Hamama v. Adducci (349 F. Supp. 3d 665, 2018)

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

I. BACKGROUND

A. Procedural Background

As recited in the Court's prior opinions, this case arises out of the arrest and detention of Iraqi nationals who are or were subject to long-standing final orders of removal. See, e.g., Hamama v. Adducci, 261 F.Supp.3d 820 (E.D. Mich. 2017). In June 2017, agents from Immigration and Customs Enforcement ("ICE"), an agency of the Department of Homeland Security ("DHS"), began arresting hundreds of these Iraqi nationals, the majority of whom are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq. The initial round-up took place in Michigan, snaring approximately 114 individuals. Am. Pet. ¶ 5 (Dkt. 118).

Many of these individuals were ordered removed to Iraq years ago (some decades ago), because of criminal offenses they committed while in the United States. All detainees served their sentences and were released under orders of supervision, because Iraq refused to accept repatriation. According to Petitioners, they lived peaceably in their respective communities under the orders of supervision-a point the Government does not contest.

1. Preliminary Injunction Staying Removal

On July 24, 2017, this Court issued a preliminary injunction enjoining the removal of Petitioners and the putative class, defined at the time as "any and 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." Hamama v. Adducci, 261 F.Supp.3d 820, 841 (E.D. Mich. 2017). The Court ruled that Petitioners' habeas and due process rights entitled them to access to the immigration courts, prior to removal, so that motions to reopen their immigration proceedings could be filed. The Government filed a notice of appeal of this ruling on September 21, 2017 (Dkt. 108), which appeal remains pending.

Petitioners filed an Amended Petition on October 12, 2017 (Dkt. 118), both reasserting and revising their claims, and requesting three forms of relief: (i) a stay of removal proceedings to allow class members to seek relief from removal before the appropriate body in the immigration court system; (ii) bond hearings for those held in prolonged detention; and (iii) release under orders of supervision, pursuant to Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), unless and until repatriation to Iraq becomes significantly likely in the reasonably foreseeable future. Zadvydas prohibits civil detention where there is no significant likelihood of removal in the reasonably foreseeable future.

2. Preliminary Injunction Regarding Bond Hearings

As class members' claims wound their way through the immigration courts, the Government elected to continue their administrative detention. On November 7, 2017, Petitioners moved for a second preliminary injunction, asserting that they were entitled to immediate release from detention under Zadvydas, because there was no significant likelihood of their removal in the reasonably foreseeable future (Dkt. 138). In the alternative, Petitioners argued that their prolonged detention entitled them to bond hearings before an impartial adjudicator to determine whether their release would present a flight or safety risk.

Petitioners also filed a motion to certify the "Primary Class" (Dkt. 139), which ultimately was defined as "All Iraqi nationals in the United States who had final orders of removal at any point between March 1, 2017 and June 24, 2017 and who have been, or will be, detained for removal by U.S. Immigration and Customs Enforcement." 9/26/2018 Op. at 18 (Dkt. 404). The motion also sought certification of three subclasses of detainees: (i) detainees who are subject to final orders of removal; (ii) detainees subject to prolonged detention whom the Government purported to hold under a statutory provision providing for mandatory detention; and (iii) a so-called Zadvydas subclass defined as "All Primary Class Members, who are currently or will be detained in ICE custody, and who do not have an open individual habeas petition seeking release from detention." Hamama v. Adducci, 285 F.Supp.3d 997, 1020 (E.D. Mich. 2018).

On January 2, 2018, the Court issued an order granting, in part, Petitioners' second motion for preliminary injunction, holding that those subject to prolonged detention are entitled to a bond hearing before an impartial adjudicator, unless the Government proffered individualized evidence that a detainee should not receive a hearing. Id. at 1027. The Court also certified the three detention subclasses and deferred a ruling on primary class certification pending the Sixth Circuit's ruling or other developments. See id. The Court later certified the Primary Class. See 9/26/2018 Op. (Dkt. 404).

The Court also deferred ruling on Petitioners' Zadvydas claim, ordering that the parties conduct discovery to determine whether Iraq is willing to accept class-wide repatriation. Hamama, 285 F.Supp.3d at 1028.

3. Discovery Problems

In response to that allowance for discovery, on January 14, 2018, Petitioners served the Government with more narrowly tailored versions of their earlier interrogatory and production requests. Pet'rs Mem. re Disc. Sanc. at 5 (Dkt. 454). However, the Government did not respond to the January 14, 2018 discovery requests, which necessitated a court order requiring, in part, that the Government serve written responses to the interrogatories no later than March 23, 2018, and that it begin document production no later than March 30, 2018. 3/13/2018 Order ¶¶ 20 & 22 (Dkt. 254). By March 30, 2018, the Government produced a total of four pages of documents, two of which were pages prepared by attorneys in support of the Government's defense in this action. Pet'rs Mem. re Disc. Sanc. at 5 & n.2. The Government also provided incomplete interrogatory responses, omitting key information such as Iraq's requirement that Petitioners sign forms indicating their willingness to be returned to Iraq. Id. at 5.

The Government filed a status report on April 6, 2018, in which it indicated that it had located 20,000 potentially responsive documents and would be able to complete production by July 2018 (Dkt. 267). According to Petitioners, on April 16, 2018, they received forty-six pages of nonresponsive documents from the Government. The Court was provided with a status report on April 20, 2018, in which the Government stated that it had resolved its technological issues and estimated that it would take eleven weeks (until the first week of July), to complete its document production (Dkt. 272). The Court thereafter conducted a status conference on May 25, 2018, during which the Government stated that it would begin producing a significant number of documents following entry of the second amended protective order, which was entered on June 19, 2018 (Dkt. 313).

Nonetheless, the Government's discovery responses continued to be deficient and the Government filed a motion to stay discovery (Dkt. 284), which the Court eventually denied (Dkt. 345). On June 12, 2018, the Court entered an order admonishing the Government that it may not withhold production of records pending its completion of all document review. 6/12/2018 Order (Dkt. 304). The Court ordered ICE to produce documents weekly on the following rolling basis: "1,000 pages of documents on each of the following dates: (i) June 19, 2018; (ii) June 26, 2018; (iii) July 3, 2018; and (iv) July 10, 2018. The balance of documents shall be produced July 17, 2018." Id. at 6-7. Notwithstanding the foregoing dates, DHS was required to complete its document production by June 25, 2018. Id. at 7.

