University of Michigan Law School professors and students have been involved in a nearly two-year effort seeking due process for Iraqi nationals that the U.S. government has tried to deport. Among the MLaw team are (from left) 3L Anna Yaldo, Michigan Law Prof. Margo Schlanger, 3L Allison Horwitz and Michael Steinberg with the ACLU of Michigan.
– Photo by Leisa Thompson, courtesy of MLaw
By Jordan Poll
U-M Law
Usama “Sam” Hamama emigrated from Iraq to the United States when he was 11 years old.
At age 56, he has never returned. Yet despite having spent decades living, working, and raising a family in West Bloomfield, Michigan, he was one of more than 300 Iraqi nationals, about half of whom are from Metro Detroit, identified in 2017 by U.S. Immigration and Customs Enforcement (ICE) for removal.
Having overstayed their visas or lost their immigration status because of criminal convictions, these individuals were rounded up by ICE agents and headed for mass deportations.
Hamama and many of the other detainees were scheduled to be returned to Iraq in June 2017.
Had that happened, they would have been likely to face persecution, torture, or even death upon their arrival.
The Detroit-area detainees were mostly Chaldean Christians whose community in Iraq has dwindled under devastating persecution.
However, thanks to the efforts of a team of lawyers and students — including University of Michigan Law School Prof. Margo Schlanger, her Michigan Law student assistants and the American Civil Liberties Union (ACLU) of Michigan — the Iraqi detainees were spared that fate.
ICE’s mass arrests of Iraqis followed President Donald Trump’s executive order barring admission into the United States of nationals from seven countries, including Iraq.
In March 2017, Iraq was dropped from the list when it agreed to accept U.S. repatriations, most of which it had rejected for decades. A small repatriation flight occurred in early April, and ICE also prepared for a much larger effort covering hundreds of Iraqi nationals nationwide.
In Detroit, a roundup of more than 100 individuals took place on June 11–12, 2017.
A fledgling legal services organization, CODE Legal Aid, scrambled to find immigration lawyers for those affected, but it was clear that a group response was needed as well.
On June 13, the Chaldean Community Foundation held a gathering at its headquarters in Sterling Heights. It was then that Michael Steinberg, legal director of the ACLU of Michigan and public interest/public service faculty fellow at Michigan Law, was first approached about leading the legal movement to free the detainees.
“I knew it wasn’t going to be easy, and that I would need to tap an unprecedented amount of resources,” Steinberg says.
His first call? Schlanger, the Wade H. and Dores M. McCree Collegiate Professor of Law. “As co-counsel, she and Miriam Aukerman of the ACLU of Michigan have devoted their lives to this case,” said Steinberg.
With the support of the national ACLU; Miller, Canfield, Paddock, and Stone PLC; Michigan Immigrant Rights Center; CODE Legal Aid; and the International Refugee Assistance Project (IRAP), Schlanger and the ACLU of Michigan filed a class-action lawsuit, Hamama v. Adducci, on June 15, 2017, seeking a stay of removal.
The lawsuit was named after lead plaintiff Sam Hamama.
“If we are going to have a system where we deport people —which is a severe outcome — we have to make sure that the system is fair,” said Schlanger, former head of civil rights for the Department of Homeland Security during the Obama administration and a leading authority on civil rights issues and civil and criminal detention. “It’s procedurally unfair to deport people without giving them an adequate chance to explain why they should not be deported. It’s even worse to coerce them into deportation by putting them in jail until they agree. And it’s substantively wrong to deport people into harm’s way. The government has done all three of these things in this case, and it’s outrageous.”
Halting Hamama’s plane to Iraq while the court assessed the lawsuit, U.S. District Court Judge Mark A. Goldsmith approved an emergency order on June 22, 2017, for Michigan detainees, and expanded it nationwide on June 26.
A month later, Goldsmith granted a preliminary injunction that prevented deportation while detainees sought relief through immigration court. The government appealed.
While that request was under consideration, and while the individual detainees reopened and fought their immigration cases, ICE continued to arrest more. It was their detention that became the focus of their next phase of litigation, says Schlanger.
In November 2017, the plaintiffs’ team filed a petition for the release of detainees under two theories. First, they said, it violated both the underlying detention statutes and the Constitution’s Due Process Clause to hold individuals seeking immigration relief for a prolonged period unless those individuals were shown to pose a threat to public safety or a flight risk.
