Hamama et al v. Adducci
OPINION AND ORDER Staying Removal of Petitioners Pending Court's Review of Jurisdiction. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
USAMA J. HAMAMA, et al.,
Case No. 17-cv-11910
HON. MARK A. GOLDSMITH
OPINION AND ORDER STAYING REMOVAL OF PETITIONERS PENDING
COURT’S REVIEW OF JURISDICTION
This matter is before the Court on Petitioners’ motion for temporary restraining order
and/or stay of removal (Dkt. 11). Petitioners, all of whom are Iraqi nationals subject to final orders
of removal, were detained on June 11, 2017 and informed of their imminent repatriation. They
filed a habeas corpus class action petition (Dkt. 1) and now seek a temporary restraining order
and/or stay of removal until the appropriate body determines whether they are entitled to
withholding or deferral of removal in light of changed country conditions. Because the Court is
unsure whether it has subject-matter jurisdiction, the Court stays the Government’s execution of
Petitioners’ final orders of removal pending the Court’s jurisdictional determination.
On June 11, 2017, over 100 Iraqi nationals, including Petitioners, were arrested and
detained by agents of the United States Immigration and Customs Enforcement (“ICE”).
Youkhana Decl., Ex. B. to Pet. Mot., ¶ 4 (Dkt. 11-3). These individuals are all subject to final
orders of removal, some decades old, after being convicted of various crimes, see Salman Decl.,
Ex. C. to Pet. Mot., ¶¶ 8-9 (Dkt. 11-4); Valk Decl., Ex. D to Pet. Mot., ¶¶ 3, 8 (Dkt. 11-5); Nissan
Decl., Ex. E. to Pet. Mot., ¶¶ 4-5 (Dkt. 11-6). Despite the orders of removal, Petitioners had been
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permitted to reside in their communities under orders of supervision. Hab. Pet. ¶ 2. According to
Petitioners, the Government was unable to execute the orders of removal because of Iraq’s refusal
to issue travel documents for repatriation and, in some cases, for humanitarian reasons. Id. ¶¶ 2930. Repatriation became possible recently when Iraq agreed to issue the requisite travel documents
in exchange for being removed from the list of countries set forth in Executive Order 13780, issued
March 6, 2017. Id. After their arrest, the vast majority of Petitioners were transferred to the
Northeast Ohio Correction Center in Youngstown, Ohio where they face imminent removal to
Iraq. 1 Id. ¶ 37.
On June 15, 2017, Petitioners filed this habeas corpus class action petition, seeking, among
other relief, an order enjoining the Government from removing them to Iraq without first providing
them an opportunity to demonstrate that, in light of changed country conditions, they would face
persecution, torture, or death, if removed to Iraq. The relief would extend to all members of the
class, defined as “all Iraqi nationals within the jurisdiction of the Detroit ICE Field Office, with
final orders of removal, who have been, or will be, arrested and detained by ICE as a result of
Iraq’s recent decision to issue travel documents to facilitate U.S. removals.” Id. ¶ 43. Petitioners
state that because of their having resided in the United States and their status as religious minorities
– many are Christian, others are members of oppressed Muslim sects – they are likely to be
persecuted, tortured, or killed by members of the Islamic State in Iraq and Syria, the de facto
government in many parts of Iraq. Id. ¶¶ 1, 32, 34.
Petitioners argue that they are eligible for relief from removal under both the Immigration
and Nationality Act (“INA”) and the Convention Against Torture (“CAT”). See id. ¶¶ 20-24
The Government informed the Court at oral argument that some Petitioners have since been
transferred to facilities in Louisiana and Arizona. The Government stated that it intends to begin
removals as early as June 27, 2017.
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(citing 8 U.S.C. § 1158(b)(1)(A) (providing asylum for refugees); 8 U.S.C. § 1231(b)(3) (barring
removal to country where alien’s life or freedom would be threatened); 8 C.F.R. § 208.16(c)(2)
(implementing regulation for Convention Against Torture)). Petitioners also argue that the
Government is violating the Fifth Amendment’s Due Process Clause by failing to give them the
opportunity to be heard regarding Iraq’s changed conditions prior to removal. Id. ¶ 57.
Petitioners now move for a temporary restraining order and/or stay of removal, arguing
that they are likely to succeed on their statutory and constitutional claims. They also argue that
they are likely to suffer irreparable harm in the form of persecution, torture, or death, while the
Government may only suffer a brief delay in removal proceedings. Finally, Petitioners argue that
a temporary restraining order or stay is in the public interest because the public benefits from a
fair immigration system. The Government defends against the motion solely on the basis of a lack
of jurisdiction, the complexity of which issue is discussed below.
