Hamama et al v. Adducci

Filing 408

OPINION & ORDER Vacating Stipulation and Order (DKT. 151 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

USAMA J. HAMAMA, et al.,
Petitioners,

Case No. 17-cv-11910
HON. MARK A. GOLDSMITH

vs.
REBECCA ADDUCCI, et al.,
Respondents.
_______________________________/

OPINION & ORDER
VACATING STIPULATION AND ORDER (DKT. 151)
The matter before the Court is whether it should vacate the stipulation and order lifting the
preliminary injunction as to Wisam Ibrahim filed on January 23, 2018 (Dkt. 151). Saeeb Ibrahem
Mansy – Wisam Ibrahim’s father and a purported interested party – filed two motions to vacate
the stipulated order (Dkts. 207, 324) and a motion for a competency hearing (Dkt. 214). Petitioners
also filed motions to vacate the stipulated order (Dkts. 246, 285), and Respondents filed a motion
in limine to exclude Petitioners’ expert witness report in support of their motion (Dkt. 353). For
the reasons that follow, the Court grants the motions to vacate the stipulated order; denies
Respondents’ motion in limine as moot; and denies the motion for a competency hearing as moot.
I. BACKGROUND1

The Court’s opinion relies on a number of documents that have been filed under seal due to
privacy concerns related to Ibrahim’s mental health. The records already publically available on
the Court’s docket reveal a good deal of the information, but not to the degree present in the sealed
records. The Court’s opinion reveals no more information than is necessary to resolve this matter.
“The public has an interest in ascertaining what evidence and records the District Court . . . relied
upon in reaching [its] decisions.” Shane Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825
F.3d 299, 305 (6th Cir. 2016). In light of the important liberty interests at stake, and the great
public interest in the issues presented in this case, the Court does not find it appropriate to seal its
decision. “[T]he public is entitled to assess for itself the merits of judicial decisions.” Id. 
1

1

Subsequent to the preliminary injunction issued on July 24, 2017 (Dkt. 87), an issue arose
with respect to determining whether a class member’s decision to return to Iraq was knowing and
voluntary. On September 25, 2017, the Court adopted Petitioners’ proposed forms regarding
procedures to determine whether a putative class member’s decision to return to Iraq was knowing
and voluntary, which protocol included speaking with an attorney. 9/25/2017 Order at 1-2 (Dkt.
110); (Dkt. 107-2). Under the process, if the attorney is satisfied that the detainee is making a
knowing and voluntary decision to be repatriated to Iraq, the attorney must submit a completed
declaration form. Ex. 1.C to Joint Status Report at 2, PageID.2766 (Dkt. 107-2). In paragraph
nine of the declaration template, the attorney must declare that he or she “did not observe any
indicia of incompetency, as described in Matter of M-A-M, 25 I&N Dec. 474 (BIA 2011).” Id. In
Matter of M-A-M-, the Board of Immigration Appeals (“BIA”) stated the following test:
(2) The test for determining whether an alien is competent to participate in
immigration proceedings is whether he or she has a rational and factual
understanding of the nature and object of the proceedings, can consult with the
attorney or representative if there is one, and has a reasonable opportunity to
examine and present evidence and cross-examine witnesses.
25 I. & N. Dec. 474, 474 (BIA 2011). There is no provision in the Court’s order or the Courtapproved documents regarding the next step if a detainee shows indicia of incompetency, or what
process should be followed if the stay of removal is lifted but the lifting of the stay is later
challenged.
On November 20, 2017, the Court entered a stipulated order lifting the preliminary
injunction as to Ibrahim after receiving a signed waiver from Ibrahim stating that he wished to be
promptly removed to Iraq.

