!
cc: TO JUDGE SA

I

HONORABLE MARSHA J PECHMAN

2

3

\ FILED _ENTERED

4

-_LODGED _RECEIVED

5

6

UNITED STATES DISTRICT COURTSA NOV 2 6 2002

7 8 9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

AT SEATTLE
CLERK us DISTRICT COURT

BY WESTERN DfSTAIC OF WASHINGTON

10

DEPUTY

11 YUSUF ALI ALI
12 (A73 426 435),

NO C02-2304P

13

14 MOHAMED AWEYS 15 (A73 428 026), 16 17 18 MOHAMED HUSSEIN HUNDIYE 19 (A70 378 487), and

FIRST AMENDED, CO SOLIDATED PETITION FOR HABEAS CORPUS FOR INDIVIDUALS IN FEDERAL CUSTODY - CLASS ACTION

20

21 GAMA KALIF MOHAMUD

22 (A71 714960), on behaIfofthemselves and all

23 persons sLmtlarly Situated,

24

25

PetitIoners,

26

27 28

v

111111111111 111111 11111111111111 1111111 1111111111 111111

29 30 JOHN D ASHCROFT, Attorney General,

1111111111111111111111111111111111111111

31 IMMIGRAnON AND NATURALIZAnON

cv 02-02304 #00000008

32 SERVICE, JAMES W ZIGLAR, Comrmssloner of ~_ _ _-----------~

33 the Imnugratlon and Naturaltzatton Service, and

34 ROBERT S COLEMAN, JR, DIstrict Drrector,

35 Seattle DIStnct,

36

37

Respondents

38

39

40

41

42

43

PetitIOners, by and through their underSIgned counsel, on behalf of themselves and all

44
45

others similarly situated, petition as follows

46

47

FIRST AMENDED, CONSOLIDATED CLASS

PETITION FOR HABEAS CORPUS

(NO C02-2304P) - 1

[404IZ·0001lSL023300 108]

ORIGINAL

4800Y Perkins Coie LLP
1201 Tlurd Avenue, Swle Seattle, Waslungton 98101-309
Phone (206) 583-8888
Fax (206) 583-8500

1

JURISDICTION AND VENUE

2

3

1

The Court has Jurisdiction under 28 USC § 2241(c)(1) and (3), Art I, § 9,

4
5 Cl. 2 ofthe United States Constitution ("Suspension Clause"), and 28 USC § 1331, as

6
7 Petitioners challenge Respondents' unlawful methods and means of effectuating their removal

8
9 to Somalia and continued post-removal-order detention A district court retains the power to

10
11 hear a petition for wnt of habeas corpus and to order the INS to take remedial actions If an

12
!3 alien's mvoluntary departure from the United States IS illegal Reno v. American-Arab Anfl-

14 15

DiscrimmatlOn Comm., 525 U S 471,482 (1999), Smg v. Walters, 87 F 3d 346,350 (9th

16
17 Cir 1996), Mendez v INS, 563 F 2d 956,958-59 (9th Cir 1977) The court likewise may

18
19 hear a habeas petition and order Respondents to release an allen detamee whose post-

20
21 removal-period detention IS unwarranted Zadvydas v. DaVIS, 533 U.S 678, 121 S Ct 2491,

22 23 2498 (2001) Petitioners allege, and seek to enjoin, violations of federal law, federal

24
25 regulations and gwdehnes, and procedural safeguards, which do not fall Wltlnn the three areas

26
27 covered by 8 USC § 1252(g) See Goncalves v. Reno, 144 F 3d 110, 121 (1" Cir 1998),

28
29 Henderson v INS, 157 F 3d 106, 112 (2d Cir 1998); Sandoval v. Reno, 166 F 3d 225, 234-

30
31 35 (3d Clr 1999), Shaw 1'. Reno, 184 F 3d 719, 724 (8th Crr 1999), Magana-Pizano I' INS,

32 33

152 F 3d 1213, 1221 (9th Cif 1998), vacated on other grounds, 119 S Ct. 1137, 143 LEd 2d

34 35

206(l999),M~ersv.JNS, 175F3d 1289, 1297 (I Ith Clr. 1999)

36

37

2

Venue IS proper m this court because Petitioners reSide in this JudiCial dlstnct

38
39 and because Petitioners removal proceedings were held here or Petitioners will be removed

40
41 from tins dlstnct See USC § 2241 et. seq, and 28 USC § 1391(e)

42

4

43

UNLAWFUL REMOVAL

4

44

4,

45

3 Petitioners are natives or natIOnals of Somalia

4:

46

47

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS (NO C02·2304P)· 2
[40411'{)OOl/SL023300 108J

Perkins Coie LLP 1201 TIurd Avenue, SUlte 480< Seattle, Waslungton 98101·30'
Phone (206) 583·8888 Fax (206) 583·8500
'LOlli ._ j i"'~_

I

4 Petitioners are subject to orders of removal to Somalia that are either final or

2 3 deemed to be final by Respondents

4

5

5

Petitioners are currently In detention, and thereby held In the custody of

6
7 Respondents Even If some or all of Petitioners were to be released from detention pursuant

8
9 to Orders of Supervision, PetitIOners would still be In the custody of Respondents for

10 11

purposes ofjurisdiction under 28 USC § 2241

12

13

6

Respondents recently indicated to PetlOners that Respondents intended to

14
15 proceed with plans to remove Petitioners to Somalia and have indicated that this removal was

16 17

It nnnunent "

18 19

7 The United States does not recogmze a government in Somalia Somaha has

20
21 no ambassador to either the Umted States or the Umted NatIOns No foreign consular offices

22
23

for Somalia eXist in the United States The Embassy of the Somalia Democratic Republic

24
25 ceased operations May 8, 1991 Reciprocally, the Umted States does not maintain an

26
27 embassy or other diplomatic nuSSlOn In Somalia

28

29

8 Removing Petitioners to Somalia Without first obtaining official notification of

30
31 that country's wilhngness to accept them VIOlates federal law including 8 USC § 1231(b)

32 33

(2000) Respondents have not and cannot meet the requirements of8 USC § 1231(b)

34 35

because Somaha has not, pursuant to the provIsions ofthls law, accepted Petitioners prior to

36
37 removal from the Umted States

38

39

9

Petitioners Will be placed In grave personal danger If they are deported to

40
41 Somalia without offiCial intemationally recogruzed travel documents and compliance with

42
43 United States law If they were to be snnply deposited in Somalia without acceptance by a

44 45

stable government, they would be In great nsk of robbery, enslavement, injury or death

46

47

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS
(NO C02-2304P) - 3
[40412·000IlSL023300 108J

Perkins Coie LLP 120I Thud Avenue, SUIte 4800 Seattle, Washmgton 98101-3099
Phone (206) 583-8888 Fax (206) 583-8500

1

10 Removmg PetitIOners to Somalia without first obtammg official notification of

2 3

that country's willmgness to accept them also would violate mternationallaw treaties to

4 5

which the United States is a party, including the 1967 Protocol relating to the Status of

6
7 Refugees ("Refugee Protocol"), 606 UN T S 267, 19 U S T 6223, T I A S. No 6577, the

8 9

International Covenant on Civil and Pohtical RIghts ("ICCPR"), 999 UN T S 171, and the

10 11

Convention Agamst Torture and Other Cruel, Inhuman or Degrading Treatment or

12 13

Punishment ("Torture ConventIOn"), 1465 UN T S 85

14 15

11 Specific provisions of the mtematlOnal treaties that would be violated by

16
17 Petitioners removal to Somaha include, but are not hmlted to the Refugee Protocol

18 19

(incorporating by reference Article 33 of the 1951 ConventIOn relatmg to the Status of

20
21 Refugees), which forbids states parties to deport persons to states in which they have a well-

22
23

founded fear of persecution, Article 6 of the ICCPR, which forbids states to deport persons

24 25

to states m which they may be subjected to an arbitrary depnvatlon of life, Article 7 of the

26
27 ICCPR, winch forbids states parties to deport persons to states in which they may face

28 29

torture or other cruel, inhuman or degradmg treatment or punishment, and Article 3 ofthe

30
31 Torture ConventIOn, which forbids states to deport persons to states m which they have

32 33

substantial grounds to fear torture

34

35

12. Removing Petitioners to Somalia WIthout first obtaming offiCial nOtification of

36 37

that country's willingness to accept them also VIOlates customary mternationallaw, which

38 39

prolnblts refoulement, or involuntary return Customary mtemationallaw is part of the laws

40 41

of the United States

42

43

13 Moreover, Respondents cannot lawfully deport Petitioners to a country to

44
45 winch deportatIon was not designated and from which Petitioners have had no opporturuty to

46
47 raise any claims for asylum, Wlthholdmg of removal, and relief under the Convention Agamst

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS
(NO C02-2304P) - 4
[40412·0001lSL023300 108]

Pertdns Coie UP 1201 Thud Avenue, SUIte 4800
Seattle, Waslungton 98101-3099
Phone (206) 583-8888
Fax (206) 583-8500

.J

1 Torture To do so would also violate Petitioners right to substantive due process under the

2 3 Fifth Amendment to the Umted States Constitution

4 5

14 Petitioners seek a writ of habeas corpus to prevent Respondents from illegally

6
7 deporting them from the United States to Somalia or to any other non-designated country

8

9

CLASS ACTION ALLEGATIONS

10

11

15 Petitioners bring this action on behalf of themselves and as a class action

12 13 under the prOVisions of Federal Rule of Civil Procedure 23 on behalf of all members of the

14
15 folloWing class ("the Class")

16

17

All persons in the United States who are subject to orders of removal,

18

expedited removal, deportation or exclusion to Somalia that are either

19

final or that one or more ofRespondents believe to be final

20

21

16 Pursuant to Rule 23(a), tlus action is properly maintained as a class action

22

23 because
24

25

a

There are several thousand members of the Class as above descnbed Their

26

27

exact number and their identities and current locations In the United States are

28

29

in most instances unknown to Petitioners but are known to Respondents and

30

31

are easily identifiable from Respondents' records

32

33

b The Class is so numerous that Joinder of all members is impracticable

34

35

c

There are questions oflaw and fact common to the members of the Class,

36

37

including but not lilllited to the follOWIng

38

39 40

(1) Whether It IS unlawful for Respondents to remove an

41

alien to a country Without first obtaining official

42

notification frOln that country that the country will

43

accept the alien,

44

45

46

47

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS
(NO C02-2304P) - 5
[40412'()()OllSL023300 J08)

Perkins Coie LLP 1201 T1urd Avenue, Smte 4800 Seattle, Washmgton 98101-3099
Phone (206) 583-8888 Fax (206) 583-8500

1

(2) Whether Somalia is able to provide official notificatIOn

2

of Its willingness to accept aliens removed from the

3

United States,

4

5

(3) Whether Somalia has proVided official notificatIOn of its

6 7

willingness to accept any member of the Class, and

8

9

(4) Whether it would be unlawful for Respondents to

10

remove any member of the Class to a country to which

11

deportatIOn was not deSignated and from which that

12

Class member has had no opporturuty to raise any

13 14

claims for asylum, withholding of removal, and rehef

15

under the Convention AgaInst Torture

16

17

d

PetitIOners are members of the Class and their claims are typical of the clrums

18

19

of Class members The mterests of PetitIOners are coincident with, and not

20

21

antagorustlc to, those of the other members of the Class

22

23

e

PetitIOners will fairly and adequately protect the interests ofthe Class, and

24

25

have retamed counsel experienced m class htlgation to represent them and the

26 27

Class

28

29

17 Pursuant to Rule 23(b)(2), this action is properly maintainable as a class action

30 31 because Respondents have acted on grounds generally apphcable to the Class, thereby

32 33 making appropriate final mJunctive rehef or declaratory relief with respect to the Class as a