The Court made clear that "[f]ailure to produce documents on this schedule will be construed, presumptively, as bad faith, unless Respondents can establish by clear and convincing evidence that there is exceptional good cause for not meeting the schedule." Id. The Court further ordered the Government to provide written responses and objections to Petitioners' January 14, 2018 requests for production by June 12, 2018. Id. With respect to the January 14, 2018 interrogatories, the Court ordered Petitioners to identify the ways in which the Government's responses were deficient and allowed the Government to supplement its responses by June 19, 2018. Id. at 8. The Court further warned the Government that "[i]f Respondents fail to conduct a reasonable inquiry, respond with information within their control or otherwise obtainable by them, provide an appropriate verification, or fully and completely respond to the interrogatories, Respondents may be sanctioned, including the exclusion of that information in motions, in hearings, at any evidentiary hearing, and at trial." Id. at 9.

Despite the Court's warnings, the Government provided only 150 documents by June 19, 2018. Pet'rs Mem. re Disc. Sanc. at 6-7. The Government subsequently sought to modify the production schedule (Dkt. 315), claiming great difficulties with production software and the various litigation tasks. The Court found that the Government had not demonstrated exceptional good cause for failing to produce documents that were months overdue. 6/22/2018 Order at 2 (Dkt. 320). The Court ordered document production to be completed by July 17, 2018. Id. at 4. The Court warned the Government that "[f]ailure to comply with the Court's order may be cause for the Court to direct that the facts necessary to support Petitioners' Zadvydas claim are established, or prevent the Government from opposing the Zadvydas claim, or issue other appropriate relief." Id. (citing Fed. R. Civ. P. 37(b)(2)(A) ). Seven months after service of the first document requests, the Government completed production on the first set of document requests. Pet'rs Mem. re Disc. Sanc. at 8. ICE produced 1,508 records and DHS produced 123 pages. Id.

As is often the case, the discovery responses led to new areas of inquiry. Petitioners served a second set of interrogatories and production requests on July 6, 2018. Id. at 9. On the day the new discovery responses were due, the Government sought an extension. Id. Petitioners resisted the extension, because they intended to file their renewed preliminary injunction motion in August 2018. The Court granted an extension until August 20, 2018, but made clear that no further extensions would be granted. 8/13/2018 Order (Dkt. 366). On August 20, 2018, the Government served written responses to the production requests, but no documents, and refused to answer most of the interrogatories on the ground that they exceeded the 25-interrogatory limit per party. Pet'rs Mem. re Disc. Sanc. at 9. The Government's request for an additional twenty-one days to respond to interrogatories, and its subsequent objection to most of them on the ground that they exceeded the 25-interrogatory limit, evidenced bad faith. The Court subsequently overruled the objections (Dkt. 385).

4. The Current Motion for Preliminary Injunction and Further Discovery Problems

Petitioners filed their renewed preliminary injunction motion on August 29, 2018 without the benefit of responses to the July 6, 2018 discovery requests (Dkt. 376). After several status conferences and a motion to compel, the Government provided interrogatory answers on October 5, 2018, less than eighteen days before the hearing was scheduled on the preliminary injunction motion. Id. at 10. In the responses, the Government represented that the repatriation process had changed in September 2018. Id. However, the Government still had not produced any documents in response to the document requests. Id. In light of the October 23, 2018 hearing, and despite ordering document production by August 20, 2018, the Court ordered the Government to produce the outstanding documents by October 16, 2018. 10/12/2018 Order (Dkt. 431). The Court further granted Petitioners leave to take depositions and Rule 30(b)(6) depositions in light of the information regarding new removal procedures in September and the Government's insistence on an evidentiary hearing. Id.

Based on the Government's representations, Petitioners expected to review tens of thousands of pages of documents beginning on October 16, 2018 in preparation for depositions on October 18 and 19 and the evidentiary hearing on October 23. Pet'rs Mem. re Disc. Sanc. at 11. However, no documents were produced on October 16. Id.

At an emergency status conference on October 17, 2018, the Court ordered production of the documents in electronic format on the same day, and the depositions were rescheduled for October 22, 2018. 10/19/2018 Order (Dkt. 449). The Government produced 680 documents out of the 22,275 documents processed using a computer-based Technology Assisted Review ("TAR") program. Pet'rs Mem. re Disc. Sanc. at 11. When the TAR parameters were later disclosed, the parameters were shown to be inadequate. Id. The document production was clearly incomplete, as evidenced by the number of documents produced and by the fact that only a handful of documents were dated after mid-July, and none was dated after August 31, 2018. Id. at 12. This was particularly problematic because the Government submitted later-dated documents to the Court as proposed exhibits in support of its position at the upcoming evidentiary hearing. Id. It was later revealed that approximately half of the documents that the TAR process identified as responsive were withheld. Id.

After two more emergency status conferences on October 18 and 19, the Court ordered interim relief to Petitioners, including ordering production of all 22,275 documents, subject to the assertions of attorney-client or work product privileges. 10/19/2018 Order (Dkt. 449). The Court further ordered that documents from the period from August 31, 2018 to September 30, 2018 be produced by 5:00 p.m. on Saturday, October 20, 2018. Id.

The Government again failed to meet the Court-ordered deadlines. Pet'rs Mem. re Disc. Sanc. at 13. The Government filed a notice of non-compliance on October 19, 2018 (Dkt. 449) with an accompanying declaration explaining fiscal and staffing constraints for the failure to meet discovery deadlines. The declaration stated that the Government had produced 7,000 records-which turned out to be erroneous, prompting the Government subsequently to file a motion to strike the notice (Dkt. 450). The declaration also stated that an additional 20,000 records had been omitted from the TAR review. Pet'rs Mem. re Disc. Sanc. at 13.

The Court conducted another emergency status conference on Sunday, October 21, 2018, after which it cancelled the evidentiary hearing and requested briefing on appropriate sanctions for the Government's conduct (in addition to the briefing already filed in connection with Petitioners' motion for sanctions). The Court reasoned that an evidentiary hearing-at which the Government would present witnesses and documents of its choosing without full production of the documents ordered by the Court-would be unfair to Petitioners. 10/22/2018 Order (Dkt. 452). The Court held oral argument on Petitioners' preliminary injunction motion and their motion for sanctions on October 24, 2018.

B. Factual Background

1. Pre-April 2017

The United States has had difficulty repatriating Iraqi nationals for many years.

