Hamama v. Adducci, July 11, 2017 - "This case pits the power of Congress to control the jurisdiction of the federal courts against the Constitution’s command that the writ of habeas corpus must be preserved. Both sides in this clash are right, in part. The Government is correct that Congress meant to strip federal district courts of jurisdiction to entertain the kind of habeas claims that Petitioners assert here challenging their repatriation to Iraq. But Petitioners are correct that extraordinary circumstances exist that will likely render their habeas claims meaningless, unless this Court intervenes to stay their deportation while review of their removal orders proceeds before the immigration courts and the courts of appeals.
This Court concludes that to enforce the Congressional mandate that district courts lack jurisdiction — despite the compelling context of this case — would expose Petitioners to the substantiated risk of death, torture, or other grave persecution before their legal claims can be tested in a court. That would effectively suspend the writ of habeas corpus, which the Constitution prohibits.
The Supreme Court has instructed, “It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U.S. 19, 26 (1939). And under the law, the federal district courts are generally the “first responders” when rights guaranteed by the Constitution require protection. In fulfillment of that mission, this Court concludes that it has jurisdiction in this case to preserve the fundamental right of habeas corpus and the duty to do so. ...
[C]asting Petitioners out of this court without a stay — in the extraordinary context of this case — would ignore the reality that the process for judicial review provided for in the Real ID Act would not be adequate or effective in protecting their habeas rights. The destructive impact would critically compromise their ability to file and prosecute motions to reopen — a legal right that the Supreme Court has characterized as “an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Kucana v. Holder, 558 U.S. 233, 242 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)). To enforce § 1252(g) in these circumstances would amount to a suspension of the right to habeas corpus. The Constitution prohibits that outcome.
Because Section 1252(g) may not be enforced, the Court is not stripped of jurisdictional grants found in other sources of the law, including 28 U.S.C. § 2241 (habeas); 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1361 (mandamus)."
[Hats off to Michael J. Steinberg, Kary L. Moss, Bonsitu A. Kitaba and Marian J. Aukerman of the American Civil Liberties Union, Judy Rabinovitz, Lee Gelernt and Anand Balakrishnan of the ACLU Foundation Immigrant Rights Project, Kimberly L. Scott and Wendolyn Wrosch Richards of Miller Canfield Paddock & Stone PLC, and Susan E. Reed of the Michigan Immigrant Rights Center!]