Hamama v. Adducci, s. 17-2171

• Decision Date: 20 December 2018
• Docket Number: 18-1233,Nos. 17-2171,s. 17-2171
• Citation: 912 F.3d 869
• Parties: Usama Jamil HAMAMA, et al., Petitioners-Appellees, v. Rebecca ADDUCCI, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

912 F.3d 869

Usama Jamil HAMAMA, et al., Petitioners-Appellees,

v.Rebecca ADDUCCI, et al., Respondents-Appellants.

Nos. 17-2171

18-1233

United States Court of Appeals, Sixth Circuit.

Argued: April 25, 2018

Decided and Filed December 20, 2018^*

ARGUED: Scott G. Stewart, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Lee Gelernt, AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT, New York, New York, Margo Schlanger, Ann Arbor, Michigan, for Appellees. ON BRIEF: Scott G. Stewart, Michael A. Celone, William C. Silvis, Sarah Stevens Wilson, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. Lee Gelernt, Judy Rabinovitz, AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT, New York, New York, Margo Schlanger, Samuel R. Bagenstos, Ann Arbor, Michigan, Michael J. Steinberg, Miriam J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Nadine Yousif, Nora Youkhana, CODE LEGAL AID INC., Madison Heights, Michigan, Kimberly L. Scott, Wendolyn Wrosch Richards, MILLER, CANFIELD, PADDOCK & STONE, PLC, Ann Arbor, Michigan, William W. Swor, WILLIAM W. SWOR & ASSOCIATES, Detroit, Michigan, for Appellees. Cynthia M. Nunez, AMERICAN IMMIGRATION LAWYERS ASSOCIATION, Washington, D.C., Carl M. Levin, Gabriel E. Bedoya, HONIGMAN MILLER SCHWARTZ AND COHN LLP, Detroit, Michigan, Elisa J. Lintemuth, DYKEMA GOSSETT PLLC, Grand Rapids, Michigan, Jason P. Steed, KILPATRICK TOWNSEND & STOCKTON LLP, Dallas, Texas, Amy G. Doehring, MCDERMOTT WILL & EMERY LLP, Chicago, Illinois, Noah A. Levine, Jamie S. Dycus, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York, for Amici Curiae in 17-2171. Gabriel E. Bedoya, HONIGMAN MILLER SCHWARTZ AND COHN LLP, Detroit, Michigan, Jill M. Wheaton, DYKEMA GOSSETT PLLC, Ann Arbor, Michigan, Nareeneh Sohbatian, WINSTON & STRAWN LLP, Los Angeles, California, for Amici Curiae in 18-1233.

Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court in which SUTTON, J., joined. WHITE, J. (pp. 880–87), delivered a separate dissenting opinion.

ALICE M. BATCHELDER, Circuit Judge.

These consolidated appeals arise from the government's efforts to execute long-standing final removal orders of Iraqi nationals that the United States had, for many years, been unable to execute. The district court entered two preliminary injunctions: one to halt the removal of Iraqi nationals (removal-based claims) and one to order bond hearings for those Iraqi nationals who continued to be detained after the district court halted their removals (detention-based claims). Because we find the district court lacked the jurisdiction to enter both the removal-based and the detention-based claims, we VACATE the preliminary injunctions for both the removal-based and the detention-based claims, and we REMAND with directions to dismiss the removal-based claims for lack of jurisdiction, and for further proceedings consistent with this opinion.¹

I.

A.

Petitioners-Appellees ("Petitioners") are Iraqi nationals, the vast majority of whom were ordered removed to Iraq years (and some decades) ago because of criminal offenses they committed in the United States. For many years Iraq refused to repatriate Iraqi nationals who, like Petitioners, had been ordered removed from the United States.² Because the United States was unable to execute the removal of Iraqi nationals to Iraq, Petitioners remained in the United States under orders of supervision by United States Immigration and Customs Enforcement ("ICE"). Their removal orders remained final and active.

Things changed in 2017. Iraq began to cooperate with repatriation efforts and the removal of Iraqi nationals to Iraq quickly resumed. Iraqi nationals such as Petitioners, with final orders of removal that had been long-stalled, were faced with an unpleasant reality—their removals were now imminent. Though many of these Iraqi nationals had come to expect that the execution of their removals would never materialize, they had been living in the United States on borrowed time. Iraq's agreement to cooperate with repatriation efforts meant that time was up.