Removals to Iraq were previously suspended because of combat operations. Ex. 1-2 to Pet'rs Renewed Prelim. Mot. at 2. In April 2006, ICE approached the Iraqi Ministry of the Interior ("MoI") to reestablish a removal process. Id. On May 19, 2006, DHS approved a bilateral agreement with the Government of Iraq ("GoI") using unexpired passports issued in 2007 or later and established requirements for the issuance of travel documents ("TDs"). Id. Four years later, the Iraqi consulate in Detroit conducted a charter flight to Iraq returning twenty-three Iraqi nationals to Baghdad. Id. However, since that flight, the repatriation numbers decreased, in part, because the consulates' ability to issue travel documents was suspended. Id. In November 2011, Iraq's Ministry of Foreign Affairs ("MFA") directed consular officials to not issue passports or TDs to Iraqi nationals who did not wish to return to Iraq. Id. at 3. In other words, the GoI would not allow forced repatriation of its nationals. The GoI's policy against forced repatriation has thwarted the United States' repatriation efforts to this day.

From February 2014 to December 2016, the Department of State and ICE met with GoI officials seven times to follow-up on the issue of repatriation. Ex. 1-3 at PageID.12939-12940. During the January 29, 2016 meeting, the Iraqi Ambassador in Washington, D.C. assured U.S. government officials that Iraqi consulates would interview Iraqi detainees with criminal records to begin the process of issuing travel documents. Id. The Iraqi consulate in Detroit and the embassy in Washington, D.C. began interviews. However, the consulate in Los Angeles refused to allow a single interview due to lack of identity documents, which are generally needed to issue TDs. Id.

The Enforcement and Removal Operations ("ERO"), a division of ICE, requested that the Department of State's Bureau of Consular Affairs assist "in exploring more aggressive actions to address the removal issue with [GoI]." Ex. 1-2 at 1. In January 2016, ERO held a meeting at the Iraqi Embassy where a document acknowledging an agreement to accept criminal deportees' return to Iraq and copies of identity documents was presented to the GoI. Id. According to ICE briefing materials, the GoI appeared to be willing to accept copies of identity documents, but the GoI officials also mentioned that forced repatriation and fear claims hindered the issuance of TDs. Id.

During an October 2016 evaluation, ERO classified Iraq as an uncooperative country regarding their compliance with ICE/ERO's attempt to procure TDs for Iraqi nationals who had been ordered removed from the United States. Ex. 1-12 at 1; Ex. 1-15 at 1. Due to the lack of cooperation from the Iraqi Embassy in Washington, D.C., and after numerous demarches on the issue of repatriation, ERO and the State Department developed a strategy to request approval for aliens with final orders of removal directly from the MFA in Baghdad. Ex. 1-9 at PageID.12985; see also Ex. 1-12 at 1; Ex. 1-15 at PageID.13007; Ex. 1-16 (June 1, 2017 email thread of ERO and State Department officials: "Basically, to make a long story shorter, all those other requirements in order to obtain a TD are out the window as of now, subject to change at any time, and pending further review.... Having original docs no longer applies, not having any docs is also no longer an excuse for them. We are essentially going over the Consulates and Embassy's heads and going right to the Ministry of Foreign Affairs in Baghdad and presenting our TD requests there, and they are forcing the Embassy/Consulate to accept them."). With the new procedures in place, in early January 2017, ICE prepared to fly eight Iraqi nationals to Baghdad using a charter flight. Ex. 1-10 at 2.

On January 27, 2017, President Trump issued Executive Order 13769 barring admission into the United States of nationals from seven countries, including Iraq. 82 Fed. Reg. 8977. In late January 2017, ICE provided the names and criminal records of the eight Iraqi nationals to the MFA, noting that "accepting this flight would be an encouraging sign of progress on an issue that could help remove Iraq from sanctions in future Executive Orders." Ex. 1-10 at 2. In February 2017, ERO received confirmation from the U.S. Embassy in Baghdad that Iraqi officials approved the acceptance of a Special High Risk Charter ("SHRC") flight containing the eight Iraqi detainees. Id.; see also Ex. 1-12. The detainees were intended to be removed without the need of TDs. Ex. 1-12.

On March 6, 2017, President Trump signed the second version of his Executive Order. Executive Order 13780, 82 Fed. Reg. 13209. On a press call to announce the new Order, a "senior DHS official" stated that "Iraq is no longer one of those countries [covered by the order] because we have received firm commitments from the government of Iraq over the last several weeks since the first executive order was issued about increased cooperation in terms of information sharing and other related activity.... Iraq has agreed to the timely return in [sic] repatriation of its nationals who are subject to final orders of removal." Ex. 1-11 at PageID.12993-12994.

On March 12, 2017, the Deputy General Counsel at the United States Embassy in Baghdad sent a cable to, among others, John Schultz, Deputy Assistant Director for the Removal Management Division East, a division of ICE. Ex. 1-13 at PageID.13002. The cable later became known as the "Statement of Cooperation" with Iraq. Ex. 4, Schultz Dep. at 117:3-19. According to the Statement of Cooperation, an Iraqi Inter-ministerial Committee on Deportations ("Committee") had been formed composed of representatives from the Iraqi Prime Minister's Office, the MFA, the Ministry of Justice ("MoJ"), and the MoI. Ex. 1-13 at PageID.13001. On March 7, 2017, high ranking Iraqi officials met to discuss the initial steps outlined by the Committee to commence the return of over 1,400 Iraqi nationals ordered deported from the United States. Id. at PageID.13000-13001. The Committee identified four necessary steps for Iraq to facilitate the deportations: (i) consular access; (ii) Iraqi citizenship verification; (iii) deportation court order review; and (iv) travel document issuance. Id. at PageID.13000. Schultz considered this to be a "[p]ossible huge breakthrough in Iraq." Id. at PageID.12999. However, there is no written acknowledgement from the GoI that codifies the Statement of Cooperation. Ex. 4, Schultz Dep. 117:20-118:1. The Statement of Cooperation memorializes the Unites States' understanding of how repatriation efforts will proceed with Iraq. It was not necessarily, however, the GoI's understanding.

