Oliver Nissan Awshana v. Adducci

• Decision Date: 09 April 2020
• Docket Number: Case Number 20-10699
• Citation: 453 F.Supp.3d 1045
• Parties: Oliver Nissan AWSHANA, Ali Najim Al-Sadoon, and Wisam Gharib Hamana, Plaintiffs, v. Rebecca ADDUCCI, Detroit District Director, United States Immigration and Customs Enforcement, Matthew T. Albence, Director, United States Immigration and Customs Enforcement, Kevin McAleenan, Secretary of the United States Department of Homeland Security, and William P. Barr, United States Attorney General, Respondents.
• Court: U.S. District Court — Eastern District of Michigan

453 F.Supp.3d 1045

Oliver Nissan AWSHANA, Ali Najim Al-Sadoon, and Wisam Gharib Hamana, Plaintiffs,

v.Rebecca ADDUCCI, Detroit District Director, United States Immigration and Customs Enforcement, Matthew T. Albence, Director, United States Immigration and Customs Enforcement, Kevin McAleenan, Secretary of the United States Department of Homeland Security, and William P. Barr, United States Attorney General, Respondents.

Case Number 20-10699

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

Signed April 9, 2020

Shanta Driver, Driver, Schon and Associates PLC, Detroit, MI, for Petitioners.

Bradley Darling, U.S Department of Justice, Detroit, MI, for Respondents.

OPINION AND ORDER DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

DAVID M. LAWSON, United States District Judge

"[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing." Helling v. McKinney , 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (citation omitted). Citing concerns for their safety due to potential exposure to the novel coronavirus and contracting COVID-19, petitioners Oliver Nissan Awshana, Ali Najim Al-Sadoon, and Wisam Gharib Hamana, Iraqi refugees currently detained by the United States Immigration Customs and Enforcement Agency ("ICE"), ask this Court to order their release in a petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. They base their petition on a vague reference to an undeveloped theory of substantive due process embodied in the Fifth Amendment. The government opposes their request due in part to their criminal histories that would disfavor release under normal circumstances. But these are not normal times, and the Court has the authority to order the petitioners' release if their continued detention violates a constitutional right for which the only remedy is release. Nonetheless, the present circumstances do not warrant relief: there are no confirmed or suspected COVID-19 cases in the one of detention facilities mentioned in the petition, and none of the petitioners are burdened with conditions that place them in an enhanced risk category. The petition will be denied in part, but it may be renewed if conditions change. The respondents promptly must furnish additional information about the conditions at the St. Clair County Detention Facility, where COVID-19 cases have been reported.

I. The Petition

Although the petitioners have styled their petition as an "emergency," they have not moved for a temporary restraining order or preliminary injunction or any other form of immediate consideration. The petition cites no legal authority except for references to 28 U.S.C. § 2241. The petitioners filed no memorandum of law to support their request. And they have not coupled their petition with any claim for violations of their constitutional rights under, for example, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The government believes that the petitioners' exclusive reliance on section 2241 is fatal to their claim. Generally, section 2241 provides a remedy for prisoners and detainees in two circumstances: (1) to "challeng[e] the execution of a sentence," and (2) to "test the legality of a detention where [ 28 U.S.C.] § 2255 is otherwise inadequate." Terrell v. United States , 564 F.3d 442, 447-48 (6th Cir. 2009). The government characterizes the petition as a challenge to the petitioners' conditions of confinement. It argues that section 2241 cannot provide a basis for relief for such a challenge.

It is generally accepted in this circuit that section 2241 "is not the proper vehicle for a prisoner to challenge conditions of confinement." Luedtke v. Berkebile , 704 F.3d 465, 466 (6th Cir. 2013) (citing Martin v. Overton , 391 F.3d 710, 714 (6th Cir. 2004) ). That is because the purpose of a writ of habeas corpus is to contest "the very fact or duration of ... physical imprisonment." Lutz v. Hemingway , 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007). It is employed when "the relief that [a petitioner] seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment." Ibid. (citing Preiser v. Rodriguez , 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ). If the remedy a detainee is seeking is a change in the conditions of his custody arrangements, or to obtain compensation for past unconstitutional conditions of confinement, then he must file an action under 42 U.S.C. § 1983, or for a federal detainee, under Bivens . Ibid.

