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Hamama v. Adducci

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

January 2, 2018

USAMA J. HAMAMA, et al., Petitioners,
REBECCA ADDUCCI, et al., Respondents.



         Last July, this Court put a halt to the deportation of hundreds of aliens whom the Executive Branch of the Federal Government had sought to repatriate to their native Iraq. The Court ruled that they must be given a hearing before immigration judges on their claims that they would face persecution, torture, and possibly death if sent back. While that immigration court process proceeds apace, the aliens who were arrested have now languished in detention facilities - many for over six months - deprived of the intimacy of their families, the fellowship of their communities, and the economic opportunity to provide for themselves and their loved ones. Detention may stretch into years, as the immigration court proceedings and subsequent appeals wind their way to a conclusion.

         They now ask this Court to be allowed to return to their productive lives by being placed on bond, while the legal process continues, unless the Government can show that they are unreasonable risks of flight or danger to the community.

         What they seek is consistent with the demands of our Constitution - that no person should be restrained in his or her liberty beyond what is reasonably necessary to achieve a legitimate governmental objective. Here, the Government may fairly insist that those whose right to remain in this country is yet to be determined must not undermine the administration of justice by fleeing before that determination is made, nor endanger the public while that process unfolds. But those interests can be served by a bond hearing process before immigration judges, who can sort out those who endanger the efficacy of the immigration system and public safety from those who will not.

         Our legal tradition rejects warehousing human beings while their legal rights are being determined, without an opportunity to persuade a judge that the norm of monitored freedom should be followed. This principle is familiar to all in the context of the criminal law, where even a heinous criminal - whether a citizen or not - enjoys the right to seek pre-trial release. In the civil context of our case, this principle applies with at least equal force. In either context, the principle illustrates our Nation's historic commitment to individual human dignity - a core value that the Constitution protects by preserving liberty through the due process of law.

         As explained below, the Court will grant relief by establishing a process of individual bond hearings for all detainees entitled to them.

         I. BACKGROUND

         This matter is before the Court on the motion to dismiss (Dkt. 135) filed by Respondents (“the Government”), Petitioners' motion for preliminary injunction (Dkt. 138), and Petitioners' amended motion to certify class (Dkt. 139). The issues have been fully briefed and a hearing was held on December 20, 2017. For the reasons stated below, the Court denies in part the Government's motion to dismiss, grants in part Petitioners' motion for preliminary injunction, and grants in part Petitioners' amended motion to certify class.

         As recited in the Court's prior opinions, this case arises out of the arrest and detention of Iraqi nationals who are or were subject to long-standing final orders of removal. See, e.g., Hamama v. Adducci, 261 F.Supp.3d 820 (E.D. Mich. 2017). In June 2017, agents from Immigration and Customs Enforcement (“ICE”), a division of the Department of Homeland Security (“DHS”), began arresting hundreds of these Iraqi nationals, the majority of whom are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq. The initial round-up took place in Michigan, snaring approximately 114 individuals. Am. Compl. ¶ 5 (Dkt. 118). The number has since swelled to over 300, many of whom are still in Michigan detention facilities, with others scattered to various detention facilities throughout the country. Id. ¶¶ 5, 12.

         The vast majority of these individuals were ordered removed to Iraq years ago (some decades ago), because of criminal offenses they committed while in the United States. There is only spotty information in the record regarding the nature of the detainees' offenses. The offenses of the named Petitioners range from relatively minor drug possession convictions to more serious matters, such as felonious assault and arson; one has no conviction at all. Id. ¶¶ 22-36.[1] Although the Government presumably knows the criminal history of all the putative class members, it has not placed that information in the record. What is known is that all detainees served their sentences and were released long ago, under orders of supervision because Iraq refused to accept repatriation. According to Petitioners, they lived peaceably in their respective communities under the orders of supervision - a point the Government does not contest.

         While the detainees were scheduled for imminent removal following their arrests, this Court enjoined their removal in a July 24, 2017 ruling. See Hamama, 261 F.Supp.3d at 841-842. In its ruling, the Court held that while the REAL ID Act, 8 U.S.C. § 1252, prohibits habeas actions that arise out of the Attorney General's decision to execute orders of removal, the act was unconstitutional, as applied, because it suspended Petitioners' habeas rights. While the REAL ID Act provides an alternative to habeas actions (an administrative challenge in immigration courts, followed by a petition for review in the courts of appeals), the Court held that the circumstances of this case effectively foreclosed access to this alternative prior to removal.

