United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
matter is presently before the Court on petitioner's
application for a writ of habeas corpus [docket entry 1].
Respondents have filed a response in opposition in which they
argue that the petition should be denied. Petitioner has not
replied, and the time for him to do so has expired. Pursuant
to E.D. Mich. LR 7.1(f)(2), the Court shall decide the
petition without a hearing.
indicates that he has been detained pending removal since
April 2018. He argues that this is an unreasonable length of
time and that this Court should order him released on bond,
or require an immigration judge to conduct a bond hearing,
pending the completion of the removal proceedings.
application is denied for the reasons stated by Judge Jack
Zouhary of the Northern District of Ohio, where petitioner
filed a similar application in April 2019. See Awshana v.
Adducci, No. 4:19-cv-00724 (N.D. Ohio). Judge
Zouhary's July 10, 2019, order granting respondents'
motion to dismiss, which petitioner did not appeal, states in
relevant part as follows:
Awshana is an Iraqi citizen who first entered the United
States as a refugee in 2009 (Doc. 1 at 3-4). In 2017, he was
convicted of drug possession and twice convicted of retail
fraud (Doc. 4-3 at 4; Doc. 4-12 at ¶ 5). Following these
convictions, the Government took him into custody and
initiated removal proceedings in April 2018 (Doc. 4-12 at
¶ 6). His detention was then authorized by 8 U.S.C.
§ 1226(c), which requires detention of aliens who are
deportable for committing certain criminal offenses (Doc.
4-12 at ¶¶ 5-6, 16).
In August 2018, a Detroit immigration judge ordered
Awshana's removal to Iraq (Doc. 4-4). When that order was
issued, the authority for Awshana's continued detention
changed to 8 U.S.C. § 1231(a), which allows, but does
not require, detention of aliens subject to removal orders.
See Ly v. Hansen, 351 F.3d 263, 267 (6th Cir. 2003).
The Government then obtained an Iraqi travel document for
Awshana and scheduled his removal for April 2019 via
commercial flight (Doc. 4-12 at ¶¶ 9-10). On the
scheduled departure date, Awshana refused to board the
flight, and he was returned to detention, where he remains
today (id. at ¶ 11).
Recently, an immigration judge stayed Awshana's removal
and reopened his immigration case (Doc. 4-7 at 2; Doc. 4-9 at
6). Accordingly, the statute authorizing his detention has
switched back to Section 1226(c) (Doc. 4-12 at ¶¶
In the Petition, Awshana challenges the lawfulness of his
detention under Section 1231(a). He cites Zadvydas v.
Davis, 533 U.S. 678, 699-01 (2001), to argue that, once
an alien has been detained under Section 1231(a) for six
months, he “must be released if there is no reasonable
likelihood of removal in the reasonably foreseeable
future” (Doc. 1 at 6). The Government argues
Awshana's claim is moot because he is no longer detained
under Section 1231(a), which permits detention, but rather
under Section 1226(c), which requires it (Doc. 4-1 at 3-4).
A case becomes moot “when events occur during the
pendency of a litigation which render the court unable to
grant the requested relief.” Carras v.
Williams, 807 F.2d 1286, 1289 (6th Cir. 1986). In
Parlak v. U.S. Immigration and Customs Enforcement,
the Sixth Circuit held that a petitioner's challenge to
his detention was moot where, during petitioner's appeal,
the authority for his detention changed from Section 1226 to
Section 1231. 2006 WL 3634385, at *1 (6th Cir. 2006)
Similarly, here, Awshana challenges his detention under
Section 1231(a), but he is now detained under Section
1226(c). Although Section 1226(c) does not allow for
indefinite detention, Awshana has no live claim for relief
because there has been no “unreasonable delay in
concluding removal proceedings.” Ly, 351 F.3d
at 271. His immigration case was reopened just two months ago
(Doc. 4-9 at 6), and he invited his continued detention by
refusing to board the earlier removal flight (see
Doc. 4-1 at 3). See also Lakhani v. O'Leary,
2010 WL 3730157, at *2 (N.D. Ohio 2010).
If circumstances change, Awshana may again seek habeas
relief. For now, “there is no live controversy
concerning whether his detention . . . would be