Malam v Rebecca Adducci et al

Filing 330

SEVENTH ORDER on Bail #302 . Signed by District Judge Judith E. Levy. (WBar)

Case 5:20-cv-10829-JEL-APP ECF No. 330 filed 10/13/20

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Janet Malam,
Petitioner-Plaintiff,
and
Qaid Alhalmi, et al.,

Case No. 20-10829
Judith E. Levy
United States District Judge

Plaintiff-Intervenors, Mag. Judge Anthony P. Patti
v.
Rebecca Adducci, et al.,
Respondent-Defendants.
________________________________/
SEVENTH ORDER ON BAIL [302]
On September 28, 2020, Plaintiffs submitted a bail application for
habeas litigation group member Oliver Awshana. (ECF No. 302.) On
October 1, 2020, Defendants filed a response. (ECF No. 304.) On October
2, 2020, Plaintiffs filed a reply. (ECF No. 313.) After reviewing the
application and briefing, the Court grants bail for group member
Awshana.
I.

Eligibility for Bail

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The Sixth Circuit has recognized the district court’s “inherent
authority” to grant a habeas petitioner release on bail pending
adjudication of the petition’s merits. Nash v. Eberlin, 437 F.3d 519, 526
n.10 (6th Cir. 2006). “The district court may release petitioners on bail if
there is a ‘substantial claim of law’ and the existence of ‘some
circumstance making [the motion for bail] exceptional and deserving of
special treatment in the interests of justice.’” Id. (citing Lee v. Jabe, 989
F.2d 869, 871 (6th Cir. 1993)).
On August 4, 2020, the Court found that “[t]he habeas litigation
group makes a substantial claim of law” because group members have
consistently shown a likelihood of success on the merits. (ECF No. 168,
PageID.5294.) Additionally, the Court found that “the COVID-19
pandemic constitutes an exceptional circumstance deserving special
treatment in the interests of justice.” (Id. at PageID.5295.) Calhoun
County Correctional Facility (“CCCF”) currently has twelve positive
cases for COVID-19. E-mail from Jennifer L. Newby, Assistant U.S. Att’y,
to Cassandra J. Thomson, Law Clerk to Judge Judith E. Levy (Sept. 16,
2020, 17:12 EST) (on file with the Court).

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The Court continues to find that these group members raise
substantial claims of law and that COVID-19 presents special
circumstances making the bail applications exceptional.
II.

Oliver Awshana’s Bail Application (ECF No. 302)

The Court makes the following findings with respect to Awshana’s
bail application.
Plaintiffs write that Awshana has no violent criminal history. (ECF
No. 302, PageID.7545.) Plaintiffs acknowledge Awshana has several
criminal convictions involving theft and drug offenses but allege that the
conduct leading to these convictions occurred during a period of time in
which Awshana was actively struggling with substance abuse and
complications related to his history of trauma. (Id.) Plaintiffs claim that
Awshana has since engaged in a medication regimen, treatment, and
counseling to manage his underlying mental health conditions. (Id. at
PageID.7545–7546.) Additionally, Plaintiffs note that an Immigration
Judge granted Awshana withholding of removal under the Immigration
and Nationality Act (“INA”) and the Convention Against Torture (“CAT”).
(Id. at PageID.7546.) An appeal on this decision made by the Department
of Homeland Security (“DHS”) remains pending with the Board of
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Immigration Appeals (“BIA”). (Id. at PageID.7546.) If released, Awshana
will live with his fiancé in Muskegon, Michigan. (Id.)
Defendants imply that Awshana should be presumed to be a danger
because he is subject to mandatory detention because of his convictions
for possession of a controlled substance and retail fraud. (ECF No. 304,
PageID.7657.) Defendants also argue that Awshana is a flight risk
because he previously refused to board a commercial aircraft and
physically resisted U.S. Immigration and Customs Enforcement (“ICE”)
agents during a previous attempt to remove him to Iraq pursuant to a
final order of removal. (Id. at PageID.7658.) Defendants allege that
Awshana was transferred to CCCF after this incident, and that
Awshana’s continued detention thus resulted from his recalcitrance in
defying lawful court orders. (Id.)
Additionally, Defendants note that Awshana has sought habeas
relief from detention on three previous occasions during the last 18
months and was denied habeas relief each time. (Id. at PageID.7658–
7659.) Defendants highlight the most recent habeas action, in which
Judge David M. Lawson of the Eastern District of Michigan denied
Awshana habeas relief under the Fifth Amendment during the first
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months of the COVID-19 pandemic, but explicitly indicated that
Awshana’s petition could be renewed if conditions changed. See Awshana
v. Adducci, 453 F.Supp.3d 1045 (E.D. Mich. 2020). (Id. at PageID.7659.)
Defendants note that Awshana has not renewed his petition before Judge
Lawson and abandoned the appeal from that case, instead choosing to
file a bail application in this action. (Id.)
Plaintiffs reply that there is no statutory presumption of danger for
individuals

held

under

mandatory

detention.

(ECF

No.

313,

PageID.7829.) Plaintiffs allege that Awshana’s resistance to the prior
removal attempt was consistent with his terror of returning to Iraq out
of fear of being tortured. (Id.) Plaintiffs further argue that Awshana is
not a flight risk because he has great interest in pursuing his
immigration case and incentive to comply with any conditions of release.
(Id. at PageID.7830.)
Additionally, Plaintiffs argue that Awshana’s previous habeas
petitions have no bearing on Awshana’s current bail application before
the Court. (Id.) Plaintiffs point out that conditions have materially
changed in the interim since Judge Lawson denied habeas relief to
Awshana: Defendants now concede that Awshana is at a heightened risk,
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and CCCF now has 12 confirmed cases of COVID-19. (Id.) Plaintiffs note
that Defendants have identified no reason why Awshana should be
required to file an entirely new habeas case rather than utilizing the bail
application process established by the Court. (Id.)
The Court finds Awshana is neither a flight risk nor a danger to the
community given his proposed release plan. Further, the Court
previously declined to limit the class definition to exclude detainees who
brought individual habeas petitions that were denied. (ECF No. 162,
PageID.5148–5149.) Accordingly, Awshana’s application for bail is
granted.
III. Conclusion
For the reasons stated above, the Court grants bail for habeas
litigation group member Awshana. Awshana’s release is subject to the
conditions outlined in this Court’s August 12, 2020 order. (ECF No. 179.)
Release under the bail process is to follow the bail process and standard
Conditions of Release previously set forth. (See ECF Nos. 166, 177, 179,
243.)
IT IS SO ORDERED.
Dated: October 13, 2020
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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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 October 13, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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