Criminal Justice & the Rule of Law

Hamama v. Adducci: Narrowing Habeas Relief for Immigrants in Removal Proceedings

Jessica Zhang
Wednesday, April 10, 2019, 2:05 PM

Earlier this April, the U.S. Court of Appeals for the Sixth Circuit denied a petition for en banc rehearing in Hamama v. Adducci, finalizing its reversal of the district court’s preliminary injunctions staying removal of a class of Iraqi nationals.

Theodore Levin United States Courthouse, Detroit, Michigan. (Source: Wikimedia/Andrew Jameson)

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Earlier this April, the U.S. Court of Appeals for the Sixth Circuit denied a petition for en banc rehearing in Hamama v. Adducci, finalizing its reversal of the district court’s preliminary injunctions staying removal of a class of Iraqi nationals. This class action habeas litigation, which has been ongoing for nearly two years, was in reaction to the Trump administration’s sudden decision to start deporting groups of people who had been living with final orders of removal in the United States for extended periods of time—in many cases, because their countries of origin had been unwilling to accept repatriation of their nationals. The Hamama case has inspired many other habeas petitions around the country. The Sixth Circuit’s rejection of such a habeas petition may influence how other circuits treat similar pending and future litigation.


On June 11, 2017, Immigration and Customs Enforcement (ICE) agents began arresting and detaining Iraqi nationals in the metro Detroit area. By the end of the weekend, 114 individuals had been arrested in Michigan; within the next week, another 85 Iraqi immigrants had been arrested elsewhere in the United States. Most had final orders of removal, which allow ICE to remove individuals after they have exhausted or defaulted on all appeals processes. But because Iraq had not been willing to repatriate many of its nationals, many of these individuals had been living in the United States under orders of supervision, some for decades. ICE claimed that the arrests were made in reaction to a March 12, 2017, agreement between the U.S. and Iraq, in which Iraq agreed to accept a certain number of Iraqis who were subject to final orders of removal.

The ACLU of Michigan filed a class action habeas corpus petition on June 15, 2017, on behalf of detained Iraqis in Michigan and Ohio in the Eastern District of Michigan, asking that the court enjoin the government from removing the petitioners to Iraq until they had sufficient time to seek out counsel and file motions to reopen their underlying immigration cases. Because petitioners had received their final orders of removal so long ago, the ACLU argued, conditions in Iraq had changed—which may mean individuals who did not qualify for relief when they were originally ordered removed may now qualify. Additionally, the petition asked that the government be enjoined from transferring petitioners to out-of-state detention centers and be ordered to release petitioners from detention, absent a showing of danger or flight risk. (By way of disclosure, the author interned with the ACLU of Michigan in the summer of 2017, while this case was beginning. All information in this piece is sourced from publicly available documents.)

On June 22, 2017, Judge Mark A. Goldsmith granted a temporary restraining order (TRO), staying removal pending the court’s determination on subject matter jurisdiction. Two days later, the ACLU filed an amended petition, expanding the class nationwide to all Iraqi nationals with final orders of removal who have been or will be arrested and detained by ICE in effectuating the new Iraq removal policy. The ACLU also filed a motion to expand the TRO to the full nationwide class, which Judge Goldsmith granted.

On July 24, 2017, Judge Goldsmith granted petitioners a preliminary injunction, enjoining the government from removing any members of the purported nationwide class before they had the opportunity to file a motion to reopen their case. Judge Goldsmith found that the REAL ID Act, 8 U.S.C. § 1252, which strips federal courts of jurisdiction over individual removal cases outside of the prescribed petition-for-review process, violated the Suspension Clause, as applied. While the REAL ID Act explicitly strips federal district courts of jurisdiction to review habeas petitions arising from the attorney general’s power in immigration cases to “commence proceedings, adjudicate cases, or execute removal orders,” Judge Goldsmith held that enforcing that provision in this case would deprive petitioners’ access to habeas relief before their imminent deportation.

