Usama Hamama v. Rebecca Adducci
Usama Hamama v. Rebecca Adducci
Opinion
These consolidated appeals arise from the government's efforts to execute long-standing final removal orders of Iraqi nationals that the United States had, for many years, been unable to execute. The district court entered two preliminary injunctions: one to halt the removal of Iraqi nationals (removal-based claims) and one to order bond hearings for those Iraqi nationals who continued to be detained after the district court halted their removals (detention-based claims). Because we find the district court lacked the jurisdiction to enter both the removal-based and the detention-based claims, we VACATE the preliminary injunctions for both the removal-based and the detention-based *872 claims, and we REMAND with directions to dismiss the removal-based claims for lack of jurisdiction, and for further proceedings consistent with this opinion. 1
I.
A.
Petitioners-Appellees ("Petitioners") are Iraqi nationals, the vast majority of whom were ordered removed to Iraq years (and some decades) ago because of criminal offenses they committed in the United States. For many years Iraq refused to repatriate Iraqi nationals who, like Petitioners, had been ordered removed from the United States. 2 Because the United States was unable to execute the removal of Iraqi nationals to Iraq, Petitioners remained in the United States under orders of supervision by United States Immigration and Customs Enforcement ("ICE"). Their removal orders remained final and active.
Things changed in 2017. Iraq began to cooperate with repatriation efforts and the removal of Iraqi nationals to Iraq quickly resumed. Iraqi nationals such as Petitioners, with final orders of removal that had been long-stalled, were faced with an unpleasant reality-their removals were now imminent. Though many of these Iraqi nationals had come to expect that the execution of their removals would never materialize, they had been living in the United States on borrowed time. Iraq's agreement to cooperate with repatriation efforts meant that time was up.
The reality of Iraq's resuming cooperation in repatriating its nationals hit in April 2017 when ICE conducted its first removal by charter flight to Iraq since 2010, removing eight Iraqi nationals and scheduling a second charter for late June 2017. In preparation for the second charter, ICE arrested and held in custody more than 200 Iraqi nationals in mid-June 2017. 3 These arrests prompted the cases now before us.
B.
On June 15, 2017, Petitioners filed a putative class action habeas petition in the United States District Court for the Eastern District of Michigan on behalf 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."
*873 Petitioners also filed a motion for a temporary restraining order and/or stay of removal, asking the district court to halt their removal to Iraq and to hear the Petitioners' arguments of allegedly changed country conditions.
Petitioners' choice to file this action before the district court was undoubtedly outside the norm for removal proceedings, over which immigration courts hold exclusive jurisdiction.
See
The district court eventually concluded that it had jurisdiction to hear Petitioners' claims. Acknowledging that "
Specifically, the district court explained that "[t]he mechanism provided by [Congress through] the REAL ID Act for judicial review of removal orders-filing motions to reopen proceedings in immigration courts and subsequent review in the courts of appeals-does not take into account the compelling confluence of grave real-world circumstances present in [this] case." The district court, in July 2017, granted Petitioners a nationwide preliminary injunction preventing the government from enforcing final removal orders against Iraqi nationals and requiring the government to produce extensive discovery. The government appealed the preliminary injunction on September 21, 2017. That appeal is before us as Case No. 17-2171.
The second appeal stems from Petitioners' continued detention during the pendency of these cases. The government has kept Petitioners detained, as relevant to the appeal before us, under the authority provided in two statutes. The first grants authority to detain aliens who are subject to final removal orders because they have not moved to reopen their immigration proceedings or have not prevailed in a motion to reopen their proceedings.
See
In October 2017, nearly three months after the district court granted Petitioners' removal-based preliminary injunction, Petitioners amended their habeas petition and class action complaint to add claims challenging their continued detentions under
II.
We review de novo the district court's determination of subject-matter jurisdiction.
Pak v. Reno
,
A.
We begin with the removal-based claims. "Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress ...."
Bender v. Williamsport Area Sch. Dist.