34 35 whole

36

37

CONTINUED DETENTION

38

39

18 PetitIOners are currently being held in post-removal period detentIOn by the

40 41 Uruted States

42

43

19 Based on when Respondents assert each PetitIOner's respective removal order

44
45 became final, the ninety (90) day removal penod set forth m 8 USC §1231(a)(2){l999) has

46
47 elapsed for each Petitioner

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS
(NO C02-2304P) - 6
[40412-000IlSL023300 \08]

Perkins Coie LLP 1201 Tlurd Avenue, SWle 4800 Seattle, Waslungton 98101-3099
Phone (206) 583-8888 Fax (206) 583-8500

1

20 Because Petitioners cannot be removed to Somaha, there is not a substantial

2
3

likelihood that Respondents will remove any ofPetitioners within the reasonably foreseeable

4 5

future There is no permissible JustificatIOn for Respondents to contmue to detam Petitioners

6 7

21 PetitIOners Yusuf Ali Ali, Mohamed Aweys, and Mohamed Hussem Hundlye

8 9

each prevIOusly had been released from detention on Orders of Supervision However, each

10 11

receIved a notice dated November 7, 2002, indicating that the Orders of Supervision relating

12 13

to them was bemg "revoked" because the District Director had "received notIfication that

14 15

plans were underway for [their] removal to Somalia" and that such return was deemed to be

16 17

"Immment" These Petitioners removal IS not Immment at trus time and thus they should be

18 19

re-released from detentIOn Each ofthese PetitIOners are bemg held in detention past the

20 21

period of time (six months) which the Supreme Court in Zadvydas deemed to be permissible

22
23

See 121 S Ct at 2498

24 25

22 Petitioners seek a wnt of habeas corpus for their release from detention

26

27

PRAYER

28

29

WHEREFORE, Petitioners request the following reheffrom this Court

30

31

A That the Court determine that this action be mamtamed as a class action under

32
33 Federal Rule of CivIl Procedure 23,

34

35

B That the Court bar the Respondents from removing Petitioners or any member

36
37 of the Class to Somalia or any non-deSIgnated country durmg the pendency ofthis action,

38

39

C That the Court order other temporary or prelimmary relief dunng the

40
41 pendency oftrus actIOn, mcluding release ofPetitIOners from detention under reasonable

42
43 conditions,

44

45

46

47

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS
(NO C02-2304P) - 7
[404I2-000I/SL023300 108J

Perldns Coie LLP 1201 Tlurd Avenne, Swle 4800 Seattle, Waslungton 98101-3099
Phone (206) 583-8888 Fax (206) 583-8500

-'

1

D That the Court enter a final and permanent injunction barring Respondents

2
3

from removing Petitioners or any member of the Class to Somalia or any non-designated

4
5 country,

6 7

E

That the Court enter a declaratory Judgment to the effect that it would be

8 9

unlawful for Respondents to remove Petitioners or any member of the Class to Somaha or

10 II

any non-designated country,

12 13

F

That the Court enter a final order that Petitioners be released from contmued

14 15

detention under reasonable conditIOns, and

16 17

G For such other relief as the Court may deem just and proper

18 19

DATED November 26, 2002

20

21

22

23

24

25

_ BY~~~~~ _4*_____________

26
27

Thomas L Boeder, BA #408

28

Nicholas P Gellert, WSBA # 18041

29

Karol E Brown, WSBA #29444

30

Attorneys for Petitioners

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS
(NO C02-2304P) - 8
[40412-000115L023300 108J
-

Perkins Cole U.P 1201 Tlnrd Avenue, Swte 4800
Seattle, Washmgton 98101-3099
Phone (206) 583-8888
Fax (206) 583-8500

VERIFICATION

2

3

We hereby swear under penalty of perjury of the United States of America that, either

4
5 on personal informatIOn or on mformatlon and belief, the facts set forth above are true and

6
7 correct to the best ofour knowledge To the extent the basis of this verification IS on

8
9 mformation and bebef, rather than personal informatIOn, the sources ofinformation to make

10 11

this verificatIOn include documents receIved and interviews conducted by our counsel

12

13 14 15 16

SIGNED tlus _

day of November m Seattle, Waslungton
v.'

17

18

19

20

21

22

23

24

25

26

Mohamed Hussein Hundlye

27

28

29

30

Garna KahfMohamud

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

FIRST AMENDED, CONSOLIDATED CLASS PETITION FOR HABEAS CORPUS
(NO C02-2304P) - 9
[40412'()001lSL023300 108]

Perkins Coie LLP 120 I Trurd Avenue, Swle 4800 Seattle, Wasrungton 9810 1-3099
Phone (206) 583-8888 Fax (206) 583-8500

ce· TO JUDGE SA

1

THE HONORABLE MARSHA PECRMAN

2

3

_ _ FILED _ _ ENTERED

4

- - LODGED _RECEIVED

5
6
7
8
9
10 YUSUF ALI ALI 11 (A73 426 435)
12

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

SA

NOV 26 2002

AT SEATTLE

AT SEATTLE

CLERK U S DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

BY

DEPUTY

NO C02-2304P

13 14

MOHAMED AWEYS

15 (A73 428 026)

CERTIFICATE OF SERVICE

16

17 MOHAMED HUSSEIN HUNDIYE

18 (A70 378 487)
19

20 21

GAMAKALIF MOHAMUD

22 (A71 714960), on behalfofthemselves and all

23 persons similarly SItuated,

24

25

Petitioners,

26

27

v

28

29 JOHN D ASHCROFT, Attorney General,

30 31

IMMIGRATION AND NATURALIZATION

32 SERVICE; and ROBERT S. COLEMAN, JR.,

33 District Director, Seattle District,

34

35

Respondents

36

37

38

39 40

The undersigned is a citizen of the United States and reSIdent of the State of

41 42

Washington, is over the age ofeighteen and is not a party to the Within action

43 44

On November 26, 2002, true and correct copies of the First Amended, Consohdated

45 46 Petition for Habeas Corpus for Individuals in Federal Custody - Class Action

47

CERTIFICATE OF SERVICE - 1
[09901.0021/SL023170 233]