On Nov. 7, 2017, the ACLU filed another motion for preliminary injunction, this time asking for relief for purported class members from prolonged immigration detention. Petitioners noted that it remained unclear whether Iraq was willing to repatriate its nationals, and the vast majority of purported class members will have to wait many months or years for their reopened immigration proceedings to be finally adjudicated. For this reason, according to the petitioners, holding purported class members in prolonged detention violated the constitutional limits set by the Supreme Court in Zadvydas v. Davis—requiring release from detention if removal is not reasonably foreseeable—and the general due process right against prolonged detention without an individualized hearing. The district court granted the motion in part on Jan. 2, 2018, ordering the government to hold bond hearings for individuals who had been detained for more than six months. Unless the immigration judge presiding over the bond hearing finds, by clear and convincing evidence, that the detainee is a flight risk or a public safety risk, Judge Goldsmith held, the detainee must be released on an order of supervision. Judge Goldsmith also ordered that parties engage in discovery to determine the likelihood of Iraqi repatriation, and deferred ruling on the petitioners’ Zadvydas claim until that discovery was completed.

On Aug. 29, 2018, the petitioners renewed their motion for preliminary injunction under Zadvydas. Relying on documents obtained from the government through discovery, the petitioners argued that the government had misrepresented the likelihood of imminent removal to Iraq. Although the government had submitted declarations by officials describing repatriation agreements with Iraq and the feasibility of mass deportations of class members if the injunction were lifted, petitioners had discovered that there had been no agreement with Iraq, and that Iraq continued to refuse to repatriate individuals who were being forcibly removed. The petitioners also filed a motion for sanctions against the government on Aug. 31. On Oct. 23, the district court allowed petitioners to file publicly documents relied upon in their motions, which the petitioners quickly filed unsealed. On Nov. 20, the court granted petitioners’ renewed motion for preliminary injunction, finding that the record did not show that removal was likely in the foreseeable future. Judge Goldsmith also found that sanctions against the government were warranted, as the government had repeatedly delayed and missed discovery deadlines over the previous 11 months to their own benefit. About 100 detained Iraqis were released by Dec. 20.

Sixth Circuit Reversal

The government appealed the first two preliminary injunctions, which stayed removal and ordered bond hearings, to the Sixth Circuit. On Dec. 20, 2018, the Sixth Circuit reversed the district court, vacating both the removal-based and detention-based preliminary injunctions. Judge Alice Batchelder, writing for the majority, held that the district court lacked jurisdiction to issue either of the first two preliminary injunctions. First, the court addressed the removal-based claims. The court agreed with the district court that the REAL ID Act divested the court of subject matter jurisdiction over this case. However, the court held that the district court erred in finding jurisdiction to rule on “extraordinary circumstances” that created an as-applied constitutional violation of the Suspension Clause. Rather, there was no violation of the Suspension Clause: Because petitioners were not challenging their detention but, rather, their imminent removal to Iraq, they were not seeking habeas relief at all. The court argued that INS v. St. Cyr, a case granting habeas relief to a legal permanent resident seeking cancellation of removal, did not stand for the broad proposition that habeas could provide relief in deportation cases. Instead, the court distinguished St. Cyr narrowly, noting that St. Cyr would have been released back into the United States if he was granted cancellation of removal, while petitioners in this case are ultimately seeking withholding of removal, which protects them from removal only to Iraq and not a safe third country. Thus, the ultimate relief sought in the present case does not guarantee release into the United States and, thus, could not be considered habeas relief. However, even if petitioners were appropriately seeking habeas relief, the appeals court argued, there was no violation of the Suspension Clause because petitioners had an alternative method by which to reach the federal courts under the statutory scheme: They could file motions to reopen and then, if that failed, file petitions for review with the federal circuit courts.

Second, with regard to petitioners’ detention-based claims, the court found that 8 U.S.C. § 1252(f)(1), which limits the scope of injunctive relief in certain cases regarding issues of immigration, stripped the district court of jurisdiction to enter a classwide injunction. The court systematically rejected petitioners’ statutory interpretation arguments. It also specifically noted that, just this term, the Supreme Court in Jennings v. Rodriguez rejected the Ninth Circuit’s interpretation of the Immigration and Nationality Act’s detention provisions to imply an automatic bond hearing every six months. The Supreme Court’s ruling, the appeals court argued, foreclosed petitioners’ argument that the district court was merely interpreting or enforcing the statutory provisions. In fact, the majority argued, the court below had created the requirements for bond hearings itself.