,
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
The district court found that the "natural reading of § 1252(g)" and "the Sixth Circuit's straightforward view expressed in
Elgharib
[
v. Napolitano
,
Under a plain reading of the text of the statute, the Attorney General's enforcement of long-standing removal orders falls squarely under the Attorney General's decision to execute removal orders and is not subject to judicial review.
See
Reno
,
But our agreement with the district court's reasoning ends there. After correctly concluding that § 1252(g) divested it of jurisdiction as a matter of federal statutory law, the court then erred by finding that it could still exercise jurisdiction because "extraordinary circumstances" created an as-applied constitutional violation of the Suspension Clause. This is a broad, novel, and incorrect application of the Suspension Clause.
There are at least two reasons why § 1252(g)'s jurisdictional limitations do not violate the Suspension Clause. First, because Petitioners are not seeking habeas relief in the first instance. And second, because even if they were, Congress's petition-for-review process provides an adequate alternative to an action in habeas as applied to Petitioners.
To begin with, the type of relief Petitioners seek is not protected by the Suspension Clause. The Clause states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. "At its historical core," the writ "served as a means of reviewing the legality of Executive detention."
I.N.S. v. St. Cyr
,
The government argues that because Petitioners' removal-based claims fail to seek relief that is traditionally cognizable in habeas, the Suspension Clause is not triggered. We agree. As the government states, "[t]he claims and relief requested here are fundamentally different from a traditional habeas claim." Petitioners' removal-based claims did not challenge any detention and did not seek release from custody. Rather, they sought "a stay of removal until they ... had a reasonable period of time to locate immigration counsel, file a motion to reopen in the appropriate administrative immigration forum, and have that motion adjudicated to completion in the administrative system, with time to file a petition for review and request a stay of removal in a federal court of appeals." "[T]he nature of the relief sought by the habeas petitioners suggests that habeas is not appropriate in these cases" because "the last thing petitioners want is simple release" but instead a "court order requiring the United States to shelter them."
Munaf
,
The dissent claims we misrepresent
St. Cyr
because
St. Cyr
requires some "judicial intervention in deportation cases."
That difference means this case is less like
St. Cyr
and more like
Munaf
, which concerned American citizens seized in Iraq and held in U.S. custody there.
Even if the relief Petitioners seek was available under the common-law writ, Petitioners' Suspension Clause claim would fail for the independent reason that Congress has provided an adequate alternative as applied to them. Congress does not suspend the writ when it strips the courts of habeas jurisdiction so long as it provides a substitute that is adequate and effective to test the legality of a person's detention.
Swain v. Pressley
,
Petitioners respond that, while the petition-for-review process may be a facially adequate alternative to habeas, a confluence of circumstances made that alternative constitutionally inadequate as applied to them. They are wrong. Petitioners had years to file their motions to reopen; they cannot now argue that the system gave them too little time. The administrative *877 scheme established by Congress even provided multiple avenues to stay removal while pursuing relief. Petitioners have not shown any constitutional inadequacy in this process.
The district court did not have jurisdiction over Petitioners' removal-based claims, and we therefore vacate the injunction.
B.
We proceed now to the detention-based claims. The government and Petitioners agree that the district court had jurisdiction over the detention-based claims and that this jurisdiction is an independent consideration that is not tied to whether the district court has jurisdiction over the removal-based claims. We agree the district court's jurisdiction over the detention-based claims is independent of its jurisdiction over the removal-based claims. Nevertheless, we find that
(f) Limit on injunctive relief
(1) In general
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221 - 31 ] ... other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
Interpreting this statute in
Reno
, the Supreme Court held that, "By its plain terms, and even by its title, that provision is nothing more or less than a limit on injunctive relief. It prohibits federal courts from granting classwide injunctive relief against the operation of §§ 1221-31, but specifies that this ban does not extend to individual cases."