The reality of Iraq's resuming cooperation in repatriating its nationals hit in April 2017 when ICE conducted its first removal by charter flight to Iraq since 2010, removing eight Iraqi nationals and scheduling a second charter for late June 2017. In preparation for the second charter, ICE arrested and held in custody more than 200 Iraqi nationals in mid-June 2017.³ These arrests prompted the cases now before us.

B.

On June 15, 2017, Petitioners filed a putative class action habeas petition in the United States District Court for the Eastern District of Michigan on behalf of "all Iraqi nationals in the United States with final orders of removal, who have been, or will be, arrested and detained by ICE as a result of Iraq's recent decision to issue travel documents to facilitate U.S. removal."

Petitioners also filed a motion for a temporary restraining order and/or stay of removal, asking the district court to halt their removal to Iraq and to hear the Petitioners' arguments of allegedly changed country conditions.

Petitioners' choice to file this action before the district court was undoubtedly outside the norm for removal proceedings, over which immigration courts hold exclusive jurisdiction. See 8 U.S.C. § 1252(g) ("[N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien ...."). So before making any determination on the preliminary injunction, the district court had to determine whether it had jurisdiction to hear Petitioners' case. Pending its jurisdictional decision, the district court stayed the purported class's final removal orders—first in the Eastern District of Michigan and then nationwide.

The district court eventually concluded that it had jurisdiction to hear Petitioners' claims. Acknowledging that " 8 U.S.C. § 1252(g) applies to divest this Court of subject-matter jurisdiction," the district court found that the circumstances in the case presented an as-applied constitutional violation of the Suspension Clause, allowing it to exercise jurisdiction.

Specifically, the district court explained that "[t]he mechanism provided by [Congress through] the REAL ID Act for judicial review of removal orders—filing motions to reopen proceedings in immigration courts and subsequent review in the courts of appeals—does not take into account the compelling confluence of grave real-world circumstances present in [this] case." The district court, in July 2017, granted Petitioners a nationwide preliminary injunction preventing the government from enforcing final removal orders against Iraqi nationals and requiring the government to produce extensive discovery. The government appealed the preliminary injunction on September 21, 2017. That appeal is before us as Case No. 17-2171.

The second appeal stems from Petitioners' continued detention during the pendency of these cases. The government has kept Petitioners detained, as relevant to the appeal before us, under the authority provided in two statutes. The first grants authority to detain aliens who are subject to final removal orders because they have not moved to reopen their immigration proceedings or have not prevailed in a motion to reopen their proceedings. See 8 U.S.C. § 1231(a)(6). The second grants authority to detain certain aliens who have succeeded in having their removal orders reopened (and are not subject to a final removal order and detention authority under § 1231 ) but have criminal convictions or qualifying terrorist activities that render them subject to mandatory detention pending a decision on removal. See 8 U.S.C. § 1226(c)(1).⁴

In October 2017, nearly three months after the district court granted Petitioners' removal-based preliminary injunction, Petitioners amended their habeas petition and class action complaint to add claims challenging their continued detentions under 8 U.S.C. §§ 1231 and 1226(c) while the courts resolve their removal-based claims based on due process principles and the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq.⁵ Petitioners moved for a preliminary injunction seeking relief on these detention-based claims, which the district court granted, ordering an injunction requiring bond hearings on a class-wide basis. The government appealed the district court's preliminary injunction on March 2, 2018. That appeal is before us as Case No. 18-1233.

II.

We review de novo the district court's determination of subject-matter jurisdiction. Pak v. Reno , 196 F.3d 666, 669 (6th Cir. 1999).

A.

We begin with the removal-based claims. "Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress ...." Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (citing Marbury v. Madison , 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803) ). Congress enacted 8 U.S.C. § 1252(g) to limit the jurisdiction of federal courts. Section 1252(g)⁶ provides, in full:

(g) Exclusive jurisdiction

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g). This provision applies "to three discrete actions that the Attorney General may take: [the] ‘decision or action’ to ‘commence proceedings, adj...