USAMA JAMIL HAMAMA, et al., Petitioners-Appellees, v. THOMAS HOMAN, Acting Director of the U.S. Immigration and Customs Enforcement, et al., Respondents-Appellants.
Nos. 17-2171, 18-1233
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Dec 20, 2018
RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0634n.06
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
BEFORE: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
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.”
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, 196 F.3d 666, 669 (6th Cir. 1999).
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., 475 U.S. 534, 541 (1986) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80 (1803)). Congress enacted
(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
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, 525 U.S. at 483; Elgharib, 600 F.3d at 601-03; cf. Silva v. United States, 866 F.3d 938, 941 (8th Cir. 2017) (finding no jurisdiction over tort claims stemming from mistaken execution of a
But our agreement with the district court‘s reasoning ends there. After correctly concluding that
There are at least two reasons why
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.”
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, 553 U.S. at 693-94. And the relief ordered by the district court—a stay of removal—did not result in Petitioners’ release from custody. Because the common-law writ could not have granted
The dissent claims we misrepresent St. Cyr because St. Cyr requires some “judicial intervention in deportation cases.” 533 U.S. at 300. True enough, the Supreme Court invoked the Suspension Clause in the face of a removal-based challenge in St. Cyr. See 533 U.S. at 304-05. But the relief St. Cyr sought is qualitatively different from what Petitioners seek here. St. Cyr sought cancellation of removal, which would have entitled him to be released into and remain in the United States. See id. at 297, 314-15; Immigration and Nationality Act of 1952, ch. 477, § 212(c), 66 Stat. 182, 187 (repealed 1996);
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. 553 U.S. at 680-85. The Supreme Court concluded that those petitioners failed to state a claim for habeas relief because they were seeking only to avoid release into Iraq. Id. at 692. The dissent states that Munaf is inapposite because, unlike in Munaf, in the instant case Petitioners are not subject to an extradition request and are not seeking habeas to shelter them from government prosecution. But the reasoning in Munaf was not restricted to the particular relief those petitioners were seeking. The Court reviewed the history of habeas, noted it “is at its core a remedy for unlawful executive detention,” and because what petitioners were seeking did not fit into the “core remedy,” determined the remedy those petitioners’ claimed was not cognizable in habeas. 553 U.S at 693. Similarly, Petitioners are not seeking relief that fits in the “core remedy” of habeas.
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, 430 U.S. 372, 381 (1977); see also Felker v. Turpin, 518 U.S. 651, 664-65 (1996). When Congress stripped the courts of jurisdiction to grant habeas relief in
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
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.” 525 U.S. at 481-82. In our view, Reno unambiguously strips federal courts of jurisdiction to enter class-wide injunctive relief for the detention-based claims. Petitioners disagree and raise three objections. We address each of these objections below.
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
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,
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 . . .”
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
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, 442 U.S. 682, 700 (1979), which says, “The fact that the statute speaks in terms of an action brought by ‘any individual’ or that it contemplates case-by-case adjudication does not indicate that the usual Rule providing for class actions is not controlling, where under that Rule certification of a class action otherwise is permissible. Indeed, a wide variety of federal jurisdictional provisions speak in terms of individual plaintiffs, but class relief has never been thought to be unavailable under them.” Id. at 700. But Yamasaki was about an entirely different statute. And although the rule laid out in Yamasaki may be true as a general rule, it does not stop the Court from looking at a particular statute that uses the word “individual” and determining that, even if the use of “individual” does not always bar class actions, it does bar them in the particular statute at issue. And that is exactly what the Court found in Reno. Additionally, in Nken v. Holder, 556 U.S. 418, 431 (2009), the Court interpreted the statute the exact same way. Id. at 431 (describing
We are not alone in our interpretation of
Objection #2:
But Petitioners’ argument fails because there is nothing in
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
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
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 16), and, in any event, Congress‘s petition-for-review procedure provides an adequate substitute for habeas as applied to Petitioners (Maj. Op. at 9). 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
I disagree with these 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
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.”