See 11/20/2017 Order (Dkt. 151); see also Waiver, Ex. B. to

11/20/2017 Order (Dkt. 151-2). The Court also received a declaration from a pro bono attorney,

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who met with Ibrahim, stating her belief that the waiver was made knowingly and voluntarily. See
Goldberg Decl., Ex. A to 11/20/2017 Order (Dkt. 151-1).
On January 23, 2018, Mansy filed a motion to vacate the stipulated order lifting the
preliminary injunction for Ibrahim (Dkt. 207). Mansy asserts that Ibrahim’s waiver could not have
been made knowingly and voluntarily in light of Ibrahim’s history of mental illness. See Mansy
Mot. ¶¶ 7-8. Although Ibrahim had indicated his desire to return to Iraq in October 2017, he did
not inform his family of his imminent removal until January 15, 2018. Id. ¶ 5. The Court
conducted a hearing on Mansy’s motion on the day it was filed, during which time Respondents
indicated that Ibrahim was in transit in preparation for removal. Given the emergent nature of the
situation, and the lack of full information available to the Court at that time, the Court temporarily
stayed execution of the stipulated order of removal (Dkt. 210).
Subsequently, Mansy filed a motion for a mental competency examination (Dkt. 214) and
Petitioners and Mansy filed motions to withdraw the stipulated order lifting the preliminary
injunction (Dkts. 246 and 285).

Petitioners arranged to have Dr. Debra Pinals proceed with a

mental health evaluation, which was conducted on February 14, 2018. Pet’rs Mot. to Withdraw
Stip. Order ¶ 3 (Dkt. 246).
While waiting for Respondents to conduct their own competency examination, Mansy filed
a petition in the Macomb County Probate Court for a limited guardianship of Ibrahim. Pet’rs Br.
in Supp. of Second Mot. to Withdraw Stip. Order at 3, PageID.6741 (Dkt. 285). The Probate Court
granted the petition on May 9, 2018 and appointed Mansy as Ibrahim’s guardian for “immigration
proceedings & legal matter only.” Ltr. Of Ltd. Guardianship, Ex. A to Pet’rs Second Mot.,
PageID.6751. The Probate Court made this determination “[u]pon the presentation of clear and
convincing evidence” that “by reason of mental illness,” Ibrahim “is impaired to the extent of

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lacking sufficient understanding or capacity to make or communicate informed decisions and is an
incapacitated individual.” Id. Mansy, shortly thereafter, filed an additional motion to vacate the
stipulated order to lift the preliminary injunction as Ibrahim’s guardian. Mansy Mot. to Withdraw
Stip. Order (Dkt. 324).
Respondents employed the services of Dr. William Cardasis to conduct another mental
health examination of Ibrahim, which occurred several months after Dr. Pinals’ examination. The
Court conducted an evidentiary hearing on July 19, 2018. The Court heard testimony by Dr. Pinals,
Dr. Cardasis, and Ibrahim. The parties stipulated to the qualifications of Dr. Pinals and Dr.
Cardasis, but differed on whether their expert reports should be entered into evidence.
Respondents filed a motion in limine shortly after the evidentiary hearing to exclude Dr. Pinals’
report from being entered into evidence. Resp’t Mot. in Lim. (Dkt. 353). The Court now has a
full record before it and can resolve the pending motions.
II. ANALYSIS
A. Standing
As an initial matter, Respondents argue that Mansy lacks standing to intervene in this case
because he has not shown that Ibrahim is unable to litigate this case due to mental incapacity.
Resp’t Resp. to Mansy Mot. for Comp. Exam. at 3, PageID.5753 (Dkt. 222). Typically, courts
resolve standing before reaching the merits of a pending matter. However, in this instance, the
standing matter and the motions before the Court turn on the same issue – Ibrahim’s competency.
Standing is “the threshold question in every federal case.” Warth v. Seldin, 422 U.S. 490,
498 (1975). Article III of the Constitution requires an “actual controversy” to be pending before
the court. The standing doctrine is “one of several principles used to ensure compliance with the
case or controversy requirement,” Poe v. Snyder, 834 F. Supp. 2d 721, 728 (E.D. Mich. 2011)