ORIGINAL

PERKINS COlE LLP
1201 Thud Avenue, SUIte 4800 Seattle, Washmgton 98101·3099
(206) 583·8888

~~~~

-~--------------

- -------

1

DATED. November 26,2002

2

3

4

PERKINS COlE LLP

5

~

BYQY)~ dD Q,UY.0-,.

9

Mellonie De Rao$:, Legal Secretary

10 11 12 13 14
15
16 17
18 19 20
21 22 23 24 2S 26 27 28 29
30 31
32 33 34
35 36 37 38 39 40 41 42
43 44
45
46
47

CERTIFICATE OF SERVICE - 3
[09901.oo211SL023170 233J

PERKINS COlE ILl'
1201 ThIrd Avenue, SUIte 4800
SeaUle, VV~n 98101-3099 (206) 583-8888

 
 1

--el FILED /

ENTERED

_ _ _ LODGED

RECEIVED

2
JAN 172003

3

M SE;ATTLE

CLERK U,S DISTRICT COURT

WESTERN DISTRICT OF WASHJNGTON

4

UNITED STATES DISTRICT COURT

DEC

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 YUSUF ALI ALI, et aI.,

8

Petitioners,

9 v.

10 JOHN ASHCROFT, et aI.,

11

Respondents.

No. C02-2304P
ORDER GRANTING INJUNCTION AND CERTIFYING CLASS

12

13

Petitioners are Somalis with final orders of removal. They seek to certify a

14 nationwide habeas and declaratory class, as well as an order enjoining removal of persons to

15 Somalia and declaring such removal illegal. On December 10, 2002, this Court granted

16 Petitioners' request for a temporary restraining order enjoining the Immigration and

17 Naturalization Service ("INS") from removing Somali natives or nationals in the United

,

18 States to Somalia. With the agreement of the parties, the Court set the matter for a 19 preliminary injunction hearing on January 14, 2003. The parties also submitted briefs on

20 V
~ 21
\..; 22

class certification for concurrent consideration. (Dkt. No. 28.) Having weighed the moving parties' probability of success on the merits and possibility of irreparable injury, the Court GRANTS a preliminary injunction. Because the Court effectively decides the merits of

23 Petitioners' injunctive claim on consideration of the preliminary injunction, both parties

24 request that the Court declare the injunction permanent. Since reaching the issue ofa

25 permanent injunction may assist review on appeal, and there is no outstanding legal issue on

26 which the parties wish to be heard, the Court concludes that the injunction is permanent.

ORDER GRANTING I:-.IJUNCTION AND CERTIFYING CLASS - I

r(

I Finding that Petitioners have met the requirements of Fed. R. Civ. P. 23, the Court GRANTS

2 Petitioners' motion for class certification and certifies the following class: All persons in the

3 United States who are subject to orders of removal, expedited removal, deportation or

4 exclusion to Somalia that are either final or that one or more of Respondents believe to be

5 final, excluding any person with a habeas petition pending, or on appeal, raising the issue of

6 unlawful removal to Somalia under 8 U.S.C. § 1231(b). Respondents are ORDERED not to

7 remove to Somalia any person in the above nationwide class. The Court also ORDERS that

8 Petitioners Ali, Aweys, and Hundiye be released pursuant to the Supreme Court's directive in

9 Zadyydas v. Davis, 533 U.S. 678 (2001). The Court notes that Petitioner Mohamud has a

10 similar pending habeas petition before the Honorable Barbara J. Rothstein, and the Court

II finds that the 1110st prudent course is to allow those proceedings to continue. Finally, the

12 Court DENIES the Government's request for an order staying the injunction pending its

13 decision to appeal. Such an order would render the entire purpose of an injunction

14 meaningless.

IS

BACKGROUND

16

The East African nation of Somalia has been without a central government since the

17 ouster of dictator Siad Barre in 1991. Over the last decade, warring factions have controlled

18 fiefdoms in various regions of the country, and a state of general chaos persists. Persecution

19 of certain ethnic groups or clans by others led to an influx of refugees into the United States

20 throughout the 1990s.

21

Following the attacks of September II, 2001, the Bush Administration stepped up

22 efforts to remove foreign nationals with final orders of deportation, with an emphasis on

23 those nations with links to terrorism. While the Administration fears that Somalia may

24 provide fertile ground for terrorist groups, as ofthe beginning of2002 there appears to be no

25 credible evidence that any organization in Somalia, such as AI-Ittihad, has an international

26 focus or established links to Al-Queda. Resp. Ex. I, Ted Dagne, Africa and the War on

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS· 2

1 Terrorism, CRS Report for Congress, January 17, 2002, at 16. Nevertheless, a series of

2 directives from Attorney General John Ashcroft indicate a policy shift emphasizing removal

3 of persons to suspect countries, including Somalia, as expeditiously as possible. Foster Dec!.

4 Exs. J and K.

5

Since 1997, 196 Somali nationals have been removed to Somalia. 3rd Venturella Decl.

6 Of those, 49 were removed on criminal grounds, and 147 on non-criminal grounds. Id.

7 Somalis are typically removed from the United States through the use of charter aircraft. 2nd

8 Venturella Dec!. Removal to Somalia typically does not involve INS agents accompanying

9 detainees to the territory of Somalia. Id.

10

The effort to remove Somalis was eventually challenged, and the District of

11 Minnesota was the tirst to detennine that the Attorney General did not have the statutory

12 authority to remove persons to Somalia because there was no functioning government to

13 "accept" them. See Jama v. INS, 2002 WL 507046 (D. Minn. March 31,2002) (Tunheim, J.)

14 That decision is currently on appeal before the Court of Appeals for the Eighth Circuit. The

15 statutory holding was then reiterated by another judge in the same court. Farah v. INS, 2002

16 WL 31866481 (D. Minn. Dec. 20, 2002) (Frank, J.). In November and December of2002,

17 temporary restraining orders were entered in the Eastern and Western Districts of Louisiana,

18 respectively, enjoining the removal of specific persons to Somalia. Ghelle v. Ashcroft, E.D.

19 La. Civil Case No. 02-3478 (Nov. 20, 2002); Mohamed v. Ashcroft, W.D. La. Civil Case No.

20 02-2484 (Dec. 3, 2(02).

21

On November 13,2002, the present action was filed on behalf of five Somali

22 nationals whom the INS planned to deport to Somalia imminently. A temporary restraining

23 order was issued enjoining their removal, and a briefing schedule was set to determine

24 whether a preliminary injunction should issue. In the interim, Petitioners' counsel amended

25 the original petition to address the issue on a classwide basis. This Court issued a classwide

26 temporary restraining order on December 9, 2002, finding a likelihood of success on the

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 3

1 merits of Petitioners , claim that the Attorney General lacked the authority to deport persons

2 to Somalia in the absence of a functioning government.

3

Oral argument on Petitioners' preliminary injunction and class certification motion

4 was held on January 14,2003. At that hearing, the Court orally granted a preliminary

5 injunction and certified a nationwide class of similarly situated persons ordered removed to

6 Somalia. The Court then called for further briefing on whether the preliminary injunction

7 should be a final order. as well as the timing and jurisdiction over the named petitioner's

8 claim for release under Zadvydas v. Davis, 533 U.S. 678 (2001).

9

The Named Petitioners

10

1. Yusuf Ali Ali

11

The INS ordered that Petitioner Yusuf Ali Ali be removed from the United States on

12 July 10, 2001. After Mr. Ali filed a habeas corpus petition for his release on the ground that

13 removal was not likely to occur in the reasonably foreseeable future, the INS released Mr.

14 Ali subject to an order of supervision on November 2, 2001. Petitioner Ali was then re-

15 detained in November of 2002 because the local District Director's office was informed that

16 plans were underway for his imminent removal to Somalia.

17

2. Mohamed Aweys

18

The INS ordered that Petitioner Mohamed Aweys be removed from the United States

19 on October 30, 200 I. Mr. Aweys was taken into custody by the INS on February 28, 2002.

20 On September 20, 2002, this Court ordered his release on the ground that removal to Somalia

21 was not likely to occur in the reasonably foreseeable future, and he was released subject to an

22 order of supervision. Mr. Aweys was then re-detained in November of 2002, because the

23 local district director's office was informed that plans were underway for his inuninent

24 removal to Somalia.

25

3. Mohamed Hussein Hundiye

26

The INS ordered that Petitioner Mohamed Hussein Hundiye be removed from the

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 4

1 United States on April 26, 200 I. After Mr. Hundiye filed a habeas corpus petition for his

2 release on the ground that removal was not likely to occur in the reasonably foreseeable

3 future, the INS released Mr. Hundiye subject to an order of supervision on December 19,

4 2001. Petitioner Hundiye was then re-detained in November of 2002 because the local

5 district director's office was informed that plans were underway for his imminent removal to

6 Somalia.

7

4. Ganla KalifMohamud

8

The INS ordered that Petitioner Gama KalifMohamud be removed from the United

9 States on April 21, 2000. Mr. Mohamud was released from INS custody on January 30,

10 2001, subject to an order of supervision. That order of supervision was revoked and Mr.

11 Mohamud was re-detained on July 12, 2002. Prior to the attempt to remove Petitioner

12 Mohamud to Somalia, he filed a habeas corpus petition for his release on the ground that

13 removal was not likely to occur in the reasonably foreseeable future. That petition is

14 currently pending before the Honorable Barbara J. Rothstein.

15

16

ANALYSIS

17
18 A.

I. Jurisdiction Jurisdiction is Not Barred by 8 U.S.C. § 1252(g)

19

The Government argues that § 1252(g) of the INA, as amended by the Illegal

20 Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), forecloses any

21 and all judicial review of the Attorney General's decision to remove Petitioners to Somalia.

22 Section 1252(g) section reads as follows:

23

(g) Exclusive jurisdiction

24

Except as provided in this section and notwithstanding any other

provision of law, no court shall have jurisdiction to hear any cause or claim on

25

behalf of any alien arising from the decision or action by the Attorney General

to commence proceedings, adjudicate cases, or execute removal orders against

26

any alien under this chapter.

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 5

1
8 U.S.C. § 1252(g). The INS first argues that judicial review is precluded in the present case
2
because it arises from the Attorney General's decision to execute a removal order. The INS
3 then argues that this provision blocks all judicial review by District Courts, both on direct
4 review and in habeas proceedings.
5 The Government' s arguments must fail for two reasons. First, the Supreme Court has
6
held that the jurisdiction-stripping effect of § 1252(g) is limited to review of three discreet,
7
discretionary actions that the Attorney General may take: the '''decision or action' to
8
'commence proceedings, adjudicate cases, or execute removal orders.'" Reno v. Ameriean9
Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis in original). 10
Petitioners here do not challenge the Attorney General's discretionary decision to
11
attempt to execute their removal. Similarly, they do not challenge the various Immigration 12
Judges' determinations of their "removability." Rather they challenge the legality of removal 13
to Somalia, a country that has no government to accept Petitioners for removal. This is a 14
purely legal question that does involve review of a discretionary decision of the Attorney 15
General. Therefore § 1252(g) stands as no bar to this Court's review of alleged illegal action 16
by the INS. 17
Second, § 1252(g) does not limit judicial review on a petition for a writ of habeas 18
corpus. Two federal courts in Minnesota have now interpreted § 1252(g) under INS v. St. 19
~, 533 U.S. 289 (2001), and have determined that the section is not applicable in the 20
habeas context. See lama v. INS, 2002 WL 507046 (D. Minn. March 31, 2002) (Tunheirn, 21
1.) and Farah v. INS, 2002 WL 31866481 (D. Minn. Dec. 20, 2002) (Frank, J.) This Court 22
agrees with the reasoning in those cases, and holds that review is not precluded because 23
Congress did not expressly limit judicial consideration on habeas corpus. 24
The legal questions presented in St. Cyr are remarkably similar to those presented 25
here. In that case, petitioner sought review of the government's legal conclusion that the 26
ORDER GRANTING INJUNCTION
AND CERTIFYING CLASS - 6

1 Attorney General did not have the power to grant discretionary relief from removal. St. Cyr,

2 533 U.S. at 2()8. Petitioner was not challenging his deportability, nor any unfavorable

3 discretionary decision of the Attorney General- rather the petition presented a "pure

4 question oflaw." rd. at 300. The INS argued that three provisions ofIIRIRA - §§

5 1252(a)(I), 1252(a)(2)(C), and 1252(b)(9) of the INA - had eliminated habeas review as

6 provided by the general habeas statute, 28 U.S.c. § 2241. Id. at 298. The Supreme Court

7 found that there was no "clear, unambiguous, and express statement of congressional intent

8 to preclude judicial consideration on habeas," and therefore held that habeas jurisdiction had

9 not been repealed by those sections of IlRlRA. Id. at 314.

10

Similarly, Petitioners in this case do not challenge their removability, nor do they

11 challenge the Attorney General's discretionary decision to execute their removal. Rather,

12 they challenge the legal conclusion that they can be removed to Somalia as a matter of

13 statutory interpretation.

14

The INS argues that 1252(g) limits a court's "jurisdiction to hear" (emphasis added)

15 claims arising out of decisions to execute removal orders, and that this language provides a

16 broader jurisdictional bar than the sections interpreted in St.Cyr. Return at 14. Yet the same