The Statement of Cooperation said that the deportations were a high priority for the Prime Minister and Foreign Minister and that the Committee was prepared to finalize within thirty days the removal of the first group of deportees. Id. at PageID.13001. Shortly before the SHRC flight, the Iraqi Deputy Chief of Mission ("DCM"), with the assistance of ICE, traveled to the federal holding facility in Louisiana. Ex. 1-10 at PageID.12990. The DCM confirmed citizenship and issued laissez passer documents (one-time-use passports) for the eight deportees. Id. The flight left on April 17, 2017, landed in Dubai, and the Iraqi deportees were separated from other nationalities to fly into Baghdad the next day. Id. On April 19, 2017, ICE successfully completed the first charter flight to Iraq since 2010. Ex. 1-9 at PageID.12985. However, according to an internal ICE memorandum, this process to repatriate Iraqi nationals with final orders of removal was not repeatable. Ex. 1-12 at PageID.12997.

2. The Cancelled June 29, 2017 Flight

Encouraged by the successful April 2017 flight, ICE prepared for another removal flight of Iraqi nationals. In May and June 2017, ICE transmitted approximately 280 travel document requests to the U.S. Embassy in Baghdad for submission to the Committee. Ex. 1-9 at PageID.12986; see also Schlanger Decl., Ex. 7, ¶ 16. As of June 19, 2017, there were 1,428 Iraqi nationals in the United States with outstanding final orders of removal. Ex. 1-9 at PageID.12985. The first removal flight was scheduled to arrive in Baghdad on June 29, 2017 with no more than seventy-five Iraqi nationals with final orders of removal on board. Id. at PageID.12986. However, on June 7, 2017, Iraq made a "blanket denial" to issue travel documents for twenty-four Iraqi nationals, because they did not have official Iraqi documents and they did not express orally and in writing a willingness to return to Iraq voluntarily. Ex. 1-18 at PageID.13025-13027. It is not clear whether these denials were related to the 280 TD requests or whether they related to requests made years earlier. See Ex. A to Resp. to Mot. for Sanctions, Schultz Sept. 28, 2018 Decl., ¶ 9. Nonetheless, the GoI once again expressed its clear policy against forced repatriation.

As early as June 12, 2017, ICE started receiving indications that the GoI may back out of the charter flight and that there was no agreement between the GoI and the United States regarding repatriation. See Exs. 1-19-21. The State Department spoke with a person in the MFA, reminding him that the Prime Minister had promised the U.S. Ambassador that deportations would resume. Id. His response was that, with such a large number of deportees this time (seventy-five versus eight), there were important identity and logistical issues to arrange, and the best he could offer was a meeting at the MFA the following week. Id. The Iraqi Ambassador made a point to ask the U.S. Ambassador, "[W]hat happens to someone who may have committed a crime, fulfilled the sentence, been released and has since perhaps married and has [American citizen] children and/or spouse? Is there any allowance for this?" Id.

Ultimately, the June 29, 2017 flight was cancelled. The reason for the cancellation is in dispute. According to Schultz, the flight was "rescheduled for July 2017 in view of the court's [June 22, 2017] order; however, ICE was not able to effectuate that flight due to the court's July 24th order." Schultz Nov. 2017 Decl., Ex. B to Pet'rs Mot. for Sanctions, ¶ 6 (Dkt. 476-3). Michael Bernacke, Acting Deputy Assistant Director for the Removal Management Division - East, further stated that "[a]s a result of the injunction [in this case], ICE cancelled the June 2017 charter flight." Bernacke Decl., Ex. A to Resp't Supp. Br. to Resp. to Prelim. Mot., ¶ 8 (Dkt. 184-2). Schultz and Bernacke's respective statements are demonstrably false.

Marlen Pineiro, Assistant Director of ICE, was notified on June 20, 2017 that the Iraqi Prime Minister was not going to approve the charter flight, Ex. 1-23 at PageID.13059; ERO was notified on June 21, 2017, Ex. 1-9. On June 22, 2017, this Court temporarily stayed the removal of 114 Iraqi nationals limited to the jurisdiction of the Detroit ICE Field Office. Id. Ex. 1-23; 6/22/2017 Order (Dkt. 32). On June 23, 2017, Matthew King, Deputy Assistant Secretary at ICE, spoke with an Iraqi Ambassador and expressed the importance of ensuring that the June 29 flight departed and arrived as scheduled. Ex. 1-23 at PageID.13056. The Iraqi Ambassador was sympathetic, but was facing bureaucratic hurdles on his side. Id. The Ambassador noted that the flight was scheduled to land during an important Islamic holiday, which posed problems from the Iraqi side. Id. He said the logistics were daunting primarily because the Iraqi government was basically closed through June 29, 2017-after which it would be closed Friday and Saturday and then would be in "bedlam" for a week after. Id. The Ambassador stated that the flight was "problematic (almost impossible) as scheduled." Id.

On June 26, 2017, Iraqi Ambassador Yasseen sent an email to Thomas Homan, Matthew King, and John Schultz, among others, stating the following:

Dear friends,

I forwarded the information to Baghdad and I heard from them this morning. I think that the fact that the deputy foreign minister would respond on this issue in spite of the holiday underlines the importance we attach to this issue.

The lists and documentation that you provided is being circulated among related Iraqi agencies, in particular the Justice Ministry. Because of the large number of returnees and the logistics required, the Deputy FM requested clearance from the PM's office, and we are awaiting the response. The US embassy had informed the Foreign Ministry that the batch of returnees would arrive on June 29. That date was determined by the US embassy and other US agencies without consultation with the Iraqi agencies involved. As things stand, we will not be able to receive the returnees on the date mentioned (time too short to guarantee receipt of PM's clearance or to arrange for the logistics required for such a large number of returnees). On this issue, our working group met in Baghdad with the US Consul and his deputy or assistant and explained these issues, the Consul in turn promised to delay the trip until after receipt of the PM's clearances on a later date to be agreed to by both sides.

With regard to the names on the list, Iraq can only admit:

1. Those whose Iraqi citizenship is confirmed through the agreed to procedures for this issuse [sic] utilized previously by both Iraqi and US sides;

2. That they have completed their sentences;

3. That the removal procedure is court-ordered;

4. That their crime be different from illegal entry into the USA as these fall into the category of asylum seekers and their removal could be considered an enforced repatriation. As you can see, the response of the ministry is quite consistent with what I anticipated during our phone conversation. In all cases, I will keep you apprised of all/any developments.

Ex. 1-26 at 6. On the same day, this Court issued a ruling expanding the June 22, 2017 order to apply to 1,144 similarly situated Iraqis with final orders nationwide. Ex. 1-9; 6/26/2017 Order (Dkt. 43). Contrary to the Schulz and Bernacke declarations, the June 2017 charter flight was cancelled for reasons other than the Court's injunctions.

