Petitioners in this class action/habeas petition are Iraqi nationals—many, perhaps most, Chaldean Christian—who have resided in the United States for many years. They have been subject to final orders of removal for years, but the U.S. government permitted them to reside in the community under orders of supervision. In early 2017, political negotiation by the Trump administration with Iraq (related to Iraq's desire to be taken off the Trump Executive Order travel-ban list) led to Iraq’s agreement to accept at least some repatriations, and so the government arrested about two hundred individuals starting June 11, 2017. They faced imminent removal to Iraq.

On June 15, 2017, the petitioners brought this class action habeas petition in response. Represented by the ACLU of Michigan, the ACLU National Immigrant Rights Project, and other counsel, they alleged that their removal into dangerous circumstances would violate the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT), and that removing them without giving them a chance to assert their defenses under the INA and CAT would violate the Due Process Clause. The case was filed in the U.S. District Court for the Eastern District of Michigan, and was assigned to Judge Mark Goldsmith.

The same day as they initiated the action, petitioners sought a temporary restraining order or stay of removal, ensuring that they would not be deported before the court had a chance to adjudicate the case. The government filed its opposition, and the motion was heard on June 21, 2017. The next day, the District Court granted a 14-day emergency stay of removal pending fuller consideration and decision on the court's authority over the matter. The stay was set for 14 days preliminarily.

On June 24, 2017, the petitioners filed a complaint and amended habeas petition, along with a motion to expand the June 22nd 14-day Order Staying Removal to cover a nationwide class of Iraqi nationals facing imminent removal to Iraq. On June 26, the Court granted that the motion, staying removal of "all Iraqi nationals in the United States with final orders of removal, who have been, or will be, arrested and detained by ICE as a result of Iraq’s recent decision to issue travel documents to facilitate U.S. removal." 2017 WL 2806144 (E.D. Mich. 2017). The stay was effective for 14 days, until July 10.

On June 29, 2017, the petitioners/plaintiffs (the petitioners became plaintiffs when they filed the complaint in addition to the habeas petition) filed a motion to extend the 14-day stay of removal until resolution of the preliminary injunction they said they'd file on July 14; they also sought discovery of basic information about the putative class. The government opposed both motions. On July 6, Judge Goldsmith extended the 14 day stay until July 24; on July 22, he ruled that he had jurisdiction, and confirmed that the stay would remain in effect. He wrote:

"This Court concludes that to enforce the Congressional mandate that district courts lack jurisdiction — despite the compelling context of this case — would expose Petitioners to the substantiated risk of death, torture, or other grave persecution before their legal claims can be tested in a court. That would effectively suspend the writ of habeas corpus, which the Constitution prohibits."

At a subsequent status conference, the Court set a briefing schedule; the petitioners' preliminary relief brief was due July 17, the government's response July 20, and any reply by July 21 in the morning.The Court undertook to rule on that motion by July 24.

On July 24, 2017, the District Court granted the petitioners' requested preliminary relief, staying the enforcement of final orders of removal directed to any and all Iraqi nationals in the United States who had final orders of removal on June 24, 2017, and who have been, or will be, detained for removal by ICE. 261 F.Supp.3d 820 (E.D. Mich. 2017). The court explained that the stay of removal would last for each particular class member until he or she completed adjudication of a motion to reopen through the immigration court and the Board of Immigration Appeals, and (if he or she lost in the immigration courts) until the U.S. Court of Appeals denied an individual stay of removal. The motions to reopen are due, the court said, within 90 days of when the government provides each class member with his or her immigration file. (If a class member fails to file a motion to reopen, or fails to appeal, the stay of removal will expire, as well.)

On Sept. 22, 2017, the government appealed to the 6th Circuit Court of Appeals.

While the appeal on the July preliminary injunction was proceeding, various administrative matters moved forward: immigration files were delivered, etc.

More substantively, the plaintiffs amended the complaint on October 13, 2017, raising claims that the class's prolonged detention violated the Due Process Clause and the Immigration and Nationality Act. On November 1, the government moved to dismiss. On November 7, plaintiffs sought a second preliminary injunction on the new detention claims (and also filed an amended motion for class certification). After a hearing on December 22, Judge Goldsmith ruled in favor of the plaintiffs on January 2, 2018; he held that any detainee who had spent more than 6 months in detention -- nearly all of them -- was entitled to release 30 days later unless an Immigration Judge found by clear and convincing evidence at a bond hearing that that detainee poses a flight risk or public safety risk. 285 F.Supp.3d 997 (E.D. Mich. 2018).

