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Hamama v. Adducci

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

July 24, 2017

USAMA J. HAMAMA, et al., Petitioners,


          MARK A. GOLDSMITH United States District Judge.

         In their motion for a preliminary injunction, Petitioners ask this Court to halt temporarily their deportation to Iraq, until they can make their case in the immigration courts that their removal is legally prohibited. The grounds that they will urge in those courts and, if necessary, in the federal courts of appeals will be that returning them to the lawlessness and senseless religious hatred that engulfs much of Iraq would subject them to persecution, torture, and possible death. The Government opposes the motion, principally on the grounds that this Court has no jurisdiction to provide any relief - even temporary relief - and that Petitioners' only recourse is to seek a stay of removal before the immigration courts. As this Court explained in its earlier opinion on jurisdiction, and as it will explain again below, the Government's view is inconsistent with the Constitution's command that the writ of habeas corpus - the fundamental guarantor of liberty - must not be suspended, except in the rare case of foreign invasion or domestic rebellion.

         The Government's view ignores the compelling confluence of extraordinary circumstances presented here. Without warning, over 1, 400 Iraqi nationals discovered that their removal orders - many of which had lain dormant for several years - were now to be immediately enforced, following an agreement reached between the United States and Iraq to facilitate removal. This abrupt change triggered a feverish search for legal assistance to assert rights against the removal of persons confronting the grisly fate Petitioners face if deported to Iraq. That legal effort has, in turn, been significantly impeded by the Government's successive transfers of many detainees across the country, separating them from their lawyers and the families and communities who can assist in those legal efforts.

         In these singular circumstances, a federal district court is armed with jurisdiction to act as a first responder to protect the writ of habeas corpus and the allied right to due process, by allowing an orderly filing for relief with the immigration courts before deportation, thereby assuring that those who might be subjected to grave harm and possible death are not cast out of this country before having their day in court.

         For the reasons explained fully below, the Court grants Petitioners' motion for a preliminary injunction (Dkt. 77).

         I. BACKGROUND

         A. Procedural History

         On June 11, 2017, agents from United States Immigration and Customs Enforcement (“ICE”) began arresting Detroit-based Iraqi nationals subject to final orders of removal. Am. Hab. Pet. ¶¶ 2, 5 (Dkt. 68). ICE's operation ultimately resulted in the arrest of 114 Iraqi nationals who have since been transferred to federal facilities in Michigan, Ohio, Louisiana, and Arizona, where they await removal to Iraq. Id. ¶¶ 5, 8. This operation was part of a nationwide effort to remove Iraqi nationals who have been subject to longstanding final orders of removal, resulting from criminal convictions or overstaying visas. Id. ¶¶ 2, 7. Outside of Detroit, approximately eighty-five Iraqi nationals from Tennessee, New Mexico, and California have been arrested and detained. Id. ¶¶ 5-6. Those individuals have since been transferred to facilities in Alabama, Louisiana, Tennessee, and Texas. Id. ¶ 52. In total, 234 Iraqi nationals subject to final orders of removal have been arrested and are currently detained in 31 facilities across the country. See Kitaba-Gaviglio Decl., Ex. S to Pet'rs Mot., ¶ 5 (Dkt. 77-20). The Government seeks to remove 1, 210 additional Iraqi nationals subject to final orders of removal who have yet to be arrested. Am. Hab. Pet. ¶ 7.

         Over eighty-three percent of those detained have been subject to final orders of removal for at least five years, with more than fifty percent being subject to the orders for a decade or more. See Kitaba-Gaviglio Decl. ¶ 8. However, prior to March 2017, the Government had difficulty executing removal orders for Iraqi nationals due to Iraq's longstanding policy of not issuing the requisite travel documents for repatriation. Am. Hab. Pet. ¶ 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 (citing 82 F.R. 13209). Prior to this agreement, the Government was only able to repatriate Iraqi nationals with unexpired passports. Schultz Decl., Ex. C to Gov't Resp., ¶ 6 (Dkt. 81-4). Since 2007, just over 400 such individuals were removed by the Government or voluntarily agreed to return to Iraq. Id. ¶ 4. Iraq's recent willingness to issue travel documents has allowed for removal on a much more aggressive scale.

         On June 15, 2017, Petitioners filed both a habeas corpus class action petition (Dkt. 63) and a motion for a temporary restraining order and/or stay (Dkt. 66). The motion sought 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.” Pet'rs Mot. for TRO at 2. After the Government opposed the motion on jurisdictional grounds, 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 Hamama v. Adducci, No. 17-CV-11910, 2017 WL 2684477 (E.D. Mich. June 22, 2017).

