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Hamama v. Adducci

United States Court of Appeals, Sixth Circuit

January 3, 2020

Usama Jamil Hamama, et al., Petitioners-Appellees,
Rebecca Adducci, Director of the Detroit District of United States Immigration and Customs Enforcement, et al., Respondents-Appellants.

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:17-cv-11910-Mark A. Goldsmith, District Judge.

         ON BRIEF:

          Michael A. Celone, William C. Silvis, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants.

          Miriam 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 Appellees.

          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.

         Last 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.


         Usama 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.

         The 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.

         The 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.

         In 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 were held.

         In 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 1226(a), (c).

         Second, 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.

         Third, 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.

         For the 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 ...

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