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(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)), and “requires that a litigant
have suffered an injury-in-fact that is fairly traceable to the defendant’s allegedly unlawful conduct
and likely to be redressed by the requested relief,” Peoples Rights Organization, Inc. v. City of
Columbus, 152 F.3d 522, 527 (6th Cir. 1998).
“In addition to the constitutional requirements, a plaintiff must also satisfy three prudential
standing restrictions.” Coyne v. Am. Tobacco Co., 183 F.3d 488, 494 (6th Cir. 1999). First, a
plaintiff must “assert his own legal rights and interests, and cannot rest his claim for relief on the
legal rights or interests of third parties.” Warth, 422 U.S. at 499 (citations omitted). “Second, a
plaintiff’s claim must be more than a ‘generalized grievance’ that is pervasively shared by a large
class of citizens.” Coyne, 183 F.3d at 494 (citing Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982)). “Third, in statutory
cases, the plaintiff’s claim must fall within the ‘zone of interests’ regulated by the statute in
question. Id. “These additional restrictions enforce the principle that, ‘as a prudential matter, the
plaintiff must be a proper proponent, and the action a proper vehicle, to vindicate the rights
asserted.’” Id. (quoting Pestrak v. Ohio Elections Comm’n, 926 F.2d 573, 576 (6th Cir. 1991)).
Respondents focus on the prudential standing restriction against third-party actions.
However, the rule is not absolute, and the Supreme Court has authorized third-party or “nextfriend” standing when “the party asserting the right has a ‘close’ relationship with the person who
possesses the right” and “there is a ‘hindrance’ to the possessor’s ability to protect his own
interests.” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004). Respondents note that they have no
reason to doubt the close relationship between Mansy and his son. See Resp’t Resp. to Mansy
Mot. for Comp. Exam. at 3, PageID.5752 (Dkt. 222). Instead, Respondents focus on the hindrance
showing. Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 165 (1990)).

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In Demosthenes v. Baal, 495 U.S. 731, 734–735 (1990), the Supreme Court explained the
following with respect to next-friend standing:
In Whitmore v. Arkansas, 495 U.S., at 165, 110 S. Ct., at 1728, [the
Supreme Court] held that ‘one necessary condition for “next friend”
standing in federal court is a showing by the proposed “next friend” that the
real party in interest is unable to litigate his own cause due to mental
incapacity.’ See also Rosenberg v. United States, 346 U.S. 273, 291, 73 S.
Ct. 1152, 1161, 97 L.Ed. 1607 (1953). This prerequisite is not satisfied
‘where an evidentiary hearing shows that the defendant has given a
knowing, intelligent, and voluntary waiver of his right to proceed.’
Whitmore, 495 U.S., at 165, 110 S. Ct., at 1728. In Whitmore, we relied on
the competency findings made by the Arkansas Supreme Court and
concluded that Whitmore lacked next-friend standing in federal court. Id.,
at 165-166, 110 S. Ct., at 1728-1729.
Respondents have raised an interesting legal puzzle. They argue that Mansy lacks nextfriend standing because Ibrahim is competent. Therefore, in order to reach the threshold issue of
standing, the Court must resolve whether Ibrahim is competent. In other words, with respect to
Mansy, in order to determine standing, the Court must determine whether Ibrahim is competent
before turning to the issue of his competency.
To complicate matters further, Mansy’s appointment by the Macomb County Probate Court
raises issues of judicial comity. 2 Respondents argue that this Court is not bound by the Macomb
County Probate Court’s limited guardianship order.

Resp’t Obj. to Pet’rs Second Mot. to

Withdraw Stip. Order at 6, PageID.7114 (Dkt. 292). They assert that judicial comity is not a matter
of obligation. Id. at 7, PageID.7115. They maintain that judicial comity is typically applied where
a legal matter is already before another state court. Id. (citing Rose v. Lundy, 455 U.S. 509, 518
(1982) (“Because it would be unseemly in our dual system of government for a federal district

2

 Judicial comity is “[t]he principle in accordance with which the courts of one state or jurisdiction
will give effect to the laws and judicial decision of another, not as a matter of obligation, but out
of deference and respect.” Judicial Comity, BLACK’S LAW DICTIONARY (6th ed. 1990).  

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court to upset a state court conviction without an opportunity to the state courts to correct a
constitutional violation, federal courts apply the doctrine of comity, which teaches that one court
should defer action on causes properly within its jurisdiction until the courts of another sovereignty
with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass
upon the matter.”).

