Younes v. Lynch et al

Filing 9

OPINION AND ORDER Granting Petition for Writ of Habeas Corpus. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAHAR HUSSEIN YOUNES,
Petitioner,
Case Number 16-13556
Honorable David M. Lawson

v.
LORETTA LYNCH, United States Attorney General,
JEH CHARLES JOHNSON, Secretary, United States
Department of Homeland Security; REBECCA
ADDUCCI, Director, Detroit Field Office,
United States Immigration and Customs Enforcement,
and MATTHEW M. SAXTON, Sheriff of Calhoun
County, Michigan,
Respondents.
____________________________________________/

OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Sahar Hussein Younes is in the custody of the United States Immigration and
Customs Enforcement agency (ICE) and presently lodged in the Calhoun County, Michigan jail,
awaiting deportation to her home country of Lebanon. She has been in custody since January 2016,
and she seeks release under supervision via her petition for a writ of habeas corpus filed under 28
U.S.C. § 2241 on October 4, 2016. After the government filed a response, the Court held a hearing
on the petition in open court on November 14, 2016. The ICE agency, through Deportation Officer
Lucas Wandyg, has been working since March 23, 2016 to obtain travel documents from the
government of Lebanon, but, despite doing everything in its power to obtain those travel papers, it
has not been successful. Nor has the government been able to inform the petitioner or the Court
when one might expect such documents to issue. The Court determines, therefore, that the
government has not shown that there is any significant likelihood that the petitioner will be sent to

Lebanon in the reasonably foreseeable future. The petition will be granted and the petitioner ordered
released on conditions.
I.
Petitioner Sahar Hussein Younes is a citizen of Lebanon. She was born in 1977 in Majdal
Tarchich, Lebanon, and presently is 38 years old. She entered the United States as a lawful
permanent resident in 1995. Until earlier this year, she lived in Dearborn, Michigan with her
immediate family, which includes her husband, a United States citizen, and her three minor children,
who also are U.S. citizens. Numerous members of her extended family also are lawful residents or
citizens of the United States. On February 29, 2016, the petitioner was ordered removed from the
country, after a conviction for student loan fraud. She did not challenge the order of removal,
because, she contends, “she [wants] to return to Lebanon as expeditiously as possible.” Since the
order of deportation was entered, she has been detained at the Calhoun County Jail in Battle Creek,
Michigan, under ICE’s custody. During her detention the petitioner has undergone two “custody
reviews,” at 90 days and 180 days, but on both occasions her requests for supervised release were
denied by ICE officials.
Deportation Officer Wandyg states that he made his initial request to the Lebanese Consulate
for travel documents on March 23, 2016. When he followed up with an email inquiry, a consulate
representative responded with a request for a cashier’s check and four photographs of the petitioner,
which Officer Wandyg promptly furnished. Officer Wandyg made additional inquiries, but he did
not receive any response until May 16, 2016, when a consulate representative called to state that
documents would issue in “about two months.” Since then, Officer Wandyg has contacted the
Lebanese Consulate in July and August, but has not received any information that the issuance of

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the travel documents was forthcoming. His September 30 inquiry went unanswered, as did his
October 18 inquiry.
While she has been detained, the petitioner’s attorney has communicated with officials of
the Lebanese consulate, who have confirmed that they have all the information needed to process
the petitioner’s travel authorization. Petitioner’s counsel also has corresponded with the ICE case
agent assigned to the petitioner’s removal proceeding, who confirmed that nothing remains to be
done by the petitioner or United States officials to facilitate the removal. However, no travel
documents have yet been produced, and the Lebanese consulate has not suggested any date by which
they will be produced, despite the passage of more than eight months since the initial request for
authorization. On August 31, 2016, the petitioner’s attorney spoke by telephone with a consulate
official who stated that she had “no idea how long it would take” for an authorization to be issued,
but who nevertheless assured petitioner’s counsel that the petitioner would “eventually receive one.”
The petitioner suggests that the delay may be due in part to the need for multiple domestic
government agencies in Lebanon to sign off on her authorization to return to the country. She
believes that review has been complicated by the fact that Lebanese officials at some point
erroneously assigned her a “lot number” that was related to her former husband, rather than the “lot
number” that currently is or should be assigned to her, and the confusion over the proper “lot
number” that the petitioner should be assigned has delayed the needed approvals.
At the hearing, the attorney for the government, responding to the Court’s questions, stated
that the government has no information that the petitioner is a flight risk or a danger to the
community. The state of the record, all agree, points to the conclusion that as to the request by the

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United States for the petitioner, the government of Lebanon has not said “no,” but likewise it has
not said “yes,” and no one can say when an answer will be forthcoming.
On October 4, 2016, the petitioner filed her petition for a writ of habeas corpus seeking
release from ICE custody pending deportation. The government filed a response on October 20,
2016, and the petitioner filed a reply on November 3, 2016. The Court held a hearing on the petition
in open court on November 14, 2016.
II.
Congress has prescribed that once an alien has been ordered to be deported from our country,
“the Attorney General shall remove the alien from the United States within a period of 90 days (in
this section referred to as the ‘removal period’).” 8 U.S.C. § 1231(a)(1)(A). Moreover, “[d]uring
the removal period, the Attorney General shall detain the alien.” Id. § 1231(a)(2). And Congress
has authorized the Attorney General (now the Secretary of the Department of Homeland Security)
to detain such an alien beyond the 90-day removal period under certain circumstances:
An alien ordered removed who is inadmissible under section 1182 of this title,
removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who
has been determined by the [Secretary] 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 the terms of supervision in paragraph (3).
Id. § 1231(a)(6). “By its terms, this provision applies to three categories of aliens: (1) those ordered
removed who are inadmissible under § 1182, (2) those ordered removed who are removable under
§ 1227(a)(1)(C), § 1227(a)(2), or § 1227(a)(4), and (3) those ordered removed whom the Secretary
determines to be either a risk to the community or a flight risk.” Clark v. Martinez, 543 U.S. 371,
377 (2005). The petitioner does not dispute that she falls into the second category of aliens eligible
for extended detention under section 1231(a)(6), because she is subject to a final order of removal