17 prudential concerns of statutory interpretation that existed in St. Cyr are present in the instant

18 case. Absent a clear, unambiguous, and express statement of congressional intent, this Court

19 refuses to find that I 252(g) strips this Court of habeas jurisdiction. St. Cyr, 533 U.S. at 314.

20 The Court also notes that serious constitutional problems involving the Suspension Clause

21 would arise from an interpretation of § 1252(g) that substantially limits habeas review. U.S.

22 Const. art. I, § 9, cL 2; St.Cyr, 533 U.S. at 300, 304.

23

Because the present petition does not challenge a discretionary decision of the

24 Attorney General to execute a removal order, and because § l252(g) does not expressly

25 revoke habeas jurisdiction, this Court finds that it has jurisdiction to hear this motion for

26 preliminary injunction.

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 7

1 B. Petitioners Need Not Exhaust Administrative Remedies

2

Respondents contend that Petitioners should have raised and litigated the absence of

3 an accepting government in their administrative proceedings, and that failure to do so waives

4 their current claim. When a statute requires exhaustion, a petitioner's failure to do so

5 deprives the court ofjurisdiction. El Rescate Legal Sers., Inc. v. Executive Office of

6 Immigration Review, 959 F.2d 742, 746 (9th Cir. 1991). However, courts recognize

7 exeeptions to the exhaustion requirement: (1) in cases of class allegations of a pattern or

8 practice of violations of statutory or constitutional rights; and (2) when pursuing

9 administrative remedies would be futile. Id. at 746-47.

10

Where no statute mandates exhaustion, courts have applied a prudential exhaustion

11 requirement when: (1) agency expertise is needed to generate a proper record; (2) relaxation

12 of the requirement would encourage the deliberate bypass of an administrative scheme; and

13 (3) administrative review is likely to allow the agency to correct its own mistakes and to

14 preclude the need for judicial review. Id. at 747.

15

Petitioners are not required to have anticipated and challenged that the government

16 would remove them in violation of the law. The general statute requiring exhaustion of

17 administrative remedies on review of removal orders, 8 U.S.C. § 1252(d)(l), does not apply

18 in this matter. While Petitioners would have to exhaust administrative remedies if they were

19 asking the court to review their final removal orders, here Petitioners do not contest that they

20 have been lawfully ordered removed. Instead, Petitioners challenge the Attorney General's

21 authority to remove them to a country without a government capable of manifesting

22 acceptance. Respondents do not direct the Court to any other statute that requires exhaustion.

23

There are no grounds to apply a prudential exhaustion requirement in this matter.

24 Since Petitioners raise a purely legal question of statutory interpretation, there is no need for

2S INS to develop a factual record. The issue of the Attorney General's authority to remove a

26 person to a non-accepting country is an issue that arises after a final order of removal has

ORDER GRANTING INJUNCTION AND CERTIFYIl"G CLASS - 8

1 been entered, and therefore there is no administrative scheme to bypass. As Somali

2 nationals, Petitioners appropriately designated Somalia as the country to which they would be

3 removed if deported from the United States. 8 U.S.c. § 123l(b)(2)(A). The regulations

4 contemplate the situation here that a person might appropriately designate a country that will

5 not accept him or her:

6

The immigration judge shall notify the alien that if he or she is fmallyordered

removed, the country of removal will in the first instance be directed pursuant

7

to section 241 (b) [8 u.s.c. § 1231(b)] of the Act to the country designated by

the alien, unless section 241 (b)(2)(C) of the Act applies, and shall afford him

8

or her an opportunity then and there to make such designation. The

immigrationjudge shall then specify and state for the record the country, or

9

countries in the alternative, to which the alien's removal will be directed

pursuant to section 241 (b) of the Act if the countIy of his or her designation

10

will not accept him or her into its territolY ...

II 8 C.F.R. § 240.10 (emphasis added). Although parties have litigated before the BIA the

12 question of whether the government appropriately disregarded a designation and lawfully

13 chose another country, Matter of Niesel, 10 1& N Dec. 57, 59 (1962), Petitioners are not

14 required to anticipate that the government would violate statutory provisions and attempt to

15 remove them to a non-accepting country.

16

Even if there were a statutory exhaustion requirement, Petitioners' claims fall into the

17 two exceptions to the exhaustion requirement noted above. First, requiring exhaustion would

18 be particularly inappropriate since Petitioners allege violations of the statutory rights of a

19 class. El Rescale Legal Sers., 959 F.2d at 746-47. Second, consideration of Petitioners'

20 claims by the agency would be futile since INS' position is already set. Id. at 746.

21 Petitioners were not required to raise the non-accepting government issue in their

22 administrative proceedings.

23

24

25

26

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 9

-------------- ------ -

1

II. Preliminary Injunction

2

Although the parties now agree that the injunction issued by the Court should be made

3 permanent, the original posture of the motion as briefed and argued was that of a preliminary

4 injunction. Therefore, the Court begins its analysis under standards for a preliminary

5 injunction. For a preliminary injunction to issue, Petitioners must meet their burden by

6 demonstrating either: (1) a combination of probable success on the merits and the possibility

7 of irreparable iqjury: or (2) that serious questions are raised and the balance of hardships tips

8 sharply in its favor. Textile Unlimited, Inc. v. A..BMH Co., Inc., 240 F.3d 781,786 (9th Cir.

9 2001); Mayo v. United States Gov. Printing Off., 839 F. Supp 697, 699 (N.D. Cal. 1992),

10 affd, 9 F.3d 1450 (9th Cir. 1993). These two formulations are not separate tests but

11 represent two points on a sliding scale in which the required degree of irreparable harm

12 increases as the probability of success decreases. United States v. Odessa Union Warehouse

13 Co-op, 833 F.2d 172, 174 (9th Cir. 1987).

14 A.

15

The possibility of irreparable injury to the plaintiffs is extremely high. The

16 Government's position appears to be that because no one who is removed to Somalia returns

17 to the United States. acceptance has occurred. Yet nothing in the record attests to any first

18 hand knowledge of prior transport success or failure to repatriate Somalis to the geographical

19 territory of Somalia. The INS is likewise unable to inform the Court what happens to

20 Somalis who are removed, or even to confmn that the Somalis handed over to the charter

21 aviation company are in fact transported to Somalia.

22

Petitioners state that they fear that they will be persecuted or even killed upon their

23 arrival in Somalia. First Amended Pet. at 3. While Petitioners' fears of persecution and

24 torture may not be relevant to seeking asylum at this stage of their proceedings, they are

25 certainly relevant to a finding of irreparable harm. Nothing has made this point more clearly

26 than the Govemment's own submissions to this Court. The INS has shown that Somalia is a

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS· \0

1 country in chaos, engaged in clan warfare with rival groups clashing over turf and control,

2 with no government and no diplomatic relations with the United States. There is no official

3 entity that might provide even the most basic of administrative protections upon their arrival.

4 The Court finds that there is a substantial possibility of irreparable harm to Petitioners based

5 on present conditions in Somalia, specifically the lack of any functioning govermnent. In

6 addition, serious questions are raised in this case by the proposition that the INS may be able

7 to remove a person to a country that has no govermnent to accept them and no govermnent to

8 protect them. This action appears to be wholly outside the statutory authority of the INS.

9

For these reasons, the balance of the hardships tips sharply in favor of Petitioners.

10 Petitioners stand to face persecution or even death if the status quo is not maintained. The

11 Government, on the other hand, stands to face little or no hardship that is not self-induced.

12 Expenses related to current detention of the petitioners is a result of INS or DO] decisions to

13 detain. All but one of the individual Petitioners were on release subject to conditions, at little

14 or no expense to the government, prior to the most recent efforts to remove them. Although

15 the Government asserts that great hardship may befall it when the tool of removal of Somalis

16 is taken from the arsenal of the war on terrorism, Respondents have failed to explain how

17 removing Petitioners relates to terrorism and have presented no evidence of international

18 terrorist activities in Somalia. Therefore, weighing the potential hardships to each of the

19 parties, the Court finds that the balance shifts sharply in favor of Petitioners.
20 B. Merits

21

The probability of success on the merits in this case is extremely high. There is a

22 substantial likelihood that Petitioners will show that the INS does not have the statutory

23 authority to remove persons to Somalia.

24

1. Statutory Construction of 1231(b)

25

The heart of this case focuses on the INS' asserted authority to remove persons to

26 Somalia in the absence of any recognized government to "accept" them. The Govermnent

ORDER GRANTING INJUNCTION AND CERTIFYING CLAS S . 11

1 argues that because there is no government to reject persons removed to the territory of

2 Somalia, "acceptance" has occurred. Put another way, Petitioners would be deemed

3 "accepted" unless they are "barred from deplaning in Somalia or otherwise expelled from

4 Somalia." Retum at 24. Yet every source oflaw before the Court supports Petitioners'

5 interpretation, namely that the statute requires acceptance by a government of the receiving

6 country. If there is no government, the Attorney General has no authority to effect the

7 removal.

8

Section 1231(b) of the INA sets forth what can be viewed as "a three step process to

9 determine the country to which a removable alien should be sent after a fmal order of

10 removal has been issued against him." Return at 17; see also Farah, 2002 WL 31866481 at

11 *3. Specifically. § l231(b) provides:

12

(2) Other aliens

13

Subject to paragraph (3) - -

14

(A) Selection of country by alien

Except as otherwise provided in this paragraph -

15

(i) any alien not described in paragraph (I) who has been ordered

removed may designate one country to which the alien wants to be

16

removed, and

(ii) the Attomey General shall remove the alien to the country the

17

alien so designates.

18

* * * *

(C) Disregarding designation

19

The Attomey General may disregard a designation under

subparagraph (A)(i) if-

20

(i) the alien fails to designate a country promptly;

(ii) the government of the country does not inform the Attorney

21

General finally, within 30 days after the date the Attorney General

first inquires. whether the government will accept the alien into

22

the country:

(iii) the government of the country is not willing to accept the

23

alien into the country; or

(iv) the Attomey General decides that removing the alien to the

24

country is prejudicial to the United States.

25

(D) Altemative country

If an alien is not removed to a country designated under

26

subparagraph (A)(i), the Attorney General shall remove the alien to a

ORDER GRANTING INJUI\CTION AND CERTIFYING CLASS - 12

- - - - - - - - - - - - -------

1

country of which the alien is a subject, national, or citizen unless the

government of the country-

2

(i) does not inform the Attorney General or the alien fmally,

within 30 days after the date the Attorney General first inquires or

3

within another period of time the Attorney General decides is

reasonable, whether the government will accept the alien into the

4

country; or

(ii) is not willing to accept the alien into the country.

5

(E) Additional removal countries

6

If an alien is not removed to a country under the previous

subparagraphs of this paragraph, the Attorney General shall remove

7

the alien to any of the following countries:

(i) The country from which the alien was admitted to the United

8

States;

(ii) The country in which is located the foreign port from which

9

the alien left for the United States or for a foreign territory

contiguous to the United States;

10

(iii) A country in which the alien resided before the alien entered

the country from which the alien entered the United States;

II

(iv) The country in which the alien was born;

(v) The country that had sovereignty over the alien's birthplace

12

when the alien was born;

(vi) The country in which the alien's birthplace is located when

13

the alien is ordered removed.

(vii) If impracticable, inadvisable, or impossible to remove the

14

alien to each country described in a previous clause of this

subparagraph, another country whose government will accept the

15

alien into that country.

16 8 U.S.C. § 1231(b) (emphasis added).

17

Thus, in step one of the procedure, a person subject to a removal order may designate

18 a country to which he or she wants to be removed. Id. at § 1231 (b)(2)(A). That choice shall

19 be respected unless one of the conditions in § 123 I (b)(2)(C) arises, such as if the government

20 of the country designated is not willing to accept that person. In that case, the Attorney

21 General may proceed to step 2 of the process, by which the person may be removed to an

22 "alternative" country where he or she is a "subject, national, or citizen," provided (once

23 again) that the country's government is willing to acccpt the person. Id. at § 123 I (b)(2)(D).