         Having concluded that the Court had jurisdiction to rule on Petitioners' habeas claims, the Court determined that Petitioners were entitled to a preliminary injunction enjoining their removal until they had a meaningful opportunity to challenge the continued validity of their orders of removal - under the Convention Against Torture, as implemented by 8 C.F.R. § 208.18 and other authorities - in immigration courts and, if necessary, the courts of appeals.

         Since this case began, 164 of the putative class members have filed motions to reopen. See Schlanger Decl., Ex. 1 to Pet. Mot., ¶ 14 (Dkt. 138-2). Of these 164 motions, seventy-four have been granted, eleven have been finally denied, and seventy-nine are pending. Id. ¶ 21. Approximately ten of the seventy-four grantees have had their cases adjudicated to the merits, with each one resulting in grants of relief or protection. Id. ¶¶ 22-23. Since the Court's preliminary injunction was entered, roughly ninety-one percent of the motions to reopen have been granted in the Detroit immigration court. Id. ¶ 17.

         While these motions are being adjudicated, most of those arrested are still incarcerated. The most recent estimates have the number of detainees at 274, with the vast majority having spent six months or more in custody. Schlanger Decl. II, Ex. 34 to Pet. Reply, ¶ 26 (Dkt. 174-3). Some are held under 8 U.S.C. § 1231, which authorizes detention for those with orders of removal in place, and provides for release under certain circumstances. Others are held under 8 U.S.C. § 1226(c), a statute that purports to mandate detention when there is no order of removal in place for certain detainees, including those with certain criminal histories. The detainees held under this subsection previously had final orders of removal; these orders were vacated when their motions to reopen were granted. A smaller subset, estimated to be six or seven individuals, are being held pursuant to 8 U.S.C. § 1226(a) (authorizing detention before entry of a removal order) or 8 U.S.C. § 1225(b) (authorizing detention for those interdicted at the border). Id. ¶ 8.

         Based on due process principles and the Immigration and Nationality Act, 8 U.S.C. § 1101, et seq., Petitioners now seek relief from detention under a number of theories, as set forth in their motion for preliminary injunction.

         Petitioners first argue that they are entitled to release pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001), a seminal decision requiring, except in extraordinary circumstances, release of detainees when there is no reasonable likelihood of removal in the reasonably foreseeable future. Pet. Br. at 19. Petitioners argue that there is no significant likelihood of removal in the reasonably foreseeable future in our case, because there is no definitive agreement that Iraq will accept repatriation, and because there is no foreseeable end to their removal proceedings. Id. at 19, 22.

         In response, the Government submits declarations from ICE officials stating that Iraq has agreed to cooperate in the removal of the putative class members. It also notes that it has removed a few of the individuals who have had their stays of removal consensually lifted. The Government also argues that, because removal proceedings have a definitive end-point, removal is reasonably foreseeable. Gov. Resp. at 10.

         As explained below, the Court agrees that the end point of the legal process is reasonably foreseeable. But it holds that there is insufficient evidence in the record to determine whether Iraq is willing to accept class-wide repatriation. Without a reasonable expectation that removal would follow the termination of legal proceedings, the definitive “end-point” of the legal process does not solve the due process problem of indefinite detention. Because it is unclear whether repatriation is likely, the Court defers ruling on Petitioners' Zadvydas claim, pending further discovery.

         Petitioners' second theory is that, even if their removal is reasonably foreseeable, their detention has become unreasonably prolonged. They argue that this unreasonable detention entitles them to a bond hearing before an impartial adjudicator, such as an immigration judge, to determine whether they are a flight risk or danger to the community. Pet. Br. at 24. In response, the Government argues that Sixth Circuit precedent defeats Petitioners' claim based on an unreasonably prolonged detention and corresponding entitlement to a bond hearing. The Government contends that Petitioners are not eligible for a bond hearing, because their detention has not been sufficiently lengthy, and because their actual removable is reasonably foreseeable. Gov. Resp. at 17.