Respondents argue that this Court was already considering Ibrahim’s

competency when Mansy filed his motion in Probate Court. Id. at 7-8, PageID.7115-7116. They
argue that because this Court had jurisdiction over Ibrahim’s competency first, it should determine
the question. Id. at 8, PageID.7117 (citing Smith v. McIver, 22 U.S. 532 (1824), and Jackson v.
Parkersburg & O. V. Electric Ry. Co., 233 F. 784 (N.D.W. Va. 1916)).
Petitioners argue that Mansy’s standing matter is beside the point, because Petitioners have
standing and have filed parallel motions to Mansy’s motions. Pet’rs Resp. to Mansy Mot. for
Comp. Exam. at 3, PageID.5766 (Dkt. 224). Petitioners’ argument is sound. Because Ibrahim’s
competency must be resolved in order to address the motions of Petitioners – who have standing
because Ibrahim is a member of the class action – the Court can resolve Mansy’s standing at the
same time it resolves the matter of Ibrahim’s competency.
B. Competency
As the parties recognize, there is no clear standard to determine whether Ibrahim made a
knowing and voluntary waiver of his rights under the Court’s July 24, 2017 preliminary injunction
(Dkt. 87). “[T]he law generally places restrictions on the ability of incompetent individuals to
accomplish voluntary and legally binding acts.” United States v. Mandycz, 447 F.3d 951, 964 (6th
Cir. 2006) (citing McGrath v. Tadayasu Abo, 186 F.2d 766, 772 (9th Cir. 1951), and Spytma v.
Howes, 313 F.3d 363, 370 (6th Cir. 2002)). “[D]ue process . . . protects incompetent civil parties
by requiring the court to appoint guardians to protect their interests and by judicially ensuring that

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the guardians protect those interests. Id. at 962 (citing Fed. R. Civ. P. 17(c) (“The court shall
appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an
action or shall make such other order as it deems proper for the protection of the infant or
incompetent person.”)).
Respondents take the position that the Court has already set forth a process to ensure that
Ibrahim’s waiver was knowing and voluntary. Resp’t Resp. to Mansy’s Mot. for Comp. Exam. at
1, PageID.5750 (Dkt. 222). They argue that that the following procedure, proposed by Petitioners,
is sufficient:
Upon receipt of a detainee’s form indicating a possible interest in removal,
Petitioners’ counsel identifies a pro bono lawyer to visit the detainee to “(a) advise
the detainee about available options, (b) confirm that no pressure is being exerted,
and (c) ensure that any decision to forego the protections of this Court’s stay [of
removal] is knowing and voluntary.” Joint Status Report, ECF No. 107 at 6.
Petitioners explicitly noted that “[t]he pro bono lawyer can also be alert to the
possibility of any indicia of incompetency.”
Id. at 1-2, PageID.5750-5751 (emphasis added by Respondents). The declaration template
prepared by Petitioners largely takes these considerations into account. See Ex. 1.C to Joint Status
Report at 1-2, PageID.2765-2766.
However, as noted above, the pro bono attorney need only state whether he or she observed
“any indicia of incompetency.” Id. at 2, PageID.2766. The pro bono attorneys do not necessarily
have any expertise in detecting mental health issues. The requirement to state that the pro bono
attorney did not observe any indicia of incompetency is simply one way in which mental health
issues may be detected. Here, it is not in dispute that Ibrahim has been diagnosed with a number
of mental illnesses, including schizophrenia. Nonetheless, it is not surprising that the pro bono
attorney did not detect Ibrahim’s conditions. Even Respondents’ expert said that “if Mr. Ibrahim
was someone I was coming across in a public setting or some other kind of capacity, if I didn’t