3. Plans for a July 2017 Flight

On June 28, 2017, Marlen Pineiro sent an email saying that "we have exhausted all our efforts at our level. We haven't even been able to get a new tentative date for the flight." Ex. 1-27. Scott Riedmann from the U.S. Embassy in Baghdad relayed that "[t]he GOI basically told us they would not accept the flight until the [Prime Minister] signed off on it.... The Amb met with the [Prime Minister] yesterday and this was the first issue the Amb raised. The [Prime Minister] said he wasn't sure why he even had to decide this issue again. To him, the issue had already been decided and the relevant ministries should work out." Id. Shortly thereafter, Riedmann sent an email to Schultz informing him that the MFA had decided to once again proceed with deportations. Ex. 1-29 at PageID.13094. Cautiously optimistic, ICE set a tentative new charter flight date of July 25, 2017, which was set contingent on two things: (i) that the Court's TRO was lifted, and (ii) that Iraq allowed the repatriation. Id.; Ex. 1-30.

On July 13, 2017 Riedmann sent an email to Schultz informing him of a meeting with the MFA, where the issue of deportations based on criminal convictions, as opposed to immigration violations, arose. Ex. 1-32 at PageID.13117. Reidmann noted that ICE "clearly see[s] no difference between the two; but the Iraqis do." Id. The GoI was concerned that individuals who sought asylum were among the deportees and that they could be at risk if returned to the Iraq. Id. At that time, roughly 800 of the more than 1400 Iraqis with final orders of removal had criminal convictions forming the basis for their ordered deportation. Id. According to Reidmann, it would be helpful politically if the initial flights did not contain "failed asylum seekers." Id. Riedmann noted that this "is a bit of a sticking point with the GOI." Apparently, ICE efforts to arrange the flight were unsuccessful, because by the end of July, John Coster, Deputy Chief of Staff ICE-Deputy Director, told Schultz "[t]here was no defined way forward as to Iraq and the current TD issuance problems we're facing." Ex. 1-28 at PageID.13085.

4. The Government Considers Sanctions

In a July 19, 2017 summary, ICE stated that it "considers Iraq to be among the most recalcitrant countries." Ex. 1-24 at PageID.13067. "Despite expending significant resources and exhausting other available means to obtain cooperation, ICE has been unsuccessful in securing cooperation from the Government of Iraq in the acceptance of its nationals subject to final orders of removal and has determined that implementing visa sanctions pursuant to section 243(d) of the Immigration and Nationality Act (INA) is the only remaining avenue available to secure cooperation." Id."ICE and the U.S. Department of State (State) have collaborated to engage Iraq and have pursued graduated measures outlined in the April 2011 Memorandum of Understanding between ICE and State Bureau of Consular Affairs concerning repatriation." Id."These and other diplomatic efforts ... have failed to yield substantive progress regarding the removal of Iraqi nationals." Id.

A tool unavailable to ICE, but vested in the Attorney General, is visa sanctions under section 243(d) of the Immigration and Nationality Act, which provides that:

On being notified by the Attorney General that the government of a foreign country denies or unreasonably delays accepting an alien who is a citizen, subject, national, or resident of that country after the Attorney General asks whether the government will accept the alien under this section, the Secretary of State shall order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both, to citizens, subjects, nationals, and residents of that country until the Attorney General notifies the Secretary that the country has accepted the alien.

8 U.S.C. § 1253(d).

On July 20, 2017, Floyd S. Farmer, ERO Unit Chief, sent Schultz an email attaching documents seeking sanctions against Iraq. Ex. 1-35; Ex. 1-36 ("Subject: Recommendation to Initiate the Process to Invoke Visa Sanctions under Section 243(d) of the Immigration and Nationality Act against Iraq"). Surprisingly, on that same day, Schultz signed a declaration used in response to Petitioners' original preliminary injunction motion (Dkt. 81-4) stating that "due to renewed discussions between the United States and Iraq in recent months, Iraq has agreed, using charter flights, to the timely return of its nationals that are subject to final orders of removal." Ex. A to Pet'rs Mot. for Sanctions ¶ 5 (Dkt. 476-2).

In a July 29, 2017 Rudaw World News Article, Almanhal Alsafi, Iraq's Consul General in Detroit, Michigan, rejected the notion that the GoI is behind America's renewed interest in deporting Iraqi nationals. He said that "[t]he detainees had committed some sort of crime and are not only Christians, they are Muslims, Kurds, Arabs, you name it." Ex. 1-37. "Those people are citizens of Iraq. If they are willing to go back, we will accept them," however, "[w]e will not accept any detainee going back involuntarily." Id. On August 4, 2017, Schultz directed his staff to draft a sanctions package for, among others, Iraq. Ex. 1-38 at PageID.13145.

5. The Cycle Repeats

This endless cycle of potential removals, but with dubious results, continued. In September 2017, a State Department official informed Pineiro that Ambassador Yasseem said that GoI remained focused on facilitating the process of removals for Iraqis with final orders of removal. Ex. 1-39. ICE's ERO submitted approximately 300 travel document requests; however, travel documents were not issued, because the consulate was once again awaiting authorization from the Prime Minister's office to issue the requested travel documents. Ex. 1-39.

At the meeting on December 5, 2017, "a variety of issues, including the repatriation of Iraqi Nationals, was discussed." Ex. 1-40 (DHS's Supp. Resp. to Interrog. 12). In a December 6, 2017 email from DHS to Schultz, the following was reported:

Ambassador Nealon met with the Iraqi Deputy Foreign Minister (DFM) yesterday. The topic of repatriations came up. Here's a read-out:

• The DFM said that 1,400 Iraqis are subject to removal in the United States.

• He said that the Iraqi Embassy is prepared to issue visas, but needs to issue in small groups.

• Said that the Embassy needs to verify that they're actually Iraqi.

• For criminals that have finished their sentences, needs to see some sort of proof.

• He said that the Iraqi Government wants to prioritize repatriations of non-immigration related criminals.

• He said that it would be difficult for the Iraqi Government to accept individuals whose asylum claims have failed, again wants to prioritize criminals.

Ex. 1-42. In response, Schultz said "[t]hose bullet points are troubling." Id.

