United States District Court, E.D. Michigan, Southern Division
USAMA J. HAMAMA, et al., Petitioners,
REBECCA ADDUCCI, et al., Respondents.
OPINION & ORDER DENYING IN PART RESPONDENTS'
MOTION TO DISMISS (DKT. 135), GRANTING IN
PART PETITIONERS' MOTION FOR PRELIMINARY INJUNCTION (DKT.
138), AND GRANTING IN PART PETITIONERS' AMENDED MOTION TO
CERTIFY CLASS (DKT. 139)
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
explained below, the Court will grant relief by establishing
a process of individual bond hearings for all detainees
entitled to them.
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.
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.
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. 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
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.
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
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.
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.
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.
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.
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
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
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.
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.
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.
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
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.
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.
STANDARDS 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 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).
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.
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).
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
Motion for Preliminary Injunction
Likelihood of Success on the Merits a. Zadvydas
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.
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  who is inadmissible . . . 
[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  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
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
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
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.
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.
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.
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. 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.
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.
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. 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.
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.
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.
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.