. Re: Updates on Hamama v. Adducci, No. 17-cv (E.D. Mich.) and related developments

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1 State Headquarters 2966 Woodward Avenue Detroit, MI Phone Fax Legislative Office West Michigan Regional P.O. Box Office Lansing, MI Wealthy SE, Suite Grand Rapids, MI Phone Phone Fax Fax October 3, 2017 Re: Updates on Hamama v. Adducci, No. 17-cv (E.D. Mich.) and related developments Dear Colleagues: This is an update for lawyers representing Iraqi nationals who had orders of removal in June 2017 about what is happening in Hamama v. Adducci, the putative class action in the Eastern District of Michigan aimed to afford Iraqi nationals facing removal with sufficient time to reopen their immigration cases. This letter also provides information on related developments in Immigration Court, the Board of Immigration Appeals, and the Courts of Appeals. We have obtained significant rulings from the federal district court, including time for you to pursue relief for your clients in immigration court. But ultimately, whether the Hamama petitioners will be able to stay with their families and communities depends on what you are able to achieve in immigration court. Major Updates, Action Items and Resources 1. Major Updates from Hamama The government has appealed the preliminary injunction staying deportation of class members. Briefing will likely take several months. The government must provide A-files and Records of Proceedings to attorneys of record by November 6, Class members will receive a notice and various forms from ICE by October 4, (See attached.) Petitioners will file an amended petition focusing on detention on October 13, 2017, and a motion seeking relief from detention on October 30, The federal district court will likely rule on the detention issues in December. 2. Action Items for Attorneys Representing Hamama Class Members To assist us in challenging class members detention, send the following to hamama@aclumich.org: o Copies of any submissions your clients made and any decisions or documents they received related to the Post Order Custody Review process.

2 o Information on clients whose MTRs have been granted and who are now being subjected to mandatory detention, including copies of any notices received, criminal history information, dates of prior criminal and immigration detention (including whether transferred directly from criminal to ICE custody), history of compliance with orders of supervision, and other factors demonstrating lack of danger or flight risk. o Information on any clients for whom you plan to file Zadvydas-type habeas actions. Contact Alex Trepp, ATrepp@jenner.com, if you wish to join a motion to consolidate reopened cases before the Detroit Immigration Court for the presentation of expert evidence on country conditions in Iraq. Contact Anand Balakrishnan, abalakrishnan@aclu.org, if you are filing a petition for review for an Iraqi national in a federal Court of Appeals, and send him the BIA decision and papers. If you have not already filed an EOIR-27 or EOIR-28, do so as soon as possible so that you will receive your clients files. If you have not already filed a G-28, do so as soon as possible, so that you are notified of any impending transfer of your client and so that your client is covered by the ICE policy to minimize such transfers. There are still many Iraqi detainees seeking counsel but unable to afford lawyers. If you are able to take one or more additional cases of other members of the class, pro bono, please contact hamama@aclumich.org. 3. Resources for Attorneys Representing Hamama Class Members Many resources, including model briefs and expert declarations, are available at: If there is something that you think would be helpful to the group that is not there, please let us know. If you have resources to share, including successful briefs, please send them to hamama@aclu.org. In addition, you can get information on the Hamama litigation at Copies of the docket, pleadings, and orders are at If you have any questions or concerns, please contact hamama@aclumich.org; we ll get the right person to call you back. ********************************* A. Progress in the Hamama Litigation On July 24, 2017, Judge Mark Goldsmith entered a preliminary injunction staying the removal of Iraqis with a final order of removal. The stay gives each individual 90 days to file a Motion to Reopen. The 90 days starts when the government produces that individual s A-File and Record of Proceedings. The stay lasts through appeals to the Board of Immigration Appeals and the filing of a Petition for Review with the Court of Appeals. The stay terminates if an individual fails to file the Motion to Reopen within 90 days of receiving the files, fails to file timely appeals, or has a motion for a stay denied by the United States Court of Appeals. 2