24 If that alternative country is not willing to accept the person, step three applies. In that vein,

25 § 1231 (b)(2)(E) provides "additional" removal countries to which a person may be removed

26 if the first two steps are not successful in affecting removal. The parties agree that this step-

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 13

I wise process is the correct procedure, and that step 3 governs their proposed removal.

2

2. Plain Language of the Statute

3

The INS argues that the "plain language" of the statute demonstrates that the INS may

4 remove a person without acceptance by a government to a country in which he was born. Yet

5 every source of law and every common legal analysis indicate that there must be acceptance

6 of a government for every removal.

7

First, the structure and effect of the statute as a whole indicate that the various

8 subparts of subsection (E) must be read as requiring acceptance by the other country's

9 government. This interpretation arises from the well-established canon of statutory

10 interpretation that courts "must avoid a construction that fails to give effect to every

II subsection ofthc enactment." Security Pacific Nat. Bank v. Resolution Trust Corp., 63 F.3d

12 900,905 (9th Cir. 1995). Here, to read subparts (i) through (vi) as not requiring acceptance

13 by a foreign government would render subsections (C) and CD) superfluous. Such an

14 interpretation would also lead to absurd results. Under the INS' interpretation, in a situation

15 where a government has actually denied acceptance of a removable person, a person could be

16 airdropped surreptitiously into that same country if it met the requirements of one of the

17 subparts, and the INS would consider this "acceptance" so long as the person was not barred

18 from "deplaning" or landing or was otherwise expelled from that country. This cannot be a

19 correct reading of the law. The only logical interpretation of the plain meaning that gives

20 effect to all sections of the statute is one that requires government acceptance from

21 "additional" countries listed in § 1231 (b)(2)(E)(i-vi).

22

Second, the plain language of the statute indicates that the option to remove a person

23 to the country in which he or she was born only exists where that country is different from

24 the countries in steps 1 and 2. Step 3 involves "additional removal countries." Additional

25 countries means countries other than the one designated by the removable person (step I) or a

26 country of which he is a subject, national or citizen, (step 2). Thus, the plain language of the

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 14

statute demonstrates Congress' intent that a person be removed to a country of his birth only

2 if different from that designated in step one. In the present case, Petitioners have either

3 designated Somalia as their country of removal, or are subjects, nationals, or citizens thereof.

4 Subsections (C) and (D) require the government of those countries to "accept" them prior to

5 removal. The INS should not be allowed to thwart this requirement by skipping to step 3.

6

Third, this interpretation is consistent with relevant case law interpreting § 1253(a),

7 the statutory predecessor of § 1231 (b)(2). See United States ex reI. Tom Man v. Murff, 264

8 F.2d 926 (2d Cir. 1959). In Tom Man, the court interpreted the substantively identical

9 language of step three of § 1253(a) to require that a country be willing to accept the person

10 into its territory. Id. at 928. See also Amanullah and Wahidullah v. Cobb, 862 F.2d 362 (1st

11 Cir. 1988) (requiring written verification of a country's willingness to accept the alien before

12 removal under a prior section of the act).

13

The INS argues that the changes made to the statute in 1996 upon its re-enactment as

14 § 1231 (b)(2) renders the above authority unpersuasive. Return at 23, 25-26. At the same

15 time, the INS would have this Court defer to an allegedly contrary interpretation of the

16 statute by the Board of Immigration Appeals. See Matter of Niesel, 10 I & N Dec. 57 (BIA

17 1962). The INS cannot have it both ways. A review of the text of the statute prior to and

18 since the amendments shows that the two versions are substantively indistinguishable.

19

Moreover, Matter ofNieseI does not support the proposition that the Attorney

20 General may remove a person to a country without an accepting government. First, Matter of

21 Niesel simply held that the government appropriately disregarded a petitioner's designation

22 and lawfully chose another country without first inquiring whether that country would accept

23 the petitioner. Id. at 59. Thus, Matter of NieseI addressed only the issue of an initial inquiry,

24 not final acceptance of the country to which a person would be returned. Id. ("When

25 designating a country in step three as a place of deportation, there is no requirement that

26 preliminary inquiry be addressed to the country to which deportation is ordered") (emphasis

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 15

I added). Second, the DIA's later decision in Matter of Linnas clearly holds that "the

2 'government' of a country selected under any of the three steps must indicate it is willing to

3 accept a deported alien into its 'territory.'" 19 I. & N. Dec. 302, 307 (BIA 1985).

4 Respondents argue that Matter of Linnas, since it arose in the Second Circuit, was required to

5 follow Tom Man, creating a split of authority with Matter of NieseI. However, Matter of

6 Linnas does not simply follow the Tom Man case, but also cites the predecessor statute at

7 issue here, former 8 l:.S.c. § 1253, as authority for the proposition that there must be an

S accepting govemment. Id. There is no split of authority. The BIA recognizes the acceptance

9 requirement. Therefore, all relevant case law supports the premise that govemrnent

10 acceptance is required in order to affect removal to one of the "additional" countries listed in

11 subsection E.

12

3. Legislative Historv

13

The legislative history of the disputed statutory provision unequivocally supports

14 Petitioners' reading that the Attorney General must receive pennission from a country in

15 order to remove a person to that country. The statutory provision at issue, 8 U.S.C.

16 § 1231(b), was originally enacted in 1952 as 8 U.S.C. § 1253(a) as part of the

17 McCarranlWalter Act which created the modern Immigration and Nationality Act. Oscar M.

18 Trelles and James F. Bailey, I Immigration and Nationalitv Acts, Legislative Histories and

19 Related Documents (1979). A number of references in a Senate study of immigration laws

20 clarifies that the government may deport persons only with the receiving govemrnent's

21 acceptance:

22

In order to execute a warrant of deportation, a passport or travel document must

be obtained from the representative of the foreign country to which the alien is

23

to be deported. This leads to many complications which are discussed below.

If deportation is not effected within a reasonable time, the alien must be

24

released.

25 The Immigration and Naturalization Systems of the United States, Report of the Committee

26 on the Judiciary of the Senate 629 (1950). Even in light of Cold War national security issues,

ORDER GRANTING INJU'lCTION AND CERTIFYING CLASS· 16

1 the government recognized that it could not deport persons absent acceptance:

2

One of the most serious problems with which the Immigration and

Naturalization Service is faced is the disposition of aliens found deportable by

3

the Service but who cannot be deported. The latest statistics show that there

are 3,600 nonenforceable deportation orders, of which 1,365 involve Russians.

4

The nature of the problem was described by Immigration and Naturalization

Service in its 1948 report: "Following an order of deportation a passport or

5

other travel document must be procured for the alien in order for him to enter

the country to which he is to be deported.... If [the INS or State Department]

6

is unsuccessful in such requests [for travel documents], the alien cannot be

deported." It may be readily seen that this is an alarming situation. As one

7

writer stated in a recent article, if Russia or any other country landed a

planeload of aliens in the United States, such country would have every

8

assurance that the aliens could roam the country at will in a very few months.

All the country has to do is refuse to issue passports and the aliens cannot be

9

deported.

10 Id. at 637-38. In considering how to address this problem, the options considered included

II detention, orders of supervision, and "authorizing the Attorney General, within his discretion,

12 to deport an alien to any country which would accept him into its territory." Id. at 638. Thus,

13 the legislative history indicates that Congress, in adding "additional countries of removal" in

14 § 1231(b) and its predecessor, was attempting to provide the executive branch options in case

15 acceptance was not obtained from a person's designated country. Nowhere is it envisioned

16 that Congress established a system that eliminated the need for acceptance from the receiving

17 country.

18

4. No Deference to INS' Proposed Construction

19

The Government's proposed construction of the law is not entitled to deference.

20 When Congress' intent is clear, the Court must give effect to the unambiguously expressed 21 intent, regardless of the agency interpretation. Chevron. U.S.A.. Inc. v. Natural Resources 22 Defense Council. Inc.. 467 U.S. 837,843 (1984). Even if the statute were considered 23 ambiguous, there is no regulation to which the Court could defer that purports to allow

24 Petitioners' removal to a country without a government capable of manifesting acceptance. 25 The INS' litigation position is not entitled to deference. United States v. Trident Seafoods

Corp., 60 F.3d 556, 559 (9th Cir. 1995). Moreover, the agency's own operating instructions 26

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 17

1 and regulations support Petitioners' construction. INS Operating Instruction 243.l(c)(I) 2 states that "deportation cannot be effected until travel documentation has been obtained." 3 Regulations governing detention, removal, and release assume that the government of a 4 country must accept removal. See. e.g., 8 C.F.R. § 241.4(k)(1)(i) (the INS "shall conduct a 5 custody review for an alien ... where the alien's removal, while proper, cannot be 6 accomplished during the period because no country currently will accept the alien.").

7

5. Statutory Construction and International Law

8

Petitioners contend that returning them to Somalia without the prior acceptance of a

9 functioning government subjects individuals to persecution, arbitrary deprivation oflife, and
mr 10 torture or other cruel, inhuman or degrading treatment or punishment. Fitzpatrick Decl.

11 12-14, 17-18. Exposing persons to such human rights abuses, Petitioners contend, violates

12 customary international law and provisions of three multilateral treaties to which the United

States is a signatory: (1) Article 33(1) of the United Nations Convention Relating to the 13
Status of Refugees, 189 V.N.T.S. 137, as incorporated by Protocol Relating to the Status of 14
Refugees, 606 U.N.T.S. 267, 19 U.S.T. 6223; (2) Articles 6 and 7 of the International
15
Covenant on Civil and Political Rights, 999 U.N.T.S. 171; and (3) Article 3 of the
16
International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
17
or Punislunent, 1465 U.N.T.S. 85. Respondents do not dispute that Somalia is a war-torn
18
country, with widespread human rights violations, where perpetrators enjoy complete
19 impunity for their actions. See Fitzpatrick Dec!. -,r 13. Neither do Respondents dispute that

20 returning members of the putative class to Somalia will result in human rights abuses in 21 violation of international law. Rather, Respondents contend that Petitioners have no private

22 right of action under these treaties.

23

Courts generally construe Congressional legislation to avoid violating international

24 law, in accordance with the rule of statutory interpretation announced in Murray v. The 25 Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). See Kim Ho Ma v. Reno, 257 F.3d

26 1095, 1114 (9th Cir. 2(01). While Petitioners may not directly invoke rights under non-self-

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS· J8

I executing treaties, or challenge statutes when Congress has clearly abrogated international

2 law, they certainly may argue that the Court should adopt the statutory interpretation that is

3 consistent with international law. Kim Ho Ma, 257 F.3d at 1114. Because Respondents'

4 proposed interpretation of the statute may result in persecution or deprivation of life in

5 violation ofintemationallaw, Petitioners' proposed construction is preferred as it reconciles

6 the statute with the law of nations.

7

In summary, Petitioner's reading of the statute is supported by the structure of the

8 statute, the relevant case law, the legislative history of the precursor statute, international

9 law, and is the only interpretation that would give effect to all sections of the statute.

10

Because Petitioners have made a strong showing of potential for irreparable harm, a

II substantial likelihood of success on the merits of their statutory claim, and because the

12 balance of the hardships tips sharply in Petitioners' favor, the Court finds that a preliminary

injunction should issue.
13
14 C. Permanent Injunction

15

Because the Court reaches the merits of Petitioners' statutory argument, both parties

16 request that the Court declare the injunction to be permanent. The requirements for a

17 permanent injunction mirror those of a preliminary injunction. "The traditional bases for

18 injunctive relief are irreparable injury and inadequacy oflegal remedies." Idaho Watersheds

19 Project v. Hahn, 307 r.3d 815,833 (9th Cir. 2002) citing Amoco Prod. Co. v. Village of

20 Gimbell, 480 U.S. 531, 542 (1987). "In issuing an injunction, the court must balance the