Each of them, the new motion argued, were entitled to a bond hearing, where an immigration judge could assess those threats and release them if appropriate. Second, they sought release under Zadvydas v. Davis — a 2001 U.S. Supreme Court ruling that blocked indefinite detention of immigrants — arguing that in the months since the case had started, it had become clear that Iraq was not agreeing to these involuntary repatriations.
The result was a partial victory for the detainees. On Jan. 2, 2018, Goldsmith agreed that prolonged detention could not be continued without bond hearings and their individualized determination that detention served a legitimate purposeb — public safety or avoiding flight by a particular detainee. He granted a second preliminary injunction, resulting in hundreds of bond hearings that mostly led to releases. The government appealed this order, too.
Goldsmith later ruled in January that the court had not yet been given enough information to assess the broader claim under Zadvydas v. Davis, and he ordered expedited discovery. After a first round of discovery, the ACLU (with Schlanger) filed its third major motion: It sought release under Zadvydas in addition to sanctions against ICE for misrepresentations to the court and repeated delays in providing documents to the court.
Discovery revealed that at the same time ICE told the court that Iraq was fully cooperating with repatriations, Iraq was denying permission for repatriation flights and largely holding to its longstanding policy against forcible returns of its nationals from the United States.
“What they claimed in June, July, and December 2017 — that Iraq had agreed to take back its nationals — was false,” says Schlanger. “Our discovery demonstrated that Iraq was not at all likely to agree to the mass deportations the administration wanted.”
In fact, it turned out that Iraq had rejected a repatriation flight in June 2017 around the time Hamama had been scheduled to return. In addition, as the Hamama team sought more details, the government failed to meet a number of deadlines for document and information disclosure.
Last November, Schlanger and the ACLU received their third major victory: Goldsmith entered a third preliminary injunction, requiring roughly 100 remaining Iraqi detainees to be released in time for the holidays.
In the meantime, the government’s appeals of the first two preliminary injunctions were decided.
The judgment was the first negative ruling for Schlanger and the ACLU of Michigan. The 6th Circuit Court of Appeals held that the district court had lacked authority to grant the stay of removal, and that the decision related to bond hearings could not permissibly provide class-wide rather than individual relief.
Then in April, the appellate court denied rehearing.
“With so many steps forward, we were bound to take one back,” said Schlanger. Steinberg agrees, adding that while most of their clients have received the relief they sought, this decision, if not reversed, will set a bad precedent, “particularly regarding the jurisdiction of the U.S. District Court to adjudicate a class-action like this,” he said. “This will have significant consequences going forward, but there are appeals available to us. The case is not over yet.”
These last two years, there have been two main sources pushing Hamama v. Adducci forward: the Iraqi immigrant community and the legal professionals seeking justice on their behalf.
“I’m truly grateful not only to the families who stood up for their rights but also to the attorneys — people like Margo Schlanger, who spent her entire sabbatical working on this case,” said Steinberg. “Without her, without the firms and the hundreds of individual attorneys, paralegals, interns, and students volunteering their time pro bono, people would have died.”
As Steinberg indicated, Schlanger wasn’t the only attorney with Michigan Law connections who devoted significant pro bono hours to Hamama.
Miller Canfield attorneys involved with the case include alumni Michael McGee, ’82, CEO; Larry Saylor, ’76, senior counsel; Brian Schwartz, ’05, principal; and associates Joel Bryant, ’14; Russell Bucher, ’17; Erika Giroux, ’17; Jacob Hogg, ’16; Thomas Soehl, ’11; and James Woolard, ’13.
Retired Miller Canfield partner Linda Goldberg, ’79, has led the effort to locate and support pro bono immigration lawyers for individual class members. Immigration law expert Russell Abrutyn, ’99, and 3Ls Anna Yaldo and Allison Horwitz also assisted the team.
During their 1L summer and before a stay of removal had even been issued, Yaldo and Horwitz helped the hundreds of pro bono attorneys contesting the individual immigration cases of class-action members throughout the nation assemble their individual filings. Together, they created a website, hosted by IRAP, to support those lawyers. The site contains a variety of resources from sample pleadings to webinars on how an immigration case works.
Steinberg notes that the case continues; the government has appealed the third preliminary injunction, but it remains operative.
Class-action members—including Sam Hamama, who was released last December — are nearly all out of detention, seeking immigration relief from their homes rather than from behind bars.
In fact, last January, Goldsmith ordered ICE to allow back into the U.S. one class-action member who had been deported to Iraq last summer in violation of the court’s June 2017 order. He returned Jan. 29.
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