Al-Sadoon v. Lynch
| Citation | 586 F.Supp.3d 713 |
| Decision Date | 17 February 2022 |
| Docket Number | Case No. 1:21-cv-11438 |
| Parties | Ali AL-SADOON, Petitioner, v. Robert K. LYNCH, Jr., et al., Respondents. |
| Court | U.S. District Court — Eastern District of Michigan |
Shanta Driver, Driver, Schon and Associates PLC, Detroit, MI, for Petitioner.
Bradley Darling, U.S Department of Justice, Detroit, MI, for Respondents Tae D. Johnson, Alejandro Mayorkas, Merrick B. Garland, Robert K. Lynch, Jr.
On June 18, 2021, Petitioner Ali Najim Al-Sadoon, detained by United States Immigration and Customs Enforcement ("ICE") at the St. Clair County Detention Facility in Port Huron, Michigan, filed a petition for writ of habeas corpus under 18 U.S.C. § 2241, seeking release during the pendency of his immigration appeal. ECF No. 1. Concurrent with his Petition, he filed a motion for a preliminary injunction.1 ECF No. 2. As explained hereafter, Petitioner will be granted a writ of habeas corpus, and his motion for a preliminary injunction will therefore be denied as moot.
On June 23, 1994, Petitioner came to the United States with his Shi'ite parents as an eight-year-old boy. ECF Nos. 1 at PageID.6; 1-2 at PageID.30. Petitioner's family all became either legal permanent residents or naturalized U.S. citizens. ECF No. 1 at PageID.7. He is married to a U.S. citizen and has six U.S.–born children. See id. at PageID.7, 13.
Since coming to America, Petitioner has accrued a decades-long "rap sheet" with at least 28 arrests.2 As relevant here, in 2012, Petitioner was convicted for safe breaking, MICH. COMP. LAWS § 750.531B, and then breaking and entering a building with intent as a habitual offender, MICH. COMP. LAWS §§ 750.110, 769.12. ECF No. 1-2 at PageID.30.
On August 20, 2013, the Department of Homeland Security (DHS) found Petitioner removable under 8 U.S.C. §§ 1227(a)(2)(A)(ii), (iii), revoking his permanent-resident status. ECF Nos. 1 at PageID.7; 1-2 at PageID.27–30. He did not contest the decision. After losing his green card, ICE released him but placed him under its official supervision. ECF No. 1 at PageID.8. Like thousands of aliens pending removal, he had to report to ICE regularly but otherwise lived a "normal" life.
A "Final Removal Order" was entered by Detroit Immigration Judge David H. Paruch3 on March 24, 2015 , which directed Petitioner to be removed from the United States and deported to Iraq. Awshana v. Adducci , 453 F. Supp. 3d 1045, 1057 (E.D. Mich. 2020) ; ECF No. 1 at PageID.3. Petitioner waived his right to appeal the Final Removal Order and was transferred into ICE custody on May 17, 2016. Id. ; Awshana , 453 F. Supp. 3d at 1057. At some point, ICE released Petitioner from detention for the second time and again kept him under supervision.
In June 2017, Petitioner filed a motion to reopen his Final Removal Order and applied for protection under the Convention Against Torture ("CAT"). ECF No. 1 at PageID.6, 8. On November 8, 2017, the Immigration Court denied Petitioner's motion to reopen. Id. at PageID.8. He filed an appeal with the Board of Immigration Appeals (BIA), which he withdrew on August 31, 2018. Awshana , 453 F. Supp. 3d at 1057.
In June 2017, after a high-profile raid on the Iraqi refugee community in Michigan, Petitioner was one of 144 refugees arrested and placed in custody; he then became a member of the " Hamama Class" in Hamama v. Adducci , 349 F. Supp. 3d 665 (E.D. Mich. 2018), vacated and remanded , 946 F.3d 875 (6th Cir. 2020). ECF No. 1 at PageID.3, 8.
On November 20, 2018, United States District Judge Goldsmith granted a motion for a preliminary injunction for habeas relief sought by the Hamama Class, granting its members’ release from detention pending removal. See Hamama , 349 F. Supp. 3d at 695 (). On December 20, 2018, ICE released Petitioner from custody for the third time, along with other detained Iraqi refugees, and placed him on a GPS tether under ICE's supervision. Awshana , 453 F. Supp. 3d at 1059 ; ECF No. 1 at PageID.8.
On March 13, 2019, the Iraqi Government issued a one-way laissez-passer4 for Petitioner's deportation to Iraq, valid for six months. Awshana , 453 F. Supp. 3d at 1058.
On April 17, 2019, Detroit police officers responded to "an armed robbery/felonious assault where the victim alleged [that Petitioner] had robbed him at gunpoint and punched him in the face." ECF No. 5-5 at PageID.172. Upon the officers’ arrival, Petitioner "fled into the house, refused to emerge, and barricaded himself inside." Id. at PageID.172. After exhausting all amicable means to apprehend Petitioner, the officers "deployed tear gas into the house." Id. at PageID.172–73. After being teargassed, Petitioner surrendered, and the police "recovered a semi-automatic pistol from a search of the house." Id. at PageID.173.