In January 2018, in response to an inquiry on Iraqi nationals who volunteered to be removed, the State Department reported that the GoI was ready to accept voluntary deportees. Ex. 1-43. To that end, on January 24, 2018, First Secretary Director of Political Section in the Iraqi Embassy in Washington D.C. wrote to Julius Clinton, a Detention and Deportation Officer for ICE, to provide an updated travel document to be signed by detainees and submitted with their TD requests. Ex. 1-48. ICE translated the documents, and it turned out that the document was a voluntary removal declaration to be served on detainees as part of their updated TD application packet. Ex. 1-45. ICE has consistently resisted the GoI's insistence on removals being voluntary; Bernacke verified that the form would not be provided to the detainees; and Julius Clinton advised the embassy accordingly. Id.

On June 15, 2018, Bernacke wrote to Ambassador Yasseem making "an urgent request from ICE for the immediate issuance of the outstanding travel documents." Ex. 1-47 at PageID.13195. Bernacke noted that for a small group of individuals Iraqi citizenship was not in dispute, but that the individuals refused to sign a declaration stating their desire to return to Iraq. Id. Therefore, it was ICE's understanding that additional approval from Baghdad was necessary to complete the issuance of TDs. Id. Bernacke further said that "ICE is again requesting that the Consulate Section of the Embassy of Iraq no longer require Iraqi Nationals to sign the declaration form wherein they state their desire to return to Iraq." Id. at 13196 (emphasis added).

6. Iraq's Position

There are few documents in the record stating GoI's position on repatriation, but the ones before the Court are quite telling. The head of Iraq's Consular Department sent a letter, dated March 25, 2018, to all Iraq's political and consular missions abroad states the following:

We attach for you, the letter by the Ministry of Migration and Displaced/Department of Immigration Affairs/Foreign Migration Department ... including the rejection of the principle of forced return of Iraqis abroad or any other nationals, because it conflicts with human rights international laws and resolutions, principles of the International Community and policy of the Iraqi government. In addition, Iraq strives to use all its capabilities to encourage and urge the host countries of refugees, asylum - seekers/applicants or those whose asylum applications were refused to allow voluntarily return to those who want to return to Iraq as an alternative solution for those countries, after coordination and cooperation with the Ministry of Migration and Displaced, our overseas missions and international organizations.

Ex. 1-46, Official GoI document in Arabic, translated by Edgar Lopez, Ex. 7 (emphasis added).

The attached letter by Dr. Jassim Mohamed Mohamed Ali, Minister of Migration and Displaced states the following:

Based on the principle of protecting and caring for Iraqis abroad and in accordance with the human rights international laws and resolutions of, principle of the International Community and policy of our ministry, since it was established, we refuse the principle of forced return of Iraqis abroad or any other nationals, because it conflicts with humanitarian laws and principles. In addition, Iraq strives to use all its potential to encourage and urge the host countries of refugees, asylum-seekers/applicants or those whose asylum applications are refused to allow the voluntarily return to those who wish to do so as an alternative solution, after coordination and cooperation with our Ministry, the Iraqi diplomatic missions and the international organizations.

Kindly inform all our missions to coordinate with those countries to reduce this serious phenomenon that affects Iraqis abroad.

Id. (emphasis added).

On July 26, 2018, Dr. Jassim Mohamed Mohamed Ali wrote the following letter to the Ministry of Foreign Affairs - Minister's Office:

Dear Minister,

We have received information indicating that some countries which host Iraqi nationals intend to forcibly return them, particularly, the EU countries and the USA.

Since this issue contravenes the policy of the State and international law and norms, please ensure that all our embassies and consulates in the countries that host Iraqi nationals are ensuring they are not subject to deportation or forced return.

Ex. 1-52 (translation in Ex. 1-53 and Ex. 8, Ex. D) (emphasis added).

On August 12, 2018, the Iraqi Ministry of Foreign Affairs website released the following statement regarding discussions with Sweden:

The Ambassador of the Republic of Iraq in Stockholm, Dr. Ahmed Al-Kamali, met the Coordinator of Migration and Refugees Affairs at the Swedish Ministry of Foreign Affairs, Ambassador Nicolas Kleese at the Swedish Ministry of Foreign Affairs to discuss the return of refugees.

He explained that the Iraqi government refuses to return forcibly to Iraqi refugees, explaining that the conditions experienced by the country after the victories achieved against terrorist gangs, can affect positively facilitate the voluntary gradual return of citizens abroad.

Ex. 1-50 (emphases added).

An October 7, 2018 article in a Finnish news source (YLE) quoted Iraqi Ambassador Matheel al-Sabti as saying the following:

"We will accept those returning of their own free will and those guilty of crimes," says Iraqi ambassador [to Finland] Matheel al-Sabti.

Iraq will no longer accept rejected asylum seekers who do not willingly want to return to Iraq, says Iraqi ambassador Matheel al-Sabti.

"The Iraqi government has opposed forced repatriations for a long time and is now preventing them in practice too."

Last month, Yle reported that deportees returned from Finland to Iraq have been turned around and sent back to Helsinki, with local officials saying that the returnees did not have the required travel documents.

This is not a new position, al-Sabti says, adding that Iraq is finally enforcing the policy it announced eons ago, instead of allowing EU countries to act against the will of the government.

"We will accept those returning of their own free will and those guilty of crimes, but we oppose forced repatriations."

Last year, Finnish police began to issue temporary travel documents to ensure that rejected asylum seekers without passports could be returned.

However, al-Sabti believes that regardless of the documents they may carry, Iraq will not allow entry to anyone who opposes their deportation.

"If they do not want to get off the airplane, or the police will not receive them, they cannot be returned."

Ex. 1-49 (emphasis added).

More recently, in relation to this case, Iraqi officials told CNN on November 2, 2018 that the GoI is unwilling to accept Iraqis who are being forcibly removed. Ex. A to Pet'rs Supp. Statement in Supp. of PI Mot. (Dkt. 483-1) (Sonia Moghe, Iraq May Not Welcome US Deportees, Contrary to Court Arguments, CNN Politics (Nov. 2, 2018, 7:13 p.m.) ). "Ahmed Mahjoub, a spokesman for the Iraqi Foreign Ministry, told CNN the government encourages Iraqi nationals' return '... if they are willing to come to their homeland and are ready to facilitate it through our diplomatic missions, but, again, we won't cooperate with any government trying to forcibly return them.' " Id.

ICE has recognized that currently, there is "no international agreement in force, nor any written arrangement in effect, between the governments of Iraq and the United States regarding repatriation." Ex. 1-54, March 23, 2018 Schultz Interrogatory Responses; see also Ex 1-56, Matthew King Interrogatory Responses. However, according to Schultz, "through discussions [through March 2018], the governments of Iraq and the United States have reached an understanding of the process for repatriating Iraqi nationals." Id.