         After Petitioners filed an amended habeas corpus class action petition and class action complaint, along with a motion to expand the stay (Dkt. 69), the Court entered an order expanding the stay to a nationwide class of Iraqi nationals subject to final orders of removal. See Hamama v. Adducci, No. 17-CV-11910, 2017 WL 2806144 (E.D. Mich. June 26, 2017).[1] The stay was subsequently extended until July 24, 2017 to allow further consideration of the jurisdiction issue. See 7/6/2017 Op. & Order (Dkt. 61). Since that time, the Court has ruled that it has jurisdiction in this matter. See Hamama v. Adducci, No. 17-CV-11910, 2017 WL 2953050 ___, F.Supp.3d ___ (E.D. Mich. July 11, 2017).

         In their motion for a preliminary injunction, Petitioners argue that it is unlawful to remove them prior to an adjudication of their motions to reopen by the immigration courts and the filing of a petition for review with the courts of appeals, if necessary. Motions to reopen allow those who are already subject to final orders of removal to argue that the order is now unlawful, or that they are now eligible for immigration relief or protection based on changed country conditions. See Realmuto Decl., Ex. Y to Pet'rs Mot., ¶ 5 (Dkt. 77-26). Petitioners, many of whom are religious minorities, including Chaldean Christians, Kurds, and Sunni and Shiite Muslims, argue that they are eligible for mandatory relief under provisions of the Immigration and Nationality Act (“INA”), the Foreign Affairs Reform and Restructuring Act (“FARRA”), and the Convention Against Torture (“CAT”). Pet'rs Mot. at 18 (citing 8 U.S.C. § 1231(b)(3) (restricting removal to country where alien's life or freedom would be threatened); 8 U.S.C. § 1231 note (stating policy of the United States not to remove individual to a country where there are substantial grounds to believe the individual will be tortured in that country); 8 C.F.R. § 208.16(c)(2) (implementing regulation for the CAT, which forbids removal if more likely than not individual will be tortured upon removal). Petitioners argue that these laws prohibit their removal until motions to reopen have been filed and adjudicated. They also argue that the Fifth Amendment's Due Process Clause forbids removal prior to the opportunity to be heard regarding the risk of torture, persecution, or death.

         Petitioners contend that the harm they will face if removed to Iraq far outweighs the harm to the Government that will result if removal is delayed pending the completion of administrative proceedings and the opportunity to seek a stay in the courts of appeals. They also maintain that the public interest weighs in their favor because the public has an interest in fair immigration proceedings.

         To ensure their claims are heard, Petitioners request that their removal be enjoined for three months in order to file motions to reopen, beginning from the time the Government provides them with their Alien Files (“A-Files”) and their Record of Proceedings (“ROP”) from the immigration courts and/or the Board of Immigration Appeals (“BIA”). For those who file a motion to reopen within that three-month period, Petitioners request that the enjoinment of their removal continue through the adjudication of the administrative proceedings and, if necessary, until they have submitted both petitions for review and motions to stay in the appropriate courts of appeals.

         In response, the Government reasserts its claim that the REAL ID Act, 8 U.S.C. § 1252, divests this Court of jurisdiction. It argues that there is no Suspension Clause violation under these circumstances, because the administrative motion to reopen process is adequate. The Government also raises, for the first time, the argument that there cannot be a Suspension Clause violation because habeas relief is inappropriate where the detainee is challenging a transfer from custody, as distinct from a challenge to detention itself. Finally, the Government argues that even if this Court has jurisdiction, Petitioners' motion for preliminary injunction should be denied because their claims are meritless and the balance of equities weighs in the Government's favor.

         Prior to addressing these arguments, the Court turns to the pertinent facts.

         B. Conditions in Iraq

         As noted in the Court's opinion regarding jurisdiction, Petitioners' removal orders largely predate the deteriorating conditions in Iraq. See Hamama, 2017 WL 2953050 at *3; see also Heller Decl., Ex. D. to Pet'rs Mot., ¶ 8 (Dkt. 77-10)[2]; Kitaba-Gaviglio Decl. ¶ 7 (noting that over fifty percent of Petitioners have been subject to orders of removal since 2007). The country's instability traces back to the 2003 United States-led invasion of Iraq, which brought in its wake the persecution of religious minorities, including Christians, Yezidis, and others. See Lattimer Decl. I, Ex. I to Pet'rs Mot., ¶¶ 8, 10 (Dkt. 11-10).[3] However, it was not until 2014 that conditions became especially dire for religious minorities. In June of that year, the Islamic State in Iraq and Syria (“ISIS”) took control of Mosul, Iraq's second largest city, causing an immediate exodus of some 500, 000 civilians. Id. at 9.[4]

         Religious minorities in Iraq face significant persecution at the hands of ISIS. See Lattimer Decl. I ¶¶ 8, 10. see also id. ¶ 17 (“[R]eligious minorities are at risk of extinction in Iraq . . . .”). In addition to desecrating numerous places of worship, ISIS has carried out large-scale killings and abductions of those who have been unable to flee. Id. ¶ 10. 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 subject to rape and other atrocities. Id. ¶ 10. Five of the named Petitioners identify as Christian. See Am. Hab. Pet. ¶¶ 19-23.