In early June 2019, to effectuate the Final Removal Order, ICE arranged a flight to deport Petitioner to Iraq escorted by ICE officers on June 23, 2019. ECF Nos. 1 at PageID.9; 5-4 at PageID.142.
On Thursday, June 20, 2019, Petitioner filed emergency motions in the Immigration Court: a motion to stay his deportation and a second motion to reopen his Final Removal Order. ECF Nos. 1 at PageID.9; 1-3 at PageID.31–54. On Friday, Petitioner "appeared as instructed at the ICE, ERO office," where ICE ordered him to report to the Detroit Metropolitan Airport on Sunday, June 23, 2019, at 4:00 PM EDT. Awshana , 453 F. Supp. 3d at 1058 ; ECF No. 5 at PageID.119. Not hearing anything from the Immigration Court about his emergency motions, about seven hours before his deportation flight to Iraq, Petitioner cut his GPS tether and stayed home to care for his children. Awshana , 453 F. Supp. 3d at 1058 ; ECF No. 5-4 at PageID.143. On Wednesday, June 25, 2019, two days after his deportation flight flew to Iraq without him, the Immigration Court issued its ruling on Petitioner's June 20, 2019 emergency motions, denying both. ECF No. 1 at PageID.9. Petitioner timely appealed the denial to the BIA. Id.
In July 2019, in response to Petitioner cutting off his GPS tether and failing to report for his deportation, ICE arrested Petitioner at home. Id. at PageID.4, 9. Fearing separation from his family and being sent to the war-torn turmoil in Iraq, Petitioner "barricaded himself in his home using a couch and washing machine." Awshana , 453 F. Supp. 3d at 1058. A special response team broke into the house and arrested him. Id.
After his arrest, the DHS detained Petitioner and charged him with "Hampering Removal" under 8 U.S.C. § 1253(a)(1)(C). Id.
On August 5, 2019, United States Magistrate Judge Elizabeth A. Stafford denied Petitioner's request for bond pending trial, finding that he was a flight risk with a criminal history that included "[p]rior attempt(s) to evade law enforcement." See ECF No. 10, in United States v. AL Sadoon , No. 2:19-CR-20530 (E.D. Mich. filed Aug. 5, 2019).
To effectuate his Final Removal Order, on November 25, 2019, the Iraqi Government issued a second laissez-passer for Petitioner's deportation to Iraq. ECF No. 5-5 at PageID.173. On December 11, 2019, ICE arranged a second escorted flight to deport Petitioner to Iraq on January 12, 2020. Id. On December 17, 2019, United States District Judge Terrence G. Berg dismissed Petitioner's "Hampering Removal" charges on the Government's motion "to allow ICE to effectuate [Petitioner's] removal," and he was placed in ICE's custody for the fourth time. Id. at PageID.173–74; Awshana , 453 F. Supp. 3d at 1058 ; ECF No. 1-5 at PageID.58.
On January 10, 2020, the BIA granted Petitioner's request to stay the Final Removal Order in order to address his June 25, 2019 appeal to the BIA. Awshana , 453 F. Supp. 3d at 1058. Petitioner's removal was again stayed, but the Final Removal Order nevertheless remained active. See id. While he was still in custody without a removal date,5 on March 12, 2020, the BIA dismissed Petitioner's appeal of the Immigration Court's denial of his motion to reopen the Final Removal Order. ECF No. 18-1 at PageID.21, in Al Sadoon v. Garland , No. 20-3328 (6th Cir. filed Aug. 12, 2020). On March 24, 2020, Petitioner timely appealed to the Sixth Circuit. Id. With his appeal pending, he remained detained for removal under the Final Removal Order.6
On October 13, 2020, the Government filed a motion requesting that the Sixth Circuit stay Petitioner's removal and remand his appeal to the BIA. ECF Nos. 1 at PageID.10; 1-6 at PageID.59–63; see also ECF No. 23, in Al Sadoon v. Garland , No. 20-3328 (6th Cir. filed Oct. 13, 2020). Specifically, the Government sought to have the BIA "reconsider and provide a more thorough analysis of the country conditions evidence Petitioner submitted with his motion to reopen," ECF No. 1-6 at PageID.60, and "reconsider its dismissal of Petitioner's motion pursuant to the fugitive disentitlement doctrine," id. at PageID.61.
Even though the charge was dismissed, in January 2021, ICE cited Petitioner's "Hampering Removal" charge to deny Petitioner's request for release. ECF Nos. 1 at PageID.14; 1-7 at PageID.66. Then on February 10, 2021, the Immigration Court denied Petitioner's application for bond, citing a lack of authority to release him. ECF No. 1 at PageID.4.
On February 18, 2021, the DHS issued a memorandum (the "Johnson Memo") to all ICE employees, establishing three categories of noncitizens as priorities for deportation: National Security, Border Security, and Public Safety. Id. at PageID.12.
The next day, the Sixth Circuit granted the Government's motion to stay Petitioner's Final Removal Order and remanded his case back to the BIA. ECF No. 2 at PageID.100; see also ECF No. 1-11 (...
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