Al-Jabari v. U S Attorney General of America

Filing 17

MEMORANDUM OF OPINION AND ORDER Considering the foregoing, Petitioner is ordered to file a pleading with this Court within thirty (30) days from the date of entry of this Order certifying that he has, at the least, initiated the process of removing himself from the Hamama class pursuant to the requirements of the Hamama court's Order Regarding Further Proceedings (explained above at page 7). Signed by Judge L Scott Coogler on 11/7/2018. (PSM, )

FILED
2018 Nov-07 AM 10:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
HUSSAIN JIYAD AL-JABARI,

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Petitioner,
v.
U.S. ATTORNEY GENERAL OF
AMERICA,
Respondent.

4:18-cv-00408-LSC-TMP

MEMORANDUM OF OPINION AND ORDER
I.

Introduction
This is a petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2241

wherein the petitioner, an Iraqi national, is arguing that his continued detention
pending removal to Iraq violates substantive and procedural due process
requirements pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001). Petitioner is
currently detained at the Etowah County Detention Center in Gadsden, Alabama, 1

1

When Petitioner filed this action, he was detained at the Etowah County Detention
Center. He was transferred to the Jena/LaSalle Detention Center in Jena, Louisiana, sometime
after May 2018. However, a recent order entered by the magistrate judge assigned to this case
(doc. 15) that was mailed to Petitioner in Louisiana has been returned by the Postal Service with
the notations “Return to Sender,” “Refused” and “Unable to Forward.” (Doc. 16). The Court
has now learned Petitioner has apparently been transferred back to the Etowah County Detention
Center. See https://locator.ice.gov. Accordingly, the Clerk is DIRECTED to revise the
docket sheet to reflect Petitioner’s new address: Etowah County Detention Center, 827
Forrest Avenue, Gadsden, Alabama, 35901. The Clerk is further DIRECTED to mail a copy
of the docket sheet, this Order, and doc. 15 to Petitioner at that address.
1

subject to a final order of removal. For the following reasons, this action is subject
to dismissal without prejudice unless Petitioner shows cause, as more fully stated
below.
II.

General Legal Standard
The Attorney General must remove an alien from the United States within

90 days after an order of removal becomes administratively final, but should
removal not be accomplished within the 90-day removal period, detention is
permitted to continue, provided, however, that it is limited to a presumptively
reasonable time period, declared by Zadvydas and its progeny to be six months. See
533 U.S. at 690-92, 701; 8 U.S.C. § 1231(a)(1), (6). If removal is not reasonably
foreseeable at the expiration of that time period, continued detention is not
authorized under 8 U.S.C. § 1231(a)(6). Zadvydas, 533 U.S. at 699.
III.

Background
Petitioner has been convicted of numerous crimes since first entering the

United States in 1995, including retail fraud, maintaining a drug house, and forgery.
(Declaration of Bryan S. Pitman, Supervisory Detention and Deportation Officer
with the Department of Homeland Security, Immigration and Customs
Enforcement, New Orleans Field Office, assigned to the Etowah County Detention

2

Center, doc. 7-2.) On January 31, 2012, an Immigration Judge ordered Petitioner
removed from the United States to Iraq. (Id.) From December 28, 2012 until June
20, 2017, Petitioner was not in ICE custody due to stalled removal efforts with the
Iraqi government. (Id.) Petitioner returned to ICE custody on June 20, 2017,
following his most recent criminal conviction. (Id.)
On June 15, 2017, a habeas action was filed in the U.S. District Court for the
Eastern District of Michigan on behalf of a putative class of Iraqi nationals
challenging their detention pending deportation as contrary to Zadvydas. See
Hamama v. Adducci, Case No. 17-cv-11910 (E.D. Mich.). Petitioner’s imminent
removal was halted when, on June 27, 2017, the Hamama court expanded its
temporary restraining order staying the removal of Iraqi nationals within the
jurisdiction of the ICE Detroit Field Office to all Iraqi nationals nationwide. See
Hamama, 261 F. Supp. 3d 820, 841 (E.D. Mich. 2017) (staying the removal of “all
Iraqi nationals in the United States who had final orders of removal on June 24,
2017, and who have been, or will be, detained for removal by ICE”).
On October 12, 2017, Petitioner was served with a notice of membership in
the Hamama class, which included a Know Your Rights informational sheet and a
voluntary removal packet that contained procedures to opt out of the putative class
in Hamama. (Doc. 7-2.)
3