3 1. Appeal of Preliminary Injunction On September 21, 2017, the government appealed the district court s preliminary injunction to the Sixth Circuit Court of Appeals. We do not have a briefing schedule yet, but expect that schedule to provide for a period of at least several months before a hearing. We will send updates as the appeal goes forward. As you consider the strategy in your clients cases, please be aware that an adverse ruling by the Court of Appeals could result in an abrupt end to the federal court stay of deportation, meaning that only individuals who have a stay in the immigration court system will be protected from removal. 2. Production of A-files and ROPS Judge Goldsmith has also issued several orders setting out in more detail the procedures for the production of A-files and ROPs: For class members whose attorneys have filed a G-28, EOIR-27, or EOIR-28 since January 2017, the A-files and ROPs will be sent directly to the attorneys, in a digital format. We do not yet know how ICE and DOJ plan to accomplish this. ICE may use thumb drives or an FTP site or some other method. Class members who do not have a recent G-28, EOIR-27 or EOIR-28 from an attorney on file will be offered the chance either to receive their own files or to designate someone to receive the files. Accordingly, if you have been retained by an Iraqi national with a final order of removal, we urge you to file a G-28, E-27 or E-28 as soon as possible, if you have not done so already. The Court also issued an order setting out a production schedule for the files: For any class member who has filed a Motion to Reopen (whether granted, pending, or denied), the files must be produced by November 6, For everyone else, the files must be produced by November 27, The most recent development took place just yesterday. In a number of Detroit Immigration Court cases in which MTRs have been granted, it appears that this new schedule prompted EOIR to postpone hearings, while the Records of Proceedings are copied preparatory to their production to attorneys. We have strenuously objected to any postponement of bond hearings and hope that those will be restored to the calendar. For those of you who are affected, we ll be in touch as we try to work this out with the government. Please let us know if you have clients whose bond hearings were cancelled or postponed. If things are not worked out in the next couple of days, and you had a bond hearing postponed, you might consider filing a motion titled something like Motion for a Prompt Bond Hearing. With respect to postponed merits hearings, the situation is a little bit more complicated. For some individuals, a postponement pending production of the A-Files and ROPs may actually be helpful, ensuring that the full record can be used in the class member s favor. For others, however, you may already have what you need and so postponement serves to prolong detention. 3

4 Accordingly, we have asked ICE and the Department of Justice to implement a process by which attorneys can forego getting A-files or ROPs, if they so choose, to avoid derailing scheduled hearings or for other reasons. Once that process is set up, we will inform you as soon as possible. It is not completely clear how the 90-day clock to file a motion to reopen will work if you forego the A-file or ROP. If you have already filed that motion, your client should be protected by the stay. However, if you have not yet filed the motion, your client could potentially lose the protection of the stay of deportation if you forego the files. Hamama class members will be receiving a packet that contains forms allowing them to select to whom their A-file and Record of Proceedings is sent. The first set of forms (Attachment B.1 of the packet) applies only if you have not yet filed an appearance for your client. The second set of forms (Attachment B.2) allows your clients to have their A-files and ROPS sent to the Hamama counsel. This is very important for our ability to challenge their detention, so please encourage them to complete and submit Attachment B Hamama Clients Who Wish To Return to Iraq Prolonged detention is incredibly coercive, and we are hearing reports that some detainees have decided that despite the risks to their safety they would rather return to Iraq, than face prolonged detention. If you have clients in that situation, we encourage you to talk through with them what their options are, what risks they face if deported to Iraq, what deportation would mean for their ability to ever return to the U.S., and what the likelihood is that they can be released from detention while fighting their immigration case (see detention discussion below). If your client still decides to leave the U.S. voluntarily and is competent to make that choice, you should contact both ICE by calling the ICE Detroit Office of Chief Counsel and us by ing hamama@aclumich.org. We will then work with you to file the appropriate documents in Hamama to lift the stay of removal with respect to your client. 4. Notice to Hamama Class Members ICE must provide all detained Hamama class members with an informational packet by October 4, That packet includes: A Know Your Rights document by the ACLU. Forms by which class members can designate who should receive their A-file and Record of Proceeding (if unrepresented) and can select whether Hamama counsel receive these files. A form for unrepresented individuals who wish to return to Iraq. That form should not be used by clients who are represented. A copy of that packet is attached, as you may well receive questions about it. B. Coordination in the BIA There are currently about 80 pending MTRs in the Board of Immigration Appeals about half filed directly in the BIA, and half appeals from MTRs denials by Immigration Judges. The 4

