Hamama v. Adducci

• Decision Date: 20 November 2018
• Docket Number: Case No. 17-cv-11910
• Citation: 349 F.Supp.3d 665
• Parties: Usama J. HAMAMA, et al., Petitioners, v. Rebecca ADDUCCI, et al., Respondents.
• Court: U.S. District Court — Eastern District of Michigan

349 F.Supp.3d 665

Usama J. HAMAMA, et al., Petitioners,

v.Rebecca ADDUCCI, et al., Respondents.

Case No. 17-cv-11910

United States District Court, E.D. Michigan, Southern Division.

Signed November 20, 2018

Bonsitu A. Kitaba, Kary L. Moss, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Wendolyn W. Richards, Miller, Canfield, William W. Swor, Detroit, MI, Kimberly L. Scott, Miller, Canfield, Margo Schlanger, Ann Arbor, MI, Lee Gelernt, American Civil Liberties Union, New York, NY, Miriam J. Aukerman, American Civil Liberties Union of Michigan West Michigan Regional Office, Grand Rapids, MI, Nadine Yousif, Code Legal Aid, Inc., Madison Heights, MI, Nora Youkhana, Fieger, Fieger, Kenney & Harrington, David Brian Johnson, Southfield, MI, Susan E. Reed, Michigan Immigrant Rights Center/ Michigan Poverty Law Progr, Kalamazoo, MI, Maria Martinez Sanchez, American Civil Liberties Union of New Mexico, Albuquerque, NM, for Petitioners.

August E. Flentje, Briana Yuh, Cara E. Alsterberg, Christina Parascandola, Michael Celone, Vinita B. Andrapalliyal, William C. Silvis, United State Department of Justice Office of Immigration Litigation, Joseph Darrow, Nicole N. Murley, Office of Immigration Litigation - District Court Section, Washington, DC, Jennifer L. Newby, U.S. Attorney, Detroit, MI, Sarah S. Wilson, U.S. Attorney's Office, Birmingham, AL, for Respondents.

OPINION & ORDER GRANTING PETITIONERS' RENEWED MOTION FOR PRELIMINARY INJUNCTION (Dkt. 473)

MARK A. GOLDSMITH, United States District Judge

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution's core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails—whether their challenges to their orders of removal are exhausted or on-going. More evidence confirming Iraq's refusal to repatriate might well exist, but the Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

I. BACKGROUND

A. Procedural Background

As recited in the Court's prior opinions, this case arises out of the arrest and detention of Iraqi nationals who are or were subject to long-standing final orders of removal. See, e.g., Hamama v. Adducci, 261 F.Supp.3d 820 (E.D. Mich. 2017). In June 2017, agents from Immigration and Customs Enforcement ("ICE"), an agency of the Department of Homeland Security ("DHS"), began arresting hundreds of these Iraqi nationals, the majority of whom are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq. The initial round-up took place in Michigan, snaring approximately 114 individuals. Am. Pet. ¶ 5 (Dkt. 118).

Many of these individuals were ordered removed to Iraq years ago (some decades ago), because of criminal offenses they committed while in the United States. All detainees served their sentences and were released under orders of supervision, because Iraq refused to accept repatriation. According to Petitioners, they lived peaceably in their respective communities under the orders of supervision—a point the Government does not contest.

1. Preliminary Injunction Staying Removal

On July 24, 2017, this Court issued a preliminary injunction enjoining the removal of Petitioners and the putative class, defined at the time as "any and all Iraqi nationals in the United States who had final orders of removal on June 24, 2017, and who have been, or will be, detained for removal by ICE." Hamama v. Adducci, 261 F.Supp.3d 820, 841 (E.D. Mich. 2017). The Court ruled that Petitioners' habeas and due process rights entitled them to access to the immigration courts, prior to removal, so that motions to reopen their immigration proceedings could be filed. The Government filed a notice of appeal of this ruling on September 21, 2017 (Dkt. 108), which appeal remains pending.