Objection # 1: The plain text of the statute does not bar class actions. According to Petitioners, " § 1252(f)'s language bars injunctions that purport to protect persons not yet in immigration proceedings " (emphasis added). Petitioners come to this conclusion by focusing on the language in § 1252(f)(1) that reads "other than ... an ... alien ... against whom proceedings under such part have been initiated " (emphasis added). According to Petitioners, § 1252(f)(1) is a bar on injunctions but there is a carveout for those aliens who are already in immigration proceedings. Since everyone in the current litigation is currently in immigration proceedings, Petitioners argue that § 1252(f)(1) is inapplicable to the current class action litigation.
This argument does violence to the text of the statute. The only way Petitioners can come to the conclusion they do is by reading out the word "individual" before "alien" in the last sentence of the statute. In other words, they argue that a class action is not barred by this statute because all the members of the proposed subclasses are already in immigration proceedings. But although Petitioners are correct that the statute provides a carveout for those already in immigration proceedings, that carveout applies only to an "individual." There is no way to square the concept of a class action lawsuit with the wording "individual" in the statute. "It is 'a cardinal principle of statutory construction' that 'a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous,
*878
void, or insignificant.' "
TRW Inc. v. Andrews
,
Indeed, elsewhere in the statute Congress made it very clear that it knew how to distinguish when it wanted a statute to apply not to "individual" aliens, but rather to "any alien." For example, the phrase "any alien" appears in the very next subsection of the statute-"Notwithstanding any other provision of law, no court shall enjoin the removal of any alien ..." § 1252(f)(2) (emphasis added)-as well as in other subsections of the statute. See, e.g., § 1252(e)(4)(B) (" Any alien who is provided a hearing ...") (emphasis added); § 1252(g) ("[N]o court shall have jurisdiction to hear any cause or claim by or on behalf of any alien ... or execute removal orders against any alien under this chapter.") (emphasis added).
Petitioners argue that if Congress had wanted to ban class certification under Rule 23 it would have just said that. In fact, it did elsewhere in the statute. See § 1252(e)(1)(B) ("[N]o court may ... certify a class under Rule 23 ...."). But there is a big difference between barring the certification of a class under Rule 23 and barring all injunctive relief. The former bars a class action regarding anything ; the latter only bars injunctive relief for anyone other than individuals.
Petitioners next argue that "[t]he use of the term 'individual alien' does not withdraw a court's power to grant class relief." In support of their position, Petitioners cite
Califano v. Yamasaki
,
We are not alone in our interpretation of § 1252(f)(1). Other courts, following
Reno
's guidance, have determined that they do not have jurisdiction under § 1252(f)(1) to issue class-based injunctive relief against the removal and detention statutes.
See
Van Dinh v. Reno
,
Objection # 2: § 1252(f)(1) does not apply to habeas.
Petitioners argue that "Congress made no specific reference to habeas corpus, which therefore remains intact." Petitioners cite
St.Cyr
, which says that "[i]mplications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal."
But Petitioners' argument fails because there is nothing in § 1252(f)(1) that suspends the writ of habeas corpus. It is true that habeas is barred as to
injunctive relief
for
class actions
, but there is nothing barring a class from seeking a traditional writ of habeas corpus (which is distinct from injunctive relief,
see
Jennings
, 138 S.Ct. at 858 (Thomas, J., concurring in part and concurring in the judgment) ), or an individual from seeking habeas relief, whether injunctive or otherwise. There was therefore no reason for Congress to explicitly call attention to habeas jurisdiction in § 1252(f)(1). Additionally,
St. Cyr
is not properly invoked by Petitioners because the animating principle behind
St. Cyr
was that courts needed to tread carefully when interpreting a statute that "invokes the outer limits of Congress' power."
St. Cyr
,
Argument # 3: As to their statutory claims, Petitioners do not seek "to enjoin or restrain the operation of the [referenced] provisions" of the INA. Petitioners claim that "the district court was not enjoining or restraining the statutes, but rather interpreting them to ensure they are correctly enforced." There are two problems with this argument. First, Jennings foreclosed any statutory interpretation that would lead to what Petitioners want. The Jennings Court chastised the Ninth Circuit for "erroneously conclud[ing] that periodic bond hearings are required under the immigration provisions at issue here," a conclusion the Ninth Circuit came to by "adopt[ing] implausible constructions of the ... immigration provisions at issue." Jennings, 138 S.Ct. at 850, 836. Similarly, Petitioners' argument here cannot succeed to the extent that Petitioners are arguing the district court was interpreting the statute to find a statutory basis for the injunction.
