Hamama v. Adducci

• Decision Date: 24 July 2017
• Docket Number: Case No. 17–cv–11910
• Citation: 261 F.Supp.3d 820
• Parties: Usama J. HAMAMA, et al., Petitioners, v. Rebecca ADDUCCI, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

261 F.Supp.3d 820

Usama J. HAMAMA, et al., Petitioners,

v.Rebecca ADDUCCI, Respondent.

Case No. 17–cv–11910

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

Signed July 24, 2017

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, Southfield, MI, Susan E. Reed, Michigan Immigrant Rights Center/ Michigan Poverty Law Progr., Kalamazoo, MI, for Petitioners.

August E. Flentje, Briana Yuh, William C. Silvis, United States Department of Justice, Michael Celone, United States Department of Justice Office of Immigration Litigation—District Court Section, Washington, DC, Jennifer L. Newby, U.S. Attorney, Detroit, MI, for Respondent.

OPINION & ORDER GRANTING PETITIONERS' MOTION FOR PRELIMINARY INJUNCTION (Dkt. 77)

MARK A. GOLDSMITH, United States District Judge

In their motion for a preliminary injunction, Petitioners ask this Court to halt temporarily their deportation to Iraq, until they can make their case in the immigration courts that their removal is legally prohibited. The grounds that they will urge in those courts and, if necessary, in the federal courts of appeals will be that returning them to the lawlessness and senseless religious hatred that engulfs much of Iraq would subject them to persecution, torture, and possible death. The Government opposes the motion, principally on the grounds that this Court has no jurisdiction to provide any relief—even temporary relief—and that Petitioners' only recourse is to seek a stay of removal before the immigration courts. As this Court explained in its earlier opinion on jurisdiction, and as it will explain again below, the Government's view is inconsistent with the Constitution's command that the writ of habeas corpus—the fundamental guarantor of liberty—must not be suspended, except in the rare case of foreign invasion or domestic rebellion.

The Government's view ignores the compelling confluence of extraordinary circumstances presented here. Without warning, over 1,400 Iraqi nationals discovered that their removal orders—many of which had lain dormant for several years—were now to be immediately enforced, following an agreement reached between the United States and Iraq to facilitate removal. This abrupt change triggered a feverish search for legal assistance to assert rights against the removal of persons confronting the grisly fate Petitioners face if deported to Iraq. That legal effort has, in turn, been significantly impeded by the Government's successive transfers of many detainees across the country, separating them from their lawyers and the families and communities who can assist in those legal efforts.

In these singular circumstances, a federal district court is armed with jurisdiction to act as a first responder to protect the writ of habeas corpus and the allied right to due process, by allowing an orderly filing for relief with the immigration courts before deportation, thereby assuring that those who might be subjected to grave harm and possible death are not cast out of this country before having their day in court.

For the reasons explained fully below, the Court grants Petitioners' motion for a preliminary injunction (Dkt. 77).

I. BACKGROUND

A. Procedural History

On June 11, 2017, agents from United States Immigration and Customs Enforcement ("ICE") began arresting Detroit-based Iraqi nationals subject to final orders of removal. Am. Hab. Pet. ¶¶ 2, 5 (Dkt. 68). ICE's operation ultimately resulted in the arrest of 114 Iraqi nationals who have since been transferred to federal facilities in Michigan, Ohio, Louisiana, and Arizona, where they await removal to Iraq. Id. ¶¶ 5, 8. This operation was part of a nationwide effort to remove Iraqi nationals who have been subject to longstanding final orders of removal, resulting from criminal convictions or overstaying visas. Id. ¶¶ 2, 7. Outside of Detroit, approximately eighty-five Iraqi nationals from Tennessee, New Mexico, and California have been arrested and detained. Id. ¶¶ 5–6. Those individuals have since been transferred to facilities in Alabama, Louisiana, Tennessee, and Texas. Id. ¶ 52. In total, 234 Iraqi nationals subject to final orders of removal have been arrested and are currently detained in 31 facilities across the country. See Kitaba–Gaviglio Decl., Ex. S to Pet'rs Mot., ¶ 5 (Dkt. 77–20). The Government seeks to remove 1,210 additional Iraqi nationals subject to final orders of removal who have yet to be arrested. Am. Hab. Pet. ¶ 7.