         Sectarian violence in Iraq is by no means limited to Christian minorities. Shiite Muslims and Yezidis have been subject to sexual slavery, abductions, and death at the hands of ISIS. Heller Decl. ¶¶ 32, 38. ISIS has gone as far as to target these groups for genocide. Id. ¶ 32.[5] Two of the named Petitioners identify as Shiite Muslims. See Am. Hab. Pet. ¶¶ 24-25.

         ISIS is not the only group targeting religious minorities. The record indicates that Sunni Muslims have been singled out by militias associated with the Iraqi government. Following the rise of ISIS, the Iraqi government empowered the Popular Mobilization Forces (“PMF”) to reclaim territory. Heller Decl. ¶ 16. PMF consists of mostly Shiite organizations that are trained by the Iranian government and has engaged in a campaign of abductions and extrajudicial killings against Sunni Muslims. Id. ¶¶ 16, 20.

         There is also evidence that Petitioners' association with Westerners will heighten their risk of persecution. In addition to targeting U.S. citizens, ISIS and other sectarian militias have targeted Iraqis who they perceive to be associated with “western interests.” Lattimer Decl. II, Ex. K to Pet'rs Mot., ¶ 2 (Dkt. 77-13). There is a high likelihood that if they are removed to Iraq, Petitioners will be immediately detained and interrogated by the country's internal security forces. Smith Decl., Ex. E to Pet'rs Reply, ¶ 1 (Dkt. 84-6). Petitioners face a heightened risk of interrogation due to media coverage of their criminal records, as well as Iraq's fear of American espionage. Id. ¶ 5. Many of the interrogation techniques used by Iraq's internal security forces would qualify as torture. Id. ¶ 2. Any Iraqi who lived or spent a considerable amount of time in the United States would almost certainly be unable to conceal this fact upon return to Iraq. Lattimer II Decl. ¶ 11.[6]

         C. Barriers to Asserting Claims

         Petitioners assert that they have been significantly impeded in raising these changed conditions in immigration courts since their detention. According to Petitioners, even without the pressure of immediate removal without advance notice, preparing a motion to reopen proceedings before the immigration courts is a difficult task. They note that it requires compiling files, affidavits, “hundreds of pages of supporting evidence, ” and preparing the application for relief. Abrutyn Decl. I, Ex. A to Pet'rs Mot., ¶¶ 11, 13 (Dkt. 77-2); see also Realmuto Decl., Ex. Y to Pet'rs Mot., ¶ 8 (Dkt. 77-26) (noting that time is necessary to gather “substantial new evidence” in support of a motion to reopen); Scholten Decl., Ex. Z to Pet'rs Mot., ¶ 8 (Dkt. 77-27); 8 C.F.R. § 1003.2(c)(1) (noting that an alien's criminal history will often need to be retrieved and reviewed, and that a motion to reopen “must be accompanied by the appropriate application for relief and all supporting documentation”).

         The two most important documents, the A-File (the file documenting the alien's immigration history) and the ROP (a court file that contains a history of the alien's past proceedings before the immigrations courts and BIA), are generally only attainable through a Freedom of Information Act (“FOIA”) request. See Realmuto Decl, ¶¶ 8-9. Responses to these FOIA requests can often take over five months. See Abrutyn Decl. II, Ex. AA to Pet'rs Mot., ¶¶ 6, 7 (Dkt. 77-28).

         Preparing a motion to reopen is also an expensive proposition. Preparing the motion requires “a high level of immigration law knowledge and experience, ” which costs clients somewhere between $5, 000 and $10, 000. See Reed Decl., Ex. K to Pet'rs Mot., ¶¶ 7, 10 (Dkt. 77-12). This amount does not include fees of $10, 000 to $30, 000 that arise if the motion is granted and the case proceeds to a merits hearing on the underlying form of relief sought. Id. ¶ 10. In a case of this nature, costs can reach up to $80, 000. Id.

         The difficulty of preparing a motion to reopen has been compounded by Petitioners' detention 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. It is estimated that approximately seventy-nine percent of Petitioners are being detained in facilities outside of the state in which the immigration court issued their final orders of removal. Kitaba-Gaviglio Decl. ¶ 9. Further, many Petitioners have been transferred multiple times. Am. Hab. Pet. ¶ 56. One Petitioner, Constantin Jalal Markos, has been transferred to facilities in Michigan, Ohio, Louisiana, and Arizona, with a layover in Texas, since his detainment in May 2017. See Markos Decl., Ex. X to Pet'rs Mot., ¶¶ 17-19 (Dkt. 77-25).

