Update on the deportation litigation: Hamama v. Adducci

By Margo Schlanger

It’s been well over a year since Immi­gration and Customs Enforcement (ICE) rounded up more than two hundred Iraqi nationals—most in met­ro Detroit—seeking to deport them immediately to Iraq. In the time since, another 100-plus have been arrested as well. A team of lawyers—from the American Civil Liberties Union (ACLU), CODE Legal Aid, the law firm Miller Canfield, the Michigan Immigrant Rights Center, the Interna­tional Refugee Assistance Project and I—have been working hard to help ev­eryone arrested fight their immigration cases and get home out of detention. I’ll review what’s happened so far, and then talk about the next steps:

The first round-up in the De­troit area was June 11, 2017.

The litigation started June 15, and was brought on behalf of all the Iraqis with final removal orders newly facing deportation. It was as­signed to Judge Mark Goldsmith, in the federal district court in Detroit. It received the title Hamama v. Ad­ducci, because the first-listed plain­tiff was Sam Hamama, a Detroit area Chaldean community leader who had been arrested during the round-up.

Judge Goldsmith first granted an emergency stay of removal—stopping the threat of immediate planes to Iraq. Then he granted what’s called a Pre­liminary Injunction, staying removals nationwide of Iraqi nationals, so that they would have time to go to immi­gration court and reopen their cases. The government appealed, but the stay remained in effect while the ap­peal was first briefed and then argued.

Protected by the stay, the de­tained individuals began to get their cases reopened. But they stayed in detention, month after month, as they fought their immigration cases. Detainees were spread out in dozens of facilities across the country. Many of the Michigan detainees were held in Youngstown, Ohio, and several jails across Michigan.

In November 2017, the Hamama lawyers brought a new motion, argu­ing that the detainees were being held unlawfully because while their deten­tion had stretched to over six months, they had not had an opportunity to show that they were not a danger to the community or a flight risk. Judge Goldsmith agreed and on January 2, 2018, told ICE that Iraqi nationals in the Hamama case who were in deten­tion over six months had to be given a bond hearing or released.

Most of the detainees got bond hearings, and hundreds got out—but more than a hundred remain locked up.

In April 2018, the Sixth Circuit Court of Appeals heard the govern­ment’s appeal of Judge Goldsmith’s two major orders: the July 2017 stay of removal and the January 2018 bond hearing order. A decision on both could come at any time.

The next step – while we wait for the Court of Appeals opinion – is to ask Judge Goldsmith to release the hundred-plus detainees who are still held in jails across the country. So, the Hamama counsel are hard at work on a new motion.

The argument is under a case called Zadvydas v. Davis, in which the Supreme Court held that ICE must release detainees when there is no “significant likelihood of removal in the reasonably foreseeable future.” Iraq has for years had a policy against accepting the removal of Iraqis who are not agreeing to being sent to Iraq. But of course, the U.S. government is pressuring Iraq to disregard its poli­cy. It is critical that the community counter that pressure, by participat­ing in demonstrations and contact­ing your elected representatives.

As part of putting the next mo­tion together, the Hamama team has been conducting “discovery”—the formal process in litigation of asking written questions, getting documents from the government, and conduct­ing formal recorded interviews that are usable in court.

The U.S. government argued that the Hamama team should not even be allowed to take these steps until the Court of Appeals rules—but last week, Judge Goldsmith rejected that attempted delay. Because of this vic­tory, the case can move forward.

What’s really important to re­member is this: Anyone who has a fi­nal order of removal should be work­ing hard with an immigration lawyer to try to get that order reopened and reversed. And if you have a green card, you should think seriously about applying for citizenship. As this case shows, anyone can lose resi­dency status with one mistake, but citizenship is forever.

We don’t know what the Court of Appeals will do—it could reverse Judge Goldsmith’s stay of removal, which would threaten anyone who has not succeeded in reopening their immigration case.

But even if that does not hap­pen, Judge Goldsmith did not make the risk of deportation go away. What he did was give people time to fight their immigration cases. If people do not fight their immigration cases, Judge Gold­smith’s order will not protect them.

In addition, even if someone gets out on bond once, they can be rear­rested if the immigration judge who granted bond says that’s ok.

And finally, ICE is allowed to keep arresting additional people—although those newly arrested will have to be given a chance to contest their cases, and will have to receive a bond hearing, if their case is re­opened or they remain in detention for over six months.

It’s been a great privilege to be part of the Hamama litigation and help the community fight unjust deportations and family separations. But the litigation can only do so much. A long-term solution will be political or legislative.

In the meantime, the most im­portant thing is for people with re­moval orders to fight them.

Margo Schlanger is a law professor at the University of Michigan and has been at the forefront of the fight to help community members at risk of deportation.