         The Court holds that those detainees who have been in custody for six months or more are entitled to bond hearings, unless the Government presents specific evidence to this Court demonstrating why a particular detainee should be denied that right, such as evidence that the detainee has engaged in bad-faith or frivolous motion practice in an effort to artificially prolong the removal process. Bond hearings will be conducted by immigration judges who will consider flight and safety risks.

         Petitioners contend that the Zadvydas and prolonged detention claims are assertable by detainees, regardless of whether the Government purports to detain them under the mandatory provisions of § 1226(c). Therefore, Petitioners also ask that bond hearings be ordered for those detainees being held under that provision. Petitioners argue that § 1226(c) does not apply to those who have had their motions to reopen granted or who have been living in the community for a significant period, after completion of their criminal sentence, prior to their immigration detention. Rather, Petitioners say, such people should be considered held under 8 U.S.C. § 1226(a), a provision that has been interpreted as requiring bond hearings after prolonged detention. Pet. Br. at 28. The Government argues that those who have had their motions to reopen granted are not exempt from mandatory detention, and that courts have interpreted § 1226(c) to require mandatory detention for those who had been living in their community after completion of their criminal sentences. Gov. Resp. at 20.

         The Court agrees with Petitioners and holds that § 1226(c) does not apply to those who have had their motions to reopen granted or who were previously living in their communities for years after the conclusion of their criminal sentences. Section 1226(c) contemplates an expeditious removal proceeding, which is typically not possible when a motion to reopen is granted and certainly is not the case here. Further, the plain language of § 1226(c) requires the conclusion that mandatory detention is only permissible when an alien is placed into immigration custody immediately following the completion of his or her criminal sentence.[2]

         Petitioners' motion for preliminary injunction intersects with issues raised by the Government's motion to dismiss. In its motion, the Government seeks dismissal of all of Petitioners' claims as pled in the amended complaint - those pertaining to detention, as well as those based on removal, transfer, and right to counsel - on the grounds that they are either jurisdictionally barred or fail as a matter of law. See generally Gov. Mot. to Dismiss. The Court will consider - and deny - the Government's motion in conjunction with the detention claims raised in the motion for preliminary injunction, and defers a ruling on the remaining issues raised in the Government's motion.

         Finally, Petitioners have filed a motion to certify the putative primary class and three detention subclasses. Because the Court is limiting its decision to detention issues, it will only consider certification of the detention subclasses. Petitioners argue that certification is appropriate because the detainees are seeking relief as a result of Government action that applies uniformly to those in custody. Pet. Br. at 31. They argue that they are sufficiently numerous; present common questions of law and fact; assert claims that are typical of the putative subclass members; and will fairly and adequately represent them. In response, the Government argues that each detention claim requires a highly fact-intensive inquiry that makes class treatment inappropriate. Gov. Resp. at 6. The Court holds that these individual differences are insufficient to defeat certification, and that Petitioners have made a sufficient showing for class certification of the subclasses.


         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 Tennessee 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 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         With regard to class certification, “Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Rather, “[a] party seeking class certification must affirmatively demonstrate his compliance with the Rule . . . [S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. (quotation marks omitted).

         III. ANALYSIS

         The Court begins by analyzing the issues raised in Petitioners' motion for preliminary injunction. Next, the motion to dismiss is considered, but only insofar as it bears on the detention issues; consideration of the balance of the issues, including the jurisdictional challenge raised as to the removal claims, will be deferred. The Court will then turn to Petitioners' motion to certify class, considering only whether certification is appropriate as to the detention subclasses.

         A. Motion for Preliminary Injunction

         1. Likelihood of Success on the Merits a. Zadvydas Claim

         Petitioners first argue that, pursuant to Zadvydas, they are being unlawfully detained because there is no significant likelihood of removal in the reasonably foreseeable future. Pet. Br. at 19. Zadvydas involved two petitioners, Kestutis Zadvydas and Kim Ho Ma. Zadvydas was taken into custody after the conclusion of his criminal sentence and ordered removed. Efforts by the Government to deport Zadvydas to Germany, Lithuania, and the Dominican Republic were all unsuccessful, and the district court ordered Zadvydas released after concluding that he would be permanently confined. The Fifth Circuit reversed, holding that Zadvydas's detention was constitutional because his removal was still possible in light of ongoing diplomatic negotiations. Ma was also taken into custody following completion of a criminal sentence. Both the district court and Ninth Circuit ruled that Ma was entitled to release because there was no likelihood of removal in light of the lack of a repatriation agreement between the United States and Cambodia, Ma's native country.