7. The Declaration of Daniel Smith

Petitioners provided the declaration of Daniel Smith, a researcher specializing in Iraq and resident of Iraq since 2007. Ex. 8, ¶ 1, "Smith Decl." From 2009 to 2013, he was a research consultant for the International Crisis Group, contributing to several major reports on Iraq by conducting dozens of interviews with all levels of politicians, security officials, party officials, tribal leaders, and religious figures, as well as collecting and organizing ongoing current events, legislation, and Supreme Court decisions. Id. ¶ 2. For more than a decade, Smith has contributed to, or been interviewed by, multiple news publications on Iraq-related issues. Id. ¶ 5. He has given several public presentations on Iraq, including as the featured panel member at a roundtable discussion at the Council on Foreign Relations. Id. He has also been a participant on multiple discussion panels in Iraq, on topics including general human rights in Iraq, human trafficking, women's rights, freedom of speech, personal status laws, and proposed draft legislation. Id. Since 2013, Smith has submitted reports on Iraq country conditions in over twenty immigration court proceedings in the United States and Canada. Id. ¶ 10. He has appeared as a fact witness, and at other times he has been qualified and provided testimony as an area expert. Id.

According to Smith, continued political turmoil in Iraq has caused large numbers of Iraqis to flee the country for decades, but this number has spiked since the 2003 regime change. Id. ¶ 13. Large communities of displaced Iraqi nationals now reside in the United States, Europe, and throughout the Middle East, among other regions. Id. When countries seek to forcibly repatriate these communities back to Iraq, they are met with resistance. Smith says the Iraqi government has long opposed forced repatriation of its nationals for principled, practical, and political reasons. Id. ¶ 14.

First, Smith explains that Iraq opposes forced repatriation on humanitarian grounds. Id. ¶ 15. Among other reasons, over the last fifteen years, forced repatriation has become a prominent issue in Iraq. Id. Iraq has made efforts to pressure or coerce repatriated Iraqis and internally displaced persons ("IDPs") to their areas of origin even though the areas are no longer safe, and the perception is that the action is state-sanctioned displacement or ethnic cleaning. Id. Smith says that to avoid negative reactions from the press or the populace, Iraqi officials and agencies routinely stress in public statements that any returns, internal or external, must be voluntary. Id.

Second, as a practical matter, forced repatriation is extremely challenging. Id. ¶ 16. The Iraqi government has been unable to return and reintegrate nearly two million remaining IDPs and replace their missing identity or other civil documentation. Id. ¶ 17. And this is for a population that has never left Iraq. Id. Smith explains that these issues are even more difficult for those returning to Iraq who speak little to no Arabic, no longer know or never have known the Iraqi culture, and have few, if any, family connections left in Iraq. Id. ¶ 18.

Finally, as to political reasons, Smith explains that many countries in addition to the United States would like to repatriate Iraqi nationals. Id. ¶ 19. He says that the Iraqi government is necessarily concerned with setting a precedent for reparations from one country that would lead to large numbers of repatriations from other countries as well. Id.

Smith notes that when the British government attempted to forcibly return multiple Iraqi nationals, the Iraqi Parliament passed a resolution to " 'demand that the government and the Ministry of Foreign Affairs take measures to block the forcible return of Iraqi refugees who do not volunteer to do so.' " Id. ¶ 31 (quoting May 3, 2017 resolution). Smith nonetheless concedes that, with direct pressure by the United States, the MFA may issue a small number of travel documents, but even then, other ministries may oppose the removals; id. ¶¶ 35, 41; and the greater the number of removals, the greater resistance would be exerted. Id. ¶ 41.

When Smith inquired recently of Iraqi government officials, he was repeatedly told that forced repatriation was a sensitive issue, and that there was substantial pressure from the United States to accept forced repatriation. Id. ¶ 36. Smith says that for this reason, Iraqi officials are hesitant to state publicly that they will not cooperate with the United States, out of fear of negative diplomatic consequences, and instead continue to state that forced returns are against Iraqi policy. Id. Smith claims that he was told by more than one Iraqi official that the Iraqi government's position had not and would not change. Id.

On August 27, 2018, Smith spoke with Dr. Hoshyar Zebari, who spent over a decade as Iraq's Minister of Foreign Affairs (2003-2014), served as Deputy Prime Minister in 2014, and then Finance Minister until 2016. Dr. Zebari explained that " '[w]e want our people back to build up our country and contribute to Iraq, but the violence and terrorism and bad governance make it not a conducive atmosphere for many people to return safely, so our policy was always against allowing them to be forced to come back. This never changed.' " Id. ¶ 39 (quoting Dr. Zebari).

Additionally, Smith does not believe that Iraq's next administration would reconsider its policy against forced repatriation. Id. ¶ 44. The Iraqi government is currently reorganizing in the post-election negotiation process. Id. ¶¶ 44-46. According to Smith, the recent elections resulted in strengthening anti-American coalitions within Parliament. Id. ¶ 44. Smith says that even if the current Prime Minister, who is generally seen as pro-American, retains his position, there will be added pressure to not appear subjugated by the United States. Id. According to Dr. Zebari, no Prime Minister would make an important decision, such as changing Iraq's policy on repatriation, while the government is being formed in the post-election process. Id. ¶ 46. Dr. Zebari also explains that the current Minister of Foreign Affairs, Ibrahim al-Jaafari, is not coming back as the next minister. Id. ¶ 47. Dr. Zebari says this is important because whoever the next minister may be, that individual will not begin in the new position by changing Iraq's long-standing policy against forced repatriation, which would be an unpopular decision in Iraq. Id.

In Smith's opinion, it is highly unlikely that Iraq would change its position on forced repatriation in the foreseeable future such that the United States could repatriate large groups of Iraqi nationals. Id.

II. STANDARD OF DECISION

To determine whether to grant a preliminary injunction, a district court must consider: (i) the plaintiff's likelihood of success on the merits; (ii) whether the plaintiff may suffer irreparable harm absent the injunction; (iii) whether granting the injunction will cause substantial harm to others; and (iv) the impact of its decision on the public interest. Yolton v. El Paso Tennessee Pipeline Co., 435 F.3d 571, 578 (6th Cir. 2006). These four factors "are factors to be balanced, not prerequisites that must be met." Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 230 (6th Cir. 2003).

