United States District Court, E.D. Michigan, Southern Division
NAHIDH G. SHAO, Petitioner,
DIRECTOR OF BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Page Hood Chief Judge
March 27, 2017, Petitioner Nahidh G. Shao
(“Shao”) filed a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241. (Doc # 1) On March 31,
2017, the Court issued an Order Directing Service and
Response and staying the removal of Shao. (Doc # 3) On April
6, 2017, the Government filed an Emergency Motion to Vacate
Stay of Removal for Good Cause Shown. (Doc # 5) On April 7,
2017, Shao filed a Response. (Doc # 6) On April 7, 2017, the
Court entered an Order Granting the Government's
Emergency Motion to Vacate Stay of Removal. (Doc # 7) The
Court vacated the stay of removal and reset the hearing on
Shao's Petition. On May 1, 2017, the Government filed a
Response in Opposition to Shao's Petition. (Doc # 9) The
Court held the hearing on May 4, 2017.
a native of Iraq who last entered the United States as a
child and lawful permanent resident in February 1967. (Doc #
5-2, Pg ID 44) In 1983, Shao was convicted in Oakland County
of assault with intent to commit murder, two counts of armed
robbery, and three counts of felony firearm. Id.;
Doc # 1-1. He was sentenced to a minimum of 40 years in
prison. (Doc # 5-2, Pg ID 44; Doc # 1, Pg ID 8-9) In November
1994, Shao was ordered removed to Iraq, and in July 1995, the
Board of Immigration Appeals (“BIA”) dismissed
Shao's appeal. (Doc # 5-2, Pg ID 44) On September 13,
2016, Shao was paroled from the Michigan Department of
Corrections into the custody of the U.S. Immigration and
Customs Enforcement (“ICE”) pursuant to an
immigration detainer. Id.
has since been in ICE custody for approximately seven and a
half months pending his removal to Iraq. According to a
declaration of Bryan Norburn, ICE Deportation Officer, ICE
has been working diligently to remove Shao. Id. ICE
submitted a travel document request to the Iraqi Consulate in
October 2016, and Consulate officials interviewed Shao in
November 2016. On December 12, 2016, ICE issued a Decision to
Continue Detention in Shao's case following a 90-day
post-order custody review. The letter informed Shao that ICE
was working on obtaining a travel document for his removal,
and that he was considered a public safety threat due to his
criminal history. Id. at 44-45. ICE subsequently
received a letter from the Iraqi Consulate denying the
request for a travel document for Shao due to the absence of
Shao's original Iraqi documents and his stated
unwillingness to return to Iraq. Id. at 45.
case was then transferred to ICE Headquarters' Office of
Enforcement and Removal Operations (“HQ ERO”)
where Removal and Internal Operations (“HQ RIO”)
took over efforts to remove Shao. Id. On January 27,
2017, HQ RIO issued a Decision to Continue Detention in
Shao's case. The letter informed Shao that ICE was
working on obtaining a travel document for his removal, and
that one was expected. Id.
to a declaration of Julius Clinton (“Clinton”),
ICE Deportation Officer in HQ RIO,
[HQ] ERO has been in negotiations with the government of Iraq
over the past year regarding the repatriation of Iraqi
nationals subject to a final order of removal. As a result of
these recent negotiations, via the United States Embassy in
Baghdad, Iraq, ERO has received approval from the Iraqi
government to return a number of Iraqi nationals ordered
removed from the United States.
On February 6, 2017, ERO received approval to move forward
with scheduling the removals. HQ ERO has approved a list of
Iraq[i] nationals that will be repatriated. Iraq has agreed
to accept these subjects without a travel document.
(Doc # 5-3, Pg ID 48) The declaration indicates that the
first removals were scheduled for April 2017, and Shao was
among the individuals approved for removal in April 2017.
April 12, 2017, Shao filed a motion with the BIA to reopen
his removal proceedings. (Doc # 9-5) On April 17, 2017, the
BIA granted Shao's emergency request for a stay of
removal pending the BIA's consideration of his motion.
(Doc # 9-6)
charter removal flight to Iraq departed as scheduled on April
18, 2017; however, Shao was not on the flight as planned.
(Doc # 9-4, Pg ID 130) According to a Supplemental
Declaration of Clinton, Shao was removed from the manifest of
the charter flight due entirely to the stay of removal
granted by the BIA the day before. Id. All of the
Iraqi nationals that were on the charter flight were
successfully repatriated to Iraq. Id. According to
Clinton, more charter removal flights to Iraq are being
scheduled for the coming months. Id. at 131. He
asserts that, except for the stay granted by the BIA, he
knows of no barrier that would prevent ICE from removing Shao
on one of these upcoming charter flights to Iraq.
seeks release under supervision from ICE custody via the
instant petition for writ of habeas corpus filed under 28
U.S.C. § 2241. He argues that his detention is
unconstitutional because it has been indefinitely extended
beyond the detention period ...