United Statesma J. Hamama v. Adducci, Case No. 17-cv-11910.

• Citation: 258 F.Supp.3d 828
• Decision Date: 11 July 2017
• Docket Number: Case No. 17-cv-11910.
• Parties: Usama J. HAMAMA, et al., Petitioners, v. Rebecca ADDUCCI, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

258 F.Supp.3d 828

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 11, 2017

Bonsitu A. Kitaba, Michael J. Steinberg, Kary L. Moss, American Civil Liberties Union of Michigan, Wendolyn W. Richards, Miller, Canfield, William W. Swor, Detroit, MI, Lee Gelernt, American Civil Liberties Union, New York, NY, Kimberly L. Scott, Miller, Canfield, Margo Schlanger, Ann Arbor, MI, Miriam J. Aukerman, American Civil Liberties Union of Michigan, 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, Kalamazoo, MI, for Petitioners.

August E. Flentje, Briana Yuh, William C. Silvis, U.S. Department of Justice, Washington, DC, for Defendants.

OPINION & ORDER REGARDING JURISDICTION

MARK A. GOLDSMITH, United States District Judge

This case pits the power of Congress to control the jurisdiction of the federal courts against the Constitution's command that the writ of habeas corpus must be preserved. Both sides in this clash are right, in part. The Government is correct that Congress meant to strip federal district courts of jurisdiction to entertain the kind of habeas claims that Petitioners assert here challenging their repatriation to Iraq. But Petitioners are correct that extraordinary circumstances exist that will likely render their habeas claims meaningless, unless this Court intervenes to stay their deportation while review of their removal orders proceeds before the immigration courts and the courts of appeals.

This Court concludes that to enforce the Congressional mandate that district courts lack jurisdiction—despite the compelling context of this case—would expose Petitioners to the substantiated risk of death, torture, or other grave persecution before their legal claims can be tested in a court. That would effectively suspend the writ of habeas corpus, which the Constitution prohibits.

The Supreme Court has instructed, "It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." Bowen v. Johnston, 306 U.S. 19, 26, 59 S.Ct. 442, 83 L.Ed. 455 (1939). And under the law, the federal district courts are generally the "first responders" when rights guaranteed by the Constitution require protection. In fulfillment of that mission, this Court concludes that it has jurisdiction in this case to preserve the fundamental right of habeas corpus and the duty to do so.

I. BACKGROUND

A. Procedural History

On June 11, 2017, agents from United States Immigration and Customs Enforcement ("ICE") began arresting Iraqi nationals as part of ICE's efforts to execute longstanding orders of removal. Am. Hab. Pet. ¶¶ 2, 5 (Dkt. 35). The vast majority of arrests that have taken place so far have occurred within metropolitan Detroit; this includes approximately 114 Detroit-based Iraqi nationals who have been arrested and transferred to federal facilities in Michigan, Ohio, Louisiana, and Arizona, where they await removal to Iraq. Id.¶¶ 5, 8. Outside of Detroit, approximately 85 Iraqi nationals have been arrested and detained, including individuals from Tennessee, New Mexico, and California. Id.¶¶ 5, 6. Those individuals have since been transferred to facilities in Alabama, Louisiana, Tennessee, and Texas. Id.¶ 8. According to Petitioners, there are more than 1,400 Iraqi nationals across the country subject to final orders of removal whom the Government seeks to remove. Id.¶ 7.

Most of the Iraqi nationals facing removal have been subject to final orders of removal for many years, resulting from criminal convictions and overstaying visas. Id.¶ 2. However, the Government was unable to execute these removal orders due to Iraq's longstanding policy not to issue the requisite travel documents for repatriation. Id.¶ 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.

The current operative pleading of Petitioners, filed on June 24, 2017, is their amended habeas corpus class petition and class action complaint for declaratory, injunctive, and mandamus relief.¹ In their pleading, Petitioners state that they are eligible for relief from removal under both the Immigration and Nationality Act ("INA") and the Convention Against Torture ("CAT") because of their status as persecuted religious minorities and their affiliation with the United States. Id.¶¶ 34–39, 68–72 (citing 8 U.S.C. § 1158(b)(1)(A) (providing asylum for refugees); 8 U.S.C. § 1231(b)(3) (restricting removal to country where alien's life or freedom would be threatened; 8 C.F.R. § 208.16(c)(2) (implementing regulation for the CAT)).