In its response, the Government does not address the merits of Petitioners’ INA, CAT, or
Due Process claims, or any of the other factors the Court must consider in determining whether to
issue a temporary restraining order. Instead, it argues that the REAL ID Act, 8 U.S.C. § 1252,
divests this Court of subject-matter jurisdiction. The pertinent section states:
Except as provided in this section and notwithstanding any other
provision of law (statutory or nonstatutory), including section 2241
of Title 28, or any other habeas corpus provision, and sections 1361
and 1651 of such title, no court shall have jurisdiction to hear any
cause or claim by or on behalf of any alien arising from the decision
or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien under
8 U.S.C. § 1252(g). This section, according to the Government, ousts the district court of any
jurisdiction over removal orders, leaving review only with the court of appeals. See 8 U.S.C.
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§ 1252(a)(5) (“a petition for review filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial review of an order of removal.”).
Petitioners argue that the statute is inapplicable where, as here, it would not have been
possible to assert these claims by petition for review in the court of appeals, or where the individual
is not directly challenging his removal order. Petitioners note that their claims could not have been
raised in the courts of appeals at the time their removal orders were issued, because the changed
country conditions in Iraq did not arise until well after issuance. Further, Petitioners argue that
they are not directly challenging the removal order. They assert that the REAL ID Act only divests
district courts of jurisdiction to review the Attorney General’s discretionary actions – not actions
based on mandatory duties, which Petitioners claim are at issue here, as they allege fear of death
and torture if returned. If the REAL ID Act does divest this Court of jurisdiction over their claims,
Petitioners argue that the act violates the Constitution’s Suspension Clause, because it suspends
the right to a writ of habeas corpus without providing an adequate and effective alternative means
In light of these complex jurisdictional issues, and the speed with which the Government
is moving to remove Petitioners, it is necessary to stay Petitioners’ removal pending the Court’s
determination regarding its jurisdiction. It is well-settled, as the Government concedes, that a court
has jurisdiction to determine its own jurisdiction. Derminer v. Kramer, 386 F. Supp. 2d 905, 906
(E.D. Mich. 2005) (“A court always has jurisdiction to determine its jurisdiction.”).
Government also agrees that a court may stay the status quo until it can determine whether it has
jurisdiction. See United States v. United Mine Workers of Am., 330 U.S. 258, 290 (1947) (“[T]he
District Court unquestionably had the power to issue a restraining order for the purpose of
preserving existing conditions pending a decision upon its own jurisdiction.”); see also Am. Fed’n
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of Musicians v. Stein, 213 F.2d 679, 689 (6th Cir. 1954) (“[T]hese and other questions going to
the jurisdiction of the district court to entertain the case were grave and difficult, and justified the
district court in its issuance of the preliminary injunction in order to reserve its decision on
jurisdiction to a time when, after a hearing, adequate study and reflection would be afforded
properly to interpret and apply the law.”). These principles have been applied in the immigration
context. See 3/1/2007 Order, Kumar v. Gonzales, No. CV 07-003 (W.D. Mich.) (order staying
proceedings until jurisdiction determined in federal habeas case).
Case law does not expressly address whether the traditional factors for issuance of
preliminary relief – success on the merits, irreparable harm, balance of harms, and public interest
– should be addressed as part of a decision to maintain the status quo while jurisdiction is explored.
At least one court has issued a stay order in the immigration context without articulating or
applying the other factors. See id.
Even assuming such factors are relevant to the instant decision, a proper consideration of
them counsels issuing a stay. Irreparable harm is made out by the significant chance of loss of life
and lesser forms of persecution that Petitioners have substantiated. Such harm far outweighs any
conceivable interest the Government might have in the immediate enforcement of the removal
orders, before this Court can clarify whether it has jurisdiction to grant relief to Petitioners on the
merits of their claims. The public interest is also better served by an orderly court process that
assures that Petitioners’ invocation of federal court relief is considered before the removal process
continues. Finally, it is true that the likelihood of success on the merits – whether defined as
winning the jurisdiction issue or the right to modification of the removal orders – cannot yet be
determined. But no one factor is dispositive; rather, all factors are to be balanced. Hamad v.
Woodcrest Condo. Ass’n, 328 F.3d 224, 230 (6th Cir. 2003). Given that the other factors clearly
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favor a stay, the present indeterminacy of the merits does not undermine the conclusion that a stay
For the foregoing reasons, the Court stays the Government’s execution of Petitioners’ final
orders of removal pending the Court’s determination regarding whether it has subject-matter
jurisdiction. The stay extends to Respondent Adducci, Field Office Director for the Detroit District
of ICE, and any other federal officials and personnel involved in the removal process. The stay
applies to the removal of Petitioners and all members of the class, defined as all Iraqi nationals
within the jurisdiction of the Detroit ICE Field Office with final orders of removal, who have been,
or will be, arrested and detained by ICE, including those detained in Michigan and transferred
outside of Michigan to other detention locations. The stay shall expire 14 days from today, unless
otherwise ordered by the Court.
Dated: June 22, 2017
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on June 22, 2017.
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