equities between the parties and give due regard to the public interest." Id. As stated above, 21
the Court found that Petitioners demonstrated potential for irreparable injury and that the 22
balance of hardships tipped sharply in their favor. These findings are directly applicable to 23
the permanent injunction standard. There being no outstanding issue of law on which the 24
parties wish to be heard, the Court concludes that the Petitioners have demonstrated that the 25

26

ORDER GRANTING INJU:-.ICTION AND CERTIFYING CLASS - 19

1 injunction prohibiting the government from removing persons to Somalia should be

2 permanent.

3

III. Class Certification

4 A.
5

Class Action Jurisdiction
The INS argues that § 1252(£)(1) of the INA prohibits this Court from enjoining INS

6 action on a classwide basis. That section states:

7
(f) Limit On Injunctive Relief-
8

9

(I) In general - Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the

Supreme Court) shall have jurisdiction or authority to enjoin or restrain the

10

operation of the rrovision of part IV of this subchapter [which comprises

8 V.S.c. §§ 122 -1231J, as amended b~ the Illegal Immigration Reform and

11

Immigrant Responsibility Act of 1996 LIIRIRA], other than with respect to the

application of such proVisions to an individual alien against whom proceedings

12

under such part have been initiated.

13 8 U.S.c. § 1252(£)(1)
14
Petitioners argue, however, that they do not seek to enjoin the "operation" of 15
§ 1231 (b), but rather seck to enjoin violations of that statute. In other words, because 16
Petitioners allege that the INS is violating its own statute, classwide injunctive relief is not
17 prohibited by § 1252(1)(1). This argument has been accepted by at least two other courts.
18 Grimaldo v. Reno, 187 F.R.D. 643, 648 (D. Colo. 1999) (holding that class action alleging

19 constitutional violations by the INS in the administration of § 1226 was not barred by

20 § 1252(£)(1»; Tefel v. Reno, 972 F. Supp. 608, 618 (S.D. Fla. 1997) (allowing putative class

21 action seeking proper implementation of the INA), vacated on other grounds, 180 FJd 1286

22 (11th Cir. 1999). This Court agrees with the rationale in those cases. Petitioners do not seek

23 to enjoin the legal operation of § 1231 (b); instead, they seek to enjoin violations of the statute

24 and to ensure that the provision is properly implemented. Because Petitioners have shown a

25 substantial likelihood of success on the merits of their claim that the INS is acting in

26 violation of § 1231 (b), a class action is appropriate here.

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS· 20

IB. "Next Friend" Standing

2

Respondents argue that the individual Petitioners must demonstrate "next friend"

3 standing to litigate on behalf of the putative class. A writ of habeas corpus must be "signed 4 and verified by the person for whose relief it is intended or by someone acting in his behalf." 5 8 U.S.C. § 2242 (emphasis added). Courts have recognized two methods by which persons 6 may file petitions on behalf of another: "next friend" petitions and class actions. A non-party

7 to a suit may act as a "next friend" on behalf of a person in custody. Whitmore v. Arkansas, 8 495 U.S. 149, 163 (1990). "Next friends" must show: (I) the person seeking relief is unable 9 to litigate his or her own cause due to mental incapacity, lack of access to court, or some

other disability; and (2) that the next friend has some significant relationship with, and is 10
truly dedicated to the best interests of, the person seeking relief. Coalition of Clergy. 11
Lawyers. and Professors v. Bush, 310 F.3d 1153, 1159-60 (9th Cir. 2002). Courts have also 12
recognized habeas class actions, where parties to the suit act on behalf of others similarly 13
situated. See United States Parole Commission v. Geraghtv, 445 U.S. 388, 392 (1979); Mead 14
v. Parker, 464 F.2d 1108, 1112 (9th Cir. 1972).
15 Respondents contend that the individual Petitioners may not litigate on behalf of the
16
putative class members because they do not have next friend standing. This argument is 17
unpersuasive. Next friend status is a question of standing raised under the Article III case or 18
controversy requirement when non-parties attempt to litigate in habeas on behalf on another.
19 Whitmore, 495 U.S. at 164. Here there is no question that Petitioners meet standing
20 requirements because they are parties to the suit. Accordingly, courts that recognize habeas
21 classes do not investigate next friend standing. See, e.g., Nguyen Da Yen, 528 F.2d at 1203;

22 United States ex reI. Scm v. Preiser, 506 F.2d 1115, 1126 (2d Cir. 1974), cert. denied, 421 23 U.S. 921 (1975). This Court is unaware of any habeas class action where the issue of next

24 friend standing arises. and Respondents point to none. The requirements of Fed. R. Civ. P.

25 23, not the doctrine of next friend standing, sufficiently address whether the individual 26 Petitioners and their attorneys are appropriate class representatives. In fact, through their

ORDER GRANTING INJUNCTION AND CERTIFYING CLAS~·· 21

1 argument for class certification under Rule 23, Petitioners make a strong showing of next 2 friend standing. It appears from the record that the putative class members may not have 3 access to the court due to frequent transfer and lack of access to counseL In meeting Rule 23 4 requirements, Petitioners have also demonstrated that they have some significant relationship 5 with, and are truly dedicated to, the best interests of the putative class members.

6 C. Personal Jurisdiction

7

The Government contends that Petitioners do not have personal jurisdiction over the

8 proper respondents for a habeas action because the Court cannot reach the INS District

9 Director of each region where the putative class members are held. Petitioners argue that the

10 Attorney General and the Acting Commissioner of the INS are the appropriate respondents in

11 this action.

12

Courts may grant a writ of habeas corpus "within their respective jurisdictions." 28

13 U.S.C. § 2241 (a). The writ is directed to "the person having custody of the person detained."

14 Fed. R. Civ. P. 81(a)(2). If the Court determines that some appropriate custodian of the

15 petitioner resides within the state, the Court has personal jurisdiction over the petitioner

16 regardless of where he or she is actually detained. Braden v. 30th Judicial Circuit Court,

410 U.S. 484, 494-95 (1973). Generally, courts construe the tenn "custodian" to mean "the 17
person having day-to-day control over the prisoner," because this person is individual who 18
can "produce ... thc body of the person detained." Brittingham v. United States, 982 F.2d 19
378,379 (9th Cir. 1992); 28 U.S.C. § 2243. 20
Although the warden of the place of detention is usually the custodian for purposes of 21
habeas, the law is unsettled on who the proper custodian is in immigration habeas petitions. 22
Vasquez v. Reno, 233 F.3d 688, 691-92 (1st Cir. 2000); Santiago v. INS, 134 F. Supp. 2d 23
1102, 11 03 (N .D. Cal. 2001) (,The proper respondent in a habeas case brought by an alien in 24
INS custody has not been addressed by the Ninth Circuit.") Nonetheless, case law and 25
attorney practice suggests that the INS District Director where the petitioner is held is
26

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 22

1 generally the custodian, although the Attorney General or INS Commissioner may be 2 custodians in extraordinary circumstances. Henderson v. INS, 157 F.3d 106, 122-23 (2d Cir. 3 1998); Santiago, 134 F. Supp. 2d at 1103; but see Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 4 1994) (warden, not District Director, is custodian, because otherwise "the Attorney General 5 of the United States could be considered the custodian of every alien ... because she controls 6 the district directors.").

7

The rules of habeas corpus are not so inflexible as to negate considerations of

8 practicality and necessity, understandably so considering the important issues ofliberty at

9 stake. Accordingly, it may be appropriate to treat higher-level officials such as the Attorney

General and INS Commissioner as the custodian when: (I) a higher-level official was 10
personally involved in the detention decision, Padilla v. Rumsfeld, _ F. Supp. 2d _,2002 11
WL 31718308 *14 (S.D.N.Y. 2002); (2) Petitioners are held in an undisclosed location or
12
otherwise unidentified, Nguyen Da Yen v. Kissinger, 70 F.R.D. 656,661 (N.D. Cal. 1976); 13
Demjanjuk v. Meese, 784 F.2d 1114, 1116 (D.C. Cir. 1986); or (3) Petitioners have been
14
transferred between districts or from one site to another, Mojica v. Reno, 970 F. Supp. 130,
15 166-67 (E.D.N.Y. 1997).
16 The Attorney General and INS Commissioner, over whom this Court has personal
17
jurisdiction, are appropriate respondents in this case. As a class action challenging the
18
Attorney General's statutory authority to remove a large number of unidentified Somalis
19 around the country, this is an exceptional case. It is undisputed that Petitioners are
20 transferred from district to district, sometimes even when there are pending habeas petitions.

21 The exact location and identity of Petitioners is unknown. Until the day before this hearing,

22 when the Government disclosed the basic information of the number of Somalis currently

23 detained in each city, the Government has refused to disclose even the place of detention of

24 the putative class members. Finally, there is evidence that the roundup and removal of

25 Somalis is directed not at the district level, but higher in the governmental bureaucracy.

26

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS· 23

1 Venturella Dep. at 9-11, 20-21, 29-30. Therefore, it is appropriate for Petitioners to name the 2 Attorney General and INS Commissioner as Respondent in this matter.

3 D. A Nationwide Class is Appropriate

4

Nationwide class actions are not favored because they may impinge on the authority of

5 other courts and unnecessarily strain the docket where the class action originates. Califano v.

6 Yamasaki, 442 U.S. 682,702 (1979). Accordingly, a court should take "care to ensure that

7 nationwide relief is indeed appropriate in the case before it, and that certification of such a

8 class would not improperly interfere with the litigation of similar issues in other judicial

9 districts." Id. In fact, "[c]lass relief is particularly appropriate when the issues involved are

10 common to the class as a whole and when they tum on questions of law applicable in the

11 same manner to each member of the class." Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 12 147, 154 (1982) (internal quotation marks omitted).

13

After careful deliberation, the Court finds that a nationwide class is particularly

14 appropriate in the instant case. First, the INS is uniformly applying the statutory

15 interpretation at issue to all class members. Thus, rather than straining multiple court dockets

16 with a flood of identical habeas petitions, it is judicially economical to hear the case in one

17 court. Second, a nationwide class addresses the problem of interstate transportation of
individuals subject to final orders of removal and the corresponding difficulty in obtaining 18
counsel. Additionally, the Court notes that the redefinition of the class excluding pending
19
cases in other jurisdictions obviates concerns about impinging on other courts. Therefore, it 20
is appropriate that the class action is nationwide in scope.
21
Preliminary Considerations Are Met
22

23

Before determining whether a petitioner has met the prerequisites of Rule 23(a), the

Court must ascertain whether a defined class exists and whether the named class
24

representatives are members of the class. Bower v. Bunker Hill Co., 114 F.R.D. 587, 59125
592 (E.D. Wash. 1986). The Petitioners' class, as redefined by the Court, includes: 26

ORDER GRANTING INJU'lCTION AND CERTIFYING CLASS - 24

1

"[a]ll persons in the United States who are subject to orders of removal,

expedited removal, deportation or exclusion to Somalia that are either [mal or

2

that one or more Respondents believe to be final, excluding any person with a

habeas petition pendmg, or on appeal, raising the issue of unlawful removal to

3

Somalia under 8 U.S.c. § 1231(b).

4 In the instant action, it is clear that a defined class exists of more than 2,700 individuals who 5 are subject to final orders of removal. See 2nd Venturella Decl. at'1l4. Further, Respondents 6 concede that the named Petitioners are subject to fmal orders of removal, and thus members 7 of the class. See Respondents' Return at 7-12. The Court finds that the preliminary 8 considerations are met.

9 F. 10 11 12 13 14

Petitioners have fulfilled Rule 23(a) Prerequisites
Federal Rule of Civil Procedure 23(a) provides in part that:
One or more members of a class may sue. .. as representative parties on behalf of all only if (1) the class is so numerous that joinder of all parties is impracticable, (2) there are questions oflaw or fact common to the class, (3) the claims ... of the representative parties are typical of the claims ... of the class, (4) the representative parties will fairly and adequately protect the interests of the class.

15 Petitioners have met all prerequisites.
16 1. Numerosity
17 In order to meet the first element of23(a), Petitioners must show that the class is so
18 numerous that joinder is impractical. "[IJmpracticability does not mean impossibility, but
19
only the difficulty or inconvenience ofjoining all members of the class." Harris v. Palm 20
Springs Alpine Est., Inc., 329 F2d 909, 913-14 (9th Cir. 1964), citing, Advert. Specialty Nat. 21
Assn. v. FTC, 238 F.2d 108, 119 (1st Cir. 1956). Further, the Court does not need to know 22 the exact size of the putative class, "so long as general knowledge and common sense
23 indicate that it is large." Perez-Funez v. INS, 611 F.Supp. 990, 995 (C.D. Cal. 1984).
24 Finally, '''where the class includes unnamed, unknown future members, joinder of such
25 unknown individuals is impracticable and the numerosity requirement is therefore met,'
26 regardless of class size." Natl. Assn. of Radiation Survivors v. Walters, III F.R.D. 595, 599

ORDER GRANTING INHlNCTION AND CERTIFYING CLASS - 25