The petitioners here, however, are not seeking to change the conditions of their confinement or to obtain damages for past constitutional violations. Instead, they describe the close living conditions typical of custodial confinement, they recount the current commands for social distancing necessary to inhibit the spread of the novel coronavirus, and they argue that no custodial condition will protect them from infection. Therefore, they argue, the only remedy that will vindicate their due process right under the Fifth Amendment is release from custody.

That form of relief falls squarely within the prevue of section 2241. "The statute is an affirmative grant of power to federal courts to issue writs of habeas corpus to prisoners being held ‘in violation of the Constitution or laws or treaties of the United States.’ " Rice v. White , 660 F.3d 242, 249 (6th Cir. 2011) (quoting 28 U.S.C.§ 2241(c) ). Courts generally look to the form of relief sought when deciding if section 2241 is applicable. In cases involving medical decisions, sometimes fine distinctions must be drawn. See Glaus v. Anderson , 408 F.3d 382, 388 (7th Cir. 2005) (distinguishing between a section 2241 petitioner who requests a "quantum change in the level of custody, which must be addressed by habeas corpus," and a petitioner who requests "a different program or location or environment, which raises a civil rights claim" and holding that "[i]f an inmate establishe[s] that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option." (citation omitted)); cf. Bell v. Wolfish , 441 U.S. 520, 526 n.6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) ("[L]eav[ing] to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself." (citation omitted)). But section 2241 has been pressed into service in medical condition cases where the line of demarcation is fuzzy. See Roba v. United States , 604 F.2d 215, 218-19 (2d Cir. 1979) (allowing a section 2241 petition to challenge an inmate's "transfer while seriously ill" where that transfer posed a risk of fatal heart failure).

Other courts that have granted relief to detainees based on the current pandemic have relied on section 2241 for their authority. Most of them, however, also have considered coordinated requests for a temporary restraining order and the attending relevant equitable factors. See Jones v. Wolf , No. 20-361, 2020 WL 1643857 (W.D.N.Y. Apr. 2, 2020) ; Basank v. Decker, 449 F.Supp.3d 205, No. 20-2518 (S.D.N.Y. Mar. 26, 2020) ; Coronel v. Decker , 449 F.Supp.3d 274 (S.D.N.Y. Mar. 27, 2020).

The petitioners allege that their continued detention violates their constitutional right under the Fifth Amendment, which forbids depriving a person of life, liberty, or property without due process of law. They contend that their continued detention will compromise their health and may kill them. They are entitled to advance their claim — and seek release from custody — under section 2241.

II. Immigration Status and Constitutional Detention

The petitioners are natives and citizens of Iraq admitted at various times to the United States as refugees. The statuses of Awshana and Hamana were adjusted to lawful permanent residents. All three were placed in removal proceedings because of criminal convictions. And all eventually were scheduled for deportations, which were stayed when Immigration Judges granted requests for withholding of removal under the Immigration and Naturalization Act, the United Nations Convention Against Torture, or both.

Congress has prescribed that once an alien has been ordered to be deported, "the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period’)." 8 U.S.C. § 1231(a)(1)(A). During this removal period, "the Attorney General shall detain the alien." Id. § 1231(a)(2). Congress has authorized the Attorney General (now the Secretary of the Department of Homeland Security) to detain certain aliens beyond the 90-day removal period under certain circumstances. Id. § 1231(a)(6). "By its terms, this provision applies to three categories of aliens: (1) those ordered removed who are inadmissible under § 1182, (2) those ordered removed who are removable under § 1227(a)(1)(C), § 1227(a)(2), or § 1227(a)(4), and (3) those ordered removed whom the Secretary determines to be either a risk to the community or a flight risk." Clark v. Martinez , 543 U.S. 371, 377, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). The petitioners here all fall within the second category, and possibly the third as well.

Detention of removable aliens, however, must be consistent with the Constitution. The protection of the Fifth Amendment's Due Process Clause applies to "all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."

Zadvydas v. Davis , 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The petitioners allege that their continued detention during the COVID-19 pandemic violates their substantive rights under the Due...