         Relocation of Petitioners impedes retaining and communicating with counsel. Am. Hab. Pet. ¶ 55. And it impedes local community efforts to find and maintain counsel for Petitioners when they are shuttled around the country. Id. ¶ 53.

         Attorneys have also described “extremely limited access to the phone” at detention facilities, thus making it difficult to compile the necessary information for a motion to reopen. See Kaur Decl., Ex. U to Pet'rs Mot., ¶ 4 (Dkt. 77-22); see also Markos Decl. ¶¶ 20-21 (stating that phone calls at the Arizona detention facility can last no longer than fifteen minutes at twenty-five cents per minute). Attempts to visit clients in person have also been impeded. Ruby Kaur, an attorney representing two Petitioners detained in Ohio, stated that after making the four-hour drive from Michigan to Ohio, she was twice denied the opportunity to visit her clients despite receiving prior assurances. See Kaur Decl. ¶¶ 7-9; see also Jajonie-Daman Decl., Ex. F to Pet'rs Mot., ¶¶ 7-8 (Dkt. 77-7) (stating it is “nearly impossible” for her to meet with her Petitioner-clients “because they were all transferred to Youngstown, Ohio approximately 4 hours away . . . .”); Samona Decl, Ex. V to Pet'rs Mot., ¶¶ 9-10 (Dkt. 77-23) (stating that it is impractical for him to drive over four hours to visit his clients in the Ohio facility).

         In response to this detailed statement of evidence, the Government provides a generalized rebuttal. The Government first argues that “[t]he requirements for the motion [to reopen] are not elaborate.” Gov't Resp. at 8 (Dkt. 81). It notes that a motion need only state the new facts that will be proven and provide evidence relating to those facts. Id. (citing 8 U.S.C. § 1229a(c)(7)(B)). Further, when considering motions to reopen and motions to stay removal, the immigration courts taken into account “the possibility that the motions may have been prepared and submitted without the alien (or his or her attorney) having time to obtain all appropriate evidence in support of the motion.” McNulty Decl., Ex. B to Gov't Resp., ¶ 20 (Dkt. 81-3).

         Regarding the transfer of most of the Detroit-based Iraqi nationals to Ohio, the Government states that this was done due to the lack of available space at local county jails. See Lowe Decl., Ex. D to Gov't Resp. ¶¶ 5-6 (Dkt. 81-5). Successive transfers to facilities in other states have been done for the purpose of staging for removal from the United States to Iraq. Id. ¶ 12.

         The Government also states that it provides daily phone access to its detainees, and notes that at its Arizona facility, phone calls made to pro bono counsel, the immigrations courts, the BIA, the American Civil Liberties Union (“ACLU”), and other institutions are free of charge. See McGregor Decl., Ex. F to Gov't Resp., ¶ 3 (Dkt. 81-7). Detainees are also provided a handbook informing them of this right. Id.

         Petitioners have presented specific facts contradicting the Government's generalized treatment of the facts. Detainees at the Arizona facility have stated that the list of legal service providers that they may call for free only consists of three organizations, only two of which can provide services, and such providers are limited by their resources to assisting only a small number of detainees. Peard Decl., Ex. F to Pet'rs Reply, ¶ 9 (Dkt. 84-7). Detainees contest that they are permitted to call the ACLU free of charge, and state that they must pay for calls to private immigration attorneys who have offered their services pro bono. Id. ¶ 10. Significantly, there is evidence that those in the Arizona facility are not permitted to call legal service providers in Michigan free of charge, despite the fact that the immigration court in which they received their final order of removal is in that state. Id. Further, there is evidence that detainees at the Ohio facility have been limited to just ten minutes of time when making phone calls to counsel. Samona Decl. ¶ 12.


         To determine whether to grant a preliminary injunction, a district court must consider: (i) the plaintiff's likelihood of success on the merits; (ii) whether the plaintiff may suffer irreparable harm absent the injunction; (iii) whether granting the injunction will cause substantial harm to others; and (iv) the impact of its decision on the public interest. Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 578 (6th Cir. 2006). These four factors “are factors to be balanced, not prerequisites that must be met.” Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 230 (6th Cir. 2003).

         III. ANALYSIS

         A. Jurisdiction

         Prior to addressing whether issuance of a preliminary injunction is appropriate, the Court must again address the Government's jurisdictional challenge. “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).

         In its most recent opinion, the Court held that the REAL ID Act did not apply to divest the Court of subject-matter jurisdiction because the Act violated the Constitution's Suspension Clause, as applied. See 7/11/2017 Op. & Order at 23. The Government now argues that there can be no Suspension Clause violation where, as here, there is no entitlement to habeas relief. It also reasserts its argument that there is no violation ...

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