On November 22, 2017, Petitioner filed a habeas petition in this Court,
challenging his immigration detention during the pendency of the stay issued by the
Hamama court under Zadvydas, and asserted a right to a bond hearing. See doc. 1 in
Case No. 4:17-cv-01972-KOB-TMP. On January 2, 2018, the Hamama court
certified three “subclasses” to address the immigration detention claims.
Respondent asserts Petitioner is a member of a subclass challenging his continued
detention under Zadvydas and also a member of the subclass challenging his
prolonged detention without a bond hearing. For the Zadvydas claim, the Hamama
court decided that further discovery was warranted. For the prolonged detention
claim, the Hamama court entered a second preliminary injunction requiring bond
hearings for certain Iraqi nationals who were subject to the court’s stay of removal
and who have been detained for a period exceeding six months. Hamama, 285 F.
Supp. 3d 997, 1008-09 (E.D. Mich. 2018). The subclasses excluded individuals
(like Petitioner) who at the time had “open” individual habeas petitions. Id.
However, the Hamama court ordered that the government serve detained Iraqis
subject to the court’s stay of removal with a notice informing them that they may
join the detention subclasses (and become eligible for a bond hearing) if they
withdraw their habeas petitions within three weeks from the receipt of the notice.
On January 24, 2018, Petitioner voluntarily withdrew his previous habeas petition.
4

On February 28, 2018, Judge Karon O. Bowdre dismissed Petitioner’s petition
without prejudice. In accordance with the directive from the Hamama court,
Petitioner was afforded a bond hearing on February 6, 2018, and the Immigration
Judge denied bond. (Doc. 7-2.)
On March 15, 2018, Petitioner refiled the very same habeas petition with this
Court. (Doc. 1). Like his initial petition, and the Hamama class habeas petition,
Petitioner challenges his detention as contrary to Zadvydas and seeks release. (Id.).
In the instant case, Respondent argues that Petitioner should not be allowed to seek
duplicative habeas relief in this Court while he remains part of a certified class of
individuals pursuing identical relief in a class habeas in Hamama, arguing that it
would be an abuse of the writ to allow this case to proceed while the
constitutionality of Petitioner’s detention is already being considered by that court.
(See doc. 7).
In response, Petitioner states that he is no longer part of the Hamama
subclass and submitted a signed “Detainee Stipulation to Prompt Removal to
Iraq,” dated May 15, 2018, wherein he stipulates that he wishes to be removed to
Iraq and that the preliminary injunction in Hamama will no longer prevent that
removal. (Doc. 9.)

5

The magistrate judge recommended dismissal of this action without
prejudice because Petitioner has not demonstrated that he (or class counsel on his
behalf) has submitted the aforementioned “Detainee Stipulation to Prompt
Removal to Iraq” with a request to be removed from the subclass to the U.S.
District Court for the Eastern District of Michigan, or that the Michigan court has
issued a stipulated order removing Petitioner from the subclass and, thus, from the
stay of removal. (Doc. 10.)
Although the petitioner did not file objections to the magistrate judge’s
report, this Court did not adopt it, stating that it was of the opinion that
Petitioner’s pleading entitled “Detainee Stipulation to Prompt Removal to Iraq”
(doc. 9 at 7) is sufficient to be considered Petitioner’s statement of his intent to
withdraw from the subclass in Hamama. (Doc. 13.) The Court ordered Respondent
to show cause as to why that should not be the case and why this case should not
proceed on Petitioner’s claims.
IV.

