Hamama v. Adducci

• Decision Date: 02 January 2018
• Docket Number: Case No. 17–cv–11910
• Citation: 285 F.Supp.3d 997
• Parties: Usama J. HAMAMA, et al., Petitioners, v. Rebecca ADDUCCI, et al., Respondents.
• Court: U.S. District Court — Eastern District of Michigan

285 F.Supp.3d 997

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 January 2, 2018

Bonsitu A. Kitaba, Kary L. Moss, Michael J. Steinberg, American Civil Liberties Union 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, 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, William C. Silvis, U.S. Department of Justice, Michael Celone, Vinita B. Andrapalliyal, United States Department of Justice Office of Immigration Litigation–District Court Section, Washington, DC, Jennifer L. Newby, U.S. Attorney Defensive Litigation, Detroit, MI, for Respondents.

MARK A. GOLDSMITH, United States District Judge

OPINION & ORDER

DENYING IN PART RESPONDENTS' MOTION TO DISMISS (Dkt. 135), GRANTING IN PART PETITIONERS' MOTION FOR PRELIMINARY INJUNCTION (Dkt. 138), AND GRANTING IN PART PETITIONERS' AMENDED MOTION TO CERTIFY CLASS (Dkt. 139)

Last July, this Court put a halt to the deportation of hundreds of aliens whom the Executive Branch of the Federal Government had sought to repatriate to their native Iraq. The Court ruled that they must be given a hearing before immigration judges on their claims that they would face persecution, torture, and possibly death if sent back. While that immigration court process proceeds apace, the aliens who were arrested have now languished in detention facilities—many for over six months—deprived of the intimacy of their families, the fellowship of their communities, and the economic opportunity to provide for themselves and their loved ones. Detention may stretch into years, as the immigration court proceedings and subsequent appeals wind their way to a conclusion.

They now ask this Court to be allowed to return to their productive lives by being placed on bond, while the legal process continues, unless the Government can show that they are unreasonable risks of flight or danger to the community.

What they seek is consistent with the demands of our Constitution—that no person should be restrained in his or her liberty beyond what is reasonably necessary to achieve a legitimate governmental objective. Here, the Government may fairly insist that those whose right to remain in this country is yet to be determined must not undermine the administration of justice by fleeing before that determination is made, nor endanger the public while that process unfolds. But those interests can be served by a bond hearing process before immigration judges, who can sort out those who endanger the efficacy of the immigration system and public safety from those who will not.

Our legal tradition rejects warehousing human beings while their legal rights are being determined, without an opportunity to persuade a judge that the norm of monitored freedom should be followed. This principle is familiar to all in the context of the criminal law, where even a heinous criminal—whether a citizen or not—enjoys the right to seek pre-trial release. In the civil context of our case, this principle applies with at least equal force. In either context, the principle illustrates our Nation's historic commitment to individual human dignity—a core value that the Constitution protects by preserving liberty through the due process of law.

As explained below, the Court will grant relief by establishing a process of individual bond hearings for all detainees entitled to them.

I. BACKGROUND

This matter is before the Court on the motion to dismiss (Dkt. 135) filed by Respondents ("the Government"), Petitioners' motion for preliminary injunction (Dkt. 138), and Petitioners' amended motion to certify class (Dkt. 139). The issues have been fully briefed and a hearing was held on December 20, 2017. For the reasons stated below, the Court denies in part the Government's motion to dismiss, grants in part Petitioners' motion for preliminary injunction, and grants in part Petitioners' amended motion to certify class.

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"), a division 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. Compl. ¶ 5 (Dkt. 118). The number has since swelled to over 300, many of whom are still in Michigan detention facilities, with others scattered to various detention facilities throughout the country. Id. ¶¶ 5, 12.

The vast majority of these individuals were ordered removed to Iraq years ago (some decades ago), because of criminal offenses they committed while in the United States. There is only spotty information in the record regarding the nature of the detainees' offenses. The offenses of the named Petitioners range from relatively minor drug possession convictions to more serious matters, such as felonious assault and arson; one has no conviction at all. Id. ¶¶ 22–36.¹ Although the Government presumably knows the criminal history of all the putative class members, it has not placed that information in the record. What is known is that all detainees served their sentences and were released long ago, 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.

While the detainees were scheduled for imminent removal following their arrests, this Court enjoined their removal in a July 24, 2017 ruling. See Hamama, 261 F.Supp.3d at 841–842. In its ruling, the Court held that while the REAL ID Act, 8 U.S.C. § 1252, prohibits habeas actions that arise out of the Attorney General's decision to execute orders of removal, the act was unconstitutional, as applied, because it suspended Petitioners' habeas rights. While the REAL ID Act provides an alternative to habeas actions (an administrative challenge in immigration courts, followed by a petition for review in the courts of appeals), the Court held that the circumstances of this case effectively foreclosed access to this alternative prior to removal.

Having concluded that the Court had jurisdiction to rule on Petitioners' habeas claims, the Court determined that Petitioners were entitled to a preliminary injunction enjoining their removal until they had a meaningful opportunity to challenge the continued validity of their orders of removal—under the Convention Against Torture, as implemented by 8 C.F.R. § 208.18 and other authorities—in immigration courts and, if necessary, the courts of appeals.

Since this case began, 164 of the putative class members have filed motions to reopen. See Schlanger Decl., Ex. 1 to Pet. Mot., ¶ 14 (Dkt. 138–2). Of these 164 motions, seventy-four have been granted, eleven have been finally denied, and seventy-nine are pending. Id. ¶ 21. Approximately ten of the seventy-four grantees have had their cases adjudicated to the merits, with each one resulting in grants of relief or protection. Id. ¶¶ 22–23. Since the Court's preliminary injunction was entered, roughly ninety-one percent of the motions to reopen have been granted in the Detroit immigration court. Id. ¶ 17.

While these motions are being adjudicated, most of those arrested are still incarcerated. The most recent estimates have the number of detainees at 274, with the vast majority having spent six months or more in custody. Schlanger Decl. II, Ex. 34 to Pet. Reply, ¶ 26 (Dkt. 174–3). Some are held under 8 U.S.C. § 1231, which authorizes detention for those with orders of removal in place, and provides for release under certain circumstances. Others are held under 8 U.S.C. § 1226(c), a statute that purports to mandate detention when there is no order of removal in place for certain detainees, including those with certain criminal histories. The detainees held under this subsection previously had final orders of removal; these orders were vacated when their motions to reopen were granted. A smaller subset, estimated to be six or seven individuals, are being held pursuant to 8 U.S.C. § 1226(a) (authorizing detention before entry of a removal order) or 8 U.S.C. § 1225(b) (authorizing detention for those interdicted at the border). Id. ¶ 8.

Based on due process principles and the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., Petitioners now seek relief from detention under a number of theories, as set forth in their motion for preliminary injunction.

Petitioners first argue that they are entitled to release pursuant to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), a seminal decision requiring, except in extraordinary circumstances, release of detainees when there is no reasonable likelihood of removal in the reasonably foreseeable future. Pet. Br. at 19. Petitioners argue that there is no significant likelihood of removal in the reasonably foreseeable future in our case, because there is no definitive agreement that Iraq will accept repatriation, and because there is no foreseeable end to their removal proceedings. Id. at...