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based on her conviction for an “aggravated felony.” However, “[i]n Zadvydas v. Davis, 533 U.S.
678 (2001), the Court interpreted this provision to authorize the Attorney General (now the
Secretary) to detain aliens . . . only as long as ‘reasonably necessary’ to remove them from the
country.” Clark v. Martinez, 543 U.S. 371, 373 (2005) (quoting Zadvydas, 533 U.S. at 689, 699).
The Zadvydas Court held that reading section 1231(a)(6) to authorize indefinite detention would
render the statute unconstitutional. Zadvydas, 533 U.S. at 690. Therefore, the Court “construe[d]
the statute to contain an implicit ‘reasonable time’ limitation, the application of which is subject to
federal-court review.” Id. at 682.
The Supreme Court held in Zadvydas that detention of an alien subject to removal due to a
criminal conviction will be presumptively reasonable for up to six months. However, “[a]fter 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.” Zadvydas, 533 U.S. at 701. “[F]or detention to remain reasonable,
as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable
future’ conversely would have to shrink.” Ibid. “This 6-month presumption, of course, does not
mean that every alien not removed must be released after six months. To the contrary, an alien may
be held in confinement until it has been determined that there is no significant likelihood of removal
in the reasonably foreseeable future.” Ibid.
The petitioner agrees that her student loan fraud conviction has subjected her to a final order
of removal, and that she may be detained beyond the 90-day removal period under section
1231(a)(6). Nevertheless, it is well established that extended detention under § 1231(a)(6) is
presumptively reasonable only up to six months, and that, after six months, continued detention is

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no longer authorized where there is “no significant likelihood of removal in the reasonably
foreseeable future.” Zadvydas, 533 U.S. at 701. It is undisputed here that the petitioner has been
detained longer than the six-month presumptively reasonable period under Zadvydas.
There is no bright-line test for measuring the “reasonable time” limitation engrafted onto
section 1231(a)(6). Ly v. Hansen, 351 F.3d 263, 271 (6th Cir. 2003) (stating that “courts must
examine the facts of each case[] to determine whether there has been unreasonable delay in
concluding removal proceedings”). In later cases, however, the Supreme Court has clarified that
the reasonableness of the detention must be assessed in light of the constitutional provision that the
Zadvydas Court found to be in play: the Due Process Clause of the Fifth Amendment that protects
the detainee’s liberty interest. Demore v. Kim, 538 U.S. 510, 527-31 (2003). The Court in Demore
dealt with the statute that authorized detention without bail of deportable criminal aliens pending
their removal proceedings. In finding the aliens’ due process argument premature, the Court
distinguished Zadvydas because deportation of the detainees in that case was found to be “no longer
practically attainable,” id. at 517 (citing Zadvydas, 533 U.S. at 690); and, due to the individual
circumstances of the two aliens before the Zadvydas Court, their detention “was ‘indefinite’ and
‘potentially permanent,’” id. at 528 (citing Zadvydas, 533 U.S., at 690-91). That was not the case
in Demore, where the alien was detained pending a removal proceeding with a typical calendar, so
that the “detention ha[d] a definite termination point.” Id. at 529.
The government took Younes into custody for the purpose of deporting her on February 29,
2016. More than eight months now have passed while the petitioner remained in custody awaiting
her removal. Despite diligent efforts by the ICE deportation officer, the government has not been
able to furnish any evidence that the government of Lebanon will issue travel documents in the

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discernable future. And although there is no hard evidence either way in the question when or if
travel documents will issue, there is a suggestion in the record that bureaucratic complications in
Lebanon will delay (or possibly prevent) issuance of the documents “in the reasonably foreseeable
future.” The United States has done all it can to procure the documents, and the petitioner has not
contributed in any way to the delay.
“Section 2241 of Title 28 of the U.S. Code provides that ‘[w]rits of habeas corpus may be
granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within
their respective jurisdictions.’” Rice v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting 28 U.S.C.
§ 2241(a)). “The statute is an affirmative grant of power to federal courts to issue writs of habeas
corpus to prisoners being held ‘in violation of the Constitution or laws or treaties of the United
States.’” Ibid. (quoting 28 U.S.C. § 2241(c)). The Court is satisfied by the evidence — and lack
of evidence — in the record that the petitioner has made an adequate showing under Zadvydas to
obtain release.
The release, however, will be subject to reasonable conditions. See 8 U.S.C.A. § 1231(a)(3)
(prescribing conditions for the release of an “alien [who] is not removed within the removal
period”).

III.

The petitioner is entitled to relief from her detention awaiting issuance of travel documents
to her native country of Lebanon.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is GRANTED.
It is further ORDERED that the defendants immediately shall release the petitioner, Sahar
Hussein Younes, upon the following conditions:
A.

The petitioner must appear before an immigration officer periodically for
identification;
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B.

The petitioner must submit, if necessary, to a medical and psychiatric
examination at the expense of the United States Government; and

C.

The petitioner must give information under oath about her nationality,
circumstances, habits, associations, and activities, and other information the
Attorney General considers appropriate.

It is further ORDERED that the government may apply to the Court to impose additional
reasonable restrictions on the petitioner’s conduct or activities.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: November 14, 2016

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on November 14, 2016.
s/Susan Pinkowski
SUSAN PINKOWSKI

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