United States District Court, E.D. Michigan, Southern Division
USAMA J. HAMAMA, et al., Petitioners,
REBECCA ADDUCCI, Respondent.
OPINION & ORDER REGARDING JURISDICTION
A. GOLDSMITH United States District
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
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.
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 (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.
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.
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.
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. 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)).
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.
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.
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).
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.
The stay was subsequently extended until July 24, 2017.
See 7/6/2017 Op. & Order (Dkt. 61).
to the jurisdictional issue that the Court now turns.
Conditions in Iraq
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.
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). 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. 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),
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.
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 . . . .”). 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 subjected to sexual
slavery, rape, and other atrocities. Id. ¶ 10.
violence in Iraq is by no means limited to Christian
minorities. The U.S. State Department's website paints a
bleak picture of the country, noting that “[t]he murder
rate remains high due to . . . religious/sectarian
tensions.” The current International Religious Freedom
Report, also published by the State Department, notes that
“Yezidi, Christian, and Sunni leaders continued to
report harassment and abuses” by certain regional
governments. See Internat'l Religious Freedom
Report at 7.
two of the Petitioners, Al-Issawi and Al-Dilaimi, identify as
Shiite Muslims, a religious sect that has been targeted by
ISIS. See Am. Compl. ¶¶ 24-25; see
also Internat'l Religious Freedom Report at 15
(“Coordinated [ISIS] bomb attacks continued to target
Shia markets, mosques, and funeral processions. . . .);
id. at 18 (“[ISIS] continued to publish open
threats via leaflets, social media, and press outlets of its
intent to kill Shia ‘wherever they were found' on
the basis of being ‘infidels.'”).
is also evidence that Petitioners' association with
Westerners will heighten their risk of persecution. In the
wake of the U.S.-led invasion of Iraq in 2003, Christian
community leaders “were targeted for their religious
differences as well as their perceived ties to the
West, resulting in a large exodus of Christians from the
country as refugees.” No Way Home Report at 10
(emphasis added). And the State Department's Iraq Travel
Warning notes that “[a]nti-U.S. sectarian militias may
also threaten U.S. citizens and western companies throughout
Iraq.” See Iraq Travel Warning, U.S. Dep't
of State (June 14, 2017), available at
Barriers to Asserting Claims
assert that they have been unable to raise these changed
conditions in immigration courts since their detainment,
noting that many of them have been detained in facilities far
from their homes. Petitioners detained in Michigan have been
transferred to Ohio, Louisiana, and Arizona; Petitioners
detained in Tennessee have been transferred to Louisiana,
Texas, Alabama, and Arizona. See Am. Hab. Pet.
¶ 52. Some petitioners were transferred multiple times.
Id. ¶ 56. Legal help has been “mobilized
by their local communities, ” id. ¶ 53,
and relocating Petitioners away from counsel and the
communities who help provide such legal assistance -