         The Supreme Court began by interpreting 8 U.S.C. § 1231, the section of the INA addressing the detention and removal of aliens ordered removed. The statute establishes that where an alien has been ordered removed, the Attorney General shall remove the alien within ninety days. 8 U.S.C. § 1231(a)(1)(A). However, the statute permits the Attorney General to continue detention beyond this ninety day period. It states, in pertinent part:

An alien ordered removed [1] who is inadmissible . . . [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.

Zadvydas, 533 U.S. at 678 (quoting 8 U.S.C. § 1231(a)(6)). The question before the Court was whether this subsection “authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal.” Id. The Court held that “the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention.” Id. The Court reasoned that indefinite detention would raise a significant constitutional question, specifically as it pertains to the Fifth Amendment's Due Process Clause. Id. at 690. The Court held that, in any event, it could not find “any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed.” Id. at 697.

         The Court ultimately held that detention for six months is presumptively reasonable and then stated:

After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the “reasonably foreseeable future” conversely would have to shrink.

Id. at 701. The Court remanded both cases in light of its new standard. It noted in Zadvydas's case that the Fifth Circuit had concluded that continued detention was lawful because Zadvydas had not demonstrated that his removal was “impossible” - meaning that an alien had to show “the absence of any prospect of removal” - which the Supreme Court found to be an excessive standard. Id. at 702 (emphasis in original). Remand was ordered in Ma's case, because the Ninth Circuit may have based its conclusion of no likelihood of removal based solely on the absence of a repatriation agreement, without giving due weight to future negotiations over repatriation.

         With detention having exceeded the six-month milestone for the initial June detainees - and with more detainees reaching that milestone with the passage of time - Petitioners first argue that there is no significant likelihood of their removal in the reasonably foreseeable future because it is unclear whether Iraq will actually accept repatriation.[3] Petitioners argue that the Government has not provided any “particularized evidence” that removal can be effected in the reasonably foreseeable future. Pet Br. at 21. They note that the Government has only provided “vague representations” about its agreement with Iraq and that country's supposed willingness to relax its policies regarding issuance of travel documents. Petitioners state that since the alleged policy change was announced, several putative members have unsuccessfully attempted to receive their travel documents from the Iraqi government. Id. at 22. Petitioners cite the Sixth Circuit's ruling in Rosales-Garcia v. Holland, 322 F.3d 386 (6th Cir. 2003), where the court held that there was no significant likelihood of removal in the reasonably foreseeable future for two Cuban aliens. The court noted that “[a]lthough the government presented evidence of . . . continuing negotiations with Cuba over the return of Cuban nationals excluded from the United States, neither [petitioner] is currently on a list of persons to be returned.” Id. at 415.

         In response, the Government provides the declaration of John Schultz, the deputy assistant director for DHS's removal management division - east. Schultz Decl., Ex. A to Gov. Resp., ¶ 1 (Dkt. 158-2). Schultz states that the Government's negotiations have resulted in Iraq's agreement to cooperate in removal of Iraqi nationals from the United States. Id. ¶ 4. As evidence of this cooperation, Schultz notes that, prior to this Court's rulings enjoining removal, ICE had scheduled charter flights to depart in both June and July. Id. ¶ 6. While very few travel documents have actually been provided since this Court's injunction was issued, Schultz's declaration states that these documents are only being sought for those not subject to the stay of removal, to avoid having to make multiple requests to Iraq in the event travel documents expire during the pendency of the injunction. Id. ¶ 8.