Judge Helene White dissented. While she agreed that Jennings foreclosed the argument that the district court was merely enforcing a statutory requirement for regular bond hearings, she would have held that the court below had jurisdiction to rule on both the removal-based and detention-based claims. Judge White noted that protection from removal is within the recognized scope of habeas, both historically and in modern case law. Indeed, neither case that the majority relied on, St. Cyr nor Munaf v. Geren, holds that habeas cannot provide relief from removal. Additionally, Judge White found the petition-for-review process to be an inadequate substitute for habeas relief, for the many reasons cited by the court below, and which the majority insufficiently considered in its opinion. Finally, Judge White would have held that the district court had jurisdiction under 28 U.S.C. § 2241, the statutory provision governing habeas jurisdiction, as § 1252(f)(1) does not bar classwide declaratory relief. Because petitioners’ request for classwide declaratory relief has not been ruled on by the district court yet, Judge White would have found jurisdiction and remanded the declaratory relief claim for the district court to decide in the first instance.

The plaintiffs’ petition for en banc review was denied on April 2. Because the Sixth Circuit vacated Judge Goldsmith’s first two preliminary injunctions, the stay of removal and the requirement for bond hearings have now been lifted. Judge Goldsmith’s third preliminary injunction, which was based on Zadvydas claims, is still in effect, and anyone who has been detained for more than six months cannot be detained again unless the government can show they will be removed imminently. The government filed an appeal of that injunction on Jan. 18; the appeal remains pending before the Sixth Circuit.

Implications and Future Developments

The Sixth Circuit’s ruling may have broad implications for future immigration cases. The court’s ruling appears to limit habeas relief only to immigration cases in which petitioners would be guaranteed to remain in the United States if they were to succeed on the merits. For individuals seeking withholding of removal or relief from removal under the Convention Against Torture, both of which allow for removal to a safe third country, habeas may now be foreclosed—whereas individuals seeking cancellation of removal, waiver or asylum could still be able to obtain relief. In treating detention for the purposes of removal differently than detention for other purposes, this decision appears to break from the long-standing historical tradition of allowing for habeas relief broadly in cases of detention for the purposes of removal, as has been argued previously by scholars as well as amici in the Hamama Sixth Circuit appeal.

In the wake of the district court’s initial TRO and preliminary injunction orders, similar habeas petitions were filed around the country for other individuals or communities with final orders of removal that were swept up for sudden deportation by ICE. Many of those petitions were successful at the district court level, resulting in stays of removal and giving individuals time to file motions to reopen their immigration cases. Such cases include one filed in New Hampshire on behalf of a group of Indonesian nationals and one filed in Florida on behalf of a group of Somali nationals. It remains to be seen how the Sixth Circuit’s opinion will influence pending and future cases in other circuits. As of yet, a couple district courts have cited the decision, both as support for and in rejecting the case; however, no circuit courts have cited it yet.

Finally, for the individuals who were a part of Hamama itself, more uncertainty lies ahead. While the district court’s stay of removal has been lifted, it remains unclear whether Iraq will repatriate large groups of Iraqi nationals who refuse to voluntarily depart the United States. The government documents that the petitioners received through discovery revealed that the government had misrepresented the scope of any repatriation agreement they had with Iraq. As of now, Iraq has been accepting only small numbers of deportations. However, with continued political pressure from the Trump administration, this might change in the near future. Without the stay order, the government is once again free to deport Hamama class members with final orders of removal who Iraq is willing to accept.

For some members of the Hamama class, however, the future is not as tenuous. Many individuals who were originally part of the Hamama litigation are no longer deportable, either because they successfully reopened their immigration cases and won relief on the merits, or because their immigration cases remain pending and the immigration court or the Board of Immigration Appeals has issued an individual stay of removal. Indeed, as of January 2018, 91 percent of motions to reopen filed by class members in the Detroit immigration court were granted; the 10 cases that had been adjudicated to the merits had been granted relief. In this sense, the petitioners successfully received the relief they initially sought from the courts: time to seek relief in their individual immigration cases. It seems the Sixth Circuit opinion has foreclosed that relief for any future petitioners who find themselves in a similar situation.

Jessica Zhang is a third-year law student at Harvard Law School. She has previously interned for the Mexican American Legal Defense and Educational Fund, the American Immigration Council, and the ACLU of Michigan. She graduated from Yale in 2013 with a B.S. in Psychology.

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