvarez informed petitioner that Kenya had denied his request for a travel document and that ICE would be seeking a travel document from Somalia. Id. at ¶8; Dkt. #2-1 at ¶5. The parties dispute what occurred during this conversation. Petitioner avers that he told Officer Alvarez that he was afraid to go to Somalia and would want to reopen his case to fight any efforts to send him there. Dkt. #2-1 at ¶¶4-5; Dkt. #8-2 at ¶2. According to petitioner, Officer Alvarez told him that he could reopen his case but they should get a travel document first. Dkt. #8-2 at ¶3.

Officer Alvarez, on the other hand, declares that petitioner stated he did not want to go to Somalia, but he never stated he was afraid he would be harmed there. Dkt. #10 at ¶9. Officer Alvarez left petitioner with paperwork to fill out that would assist in obtaining a travel document from Somalia. Dkt. #8-2 at 4.

When petitioner and Officer Alvarez next met to discuss obtaining a travel document to Somalia, petitioner refused to cooperate. Dkt. #8-2 at ¶5; Dkt. #10 at ¶¶10-11. Petitioner stated that he wanted to reopen his case and was consulting with an attorney. Dkt. #8-2 at ¶5; Dkt. #10 at ¶¶10-11.

On March 21, 2018, Officer Alvarez submitted a Somali travel document application on petitioner's behalf, claiming that petitioner was a native of Kenya and a citizen of Somalia. Dkt. #7-2 at 10-11. Officer Alvarez completed the application without petitioner's assistance or review. See Dkt. #10 at ¶10. As petitioner points out, there appear to be several errors in the application, including the assertions that petitioner was born in Somalia and had previously lived in Somalia, when in fact he has never been there. See Dkt. #8-1; Dkt. #8-2 at ¶¶6-7; Dkt. #2-1 at ¶4.

On March 30, 2018, ICE released petitioner from immigration custody on an order of supervision because it had determined that removal was not significantly likely in the reasonably foreseeable future. Dkt. #7 at ¶¶18-19; Dkt. #7-2 at 13, 15-17. The release notification letter informed petitioner that ICE would continue to make efforts to obtain a travel document and, "Once a travel document is obtained, you will be required to surrender to ICE for removal. You will, at that time, be given an opportunity to prepare for an orderly departure." Dkt. #7-2 at 13.

On May 17, 2018, the Embassy of the Federal Republic of Somalia determined that petitioner is a national and issued a travel document that was valid until November 18, 2018. Dkt. #7 at ¶20; Dkt. #7-2 at 19. ICE did not inform petitioner that it had obtained the travel document. Dkt. #2-1 at ¶¶8-9.

On June 15, 2018, an ICE officer called petitioner and informed him that he had been approved to do check-ins with ICE by phone but would need to come into the office to sign paperwork. Id. at ¶8. When petitioner reported to the ICE office three days later, an officer served him with a Notice of Revocation of Release and detained him. Dkt. #7 at ¶23; Dkt. #7-2 at 21-22; Dkt. #2-1 at ¶8. The Notice informed petitioner that ICE had determined that there was a significant likelihood of removal in the reasonably foreseeable future, but otherwise ICE officers refused to tell petitioner what was going on. Dkt. #7-2 at 21; Dkt. #2-1 at ¶8. On June 21, 2018, ICE transferred petitioner to a facility in Louisiana as a part of the staging process for a chartered flight to Somalia. Dkt. #7 at ¶24; Dkt. #2-1 at ¶8. ICE officers continued to refuse to tell petitioner what they were planning to do with him. Dkt. #2-1 at ¶9. After speaking with other detainees, petitioner determined that a group was going to be flown to Somalia on June 28, 2018. Id. Petitioner's family contacted the Somali consulate, which confirmed that he was going to be on that flight. Id. No one from ICE ever informed petitioner that he was going to be sent to Somalia. Id.

Petitioner was able to contact an attorney at the Northwest Immigrant Rights Project, Chris Stanislowski, regarding his situation. Id. On June 22, 2018, Attorney Stanislowski contacted ICE on petitioner's behalf, raising the fact that Somalia had never been designated as a country for deportation by an IJ and that petitioner feared being sent to that country. Id.; Dkt. #7 at ¶25. The same day, ICE responded that it did not oppose petitioner filing a motion to reopen in order to seek asylum and related relief regarding deportation to Somalia and that it would stay his removal in anticipation of such a motion being filed. Dkt. #7 at ¶25. ICE cancelled petitioner's scheduled removal to Somalia and transferred him back to the Northwest Detention Center on July 10, 2018. Id.

On August 20, 2018, ICE contacted Attorney Stanislowski via email, stating that petitioner's removal had been cancelled based on the understanding that petitioner intended to seek asylum and inquiring if petitioner intended to file a motion to reopen, as one had not yet been filed. Id. at ¶27. Attorney Stanislowski informed ICE that petitioner did not intend to file a motion to reopen. Id. Petitioner's position is that ICE must file a motion to reopen if it seeks to designate Somalia as the removal country. See Dkt. #8 at 8-9. On September 19, 2018, ICE informed petitioner, through Attorney Stanislowski, that if he did not file a motion to reopen by October 3, 2018, ICE would proceed with coordinating petitioner's removal to Somalia. Dkt. #7 at ¶28. ICE reiterated that it would not oppose a motion to reopen. Id.

C. The instant habeas action

On October 1, 2018, petitioner filed the instant action and a motion for stay of removal. Dkt. #1. On October 2, 2018, the Court temporarily stayed petitioner's removal pending resolution of his motion to stay. Dkt. #3. The government timely filed a motion to dismiss, which is now ripe for review. See Dkts. #5, 8, 9.

The government argues that dismissal is appropriate because DHS properly designated Somalia for removal and petitioner has chosen not to seek review of that designation despite being provided an opportunity to do so. See id. The government also contends that petitioner should be required to challenge DHS's designation of Somalia in the immigration courts before seeking habeas relief and suggests that the Court may lack jurisdiction over the action. See id. Finally, the government argues that petitione...