United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OF OPINION AND ORDER
Scott Coogler United States District Judge
a petition for habeas corpus relief filed pursuant to 28
U.S.C. § 2241 wherein the petitioner, an Iraqi national,
is arguing that his continued detention pending removal to
Iraq violates substantive and procedural due process
requirements pursuant to Zadvydas v. Davis, 533 U.S.
678 (2001). Petitioner is currently detained at the Etowah
County Detention Center in Gadsden, Alabama,  subject to a
final order of removal. For the following reasons, this
action is subject to dismissal without prejudice unless
Petitioner shows cause, as more fully stated below.
General Legal Standard
Attorney General must remove an alien from the United States
within 90 days after an order of removal becomes
administratively final, but should removal not be
accomplished within the 90-day removal period, detention is
permitted to continue, provided, however, that it is limited
to a presumptively reasonable time period, declared by
Zadvydas and its progeny to be six months.
See 533 U.S. at 690-92, 701; 8 U.S.C. §
1231(a)(1), (6). If removal is not reasonably foreseeable at
the expiration of that time period, continued detention is
not authorized under 8 U.S.C. § 1231(a)(6).
Zadvydas, 533 U.S. at 699.
has been convicted of numerous crimes since first entering
the United States in 1995, including retail fraud,
maintaining a drug house, and forgery. (Declaration of Bryan
S. Pitman, Supervisory Detention and Deportation Officer with
the Department of Homeland Security, Immigration and Customs
Enforcement, New Orleans Field Office, assigned to the Etowah
County Detention Center, doc. 7-2.) On January 31, 2012, an
Immigration Judge ordered Petitioner removed from the United
States to Iraq. (Id.) From December 28, 2012 until
June 20, 2017, Petitioner was not in ICE custody due to
stalled removal efforts with the Iraqi government.
(Id.) Petitioner returned to ICE custody on June 20,
2017, following his most recent criminal conviction.
15, 2017, a habeas action was filed in the U.S. District
Court for the Eastern District of Michigan on behalf of a
putative class of Iraqi nationals challenging their detention
pending deportation as contrary to Zadvydas. See
Hamama v. Adducci, Case No. 17-cv-11910 (E.D. Mich.).
Petitioner's imminent removal was halted when, on June
27, 2017, the Hamama court expanded its temporary
restraining order staying the removal of Iraqi nationals
within the jurisdiction of the ICE Detroit Field Office to
all Iraqi nationals nationwide. See Hamama, 261
F.Supp.3d 820, 841 (E.D. Mich. 2017) (staying the removal of
“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”).
October 12, 2017, Petitioner was served with a notice of
membership in the Hamama class, which included a
Know Your Rights informational sheet and a voluntary removal
packet that contained procedures to opt out of the putative
class in Hamama. (Doc. 7-2.)
November 22, 2017, Petitioner filed a habeas petition in this
Court, challenging his immigration detention during the
pendency of the stay issued by the Hamama court
under Zadvydas, and asserted a right to a bond
hearing. See doc. 1 in Case No.
4:17-cv-01972-KOB-TMP. On January 2, 2018, the
Hamama court certified three
“subclasses” to address the immigration detention
claims. Respondent asserts Petitioner is a member of a
subclass challenging his continued detention under
Zadvydas and also a member of the subclass
challenging his prolonged detention without a bond hearing.
For the Zadvydas claim, the Hamama court
decided that further discovery was warranted. For the
prolonged detention claim, the Hamama court entered
a second preliminary injunction requiring bond hearings for
certain Iraqi nationals who were subject to the court's
stay of removal and who have been detained for a period
exceeding six months. Hamama, 285 F.Supp.3d 997,
1008-09 (E.D. Mich. 2018). The subclasses excluded
individuals (like Petitioner) who at the time had
“open” individual habeas petitions. Id.
However, the Hamama court ordered that the
government serve detained Iraqis subject to the court's
stay of removal with a notice informing them that they may
join the detention subclasses (and become eligible for a bond
hearing) if they withdraw their habeas petitions within three
weeks from the receipt of the notice. On January 24, 2018,
Petitioner voluntarily withdrew his previous habeas petition.
February 28, 2018, Judge Karon O. Bowdre dismissed
Petitioner's petition without prejudice. In accordance
with the directive from the Hamama court, Petitioner
was afforded a bond hearing on February 6, 2018, and the
Immigration Judge denied bond. (Doc. 7-2.)
March 15, 2018, Petitioner refiled the very same habeas
petition with this Court. (Doc. 1). Like his initial
petition, and the Hamama class habeas petition,
Petitioner challenges his detention as contrary to
Zadvydas and seeks release. (Id.). In the
instant case, Respondent argues that Petitioner should not be
allowed to seek duplicative habeas relief in this Court while
he remains part of a certified class of individuals pursuing
identical relief in a class habeas in Hamama,
arguing that it would be an abuse of the writ to allow this
case to proceed while the constitutionality of
Petitioner's detention is already being considered by
that court. (See doc. 7).
response, Petitioner states that he is no longer part of the
Hamama subclass and submitted a signed
“Detainee Stipulation to Prompt Removal to Iraq,
” dated May 15, 2018, wherein he stipulates that he
wishes to be removed to Iraq and that the preliminary
injunction in Hamama will no longer prevent that
removal. (Doc. 9.)
magistrate judge recommended dismissal of this action without
prejudice because Petitioner has not demonstrated that he (or
class counsel on his behalf) has submitted the aforementioned
“Detainee Stipulation to Prompt Removal to Iraq”
with a request to be removed from the subclass to the U.S.
District Court for the Eastern District of Michigan, or that
the Michigan court has ...