Over eighty-three percent of those detained have been subject to final orders of removal for at least five years, with more than fifty percent being subject to the orders for a decade or more. See Kitaba–Gaviglio Decl. ¶ 8. However, prior to March 2017, the Government had difficulty executing removal orders for Iraqi nationals due to Iraq's longstanding policy of not issuing the requisite travel documents for repatriation. Am. Hab. Pet. ¶ 42. It was not until the United States agreed to remove Iraq from the list of countries set forth in Executive Order 13780, issued March 6, 2017, that Iraq agreed to issue travel documents. Id. ¶ 43 (citing 82 F.R. 13209 ). Prior to this agreement, the Government was only able to repatriate Iraqi nationals with unexpired passports. Schultz Decl., Ex. C to Gov't Resp., ¶ 6 (Dkt. 81–4). Since 2007, just over 400 such individuals were removed by the Government or voluntarily agreed to return to Iraq. Id. ¶ 4. Iraq's recent willingness to issue travel documents has allowed for removal on a much more aggressive scale.

On June 15, 2017, Petitioners filed both a habeas corpus class action petition (Dkt. 63) and a motion for a temporary restraining order and/or stay (Dkt. 66). The motion sought to prevent their removal "until an appropriate process has determined whether, in light of current conditions and circumstances, they are entitled to mandatory protection from removal." Pet'rs Mot. for TRO at 2. After the Government opposed the motion on jurisdictional grounds, the Court issued a stay of removal, pending resolution of the jurisdictional issue, which stay was made applicable to the class as then defined, i.e., all Iraqi nationals subject to removal orders within the jurisdiction of the Detroit ICE Field Office. See Hamama v. Adducci, No. 17-CV-11910, 2017 WL 2684477 (E.D. Mich. June 22, 2017).

After Petitioners filed an amended habeas corpus class action petition and class action complaint, along with a motion to expand the stay (Dkt. 69), the Court entered an order expanding the stay to a nationwide class of Iraqi nationals subject to final orders of removal. See Hamama v. Adducci, No. 17-CV-11910, 2017 WL 2806144 (E.D. Mich. June 26, 2017).¹ The stay was subsequently extended until July 24, 2017 to allow further consideration of the jurisdiction issue. See 7/6/2017 Op. & Order (Dkt. 61). Since that time, the Court has ruled that it has jurisdiction in this matter. See Hamama v. Adducci, No. 17-CV-11910, 2017 WL 2953050, 258 F.Supp.3d 828 (E.D. Mich. July 11, 2017).

In their motion for a preliminary injunction, Petitioners argue that it is unlawful to remove them prior to an adjudication of their motions to reopen by the immigration courts and the filing of a petition for review with the courts of appeals, if necessary. Motions to reopen allow those who are already subject to final orders of removal to argue that the order is now unlawful, or that they are now eligible for immigration relief or protection based on changed country conditions. See Realmuto Decl., Ex. Y to Pet'rs Mot., ¶ 5 (Dkt. 77–26). Petitioners, many of whom are religious minorities, including Chaldean Christians, Kurds, and Sunni and Shiite Muslims, argue that they are eligible for mandatory relief under provisions of the Immigration and Nationality Act ("INA"), the Foreign Affairs Reform and Restructuring Act ("FARRA"), and the Convention Against Torture ("CAT"). Pet'rs Mot. at 18 (citing 8 U.S.C. § 1231(b)(3) ) (restricting removal to country where alien's life or freedom would be threatened); 8 U.S.C. § 1231 note (stating policy of the United States not to remove individual to a country where there are substantial grounds to believe the individual will be tortured in that country); 8 C.F.R. § 208.16(c)(2) (implementing regulation for the CAT, which forbids removal if more likely than not individual will be tortured upon removal). Petitioners argue that these laws prohibit their removal until motions to reopen have been filed and adjudicated. They also argue that the Fifth Amendment's Due Process Clause forbids removal prior to the opportunity to be heard regarding the risk of torture, persecution, or death.

Petitioners contend that the harm they will face if removed to Iraq far outweighs the harm to the Government that will result if removal is delayed pending the completion of administrative proceedings and the opportunity to seek a stay in the courts of appeals. They also maintain that the public interest weighs in their favor because the public has an interest in fair immigration proceedings.

To ensure their claims are heard, Petitioners request that their removal be enjoined for three months in order to file motions to reopen, beginning from the time the Government provides them with their Alien Files ("A–Files") and their Record of Proceedings ("ROP") from the immigration courts and/or the Board of Immigration Appeals ("BIA"). For those who file a motion to reopen within that three-month period, Petitioners request that the enjoinment of their removal continue through the adjudication of...