Second, the claim that "the district court was not enjoining or restraining the statutes" is implausible on its face. The district court, among other things, ordered release of detainees held "for six months or more, unless a bond hearing for any such detainee is conducted"; created out of thin air a requirement for bond hearings that does not exist in the statute; and adopted new *880 standards that the government must meet at the bond hearings ("shall release ... unless the immigration judge finds, by clear and convincing evidence, that the detainee is either a flight risk or a public safety risk"). If these limitations on what the government can and cannot do under the removal and detention provisions are not "restraints," it is not at all clear what would qualify as a restraint.
The district court did not have jurisdiction to enter class-wide injunctive relief on Petitioners' detention-based claims. 8
III.
The district court lacked jurisdiction to enter its preliminary injunction both with regard to the removal-based and the detention-based claims. It lacked jurisdiction over the removal-based claims because § 1252(g) plainly reserves for the Attorney General the authority to execute removal orders. These orders are not subject to judicial review. There is no Suspension Clause violation because the Suspension Clause can only be triggered when a petitioner is requesting release from custody. That is not what Petitioners request in the instant case. Instead, they seek additional time to have their petitions heard in the immigration courts. Additionally, the district court lacked jurisdiction over the detention-based claims because § 1252(f)(1) unambiguously strips federal courts of the authority to enter class-wide injunctive relief, as the district court did in this case. We accordingly VACATE the preliminary injunctions for both the removal-based and the detention-based claims, and we REMAND with directions to dismiss the removal-based claims for lack of jurisdiction, and for further proceedings consistent with this opinion.
HELENE N. WHITE, Circuit Judge, dissenting.
I respectfully dissent.
The majority vacates the preliminary injunctions relative to both types of claims-the removal-based claims and the detention-based claims-on the basis that the district court lacked jurisdiction to enter the injunctions, and remands with instructions to dismiss the claims. The removal-based relief must be vacated, says the majority, because the Suspension Clause, on which the district court relied, "can only be triggered when a petitioner is requesting relief from custody" (Maj. Op. at 880), and, in any event, Congress's petition-for-review procedure provides an adequate substitute for habeas as applied to Petitioners (Maj. Op. at 876). The detention-based relief must be vacated and the claims dismissed, according to the majority, because " § 1252(f)(1) unambiguously strips federal courts of the authority to
*881
enter class-wide injunctive relief." (Maj. Op. at 880.) Although the majority remands for further proceedings, it rejects the avenues left open by
Jennings v. Rodriguez
,
Although I agree with the majority that Jennings forecloses Petitioners' argument that the district court did not enjoin the operation of the provisions, but rather enforced them after interpreting them to require bond hearings, I disagree with the remainder of the majority's conclusions. Regarding the removal-based claims, protection against the executive action of removal is within the recognized scope of habeas, and the petition-for-review procedure provides an inadequate substitute for habeas under the circumstances presented here. Thus, the district court properly exercised jurisdiction over that claim. Regarding the detention-based claims, the district court had jurisdiction under § 2241, and § 1252(f)(1) does not purport to bar class-wide declaratory relief or individual injunctive relief.
I. Removal-Based Claims
I dissent from the majority's determination that the district court lacked jurisdiction to enter the preliminary injunction staying removal until Petitioners have the opportunity to file motions to reopen and pursue their available avenues for administrative relief and judicial review. Petitioners do not challenge the orders of removal; they claim that country conditions have changed since those orders were entered and that they face persecution, torture, and possibly death if removed to Iraq. They do not ask the courts to make this determination in the first instance; they seek only to pursue their statutory rights to reopen their cases and make the requisite showing before the administrative agency. In short, they seek time to pursue Congress's mandated avenues for relief before they are deported, which, they plausibly assert, will render any relief granted pursuant to those procedures meaningless. The district court determined that Congress's withdrawal of habeas jurisdiction under these circumstances constitutes an as-applied violation of the Suspension Clause. I agree.
