from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:17-cv-11910-Mark A.
Goldsmith, District Judge.
Michael A. Celone, William C. Silvis, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.
J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN,
Grand Rapids, Judy Rabinovitz, Lee Gelernt, Anand
Balakrishnan, AMERICAN CIVIL LIBERTIES UNION, New York, New
York, Margo Schlanger, Ann Arbor, Michigan, Nadine Yousif,
CODE LEGAL AID INC., Madison Heights, Michigan, Kimberly L.
Scott, Wendolyn Wrosch Richards, MILLER, CANFIELD, PADDOCK
& STONE, PLC, Ann Arbor, Michigan, William W. Swor,
WILLIAM W. SWOR & ASSOCIATES, Detroit, Michigan, for
Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
SUTTON, J., delivered the opinion of the court in which
BATCHELDER, J., joined. WHITE, J. (pp. 9-13), delivered a
separate opinion concurring only in the judgment.
SUTTON, Circuit Judge.
time around, we held that Congress removed jurisdiction from
the district courts to enter class-wide injunctions
restraining the enforcement of the following immigration
statutes: 8 U.S.C. §§ 1221-1232. See
generally 8 U.S.C. § 1252(f)(1), (g). Just before
we decided that appeal, the district court issued another
class-wide injunction. We vacate that injunction, too, and
remand again for further proceedings.
Hamama is the named plaintiff in a class of over one thousand
Iraqi nationals. The federal government entered final removal
orders against Hamama and the class members between March 1
and June 24, 2017, and the government has detained them or
will do so in the future. So far, most of them remain in the
United States due to diplomatic difficulties preventing their
return to Iraq.
district court certified three subclasses: (1) all primary
class members without individual habeas petitions who are or
will be detained by Immigration and Customs Enforcement, (2)
those in the first subclass who are also subject to final
removal orders, and (3) those in the first subclass whose
motions to reopen their removal proceedings have been granted
and who are being held under a statute mandating their
detention. Today's appeal concerns the first subclass.
district court now has entered a trio of preliminary
injunctions. We vacated two of them the last time we
encountered this case. Hamama v. Adducci, 912 F.3d
869, 871-72 (6th Cir. 2018). The first injunction prevented
removal of certain Iraqi nationals located throughout the
country. The district court, we explained, lacked
jurisdiction to grant this relief under 8 U.S.C. §
1252(g). Id. at 875-76. The second injunction
required bond hearings for each class member who had been
detained for at least six months. The district court, we
explained, lacked jurisdiction to grant that injunction on a
class-wide basis under 8 U.S.C. § 1252(f)(1).
Id. at 877-79.
today's appeal, the government challenges the third
injunction, issued shortly before we decided the last appeal.
The third injunction presumptively requires the government to
release all primary subclass members, those in the first
subclass, once the government has detained them for six
months, no matter the statutory authority under which they
issuing this injunction, the district court offered three
explanations. First, it relied on Zadvydas v. Davis,
533 U.S. 678, 701 (2001), which required release of certain
immigration detainees after six months if the detainees could
show that there was no "significant likelihood"
that they would be removed in the "reasonably
foreseeable future." The government held the detainees
in Zadvydas under 8 U.S.C. § 1231(a)(6), which
applies to aliens with final removal orders. Id. at
682. Section 1231 requires their detention for up to 90 days,
then grants discretionary authority to continue detaining
certain criminal aliens after that period. The district court
extended Zadvydas to impose the same six-month time
limit on other immigration statutes that require or permit
detention in other contexts: §§ 1225(b) and
the district court concluded that the class members showed
that the government was unlikely to repatriate them to Iraq
in the reasonably foreseeable future. Even though the
government has sent some of the affected individuals back to
Iraq since 2017, the evidence showed that diplomatic
discussions had stalled and repatriation attempts had failed.
The court concluded that this trouble likely would persist.
the district court reasoned that the government "acted
ignobly" throughout the litigation process and found no
substantial likelihood of removal as a sanction for its
conduct. R. 490 at 1, 53.
reasons offered in our last opinion and others elaborated
below, the district court lacked jurisdiction to enter its
class-wide preliminary injunction and at any ...