United States District Court, E.D. Michigan, Southern Division
USAMA J. HAMAMA, et al., Petitioners,
REBECCA ADDUCCI, et al., Respondents.
OPINION & ORDER GRANTING IN PART PETITIONERS'
MOTION FOR RELEASE PURSUANT TO ZADVYDAS ORDER, ECF 490 (DKT.
A. GOLDSMITH UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioners' motion to
release Raid Dawad and Johnny Younan (Dkt. 548). In its
response brief, the Government informed the Court that Raid
Dawad has been released on an order of supervision because
neither Iraq nor Jordan will accept his repatriation.
Gov't Resp. at 3 (Dkt. 550). Therefore, the matter is
moot as to Dawad. As to Younan, for the reasons discussed
below, the Court finds that he must be released.
removal history is not entirely clear from the parties'
briefing. According to Petitioners, Younan pleaded guilty to
conspiracy to commit health care fraud in 2015. Pet'rs
Reply at 3 (Dkt. 554). Whether this conviction formed the
basis for Younan's order of removal is not addressed in
the briefing. On June 12, 2017, Younan was taken into custody
by ICE in anticipation of removal. Pet'rs Mot. at 4. The
Government relies on 8 U.S.C. § 1231 in its response
brief, Gov't Resp. at 4, so presumably ICE
detained Younan because he was subject to a final order of
removal. He remained in ICE custody for 143 days, until he
was released to the United States Marshal Service on November
1, 2017 to begin serving his criminal sentence resulting from
his 2015 guilty plea. Pet'rs Mot. at 4-5. Younan served his
sentence and was returned to ICE custody on March 8, 2019.
Id. at 5. As of April 15, 2019, he has been detained
by ICE for 180 days inclusive of his detention before and
after his criminal incarceration.
argue that Younan should be released on or before May 15,
2019 under the Court's Zadvydas Order because he
has been in ICE custody for more than 180 days. The
Government argues that the period of detention before Younan
was remanded to serve his criminal sentence should be
excluded from the calculation. In other words, the Government
is arguing that the removal period was effectively reset when
Younan was released from his custodial sentence. The
Government has not justified such an exclusion.
the Government's position that Younan is being held under
8 U.S.C. § 1231, which establishes that where an alien
has been ordered removed, the Attorney General shall remove
the alien within ninety days (known as the “removal
period”). 8 U.S.C. § 1231(a)(1)(A). The ninety-day
removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively
(ii) If the removal order is judicially reviewed and if a
court orders a stay of the removal of the alien, the date of
the court's final order.
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C. § 1231(a)(1)(B)(i-iii). If removal is not
effectuated within the removal period, the Government may
continue to detain certain aliens, including criminal aliens
such as Younan, under 8 U.S.C. § 1231(a)(6). Continued
detention under § 1231(a)(6), however, may not extend
the detention beyond a presumptively reasonable period of six
months, absent strong special justifications. Zadvydas v.
Davis, 533 U.S. 678, 689, 701 (2001).
Government's argument that the statutory removal period
reset on March 8, 2019 is not supported by the record before
the Court. Section 1231(a)(1)(A) is clear that “the
Attorney General shall remove the alien from the United
States within a period of 90 days.” The Government does
not establish when this period began. If, like many
Zadvydas subclass members, Younan was ordered
removed years ago, the removal period has likely come and
gone based on the date his order of removal became
administratively final. See Bailey v. Lynch, No. CV
16-2600, 2016 WL 5791407, at *2 (D.N.J. Oct. 3, 2016)
(“Petitioner's removal period had concluded long
before he was taken back into custody by immigration
officials, and his detention is therefore not presumptively
reasonable and is thus subject to challenge under
Zadvydas.”). The Government has provided no
authority that the removal period can be reset after it has
argue that the Court should aggregate the time spent in ICE
custody. Pet'rs Mot. at 5. The Government disagrees and
argues that Younan was in criminal custody for nearly a year
and a half and, therefore, it would have been unreasonable
for ICE to work on Younan's removal when it was uncertain
when Younan would be released. Gov't Resp. at 6. It
argues that it should be allowed to keep Younan in custody
for a full six months to effectuate his removal. Id.
However, the Government does not explain, and it is not clear
to the Court, why asking the Bureau of Prisons to estimate
Younan's release date would have been such an onerous
endeavor. Younan was in ICE custody for 143 days before he
was turned over to the Bureau of Prisons. ICE took steps to
effectuate Younan's removal during that period, including
arranging a consular interview, which should have made
removal easier once Younan returned to ICE custody. Even if
the precise day of Younan's release could not be readily
determined, ICE should have been able to obtain a general
timeframe for Younan's release such that travel documents
(which are good for six months) and travel arrangements could
have been secured. The Government's argument that
Younan's release date was uncertain and therefore it
could not work on his removal is not persuasive.
the Government cites no cases that have adopted the view that
the Zadvydas six-month period should be restarted
each time an individual enters and leaves ICE custody.
Petitioners, on the other hand, cite several cases that have
found that the removal period is cumulative for the purposes
of Zadvydas. See Sied v. Nielsen, No.
17-CV-06785-LB, 2018 WL 1876907, at *6 (N.D. Cal. Apr. 19,
2018) (approving the approach, taken by “several
courts” that “the six-month period does not reset
when the government detains an alien under 8 U.S.C. §
1231(a), releases him from detention, and then re-detains him
again”); see also Nhean v. Brott, No. 17-28
(PAM/FLN), 2017 WL 2437268, at *2 (D. Minn. May 2, 2017)
(report and recommendation) (holding that when the government
detains an alien for ninety days, releases him, and then
re-detains him, the second detention “was presumptively
reasonable for an additional ninety days (six months in
total), ” not an additional six months),
adopted, 2017 WL 2437246 (D. Minn. June 5, 2017);
Bailey, 2016 WL 5791407, at *2 (holding that the
six-month Zadvydas period “does not restart
simply because an alien who has previously been released is
taken back into custody”); Farah v. INS, No.
Civ. 02-4725(DSD/RLE), 2003 WL 221809, at *5 (D. Minn. Jan.
29, 2013) (holding that when the government releases an alien
and then revokes the release based on changed circumstances,
“the revocation would merely restart the 90-day removal
period, not necessarily the presumptively reasonable
six-month detention period under Zadvydas”).
Although the above cases do not bear directly on Younan's
situation, they are instructive. The Court is not persuaded
that Younan's detention should be allowed to continue
beyond six months where the Government has not explained why
it could not work on Younan's removal in advance of his
release from federal custody and courts in similar contexts
have found that the six-month Zadvydas period is
Government has detained Younan beyond the six-month period
set forth in Zadvydas. The Court has found that
there is not a significant likelihood of removal to Iraq in
the reasonably foreseeable future. Hamama v.
Adducci, 349 F.Supp.3d 665, 692 (E.D. Mich. 2018). The
Government has not obtained travel documents and itinerary
for Younan, which would indicate removal is not imminent. Nor
has it asserted a strong special justification, within the
meaning of Zadvydas, to continue Younan's
detention. Accordingly, because the Government has failed to
substantiate any sound reason for Younan's continued
detention, Petitioners' motion for release (Dkt. 548) is
GRANTED IN PART. The ...