         The Government later submitted, following the hearing on these motions, a declaration by Michael Bernacke, the acting assistant deputy assistant director for DHS's removal management division - east. See Bernacke Decl., Ex. A to Gov. Supp. Br., ¶ 1 (Dkt. 184-2). In his declaration, Bernacke states that the agreement between the United States and Iraq is not memorialized in writing, but is instead the product of ongoing negotiations. Id. ¶ 4. Bernacke also states that “the agreement does not contemplate any numeric limitation on the number of removals, ” and that if the injunction is lifted, large-scale removals can be arranged via charter flight, without the need for travel documents. Id. ¶¶ 5-6.

         Based on this record, the Court cannot make a determination regarding whether Iraq will accept repatriation of the class. Schultz's declaration does not contain information regarding the framework of the Government's diplomatic agreement with Iraq. When pressed at the hearing by the Court regarding details of the agreement, counsel for the Government was unsure whether there was any formal agreement that had been memorialized in writing. Although the post-hearing Bernacke declaration fills in some of the blanks - it acknowledges that there is no written agreement - there is still not enough information regarding the scope of the agreement with Iraq.[4] While a handful of Iraqi nationals have been removed to Iraq since April, it is unclear whether Iraq has agreed to repatriate all 1, 400 putative class members at issue here, and if so, what conditions may have been attached that could impact on whether removal is likely. Until the Court has a more complete picture from the Government regarding its communications with the Iraqi government, it cannot make a ruling on Iraq's willingness to accept repatriation of the class.

         Petitioners also argue that, even if Iraq has agreed to accept repatriation of the class, their removal is still not significantly likely in the reasonably foreseeable future, because it could take years to litigate their motions to reopen. Pet. Br. at 22. Petitioners contend that if a detainee is denied at every stage of the litigation, from the immigration judge to the court of appeals, the process can take nearly three years. See Pet. Br., Table A.

         In support, Petitioners rely on the Sixth Circuit's decision in Ly v. Hansen, 351 F.3d 263 (6th. Cir. 2003), which addressed whether Zadvydas extended to 8 U.S.C. § 1226(c), the mandatory pre-removal detention statute. Id. at 267.[5] The Government in that case argued that the alien was partially responsible for his lengthy detention, noting that he had filed applications to cancel his removal. Petitioners rely on the court's statement that “appeals and petitions for relief are to be expected as a natural part of the process, ” and that “[a]n alien who would not normally be subject to indefinite detention cannot be so detained merely because he seeks to explore avenues of relief that the law makes available to him.” Id. at 272. Petitioners argue that they too should not be subject to indefinite detention simply because they have availed themselves of the motion to reopen process.

         In response, the Government cites to cases holding removal to be reasonably foreseeable where the end of a litigation will terminate detention. See Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th Cir. 2004) (“[H]is detention is clearly neither indefinite nor potentially permanent like the detention held improper in Zadvydas; it is, rather, directly associated with a judicial review process that has a definite and evidently impending termination point.”); see also Prieto-Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir. 2008); Flores v. Holder, 977 F.Supp.2d 243, 249 (W.D.N.Y. 2013). One of the cases relied on by Petitioners supports the Government's point; it held that an alien who had been in custody for seven years had a reasonably foreseeable removal date because Colombia was willing to accept his repatriation “if he ultimately fails in fighting the government's charge of removability.” Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 949 (9th Cir. 2008).[6]

         This line of cases is much clearer than the language in Ly that Petitioners rely on. The court in Ly was merely noting which factors courts should consider when determining whether an alien has been subject to an unreasonable detention. It simply instructed courts to weigh whether prolonged detention was attributable to dilatory tactics by the alien. It does not reject the holdings by the Ninth and Tenth Circuits that there is a significant likelihood of removal in the reasonably foreseeable future where the only impediment to removal is the litigation process, which has a definite endpoint. The Court finds those rulings persuasive, and holds that removal is reasonably foreseeable where the only barrier to removal is ongoing immigration proceedings.[7]

         Thus, the Government is correct that Petitioners would have no Zadvydas claim if removal were blocked solely because the legal proceedings had not terminated. But that is not necessarily our circumstance. It is still an open question whether Iraq has agreed to accept class-wide repatriation. As noted above, a more developed record is necessary to answer this question. Thus, the Court defers ruling on the likelihood of success on the Zadvydas claim pending further discovery.[8]

         b. ...

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