5 ACLU of Michigan, the ACLU Immigrant Rights Project, the International Refugee Assistance Project, the Michigan Immigrant Rights Center, and CODE Legal will soon file an amicus brief in these cases. We hope this will go out this week, and will send along a link to it once it does. C. Coordination in the Immigration Courts About 70 MTRs have been granted, mostly in Detroit. Many of these cases have similar factual claims about Iraqi country conditions. Accordingly, we are working to try to facilitate the coordinated presentation of expert evidence in them, moving to consolidate the Detroit cases for that limited purpose. The Chaldean Community Foundation is covering the cost of experts. We ve been in touch separately with those of you who have affected matters; if you d like to participate in the consolidation motion, please let us know as soon as possible by ing Alex Trepp, ATrepp@jenner.com. D. Coordination in the Courts of Appeals Several petitions for review have been filed in the Sixth Circuit, appealing denials of motions to reopen. Most of these motions were denied on similar grounds. We are tracking these. Please let Anand Balakrishnan, abalakrishnan@aclu.org, know when you file a petition for review, and him the BIA decision on appeal and the papers filed in the BIA. E. Transfers and other ICE Detention Issues. Class members are continuing to be transferred from one facility to another, and continue to have problems communicating with counsel. We have advocated with ICE/DOJ for a different approach. In response, ICE has suggested that the problems would be lessened if more counsel would file G-28s. We are not terribly optimistic that it will make a large difference but it might. So we urge you to ensure that you have a G-28 on file for each of your class-member clients. F. Challenging Detention So far, the Hamama litigation has focused on time getting class members enough time that you can help them get relief to which they are entitled in Immigration Court. But we are now moving into a new phase of the litigation, dealing with the unnecessary and unlawful detention of class members. There are two subgroups: 1) Individuals who still have final orders of removal. Here, the issue is the Post-Order Custody Review (POCR) process. It seems that POCRs are not being conducted in an appropriately individuated way. To help us assess and prove this, we ask that you send us the following: Any submissions you or your client made for the POCR process. Any documentation you or your client received related to the POCR process along the way or in decision. 5

6 2) Individuals who have succeeded in reopening their cases. Here the issue is about the bond process does mandatory detention apply, are bond procedures being followed, etc. We ask that you send us the following: Information on any clients being subject to mandatory detention, including copies of any notices received, criminal history information, dates of prior criminal and immigration detention (including whether transferred directly from criminal to ICE custody), history of compliance with orders of supervision, and other factors demonstrating lack of danger or flight risk. Finally, if you are considering filing a Zadvydas-type habeas action, we ask that you contact us and talk through the issues first; we may be able to help, and we certainly would like to know. You can hamama@aclumich.org; we ll have the rights person call you back. G. Unrepresented Class Members The National Immigration Justice Center is working to assist Iraqi nationals in finding pro bono representation. Family members of Iraqi nationals should fill out the questionnaire, which is available at Detained individuals should contact: National Immigration Justice Center (NIJC) A HEARTLAND ALLIANCE PROGRAM (312) between 11 a.m. and 2:00 p.m. Central Standard Time (CST) 208 S. LaSalle Street, Suite 1300, Chicago, IL Please note that contacting the National Immigration Justice Center is for informational and potential referral purposes only and does not guarantee legal representation in a particular individual s case. ****************** Again, you can reach us at hamama@aclumich.org. The person who monitors that address will make sure any gets to the right place. Thank you for the incredible work you are doing to protect our Iraqi friends and neighbors. We are so glad to be working with you, and believe that together our work can literally save lives. Sincerely, Hamama litigation attorneys from: American Civil Liberties Union Foundation, Immigrants Rights Project American Civil Liberties Union Fund of Michigan American Civil Liberties Union of New Mexico CODE Legal Aid International Refugee Assistance Project Michigan Immigrant Rights Center 6