The government appealed, and the Sixth Circuit consolidated that second appeal with the prior one, which had not yet been argued. Consolidated argument was held April 25, 2018.

The matter continued in the district court, with many small issues contested and decided. Among those decisions: The Court decided that the regulatory process for governmental immigration bond appeals was unlawful, because it allowed the government to unilaterally extend prolonged detention, and because the process by which the government could obtain a stay of bond release was standardless and deprived the detainee of the opportunity to be heard timely.

On June 13, 2018, the plaintiffs filed an emergency motion, seeking to remedy alleged coercion by the government, which was trying to obtain detainees "voluntary" agreement to be deported. On June 20, 2018, the court issued an order requiring, among other things, seven day notice to class counsel of any consular interviews, that the government permit and facilitate communication between the class and class counsel, and that the government cease any threatening or coercive communications with class members. However, class counsel argued that the government was failing to comply, in part by failing to provide detainees with notice of their right to communicate with class counsel at a specific staging facility. The petitioners also argued that class members were suffering mistreatment at the Calhoun County Jail as a result of their involvement in this case. On August 22, 2018, Judge Goldsmith agreed that the government was not obligated to provide this notice at temporary staging facilities under his previous order, but found the petitioners claims of mistreatment substantiated. He ordered the government to provide class counsel with the names of detainees at the Calhoun County Jail who had faced administrative or disciplinary sanction.

Judge Goldsmith denied the government’s motion to dismiss on September 24, 2018, at the same time granting the petitioners’ motion to certify the primary class. 342 F.Supp.3d 751 (E.D. Mich. 2018).

The petitioners moved for a third preliminary injunction on November 1, 2018, arguing that the subclass of detainees who had been held longer than six months were entitled to immediate release from detention because there was not a significant likelihood of their removal in the reasonably foreseeable future. Petitioners argued that under Zadvydas v. Davis, 533 U.S. 678 (2001), in the absence of such a likelihood, prolonged detention was unlawful. On November 20, 2018, Judge Goldsmith granted that injunction, ruling to release all detainees who had been held longer than six months under orders of supervision. 349 F.Supp.3d 665 (E.D. Mich 2018). The releases were to take place no later than December 20, 2018. All but a handful of the detainees were released by that date. On January 18, 2019, the government appealed.

Also on December 20, 2018, the Sixth Circuit issued its decision in the consolidated appeals from the first two preliminary injunctions. 912 F.3d 869 (6th Cir. 2018). Writing for the court, Judge Alice Batchelder vacated the District Court’s preliminary injunctions halting removal and ordering bond hearings. The case was ordered remanded with instructions to dismiss the removal-based claims for lack of jurisdiction. On February 4, 2019, the petitioners filed for en banc rehearing of the decision, arguing that the INA did not strip the court of jurisdiction, and that such a broad reading would create a circuit split as well as intra-circuit conflict. The petition for rehearing delayed the effective date of the Court of Appeals order until it was denied; the order then became effective on April 9, 2019. That meant that as of April 9, 2019, the stay of removal was lifted. However, the vacatur of the bond order did not mean that anyone got redetained, because those released on bond were protected by the third preliminary injunction, the release order.

The third appeal was still pending, and back in District Court, Judge Goldsmith issued an order on March 12, 2019 staying the case pending resolution of that third appeal. Although Judge Goldsmith stayed future substantive proceedings at the district level, he ruled that the court would continue to supervise compliance with non-reversed court orders. So the release order remained in effect. However, Judge Goldsmith set up a process by which the government could seek to redetain individuals whom ICE believed were close to removal; for several of these individuals, the Court granted redetention. It seemed that Iraq had begun to allow a few removals of class members. In fact, one such class member
died in Iraq shortly after his repatriation there.

On August 30, 2019, the plaintiffs/petitioners sought certiorari review of the 6th Circuit's stay ruling.

As of the date of this summary, September 6, 2019, the first preliminary injunction (the stay of removal) was vacated -- but the matter was pending on a petition for Supreme Court review. The second preliminary injunction (the bond order) was vacated, but irrelevant given the third preliminary injunction. The third preliminary injunction was operative, but pending on the government's appeal.

Alexandra Gilewicz - 03/14/2019
- 09/06/2019


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