Discussion
As a class member in Hamana, Petitioner remains subject to a stay of

removal to Iraq. In response to the show cause order, Respondent has explained
that the Hamama court has required, since September 2017, that class counsel
consent to removal of the individual from the class. In order for a petitioner to be
6

removed from the class based on his desire to return to Iraq, the Hamama court
requires a showing that Petitioner’s desire to return to Iraq is “knowing and
voluntary.” See “Order Regarding Further Proceedings,” Doc. 110 at 2, Hamama,
17-cv-11910 (E.D. Mich.). The “Order Regarding Further Proceedings” outlines
the following process to opt out of the class:
The Government shall distribute Petitioners’ “Detainee Request for
Prompt Removal to Iraq” form to all detainees. See Ex. 1.A to Joint
Status Report (Dkt. 107-2). This distribution shall take place on or
before October 2, 2017; it shall be distributed to any person detained
after September 25, 2017 (“new detainee”) within seven days of his or
her detention. This form instructs those putative class members with
attorneys to contact counsel for both Petitioners and the Government,
and provides a process for those without counsel to speak with an
independent, pro bono attorney prior to removal. The form makes
clear that detainees are under no obligation to meet with an attorney.
If a putative class member does elect to meet with an attorney, the
attorney will explain the putative class member’s available options,
confirm that the decision to return is not the product of coercion, and
ensure that the decision was made knowingly and voluntarily. If, after
this meeting, the putative class member still wishes to return to Iraq,
he shall sign a second form, a “Detainee Stipulation to Prompt
Removal to Iraq.” See Ex. 1.B. to Joint Status Report (Dkt. 107-2).
Further, the attorney who has met with the detainee shall submit a
declaration affirming that the putative class member’s decision to
return to Iraq was made knowingly and voluntarily. These forms will
then serve as the basis for the parties to file a stipulation and proposed
order stating that the putative class member is no longer covered by
the Court’s preliminary injunction.
Id.

7

Although Petitioner signed one of the required forms, there is no indication
that he has completed the process in accordance with the Hamama court’s “Order
Regarding Further Proceedings.” See id. Specifically, he has not submitted the
required form to Hamama class counsel so that the parties can file a stipulation and
proposed order stating that he is no longer covered by the Hamama court’s
preliminary injunction. 2 Despite receiving the opt-out forms in October 2017, see
doc. 7-2, it does not appear that Petitioner submitted them, instead choosing to file
an individual habeas petition in this Court in November 2017, see Case No. 4:17-cv1972-KOB-TMP, but subsequently withdrawing it in order to become a member of
the Hamama subclass challenging his continued detention without a bond hearing.
When Petitioner’s bond was denied, Petitioner re-filed the same habeas petition in
this Court.
IV.

Conclusion
Considering the foregoing, Petitioner is ordered to file a pleading with this

Court within thirty (30) days from the date of entry of this Order certifying
that he has, at the least, initiated the process of removing himself from the
Hamama class pursuant to the requirements of the Hamama court’s Order
Regarding Further Proceedings (explained above at page 7).
Indeed, a review of the Hamama docket activity reveals that such stipulated orders have
been entered for numerous other individual class members since October 2017, the most recent
being in August 2018. See generally Hamama, No. 17-cv-11910 (E.D. Mich.).
2

8

Specifically, and for Petitioner’s convenience, the Court has attached to this
order as “Exhibit 1” the “Detainee Request for Prompt Removal to Iraq” form
that Petitioner should sign and mail to the following address:
LEGAL MAIL FOR ICE
Enforcement and Removal Operations
333 Mt. Elliot, Detroit, MI 48207
ATTN: Hamama v. Adducci Litigation
If Petitioner does not comply with this directive within the time frame as set
out, this action will be dismissed without prejudice.
DONE and ORDERED on November 7, 2018.

_____________________________
L. Scott Coogler
United States District Judge
160704

9

EXHIBIT 1

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