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, 533 U.S. 289, 301 (2001) (“At its historical core,” the writ “served as a means of reviewing the legality of Executive detention.“), and Munaf v. Geren, 553 U.S. 674, 693 (2008) (“[T]he traditional function of the writ is to secure release from illegal custody.“).
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, 533 U.S. at 300 (citing Heikkila v. Barber, 345 U.S. 229, 235 (1935)). The St. Cyr Court also stated that habeas was “the sole means by which an alien could test the legality of his or her deportation order” until the 1952 enactment of the Immigration and Nationality Act. Id. at 306. The Court explained that “even assuming that the Suspension Clause protects only the writ as it existed in 1789, there is substantial evidence to support the proposition that pure questions of law like the one raised by the respondent in this case could have been answered in 1789 by a common-law judge with power to issue the writ of habeas corpus.” Id. at 304-05. As a result, the Court reasoned, “[i]t necessarily follows that a serious Suspension Clause issue would be presented” by Congress‘s withdrawal of habeas review from federal courts without providing an “adequate substitute for its exercise.” Id. at 305. Like St. Cyr, the present case involves aliens subject to federal removal orders who seek habeas review on a question of law related to their immigration proceedings, specifically, whether a district court has jurisdiction to stay removal proceedings for aliens at risk of immediate deportation where the available relief in the immigration courts is not an adequate and effective alternative.
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. The Court explicitly found that it had jurisdiction over the habeas petitions but noted that the petitioners’ requested relief was inappropriate because they were not asking for release from custody, which would “expose them to apprehension by Iraqi authorities for criminal prosecution.” Id. The Court went on to explain that “habeas is not a means of compelling the United States to harbor fugitives from the criminal justice system of a sovereign with undoubted authority to prosecute them.” Id. at 697. Here, Petitioners are not subject to the extradition request of a foreign power and are not seeking habeas that would “shelter them” from government prosecution. Although Munaf declined to grant the petitioners the requested relief, the Munaf Court did not hold that the writ is unavailable where the petitioner seeks to stay removal proceedings in order to pursue statutory remedies that would grant relief from removal.
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, 559 F.3d 480 (6th Cir. 2009), the majority concludes that even assuming the Suspension Clause applies, “the REAL ID Act does not violate the Suspension Clause because a petition for review provides an ‘adequate and effective’ mechanism for relief.” Id. at 484 (citing Swain v. Pressley, 430 U.S. 372, 381 (1977)). Petitioners do not dispute that the petition-for-review process generally provides an adequate alternative to habeas. Rather, they assert, and the district court found, that the petition-for-review mechanism is not adequate and effective as applied to Petitioners in the present “compelling confluence of grave, real-world circumstances.” (R. 64, PID 1243-44.) Importantly, Muka did not “foreclose other distinct as-applied challenges” under the Suspension Clause. Muka, 559 F.3d at 486. The majority gives short shrift to the district court‘s core finding, simply asserting that “Petitioners had years to file their motions to reopen; they cannot now argue that the system gave them too little time. The administrative scheme established by Congress even provided multiple avenues to stay removal while pursuing relief.” (Maj. Op. at 9.) The majority plainly ignores the facts on the ground.
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
In this case, Petitioners’ grounds for relief from removal based on changed
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.)
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
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, 2018 WL 582520, at *5-6 (S.D. Fla. Jan. 26, 2018) (granting habeas petitions for stay of removal to class of Somali nationals subject to orders of removal and facing imminent deportation, concluding that
II. Detention-Based Claims
I dissent as well from the majority‘s determination that because the district court lacked jurisdiction to enter class-wide injunctive relief requiring bond hearings, Petitioners’ claims should be dismissed altogether. Although
In Reno, the Supreme Court considered
But the Supreme Court addressed
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.
Separate and apart from whether
In sum, I would affirm the district court‘s preliminary injunction as to the removal-based claims. And, because the district court had jurisdiction over the detention-based claims and