Scope of Habeas and the Suspension Clause
The United States Constitution states: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. Known as the "Suspension Clause," this provision establishes that suspension of the common-law writ of habeas corpus is a constitutional violation.
See
Boumediene v. Bush
,
The relief available under habeas corpus is not nearly as narrow as the majority holds. In its order granting the preliminary injunction, the district court considered the relevant case law and correctly noted that "in none of the many cases cited by the parties and by the Court regarding habeas jurisdiction in immigration cases has a court refused to consider a petitioner's argument on the grounds that the challenge to the removal order was not cognizable for failure to challenge detention." (R. 87, PID 2336-37 (collecting cases).)
The majority opinion sweeps broadly, finding that the Suspension Clause only protects the "core" remedy of release from detention and that protection from removal is not included. In support of this argument, the majority cites
INS v. St. Cyr
,
Yet neither of these cases holds that habeas protections do not include protection from removal. Notably,
St. Cyr
involved "an alien subject to a federal removal order," and recognized that the Suspension Clause requires some "judicial intervention in deportation cases."
St. Cyr
,
Similarly,
Munaf
explains that the "typical" habeas remedy is release, but nowhere states that it is the only "core" habeas remedy. In
Munaf
, the petitioners were U.S. citizens who were arrested by U.S.-led forces in Iraq on terrorism-related charges. The petitioners conceded that they were subject to arrest by the Iraqi government and sought to prevent their transfer to Iraqi custody following an extradition request.
Munaf
, 553 U.S. at 693,
*883
Further, the history of the writ includes its application to challenge removal proceedings. In their amicus brief, Scholars of Habeas Corpus Law (Scholars) correctly observe that for over a hundred years, courts have recognized that the executive act of removing an alien from the country involves the sort of restraint on personal liberty that can properly form the basis of a habeas petition. (Scholars Br. at 5-6 (citing
Chin Yow v. U.S.
,
Adequate and Effective Alternative
Of course, even where the Suspension Clause applies, it is not violated where habeas is replaced with an adequate and effective alternative. Relying on
Muka v. Baker
,
Aliens seeking to challenge their removal based on changed country conditions can file a motion to reopen, which is a request for redetermination of a prior decision to remove the alien.
See
8 U.S.C. § 1229a(c)(7) ;
In this case, Petitioners' grounds for relief from removal based on changed *884 country conditions in Iraq arose after (in some cases, many years after) Petitioners' removal proceedings had ended. Petitioners presented the district court with evidence that because they were likely to be killed or tortured if deported, their impending removal would be in violation of the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT), and that without a stay they would be deported before they could seek relief under these acts. The government did not contest this evidence, and the majority does not find fault with the district court's findings that without a stay, deportations would commence immediately, with death, torture, and persecution probably resulting. Instead, the majority faults Petitioners for failing to file motions to reopen earlier. Yet there are good reasons for Petitioners' failure to do so. The government was unable to deport Petitioners to Iraq until 2017 when a diplomatic agreement resulted in the resumption of removals. Petitioners were living for years (or decades) under removal orders but with no actual prospect of being deported. Susan Reed, Petitioners' witness and the Managing Attorney of the Michigan Immigrant Rights Center, explained that stays of removal are not typically sought until removal is imminent because they are rarely granted when removal is not imminent. Although Petitioners could have filed motions to reopen and to stay removal, it was not reasonable to expect them to do so because there was no real possibility of removal and it was unclear what country conditions might be at some hypothetical future time when removal might be possible.