1 (N.D. Cal. 1986), citing, IntI. Molders' and Allied Workers' Local Union No. 164 v. Nelson, 2 102 F.R.D. 661, 667 (N.D. Cal. 1983).

3

The Court finds that numerosity is clearly met. At least 2,700 unnamed Somalis

4 dispersed throughout unknown judicial districts are subject to final orders of removal. For

5 the purposes of a habeas petition, as long as an individual is subject to a fmal order of

6 deportation, the individual "is deemed to be 'in custody' for the purposes of the INA, and

7 therefore may petition a district court for habeas review of that deportation order."

8 Nakaranurack v. United States, 68 F.3d 290,293 (9th Cir. 1995). See also Miranda v. Reno,

9 238 F.3d 1156.1158-59 (9th Cir. 2001), cert. denied, 122 S.Ct. 541 (2001); Williams v. INS,

10 795 F.2d 738, n. 3 (9th Cir. 1983) (Ninth Circuit has incorporated the broad construction of

the term 'in custody' found in the penal context into immigration law). Therefore, given the
11
large number of individuals, the vast number of whom are unknown, joinder is more than 12
impracticable, it's impossible. Numerosity is met.
13
2. Commonality 14

15

Rule 23(a) requires "that there are questions oflaw or fact common to the class."

16 Even if there are factual differences between class members, as long as '''issues ... common

to the class as a whole' [ 1exist and 'tum on questions oflaw applicable in the same marmer
17
to each member of the class,'" commonality is established. Von Colin v. County of Ventura, 18
189 F.R.D. 583,590 (C.D. Cal. 1999), citing, Califano, 442 U.S. at 700-701. See also 19
Forbush v. J.c. Penney Co.. Inc., 994 F.2d 1101, 1106 (5th Cir. 1993) ("the interests ... of
20 the various plaintiffs need not be identical ... the commonality test is met when there is at
21 least one issue whose resolution will affect all or a significant number of the putative class
22 members.") (internal quotation marks omitted).
23 Respondents argue that because the class members received their final orders of
24 removal pursuant to a variety of immigration statutes, the factual circumstances underlying
25 the claim differ too much to establish commonality. However, why or how Petitioners
26

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS· 26

1 received their tlnal orders of removal is irrelevant, as Petitioners are not contesting the 2 removal orders. Rather, Petitioners contest INS' statutory interpretation regarding whether or 3 not it can remove individuals to a country lacking a government with the ability to officially 4 accept deportees. The question at the center of the case is a discrete statutory issue identical 5 to all members of the class; the validity of the orders of the removal are outside the scope of 6 the issue. Commonality is met.

7

3. Typicality

8

To establish typicality, "a class representative must be part of the class and possess the

9 same interest and suffer the same injury as the class members." Gen. Tel. Co. of the S.W.,

10 457 U.S. at 154. Typicality is required in order to ensure that the named Petitioners'

II experiences do not markedly diverge from those of class members. Von CoUn, 189 F.R.D. at 12 591. However, much like commonality, even if class members are not identically situated,

13 typicality is not defeated if there are legal questions common to all class members. Harris,

329 F.2d at 914. See also, Smith v. U. of Wash. Law Sch., 2 F.Supp. 2d 1324, 1342 (W.D. 14
Wash. 1998) ("When it is alleged that the same unlawful conduct was directed at or affected
15 both the named plaintiff and the class sought to be represented ... typicality ... is usually
16 satisfied, irrespective of varying fact patterns which underlie individual claims.").
17 Additionally, commonality and typicality often merge. Gen. Tel. Co. of the S.W., 457 U.S. at
18 n.3.
19 Respondents' typicality arguments mirror their commonality position. Respondents
20 claim that the named Petitioners do not have standing to bring claims on behalf of unnamed
21 members because class members received final removal orders pursuant to a variety of
22 immigration statutes. However, given that Petitioners do not dispute their final removal
23 orders, it is irrelevant how the removal orders were obtained. All claims are united by a

24 single, discrete legal question. Typicality is met. 25

26

ORDER GRANTING INJUNCTION AND CERTIFYING CLA,S - 27

4. Adequacy of Representation

2

The final prerequisite, adequacy of representation, entails a two pronged analysis.

3 "First, the named representatives must appear able to prosecute the action vigorously through

4 qualified counsel, and second, the representatives must not have antagonistic or conflicting

5 interests with the unnamed members of the class." Lerwill v. Inflight Mot. Pictures. Inc" 582

6 F.2d 507, 512 (9th Cir. 1978). See also Walters v. Reno, 145 F.3d 1032, 1046 (9th Cir.

7 1998).

8

First, Respondents have not contested Perkins Coie's qualifications to vigorously

9 prosecute the action. The COUlt finds that Perkins Coie is qualified. See Pet. Br., Ex. 2,

10 Boeder Decl. Second, because both named and unnamed Petitioners have an identical claim,

II their interests are coextensive, not conflicting. Petitioners are adequate representatives of the 12 class.

Petitioners Can Maintain the Class Action Under Either 23(b)(l)(A) or 23(b)(2)

14

Petitioners have met the prerequisites of Rule 23(a). However, in order to maintain

15 the class action they must demonstrate that they meet at least one subsection of 23(b). Fed.

16 R. Civ. P. 23. Petitioners can maintain a class action pursuant to either 23(b)(l)(A) or

17 23(b)(2).

18

Petitioners may maintain a class action under Rule 23(b)(I)(A) if they show that

19 prosecution of individual actions would risk "inconsistent or varying adjudications with

20 respect to individual members of that class" that could result in "incompatible standards of

21 conduct for the party opposing the class." Fed. R. Civ. P. 23(b)(I)(A). "This danger exists

22 in those situations in which the defendant by reason of the legal relations involved can not as

23 a practical matter pursue two different courses of conduct." Le Mar v. H & B Noveltv &

Loan Co., 489 F.2d 461,466 (9th Cir. 1973).
24

25

Petitioners meet this subelement. Because interpretation of a single statute is at issue,

26 if district courts rule opposite ways, Respondents face upholding diametrically opposing

ORDER GRANTING INJU'ICTION AND CERTIFYING CLASS - 28

1 standards of conduct. INS would have to reconcile an interpretation that was both incorrect 2 and correct at the same time. This is a problem due to the transfer of individuals between

3 judicial districts. INS would face a complex legal and practical situation if it moved an 4 individual from a district wherc removal was barred into one where it was allowed, as 5 diametrically opposing rulings would make it difficult to determine whether the individual 6 was removablc. Given the danger of inconsistent results if the cases are allowed to proceed 7 individually, Petitioners can maintain a class action pursuant to 23(b)(1)(A).

8

Petitioners may also maintain a class action pursuant to 23(b)(2) if Respondents have

9 acted on "grounds generally applicable to the class, thereby making appropriate final

10 injunctive relief or corresponding declaratory relief with respect to the class as a whole."

11 Fed. R. Civ. P. 23(b)(2). "It is sufficient if class members complain of a pattern or practice

12 that is generally applicable to the class as a whole. Even if some class members have not

\3 been injured by the challenged practice, a class may nevertheless be appropriate." Walters,

145 F.3d at 1047. See also Soc'y forindividual Rights, Inc. v. Hampton, 63 F.R.D. 399,401 14
(N.D. Cal. 1973) (uniform application of regulation made relief on class wide basis
15 appropriate under 23(b)(2», aff'd, 528 F.2d 905 (9th Cir. 1975) (per curiam); Rule Advisory
16 Committee Notes to Subdivision (b)(2).
17
It is undisputed that the INS has acted identically toward all class members. The INS 18
has a stated intention to remove all individuals subject to an order of removal to Somalia, 19
whether or not a government exists that is able to accept deportees. Thus, Petitioners 20
challenge the same pattern or practice and face the same injury - illegal removal. Therefore,
21 because Respondents behavior toward class members is uniform and all class members face
22 the same potential injury, class wide relief is appropriate in this case and Petitioners can
23 clearly maintain their action pursuant to 23(b)(2). IT IS ORDERED that Petitioners class, as

24 redefined by the Court, is certified. 25

26

ORDER GRANTING IN] l:NCTION AND CERTIFYING CLASS - 29

1

IV. Zadvydas Claims of the Individual Petitioners

2

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court directed the district

3 courts, in accordance with their authority under the federal habeas corpus statute, to ask

4 whether the detention of a lawfully admitted alien exceeds a period reasonably necessary to

5 secure removal. 533 U.S. at 699-700. Under the statute authorizing detention pending

6 removal, an alien may be held in confinement until it has been determined that there is no 7 significant likelihood of removal in the reasonably foreseeable future. Id. After a 8 presumptively reasonable period of six months, once a petitioner provides good reason to

9 believe that there is no significant likelihood of removal in the reasonably foreseeable future,

the government must respond with evidence sufficient to rebut that showing. Id.
10

11

As noted above, the history of the Zadyydas habeas claims of Petitioners Ali, Aweys,

12 and Hundiye are quite similar. All three were ordered removed in 2001 and detained. Foster

13 Dec!. Exs. L, M, N. All three filed Zadyydas habeas petitions in this district. Id. The INS
did not contest Mr. Ali's or Mr. Hundiye's petitions, and both were released from detention
14
and their petitions were dismissed by stipulation. The INS litigated Mr. Aweys' Zadyydas
15
claim, and this Court granted his habeas petition. These three Petitioners were re-detained by 16
the INS in November 2002 in expectation of their imminent removal to Somalia, the
17
government having arranged a mght to that country. There are no allegations that Petitioners
18
violated the conditions of their release. The only fact that apparently changed was the INS'
19 arrangement of a flight to Somalia.
20 Given this Court's holding that Petitioners' removal to Somalia would violate 8
21
U.S.C. § 1231(b), and with no evidence to suggest that conditions in Somalia are likely to 22 change in the near future, the Court fmds that there is no significant likelihood of Petitioners'
23 removal in the reasonably foreseeable future. Indeed, Petitioners have already litigated this

24 matter, and the COUI1 finds no rational reason to require them to continue in detention waiting 25 for another six months to run. While a violation of the conditions of release could justify a

26 return to custody, Zadyydas, 533 U.S. at 701, the fact that the Attorney General planned to

ORDER GRANTING INJUNCTION AND CERTIFYING CLASS - 30

1 remove Petitioners in violation of statute does not initiate another six month period of 2 detention. The COUli GRANTS Petitioners Ali, Aweys, and Hundiye's habeas petitions and 3 ORDERS that they he released within two business days after entry of this order on 4 conditions set by the INS, which may include those set forth in 8 C.F.R. § 241.5(a).

5

Mr. Mohamud, however, is differently situated than the other individual Petitioners.

6 He has a prior-filed pending habeas petition in this District before the Honorable Barbara J.

7 Rothstein. He has not withdrawn his habeas in pursing this class action. Because his carlier-

8 filed petition has been fully briefed and is appropriately before Judge Rothstein, the Court

9 will refrain from ruling on Mr. Mohamud's claims.

10

CONCLUSION

11

The Court concludes that a permanent injunction and class action certification are

12 necessary to protect the individuals and the rule of law they seek to enforce. The position of

13 the Government that no acceptance is necessary before human beings can be dropped into a

14 lawless state is contrary to the statute. The statute's construction, legislative history,

15 compatibility with international treaties, and developing interpretation do not support the

16 Government's position.

17

The use of a class action is necessary to litigate the common legal issues for a large

18 number of Somalis. The class action vehicle is necessary to open the doors of the courthouse

19 for a large number of Somalis whose identity and location the Government refuses to reveal.

20 A permanent injunction shall issue on behalf of the class. The individual Petitioners Ali,

Hundiye, and Aweys shall be released pursuant to this Court's order. 21

22

The Clerk is directed to send copies of this order to all counsel of record.

23

/7 Dated this

day of January, 2003.

24

25 Marsha J. Pee

26

United States District Judge

ORDER GRANT1NG IN.11 INCTION AND CERTIFY1NG CLASS - 31

 
 1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 YUSUF ALI ALI, Petitioner,
8 v.
9
10 JOHN D. ASHCROFT, Respondent.
11

No. C02-2304P

ORDER ON MOTION FOR

RELEASE FROM INDEFINITE

DETENTION BY CLASS

MEMBER

AWAD GARAD

12

Petitioner is a native and citizen of Somalia who is being detained by U.S.

13 Immigration and Customs Enforcement (“ICE”) pursuant to a final order of removal to that country.
14 On July 30, 2004, he filed a Petition for Writ of Habeas Corpus under 28 U.S.C. §2241, in the
15

District Court of Oregon. This writ challenged, inter alia, the constitutional and statutory authority 16

17 of ICE to detain him any further, due to the unlikelihood of his removal from this country in the

18 reasonably foreseeable future.

19

In an August 23, 2004, hearing before Judge Panner of the District Court of Oregon the writ

20 was denied and that court found that Petitioner was not a member of the class established by this

21 Court’s January 17, 2003 Order (Dkt. #44) because the Petitioner desired to return to Somaliland.