Petitioners filed an Amended Petition on October 12, 2017 (Dkt. 118), both reasserting and revising their claims, and requesting three forms of relief: (i) a stay of removal proceedings to allow class members to seek relief from removal before the appropriate body in the immigration court system; (ii) bond hearings for those held in prolonged detention; and (iii) release under orders of supervision, pursuant to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), unless and until repatriation to Iraq becomes significantly likely in the reasonably foreseeable future. Zadvydas prohibits civil detention where there is no significant likelihood of removal in the reasonably foreseeable future.

2. Preliminary Injunction Regarding Bond Hearings

As class members' claims wound

their way through the immigration courts, the Government elected to continue their administrative detention. On November 7, 2017, Petitioners moved for a second preliminary injunction, asserting that they were entitled to immediate release from detention under Zadvydas, because there was no significant likelihood of their removal in the reasonably foreseeable future (Dkt. 138). In the alternative, Petitioners argued that their prolonged detention entitled them to bond hearings before an impartial adjudicator to determine whether their release would present a flight or safety risk.

Petitioners also filed a motion to certify the "Primary Class" (Dkt. 139), which ultimately was defined as "All Iraqi nationals in the United States who had final orders of removal at any point between March 1, 2017 and June 24, 2017 and who have been, or will be, detained for removal by U.S. Immigration and Customs Enforcement." 9/26/2018 Op. at 18 (Dkt. 404). The motion also sought certification of three subclasses of detainees: (i) detainees who are subject to final orders of removal; (ii) detainees subject to prolonged detention whom the Government purported to hold under a statutory provision providing for mandatory detention; and (iii) a so-called Zadvydas subclass defined as "All Primary Class Members, who are currently or will be detained in ICE custody, and who do not have an open individual habeas petition seeking release from detention." Hamama v. Adducci, 285 F.Supp.3d 997, 1020 (E.D. Mich. 2018).

On January 2, 2018, the Court issued an order granting, in part, Petitioners' second motion for preliminary injunction, holding that those subject to prolonged detention are entitled to a bond hearing before an impartial adjudicator, unless the Government proffered individualized evidence that a detainee should not receive a hearing. Id. at 1027. The Court also certified the three detention subclasses and deferred a ruling on primary class certification pending the Sixth Circuit's ruling or other developments. See id. The Court later certified the Primary Class. See 9/26/2018 Op. (Dkt. 404).

The Court also deferred ruling on Petitioners' Zadvydas claim, ordering that the parties conduct discovery to determine whether Iraq is willing to accept class-wide repatriation. Hamama, 285 F.Supp.3d at 1028.

3. Discovery Problems

In response to that allowance for discovery, on January 14, 2018, Petitioners served the Government with more narrowly tailored versions of their earlier interrogatory and production requests.¹ Pet'rs Mem. re Disc. Sanc. at 5 (Dkt. 454). However, the Government did not respond to the January 14, 2018 discovery requests, which necessitated a court order requiring, in part, that the Government serve written responses to the interrogatories no later than March 23, 2018, and that it begin document production no later than March 30, 2018. 3/13/2018 Order ¶¶ 20 & 22 (Dkt. 254). By March 30, 2018, the Government produced a total of four pages of documents, two of which were pages prepared by attorneys in support of the Government's defense in this action. Pet'rs Mem. re Disc. Sanc. at 5 & n.2. The Government also provided incomplete interrogatory responses, omitting key information such as Iraq's requirement that Petitioners sign forms indicating their willingness to be returned to Iraq. Id. at 5.

The Government filed a status report on April 6, 2018, in which it indicated that it had located 20,000 potentially responsive documents and would be able to complete production by July 2018 (Dkt. 267). According to Petitioners, on April 16, 2018, they received forty-six pages of nonresponsive documents from the Government. The Court was provided with a status report on April 20, 2018, in which the Government stated that it had resolved its technological issues and estimated that it would take eleven weeks (until the first week of July), to complete its document production (Dkt. 272). The Court thereafter conducted a status conference on May 25, 2018, during which the Government stated that it would begin producing a significant number of documents following entry of the second amended protective order, which was entered on June 19, 2018 (Dkt. 313).

Nonetheless, the Government's discovery responses continued to be deficient and the...