There is abundant evidence in the record that motions to reopen are complicated, time-consuming, and expensive. These motions require the applicant to compile files, affidavits, and "hundreds of pages of supporting evidence," fill out all sections of the application, and include an original signature. (
See
R. 77-2, R. 77-26, R. 77-27, R. 30-3 ¶ 12,
Petitioners additionally note that their Alien files (A-files)-which document their immigration history-and Records of Proceedings (ROP)-which document past proceedings before the immigration courts and BIA-are ordinarily attainable only through a FOIA request and can take months to obtain. (R. 77-28 ¶¶ 6, 7; R. 77-26 ¶¶ 8, 9; AILA Br. at 2 (explaining that the motion to reopen "takes time, in large part due to the government's own bureaucratic weight, the difficulty in obtaining and reviewing records and evidence particularized to each individual respondent, and the sudden strain on a community affected by mass round-up of its members").) Under normal circumstances, preparing a motion to reopen can take between three and six months. (R. 77-26 ¶ 12; R. 77-27 ¶ 5.)
*885
The majority's assertion that "[t]he administrative scheme established by Congress even provided multiple avenues to stay removal while pursuing relief" would carry weight if the Petitioners had had time to pursue the "multiple avenues," or indeed
any
avenue. (Maj. Op. at 876-77.) But when the ICE raids began, Petitioners were faced with the very real possibility that they would be deported before they could reopen their immigration cases and then be imprisoned, tortured, or killed upon removal to Iraq. If the district court had not granted a stay of removal, Petitioners would have quickly been deported far beyond the reach of habeas and the court's jurisdiction.
See
Boumediene
, 553 U.S. at 787,
Nor is the district court's application of the Suspension Clause under these circumstances novel or unusual. Courts throughout the country confronting similar circumstances have found that interpreting § 1252(g) to divest them of jurisdiction could violate the Suspension Clause. In
Devitri v. Cronen
,
Other courts have concluded that the motion to reopen process is not an adequate substitute for habeas relief in circumstances similar to Petitioners'.
Ibrahim v. Acosta
, No. 17-cv-24574,
*886 Because Petitioners had no reason to file motions to reopen and to stay without some notice that removal was imminent, and once they received such notice the petition-for-review process failed to provide a realistic possibility of effective relief, the district court correctly concluded that the petition-for-review process failed to provide an adequate alternative to habeas relief.
In sum, the majority's conclusion that Congress can permissibly render the federal courts impotent to temporarily stay the executive branch's imminent removal of aliens to a place where they are likely to be tortured before they have an opportunity to pursue relief based on changed country conditions is contrary to the historical understanding of the writ of habeas corpus and the Suspension Clause. I would affirm the district court's exercise of jurisdiction and its grant of the preliminary injunction on the removal-based claims.
II. Detention-Based Claims
Although § 1252(f)(1) and its interpretation by the Supreme Court in
Reno v. American-Arab Anti-Discrimination Committee
,
In
Reno
, the Supreme Court considered § 1252(f)(1) within the context of the broader Immigration Reform and Immigrant Responsibility Act (IIRIRA) and explained that "[b]y its plain terms," § 1252(f)(1) is "a limit on injunctive relief."
But the Supreme Court addressed § 1252(f)(1) again in
Jennings v. Rodriguez.
2
Jennings
left open the possibility that § 1252(f)(1) does not apply to constitutional claims. Citing
Reno
for the proposition that § 1252(f)(1)"prohibits federal courts from granting class-wide injunctive relief against the operation of §§ 1221-123[2]," the
Jennings
Court declined to consider the aliens' constitutional arguments in favor of injunctive relief.
the Court of Appeals should consider on remand whether it may issue classwide injunctive relief based on respondents' constitutional claims. If not, and if the Court of Appeals concludes that it may issue only declaratory relief, then the Court of Appeals should decide whether that remedy can sustain the class on its own.
The majority concludes that the issue was settled by
Reno
; but if this is so, the
Jennings
Court's remand is baffling. In any event, and assuming
Reno
settled the issue,
Jennings
clearly supports that class-wide
*887
declaratory relief is not barred. Other courts have determined that § 1252(f)(1) does not bar class-wide declaratory relief.