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know he had schizophrenia and was on medication, I may not even detect that that was the case .
. . .” 7/19/2018 Hr’g Tr. at 66:20-23, PageID.7983 (Dkt. 351). The Court has not established any
procedures to determine competency once a detainee’s competency has been called into question.
Therefore, Respondents’ position misses the mark on this point.
The parties and Mansy explore a number of possible standards to apply in resolving
Ibrahim’s competency. Ultimately, however, the parties and Mansy agree that the most applicable
standard is set forth in Rees v. Peyton, 384 U.S. 312, 314 (1966). Resp’t Resp. to Mansy Mot. for
Comp. Exam. at 7, PageID.5756; Pet’rs Resp. to Mansy Mot. for Comp. Exam. at 2-3,
PageID.5765-5766; Hr’g Tr. 10:15-11:2 (“Your Honor, [Mansy] would believe that the Rees
standard would be an appropriate standard to use.”).
In Rees, the petitioner had been sentenced to death based on state court convictions. Rees,
384 U.S. at 312. After his habeas corpus petition was denied by the district court and the Fourth
Circuit, the petitioner filed a petition for certiorari with the Supreme Court. Id. at 313. However,
nearly a month after filing his petition with the Supreme Court, the petitioner directed his counsel
to withdraw the petition. Id. The petitioner’s counsel could not in good conscience withdraw the
petition because he had concerns about his client’s competency. Id. The petitioner’s counsel had
him examined by a mental health professional, who concluded that he was mentally incompetent.
Id. The respondent sought to examine the petitioner, but was unable to obtain his cooperation. Id.
Nonetheless, the respondent’s psychiatrists expressed doubts that the petitioner was mentally
incompetent. Id. The Supreme Court sent the matter to the district court to determine “whether
[the petitioner] has capacity to appreciate his position and make a rational choice with respect to
continuing or abandoning further litigation or on the other hand whether he is suffering from a

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mental disease, disorder, or defect which may substantially affect his capacity in the premises.”
Id. at 314.
Rees, although factually similar, differs procedurally from this case. Rees was concerned
with whether an individual, who was sentenced to death, knowingly and voluntarily waived his
habeas appeal. Here, however, the issue is whether the Court should allow a class member to be
covered once again under an order that the Court itself fashioned. While the standard for waiver
of habeas rights must necessarily have a national standard ultimately sanctioned by the Supreme
Court, the district court authoring a custom order can define the degree of flexibility it will allow
in allowing the rescission of a waiver of rights under that order. “In selecting an appropriate
equitable remedy, the trial court has ‘broad discretionary power.’” Liberty Nat. Bank & Tr. Co.
v. Life Ins. Co. of Cincinnati, 901 F.2d 539, 547 (6th Cir. 1990) (quoting Lemon v. Kurtzman, 411
U.S. 192, 200 (1973)). “Moreover, in constitutional adjudication as elsewhere, equitable remedies
are a special blend of what is necessary, what is fair, and what is workable.” Lemon, 411 U.S. at
200. Nonetheless, for the purposes of resolving Ibrahim’s competency, the Rees standard is a fair
and workable standard.
C. July 19, 2018 Evidentiary Hearing
The Court conducted an evidentiary hearing on July 19, 2018. Subsequently, Petitioners
and Respondents filed briefs under seal setting forth their respective positions.
Petitioners argue that Ibrahim lacked the capacity to knowingly and voluntarily waive the
protections of the stay of removal in this case. Pet’rs Supp. Br. at 2, PageID.8341 (Dkt. 368).
They note that it is undisputed that Ibrahim has schizophrenia and a generalized anxiety disorder.
Petitioners’ expert, Dr. Pinals, concluded that Ibrahim exhibited paranoia, irritability, grandiose
thinking, and cognitive inflexibility, which are all characteristic features of schizophrenia. Id. at

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3, PageID.8342 (citing 7/19/ 2018 Hr’g Tr. 18:8-17, 23:21-25, 24:8-10). The latter two are of
particular concern to Petitioners.
Respondents argue that the Court should not withdraw the stipulated order as to Ibrahim
because he has always had the capacity to make a knowing and voluntary waiver of his rights
under the preliminary injunction. Resp’t Supp. Br. at 2, PageID.8326 (Dkt. 367). Additionally,
Respondents argue that because Ibrahim has always had the capacity to waive his rights under the
injunction, his subsequent change of mind should not outweigh the resources that Respondents
have expended. Id. They further argue that Ibrahim has had ample time to file a motion to reopen,
but has failed to do so, which is another reason the Court should not vacate the stipulated order
lifting the injunction as to Ibrahim. Id.3
Although Dr. Pinals and Dr. Cardasis disagree on whether Ibrahim was competent when
he signed the waiver, they made similar observations. Respondents believe that the experts came
to different results, in part, because Dr. Pinals examined Ibrahim when he had been off his
medication for a number of weeks, while Dr. Cardasis examined Ibrahim after he had been taking
his medication for months. Resp’t Supp. Br. at 9, PageID.8333. However, based on that reasoning,
it would seem more likely that the experts would have made differing observations, which in turn
would lead them to conflicting opinions. Nonetheless, the Court will take into consideration the
observations as much as the ultimate opinions of the experts.
With respect to grandiosity, Dr. Pinals testified to the following:
So some of the examples and again this was subtle, but some of the examples that
he gave were examples that he had earned a great deal of money in his businesses,
that he owned many businesses. Also that he had a sense of his capabilities that
exceeded what the reality of his situation appeared to be. He, you know, described