III. ANALYSIS

Petitioners' central contention is that Zadvydas subclass members must be granted relief because their continued detention violates the statutory provisions under which they are detained and/or the Fifth Amendment's Due Process Clause. As explained fully below, they are likely to succeed on this claim. Many of the subclass members are detained under the specific statutory provision analyzed in Zadvydas, 8 U.S.C. § 1231(a) (applicable to persons subject to final orders of removal), which the Supreme Court interpreted as not allowing detention beyond six months, if there were no significant likelihood of removal in the reasonably foreseeable future, absent exceptional circumstances. Others are held under 8 U.S.C. § 1226(a) (pre-order-detention statute), which is linguistically indistinguishable from the provision addressed in Zadvydas and must be interpreted in the same way. Other detention statutes- 8 U.S.C. § 1225(b) (applicable to arriving aliens) and 8 U.S.C. § 1226(c) (applicable to persons convicted of certain crimes)-contain different language providing for mandatory detention-meaning they cannot be interpreted to avoid the unconstitutional consequence of indefinite detention. Regardless of which provision applies to any particular subclass member, continued detention beyond six months is not permissible, because the record unquestionably demonstrates that there is no significant likelihood of repatriation in the reasonably foreseeable future. The Government's arguments to the contrary on all these points are without merit, as are its arguments on standing and the propriety of class-wide relief. The Court addresses all these points and the other injunction factors, in turn.

A. Likelihood of Success on the Merits

Civil detention is constitutionally fraught when the detention may be for an indefinite length. As explained in Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), "[f]reedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause." Id. at 80, 112 S.Ct. 1780.

This bedrock value is recognized in the deportation context, as well: "Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects." Zadvydas, 533 U.S. at 690, 121 S.Ct. 2491.

However, the Supreme Court has also recognized some level of "detention during deportation proceedings as a constitutionally valid aspect of the deportation process." Demore v. Kim, 538 U.S. 510, 523 and 527, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Otherwise, "deportation proceedings 'would be vain if those accused could not be held in custody pending the inquiry into their true character.' " Id. (quoting Wong Wing v. United States, 163 U.S. 228, 235, 16 S.Ct. 977, 41 L.Ed. 140 (1896) ). Nonetheless, even where temporary detention is "justified by concerns about public safety or flight risks," civil detention must "always be constrained by the requirements of due process." Hernandez v. Sessions, 872 F.3d 976, 981 (9th Cir. 2017).

To understand how courts have struck the balance of competing values and concerns in the immigration context, it is necessary to parse various provisions of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq., which authorize the Attorney General to detain aliens under various circumstances.

• Aliens who are subject to final orders of removal may be detained under 8 U.S.C. § 1231(a)(6).

• Aliens who are awaiting a decision on whether removal will be ordered may be detained under 8 U.S.C. § 1226(a).

• Aliens who are inadmissible or deportable from the United States because they have been convicted of one of a specified set of criminal offenses must be taken into custody, under certain circumstances, under 8 U.S.C. § 1226(c).

• Aliens arriving in the United States may be detained under 8 U.S.C. § 1225(b) ; subject to exceptions, this includes persons who are stopped at the border or discovered within the country without authorization to enter.

Because each of these provisions has or may have some bearing on our case, an examination of the judicial approaches to each provision follows.

These provisions apply variously to subclass members based on their progress in the immigration court system. Currently, there are 105 Zadvydas subclass members. "Schlanger Decl. VI," Ex. 2 to Reply in Supp. of Pet'rs Mot. for Prelim. Inj., ¶ 17 (Dkt. 479-3). There are fifty-four subclass members whose immigration cases are pending, and therefore are no longer subject to final orders of removal, id. ¶ 17(a); there are nine subclass members who are subject to final orders of removal, but have motions to reopen their immigration proceedings pending or still have time to file motions to reopen, id. ¶ 17(b); and there are forty-two subclass members whose immigration cases have run their course and who are subject to final orders of removal, id. ¶ 17(c). Of the forty-two subclass members subject to final orders of removal, the Court's stay has been lifted as to eighteen of them. Id. ¶ 12, Table A, ¶ 18, Table B rows 14-16.

1. Discretionary Detention under 8 U.S.C. § 1231(a)

The Supreme Court considered the perils of indefinite detention under 8 U.S.C. § 1231(a)(6) in Zadvydas, which involved two petitioners, Kestutis Zadvydas and Kim Ho Ma. Zadvydas was taken into custody after the conclusion of his criminal sentence and ordered removed. Efforts by the Government to deport Zadvydas to Germany, Lithuania, and the Dominican Republic were all unsuccessful, and the district court ordered Zadvydas released after concluding that he would be permanently confined. The Fifth Circuit reversed, holding that Zadvydas's detention was constitutional because his removal was still possible in light of ongoing diplomatic negotiations. Ma was also taken into custody following completion of a criminal sentence. Both the district court and Ninth Circuit ruled that Ma was entitled to release because there was no likelihood of removal in light of the lack of a repatriation agreement between the United States and Cambodia, Ma's native country.

The Supreme Court considered whether 8 U.S.C. § 1231(a)(6)"authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal." Id. at 682. The statute has both mandatory and discretionary provisions. The statute establishes that where an alien has been ordered removed, the Attorney General shall remove the alien within ninety days (known as the "removal period"). 8 U.S.C. § 1231(a)(1)(A). During the removal period, "the Attorney General shall detain the alien." 8 U.S.C. § 1231(a)(2) (emphasis added). However, the statute permits the Attorney General to continue detention beyond the removal period. It states, in pertinent part:

An alien ordered removed [1] who is inadmissible ... [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision.

Zadvydas, 533 U.S. at 678, 121 S.Ct. 2491 (quoting 8 U.S.C. § 1231(a)(6) ) (emphasis added). Id.

In Zadvydas, the Government argued that section 1231(a)(6) allowed for indefinite detention, because the statute set no time limit as to how long the Attorney General could detain an alien. Id. at 689, 121 S.Ct. 2491. The Court explained that reading the statute to permit "indefinite detention of an alien would raise a serious constitutional problem," especially with respect to the Fifth Amendment's Due Process Clause. Id. at 690, 121 S.Ct. 2491. Civil detention is justified only "in certain special and narrow nonpunitive circumstances where a special justification, such as harm-threatening mental illness, outweighs the individual's constitutionally protected interest in avoiding physical restraint." Id. at 690, 692, 121 S.Ct. 2491 (citation and interna