See
Alli v. Decker
,
The majority notes that the parties' letter briefs make clear that the issue of declaratory relief is not before us. (Maj. Op. at 880, N.8) That is true in the sense that Petitioners state ''§ 1252(f)(1) does not apply to Petitioners' request for classwide declaratory relief, which is not before this Court, as to the district court has not yet ruled on Petitioners' request for such relief.'' (Petitioners' Letter Br. at 10.) But the request for such relief is part of the case and should be entertained by the district court on remand without prejudgment by this court.
Conclusion
In sum, I would affirm the district court's preliminary injunction as to the removal-based claims; as to the detention-based claims, I would vacate the district court's class-wide preliminary injunction and remand for reconsideration in light of Jennings and for further proceedings as are consistent with § 1252(f)(1).
Petitioners have filed a Motion for Judicial Notice, requesting that we take judicial notice of "certain adjudicated outcomes in Petitioners' individual immigration cases," as compiled by Ms. Margo Schlanger, counsel for Petitioners. We DENY the motion. Federal Rule of Evidence 201(b) permits a court to take judicial notice of facts "not subject to reasonable dispute." In
United States v. Bonds
,
Iraq declined to issue requisite travel documents to aid the United States in repatriating Iraqi citizens and would accept only Iraqi nationals with final orders of removal who had unexpired passports and were returning on commercial flights.
The vast majority of arrests took place in Detroit. ICE arrested approximately 114 Detroit-based Iraqi nationals and transferred them to federal facilities in Michigan, Ohio, Louisiana, and Arizona to await removal to Iraq. ICE also arrested and detained approximately 85 Iraqi nationals from Tennessee, New Mexico, and California, who were subsequently transferred to facilities in Alabama, Louisiana, Tennessee, and Texas.
The government notes that this detention is a direct result of the district court's stay of removal of Petitioners. Without the stay, Petitioners would have been removed to Iraq.
Petitioners added count four: "prohibition on immigration detention where removal is not significantly likely in the reasonably foreseeable future"; count five: "prohibition on immigration detention without an individualized hearing on danger and flight risk"; count six: "unlawful application of mandatory detention to class members whose motions to reopen have been granted"; and count seven: "relief for class members who have been deprived of timely access to the files needed to file their motions to reopen."
Congress amended § 1252(g) in 2005 to its current form with the enactment of the REAL ID Act. The Act, among other things, "sought to channel judicial review of an alien's claims related to his or her final order of removal through a petition for review at the court of appeals."
Elgharib v. Napolitano
,
As the government notes, other aspects of Petitioners' request for injunctive relief and the district court's preliminary injunction underscore the unconventional nature of Petitioners' purported habeas claims. Petitioners have not exhausted available remedies; Petitioners' claim is based on allegedly changed factual circumstances, which is not a core use of habeas; and Petitioners seek class-wide relief, which falls outside the traditional use of habeas.
The dissent claims
Jennings
leaves open the possibility that constitutional claims may survive § 1252(f)(1)'s removal of jurisdiction. We recognize that the Court in
Jennings
did not rule on whether a court may issue class-wide injunctive relief on the basis of constitutional claims.
See
The dissent claims also that § 1252(f)(1) does not bar declaratory relief. Be that as it may, both parties agree in their letter briefs that the issue of declaratory relief is not before us. Even if it were before us, we are skeptical Petitioners would prevail. It is true that "declaratory relief will not always be the functional equivalent of injunctive relief."
Alli v. Decker
,
Reno
expressly rejected the view that § 1252(f)(1) provides "an affirmative grant of jurisdiction" over class-based challenges to removal decisions.
Id.
at 482,
In
Jennings
, the Court rejected the Ninth Circuit's conclusion that the doctrine of constitutional avoidance requires that § 1225(b) and § 1226(c) be interpreted to include a 6-month limit on mandatory detentions and to require bond hearings after that point,
Reference
- Full Case Name
- Usama Jamil HAMAMA, Et Al., Petitioners-Appellees, v. Rebecca ADDUCCI, Et Al., Respondents-Appellants.
- Cited By
- 71 cases
- Status
- Unpublished