3

 This last point does not properly belong in the present analysis concerning mental capacity; it is
more properly raised in connection with the parties’ dispute regarding the failure of certain class
members to file motions to reopen within the deadlines set out in the preliminary injunction order. 

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his life of living mostly with his parents except for when he was away for one year
and other times when he was incarcerated, but although he had been living on Social
Security and sort of a non-independent life, he described himself as perfectly
capable of finding a job, finding his own way, even in Iraq he’d be able to manage
his own affairs and had no sense of any difficulties. I saw that as somewhat
grandiose views of his capabilities given the, the -- his prior existence prior to being
incarcerated.
Hr’g Tr. 19:17-20:5. In partial agreement, Dr. Cardasis, observed that Ibrahim “downplayed” the
challenges that would be posed by deportation. Hr’g. Tr. 71:15-20, PageID.7988.
Petitioners further argue that Ibrahim’s cognitive inflexibility is problematic. Pet’rs Supp.
Br. at 4, PageID.8343. Dr. Cardasis explained that simplistic decision-making is often associated
with schizophrenia. Hr’g Tr. 74:6-9, PageID.7991. Dr. Cardasis opined that Ibrahim was “stable
psychiatrically” when he signed the waiver, id. at 57:2, PageID.7974, and that at the time Ibrahim
signed the waiver, he was not having “prominent symptoms of psychosis or of his schizophrenia
based on his history, his statements, and the information [he] reviewed,” id. at 56:23-57:4,
PageID.7973-7974.

However, Dr. Cardasis also noted that Ibrahim’s thought process was

“relatively unsophisticated” and “simplistic,” and that Ibrahim’s reasoning was based on his desire
to be free from detention. Id. at 84:3-14, PageID.8001. Respondents argue that “as an individual
who has been in jail multiple times throughout his life, and has been in detention throughout this
case, this desire to be free stems from an appreciation of his current position.” Resp’t Supp. Br. at
7, PageID.8331 (citing Hr’g Tr. 38-9: 22-9; 67:17-9). On the other hand, his current position may
have been so intolerable that Ibrahim was willing to make a rash decision, even a poor decision,
to alleviate his suffering.
Dr. Pinals observed that when Ibrahim was asked why he wanted to waive his rights, he
“became very fixated” on getting out of jail, and was unable to “fully grasp the long-term
consequence.” Hr’g Tr. at 22:1-6, PageID.7939. Dr. Pinals noted that individuals with Ibrahim’s

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mental illnesses are capable of making important decisions; however, Ibrahim lacked such
capacity. Id. at 26:18-27, PageID.7943. Dr. Pinals said that Ibrahim understood “that if he were
deported, he would end up in Iraq, however, . . . in terms of his ability to fully grasp what that
meant, the permanency and the[] challenges that[] may [be] involve[d] for him downstream was
limited again by his concrete or literal-minded thinking.” Id. at 26:19-24, PageID.7943. Dr. Pinals
observed that Ibrahim had difficulty abstracting towards the potential “perils, challenges, or
obstacles” to his life if returned to Iraq. Id. at 22:15-17, PageID.7939. For example, she noted
that Ibrahim believed he would have no problem obtaining mental health services in Iraq despite
not being able to articulate the steps to do so. Id. at 22:11-17, PageID.7939.
Dr. Pinals testified that “part of his literal-minded thinking was to take extreme views of .
. . whether something would be relatively easy or not easy. . . . [I]t was more of a black and white
way of thinking.” Id. at 44:9-13, PageID.7961. Dr. Pinals explained, for example, that Ibrahim
believed that if he ended up in Iraq, he would face no challenges whatsoever, including failing to
appreciate the potential danger of being a target of extremism from being a Christian. Id. at 27:58, PageID.7944. Petitioners argue that Ibrahim’s simplistic and inflexible decision-making are
caused by his mental illness. Pet’rs Supp. Br. at 5, PageID.8344. They note that when Dr. Cardasis
was posed with the question of whether he attributed Ibrahim’s simplistic thinking and
unsophisticated approach to decision-making to personality traits rather than mental illness, he
declined to take a position. Id. at 6, PageID.8345 (citing Hr’g Tr. 84:6-14).
Based on the foregoing, the Court agrees with Petitioners that Ibrahim did not have the
capacity to appreciate his position and make a rational choice with respect to waiving his rights
under the preliminary injunction. Ibrahim, facing an indefinite period of incarceration, signed the
waiver without any consideration of the long-term consequences of his decision. In Dr. Pinals’

