[The following summary is adapted with some additions from the Background section of the District Court's Order of March 30, 2007. See Ali v. Gonzales, 486 F. Supp. 2d 1197, 1199-1202 (W.D. Wash. 2007).]
On November 13, 2002, five Somali nationals detained pending execution of a final order of removal to Somalia filed a petition for habeas corpus in the U.S. District Court for the Western District of Washington challenging respondent federal government's deportation methods and post-removal-order detention. Petitioners, represented by private counsel, claimed that removal to Somalia would violate 8 U.S.C. § 1231(b)(2) because Somalia had no government which could accept deportees, and therefore asked the court to enjoin their removal and order their release.
Prior to the initiation of this lawsuit, each of the petitioners had been detained for many months while the Government tried to achieve their removal, and were released from post-removal-order detention only in the wake of Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that an alien may not be held in confinement once it is determined that there is no likelihood of removal in the reasonably foreseeable future). Petitioner Mohamud was re-detained in July 2002 upon revocation of his order of supervision, and petitioners Ali, Hundiye and Aweys were re-detained in November 2002 because the local immigration authorities were informed that their removal to Somalia was imminent. All the petitioners were informed that they would soon be removed to Somalia. Petitioners filed this action shortly after their re-detention.
The Court (Judge Marsha J. Pechman) issued a stay preventing petitioners' removal on the day their petition was filed. After petitioners filed an amended petition on Novermber 26, 2002, seeking certification of a nation-wide class, the stay was extended to a class of all individuals with final orders of removal to Somalia.
On December 10, 2002, the Court granted petitioners' motion for a temporary restraining order pending a hearing on the merits. Following a hearing on January 13, 2003, on January 17 the Court granted petitioners' request for a class-wide permanent injunction preventing the removals to Somalia, finding that 8 U.S.C. § 1231(b)(2) allowed deportation to a country only if its government could accept the deportees. Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003). On the ground that there was no likelihood that petitioners would be removed in the reasonably foreseeable future, the Court also ordered that three of the petitioners (Ali, Hundiye and Aweys) be released from detention pursuant to Zadvydas. (Petitioner Mohamud had a separate habeas proceeding pending before Judge Barbara Rothstein (Mohamud v. INS, No. 2:02-cv-01686-BJR (W.D. Wash.)) and was thereafter ordered released by Judge Rothstein.)
The Government appealed the District Court's order, and on September 19, 2003, the Ninth Circuit affirmed. Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003). Earlier that year, however, the Eight Circuit had decided the issue differently, holding that the United States immigration authorities did not have to obtain the acceptance of the removal country's government before the United States could repatriate an alien. See Jama v. INS, 329 F.3d 630 (8th Cir. 2003). The Government's request for rehearing was thus held in abeyance pending the appeal of the Eight Circuit decision to the Supreme Court.
On January 12, 2005, the Supreme Court held that the Government had authority to remove individuals to Somalia without the necessity of obtaining the acceptance of the removal country's government. Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005). In light of this ruling, the Government moved to vacate the panel decision of the Ninth Circuit and remand with instructions that the District Court vacate the injunction, de-certify the class and reverse the order releasing the Petitioners from detention. On August 26, 2005, the Ninth Circuit granted the unopposed request to vacate the injunction, but, citing the long history of logistical difficulties in deporting Jama himself, remanded to the District Court the issue of whether or not petitioners could be re-detained. Ali v. Ashcroft, 421 F.3d 795 (9th Cir. 2005).
Upon returning to the District Court, the parties submitted a joint report in which they agreed that the injunction should be dissolved, the class decertified, and the detention claims of Petitioners dismissed without prejudice. The Court (Judge Pechman) entered an order adopting the parties' requests on April 27, 2006.
Meanwhile, following the District Court's granting of relief on the merits in January 2003, petitioners had moved for an award of attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, for work billed through January 2003. With the exception of some paralegal fees, the Court granted the motion on May 27, 2003, awarding petitioners a total of $129,449.46. An appeal to the Ninth Circuit was stayed while the decision on the appeal on the merits proceeded forward.
After briefing on the EAJA appeal following their order vacating the injunction, on November 30, 2006, the Court of Appeals remanded to the District Court to determine whether petitioners were still prevailing parties. Ali v. Gonzales, 237 Fed.Appx. 128 (9th Cir. 2006). On March 30, 2007, the District Court (Judge Pechman) found that petitioners were prevailing parties only to the extent that they had secured their release from detention, and thus reduced the award of attorney's fees to $54,468.25 to exclude work done on the class action portion of the suit.
(The court also imposed a $1,000 fine on the Government for submitting an overlong brief; this fine was reversed by the Ninth Circuit as an abuse of discretion on May 9, 2008. Ali v. Mukasey, 277 Fed. Appx. 741 (9th Cir. 2008).)Christopher Schad - 06/14/2012