Petitioners Hamama, Asker, Barash, Ali, and Nissan fear removal to Iraq because their respective faiths—Chaldean, Christian, and Catholic—make them targets for persecution. See id.¶¶ 19–23. Petitioners Al-Issawi and Al-Dilaimi fear similar persecution due to their status as Shiite Muslims. Id.¶¶ 24–25. Petitioner Al-Saedy fears persecution due to his status as an apostate. Id.¶ 27. Petitioner Al-Sokaini fears persecution because, although he identifies as a Muslim, he has been involved with a Baptist congregation in New Mexico. Id.¶ 28.

Petitioners also assert that their removal prior to a hearing on the changed country conditions in Iraq violates their rights under the Fifth Amendment's Due Process Clause. Id.¶¶ 73–76. They also allege that the Government's decision to transfer them to multiple facilities across the country has interfered with their statutory right to counsel under the INA and their right to a fair hearing under the Due Process Clause. Id.¶¶ 77–79 (citing 8 U.S.C. § 1362 ). Petitioners bring a separate Due Process claim based on their detention, arguing that they are being unlawfully detained, because their detention bears no reasonable relationship to effectuating their removal or protecting against danger. Id.¶¶ 80–82.

Petitioners seek a variety of relief, with the following requests pertinent for present purposes:

G. Enter a writ of mandamus and/or enjoin the government from removing Plaintiffs/Petitioners to Iraq without first providing them with an opportunity to establish that, in light of current conditions and the likelihood that they would suffer persecution or torture if removed to Iraq, they are entitled to protection against such removal;

H. At a minimum, enjoin the government from removing Plaintiffs/Petitioners to Iraq until they have been given sufficient time and access to attorneys to enable them to file motions to reopen their removal orders and seek stays of removal from the immigration court;

Id. at 36–37 (Prayer for Relief).

Petitioners filed a motion for a temporary restraining order and/or stay (Dkt. 11), 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." Id. at 2. After the Government opposed the motion on jurisdictional grounds, which the Court found not susceptible to immediate resolution, 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 6/22/2017 Op. & Order (Dkt. 32). After Petitioners filed their amended habeas corpus class action petition and class action complaint, along with a motion to expand the stay (Dkt. 36), the Court entered an order expanding the stay to a nationwide class of Iraqi nationals subject to final orders of removal. See 6/26/2017 Op. & Order (Dkt. 43).² The stay was subsequently extended until July 24, 2017. See 7/6/2017 Op. & Order (Dkt. 61).

It is to the jurisdictional issue that the Court now turns.

B. Conditions in Iraq

Petitioners contend that conditions in Iraq have changed dramatically since their orders of removal were issued. Specifically, Petitioners allege that the removal orders at issue "mostly predate the significant deterioration in Iraq following the government's destabilization and the rise of [ISIS]." Am. Compl. ¶ 49. This Court's investigation of the record bears out this claim.

Since the U.S.-led invasion of Iraq in March 2003, that country has essentially been in a continued state of unrest. See Heller Decl., Ex. D. to Pet. Reply, ¶ 8 (Dkt. 30–5).³ Instability traceable to the invasion caused about two-thirds of Iraq's Christian community to leave the country prior to June 2014. See"No Way Home: Iraq's Minorities on the Verge of Disappearance," (hereinafter, "No Way Home Report") at 10.⁴ According to the United Nations High Commissioner for Refugees, an estimated one million Iraqi citizens remain internally displaced due to sectarian violence dating from about 2006 until ISIS became heavily active in roughly 2014. See Iraq, Internat'l Religious Freedom Report, U.S. State Dep't at 3 (2015), available at https://www.state.gov/documents/organization/256479.pdf. The conflict with ISIS, however, caused a rate of displacement that vastly and rapidly outpaced the previous one, displacing an additional 3.4 million people in less than two years, from 2014 to July 2015. Id.

Religious minorities have fled the country for good reason. The declaration of Mark Lattimer indicates that religious minorities in Iraq face significant persecution at the hands of ISIS. See Lattimer Decl., Ex. I to Pet. Mot., ¶¶ 8, 10 (Dkt. 11–10); see also id.¶ 17 ("[R]eligious minorities are at risk of extinction in Iraq ....").⁵ ISIS forces in Iraq have directed Christians, in particular, to "pay a protection tax, convert to Islam, or be killed." Id.¶ 9. Christians have also been abducted and...