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words, Ibrahim “overvalued the benefits of making his decision,” but “undervalued the risks”
associated with it. Hr’g Tr. 27:13-15, PageID.7944. Ibrahim’s impaired ability to “rationally
manipulate the information” led him to make a decision to be repatriated to Iraq where he is almost
certainly incapable of tending to his own needs, let alone surviving the persecution he would likely
face. The Court finds that Ibrahim is suffering from a mental illness, which substantially affected
his capacity to understand his position and make a rational choice with respect to waiving his rights
under the preliminary injunction, especially in light of the dire consequences of such action.4
Accordingly, the Court vacates its November 20, 2017 order lifting the preliminary
injunction for Wisam Ibrahim (Dkt. 151). Additionally, the Court finds that Mansy has next-friend
standing with respect to Ibrahim, because of his close relationship with Ibrahim, and because
Ibrahim’s mental incompetency hinders his ability to protect his own interests in this matter. See
Kowalski, 543 U.S. at 129.
Because the Court finds that Ibrahim lacked the capacity to waive his rights under the
preliminary injunction, it need not address the legal significance of Ibrahim’s and Mansy’s
withdrawal of the waiver. Nor does the Court need to decide how much deference to give the
Macomb County Probate Court’s competency finding because the Court agrees with its
determination. Additionally, because the Court did not rely on the expert reports submitted by Dr.
Pinals and Dr. Cardasis, the expert reports are not received into evidence at this time.
Respondents’ motion in limine is denied as moot.

Petitioners also argue that the Court can lift the injunction as to Ibrahim without any showing of
mental illness, based on a change of heart, citing the Court’s order relative to Hani Al Bazoni (Dkt.
157). See Pet’rs Supp. Br. at 10, PageID.8349. However, the order on which Petitioners rely was
a stipulated order. The Court did not rule on a “change-of-heart” theory in that circumstance and
does not here, given that Ibrahim’s mental illness establishes the basis for the Court’s instant
ruling.
4

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III. CONCLUSION
For the above stated reasons, Mansy’s motion to vacate the stipulated order lifting the
preliminary injunction for Wisam Ibrahim (Dkts. 207) is GRANTED. Mansy’s motion for a
competency examination (Dkt. 214) is DENIED as moot. Petitioners’ motion to withdraw
stipulated order (Dkt. 246) is GRANTED IN PART as to vacating the stipulated order and
DENIED as moot in all other respects. Petitioners’ second motion to withdraw the stipulated
order (Dkt. 285) is GRANTED IN PART as to vacating the stipulated order and DENIED
WITHOUT PREJUDICE in all other respects. Mansy’s motion to withdraw stipulated order
(Dkt. 324) is GRANTED IN PART as to vacating the stipulated order and DENIED WITHOUT
PREJUDICE in all other respects. Respondents’ motion in limine to exclude Dr. Debra Pinals’
expert report (Dkt. 353) is DENIED as moot. The Court’s November 20, 2017 order lifting the
preliminary injunction for Wisam Ibrahim (Dkt. 151) is VACATED. The parties are ordered to
file a joint status report on or before October 12, 2018 addressing whether Wisam Ibrahim has
received a bond hearing under the Court’s January 2, 2018 order and any other outstanding matters
with respect to Wisam Ibrahim.
SO ORDERED.

Dated: September 27, 2018
Detroit, Michigan

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 September 27, 2018.
s/Karri Sandusky
Case Manager
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