United States District Court, E.D. Michigan, Southern Division
USAMA J. HAMAMA, et al., Petitioners,
REBECCA ADDUCCI, Respondent.
OPINION & ORDER GRANTING PETITIONERS' MOTION
FOR PRELIMINARY INJUNCTION (DKT. 77)
A. GOLDSMITH United States District Judge.
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.
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.
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
reasons explained fully below, the Court grants
Petitioners' motion for a preliminary injunction (Dkt.
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.
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
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).
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). 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).
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
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.
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.
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
to addressing these arguments, the Court turns to the
Conditions in Iraq
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); 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). 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.
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.
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. ¶
Two of the named Petitioners identify as Shiite Muslims.
See Am. Hab. Pet. ¶¶ 24-25.
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,
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. ¶
Barriers to Asserting Claims
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
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).
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.
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).
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.
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).
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).
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.
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.
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.
STANDARD OF DECISION
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).
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)).
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 ...