22 To avoid any possible legal hurdles that would hinder Mr. Garad’s expeditious removal, counsel for
23 Petitioner filed an unopposed motion before this Court to exclude Mr. Garad from the class. (Dkt.
24 No. 89). Petitioner’s decision not to oppose deportation was based on representations by U.S.
25 Attorney Kenneth C. Bauman that ICE had obtained a Somali passport for Petitioner and could
26
ORDER FOR RELEASE FROM INDEFINITE DETENTION - 1

1 effectuate the removal expeditiously and without transit through the city of Mogadishu, where

2 Petitioner fears for his life.

3

This Court granted oral argument on this motion for September 30, 2004. Mr. Garad’s

4 counsel informed the Court that her client had recently been transferred from custody in Oregon to
5 the Northwest Detention Center in Tacoma, Washington, thus falling within the jurisdiction of this
6

Court. At this hearing counsel for the Petitioner represented to the Court that she had recently 7

8 received information from U.S. Attorney Greg Mack that ICE could not effectuate Mr. Garad’s

9 removal as expeditiously or as securely as the Government had previously represented in the

10 proceedings before Judge Panner. Additionally, when questioned by the Court about the origins of

11 the Mr. Garad’s Somali “passport,” Mr. Mack could not provide the Court with a satisfactory answer

12 about what governmental authority in Somalia or Somaliland was responsible for the issuance of this
13 document to ICE on Mr. Garad’s behalf. The Court granted Respondents thirty (30) days to provide
14 the Court with this information. However, the affidavits of Leonard Kovensky that the government
15 submitted in response to the Court’s query do not answer this question, and instead merely state that,
16 “[t]he passport was issued in Mogadishu on May 22, 2004.” (Kovensky Decl. 1, ¶13, Kovensky
17
18 Decl. 2, ¶12).

19

On the basis of this new information, Petitioner withdrew his motion for exclusion from the

20 class at the September 30 hearing and filed the instant motion for release from indefinite detention

21 before this Court. Citing changed circumstances, Judge Panner vacated his previous Order on
22 November 5, 2004 and transferred the case to this Court for proceedings. Accordingly, this Court
23 GRANTS Petitioner’s Motion for Release from Indefinite Detention under Zadvydas v. Davis, 533
24 U.S. 678 (2001), and imposes conditions of release in accord with 8 C.F.R. § 241.5.
25

26
ORDER FOR RELEASE FROM INDEFINITE DETENTION - 2

1

BACKGROUND

2

Petitioner was born in Mogadishu, Somalia on July 1, 1964. On August 29, 1997, Petitioner

3 was admitted to the United States in New York City on a B-2 visa as a visitor for pleasure. On
4 September 12 of that year Mr. Garad filed an Application for Asylum and Witholding of Removal,
5 Form I-589, with the Asylum Office in San Francisco, CA.
6
Mr. Garad was convicted of Attempted Sexual Abuse in the First Degree on July 10, 2000, 7

8 and served approximately four years and ten months in the custody of the State of Oregon. During

9 this custody, the Immigration and Naturalization Service (now ICE) issued a notice to appear and

10 placed Mr. Garad in removal proceedings. They also placed a detainer on Mr. Garad. Accordingly,

11 upon Petitioner’s release from Oregon State custody, he was transferred to ICE custody. On April

12 21, 2004, Mr. Garad appeared before an Immigration Judge and withdrew his application for asylum.

13 The Judge entered a final order of removal. Petitioner has been in ICE custody since that time.

14
15 A. Release
16

DISCUSSION

On July 9, 1999, this court, in a Joint Order involving five cases, ruled that indefinite 17

18 detention violated substantive due process. See Phan v. Reno, 56 F. Supp. 2d 1149 (W.D. Wash.

19 1999). The Ninth circuit Court of Appeals in Ma v. Reno, 208 F. 3d 815 (9th Cir. 2000) affirmed the

20 Joint Order, but on different grounds. The court determined that the Immigration and Naturalization

21 Service lacked the statutory authority to detain deportable aliens beyond a ninety (90) day removal
22 period if there was no reasonable likelihood of removal in the foreseeable future.
23 In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court affirmed Ma’s
24 general holding that indefinite detention is unauthorized. The Court stated that “in light of the
25 Constitution’s demands, . . .an alien’s post-removal-period detention [is limited] to a period
26
ORDER FOR RELEASE FROM INDEFINITE DETENTION - 3

1 reasonably necessary to bring about the alien’s removal from the United States.” Zadvydas, 533 U.S.

2 at 689. The Supreme Court then adopted a “presumptively reasonable period of detention” of six
3 months. Id. at 701. 4
The Court stated that a “habeas court must [first] ask whether the detention in question 5
exceeds a period reasonably necessary to secure removal.” Id. In the case at hand, Mr. Garad has 6
been in ICE custody since April 21, 2004–longer than the six month presumptive period adopted in 7
8 Zadvydas. If a petitioner’s removal is not reasonably foreseeable, “the court should hold continued
9 detention unreasonable and no longer authorized by statute.” Id. The Court noted, however, that a

10 habeas court should “listen with care” when the Executive’s foreign policy decisions are at issue, and

11 should give “appropriate leeway when its judgment rests upon foreign policy issues.” Id at 700.

12

This Court’s January 17, 2003 Order creates a permanent injunction that prevents the

13 government from removing any Somali citizen to Somalia, or any area formerly encompassed by
14 Somalia, until there is a recognized government that can accept the individual. In the instant case,
15 Petitioner argues that ICE cannot predict with certainty any time in the future that petitioner will be
16
removed to Somalia lawfully. The government has not been able to provide consistent time frames 17

18 for and assurances of secure travel, nor has the political landscape changed to create a government in

19 Somalia that can accept petitioner. Counsel for ICE argues that the issue of whether a recognized

20 government must exist to accept a deportee from the U.S. has just been argued before the Supreme

21 Court in Keyse v. Jama, argued October 12, 2004. Neither Respondents nor this Court know when
22 the Supreme Court is likely to hand down such a decision, nor do we know what the result of that
23 decision might be.
24 As Petitioner points out in his motion, the law of the Ninth Circuit mandates that ICE, as well
25 as the Federal Courts of this circuit, must follow binding law in this circuit until such time as it is
26
ORDER FOR RELEASE FROM INDEFINITE DETENTION - 4

1 overturned by the Supreme Court. The fact that a case is on appeal does not give any government

2 authority the ability to delay action pending the high court’s decision. Yong v. INS, 208 F. 3d 1116,

3 1119 (9th Cir. 2000). Here, the Ninth circuit has affirmed this Court’s injunction. See Ali Ali v.

4 Ashcroft, 346 F. 3d 873 (9th Cir. 2003). This Court is also bound by Zadvydas. The Court,
5 therefore, must grant Petitioner’s request.
6
B. Conditions of Release 7

8

The Court asked Respondents and Petitioner to prepare briefs regarding conditions of release

9 for Mr. Garad. The Supreme Court in Zadvydas acknowledged Congress’ right to subject deportable

10 aliens who cannot be removed to conditions of supervision. However, these conditions may not serve

11 a punitive purpose–as conditions imposed on an individual’s freedom outside the protections of a

12 criminal trial with full process, they must only be restrictive enough to allow ICE to keep track of a

13 person so that he may be removed should circumstances change to allow removal. Zadvydas, 533
14 U.S. at 690.
15 In light of the fact of Mr. Garad has been assessed as a flight risk, the Court imposes the
16
following conditions of release on Petitioner: 17

18 •

Bi-weekly reporting in person to ICE, as directed by ICE;

19 •

Periodic telephonic call-in to ICE, as directed by ICE;

20 •

Compliance with all local, State, and Federal laws, including compliance with any laws

21

concerning his conviction as a sex offender and any restriction placed on Petitioner’s ability to

22

travel by the state of Oregon, e.g., registration, monitoring, parole or probation requirements;

23 The Court has considered Respondents’ request that Petitioner Garad be required to post
24 bond, as well as Petitioner’s objection the imposition of bond. In Doan v. Immigration and
25
Naturalization Service, the Ninth Circuit observed that the Supreme Court specifically approved of 26

ORDER FOR RELEASE FROM INDEFINITE DETENTION - 5

1 bond as a possible condition of release in Zadvydas. 311 F.3d 1160, 1162 (9th Cir. 2002). The

2 Zadvydas Court cited the attorney general’s regulations concerning release of aliens in detention,
3 including the posting of bond, at 8 CFR §241.5 as appropriate conditions under which an alien may 4
be granted supervised release. 533 U.S. at 696. However, the Doan court cautioned that a bond set 5
so prohibitively high that it effectively prevents an immigration detainee’s release would raise “serious 6
questions.” 311 F. 3d at 1162. Having reviewed the documentation submitted in this case regarding 7
8 Mr. Garad’s financial status, the Court has determined that any bond imposed would effectively
9 prevent Petitioner’s release. Accordingly, this Court finds that Mr. Garad may be released without a

10 requirement that he post bond.

11

12

Dated this 16th day of November, 2004.

13 /s/Marsha J. Pechman___________

14

Marsha J. Pechman

United States District Judge

15

16

17

18

19

20

21

22

23

24

25

26
ORDER FOR RELEASE FROM INDEFINITE DETENTION - 6

 
 k;!O I Case 2:02-cv-02304-MJP Document 18 Filed 12/10/02 Page 1 of 6

=-=- - - LODGI::O

fNffl!£0

-RECEIVED

1

2

OEC f 0 2DDZ

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 YUSUF ALI ALI, et a!.,

8

Petitioners,

9 v.

10 JOHN ASHCROFT, eta!.,

11

Respondents.

No. C02-2304P
ORDER GRANTING PETITIONERS' MOTION FOR TEMPORARY RESTRAINING ORDER

12

13

Petitioners move for a temporary restraining order ("TRO") enjoining the Immigration

14 and Naturalization Service ("INS") from removing Somali natives or nationals in the United

15 States to Somalia. (Dkt. No.9.) On December 9, 2002, the Court heard oral argument and

16 considered briefing submitted by both parties. Having weighed the moving parties'

17 probability of success on the merits and possibility of irreparable injury, the Court GRANTS

18 Petitioners' motion for a TRO. Pending a hearing on the merits, Respondent is ORDERED

19 not to remove the following nationwide class of persons to Somalia: "All persons in the

20 United States who are subject to orders of removal, expedited removal, deportation or

21 exclusion to Somalia that are either final or that one or more of Respondents believe to be

22 final."

23

ANALYSIS

24

In requesting a TRO, Petitioners meet their burden by demonstrating either: (1) a

25 combination of probable success on the merits and the possibility of irreparable injury; or (2)

26 that serious questions are raised and the balance of hardships tips sharply in its favor. Textile

ORDER GRANTING TRO- I

Case 2:02-cv-02304-MJP Document 18 Filed 12/10/02 Page 2 of 6

1 Unlimited. Inc. v. A..BMH Co .. Inc., 240 F.3d 781, 786 (9'h Cir. 2001); Mayo v. United

2 States Gov. Printing Off., 839 F. Supp 697,699 (N.D. Cal. 1992), affd, 9 F.3d 1450 (9'h Cir.

3 1993). These two fonnulations are not separate tests but represent two points on a sliding

4 scale in which the required degree of irreparable harm increases as the probability of success

5 decreases. United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.

6 1987).

7

1. Harm

8

Petitioners have made a strong showing of serious harm, and the Court concludes that

9 the balance of hardships tips sharply in their favor. The Government, by its own submission,

10 demonstrates that Somalia is a war-tom country under strife with no government in control.

ll Some of the Petitioners left Somalia many years ago, have no family there, and plead that

12 they fear significant harm or death on return. Respondents claim that since 9/11 the situation

13 has deteriorated in Somalia, and that terrorists are "indicated to be present" in the country.

14 (Resp. at 3.) The Court considers this to weigh in favor of Petitioners' interest in not being

15 returned to Somalia. There is no dispute that Petitioners' removal to Somalia is imminent.

16 In oral argument, the Government declared that it would not delay removal beyond the date

17 of oral argument on the TRO. Respondents, on the other hand, argue their harm is the

18 inability to deport persons with a final order of removal and the expense of detaining these

19 persons. The balance of harms strongly weighs in Petitioners' favor.

20

2. Merits

21

Although there is no clear precedent from the Ninth Circuit on this precise issue,

22 courts that have considered the matter credit Petitioners' arguments. The single case directly

23 addressing this issue on the merits ruled that under the controlling statute, 8 U.S.C. §

24 1231 (b), the United States cannot remove a petitioner to a country whose government does

25 not agree to accept him or her. Jama v. INS, No. 01-1172, 2002 WL 507046 *6-7 (D. Minn.

26 filed March 31, 2002) (Petitioner not to be removed to Somalia without acceptance by

ORDER GRANTING TRO- 2

Case 2:02-cv-02304-MJP Document 18 Filed 12/10/02 Page 3 of 6

Somali government.). The Jama decision strongly supports Petitioners' argument that they

2 will prevail on the merits of the statutory claim. Furthermore, two Louisiana Courts have

3 recently issued TRO's enjoining the removal of individual Somalis to Somalia. Mohamed v.

4 Ashcroft, No. 02-2484 (W.O. La. filed Dec. 3, 2002); Ghelle v. Ashcroft, No. 02-3478 (E.D.

5 La. filed Nov. 27, 2002). This Court previously issued a TRO on the individual Petitioners'

6 motion. (Dkt. No.5.) Having heard oral argument and reviewed the submissions of both

7 parties, this Court concludes that Petitioners have demonstrated a strong likelihood of

8 success on the merits. Below the Court briefly addresses the specific arguments advanced by

9 Respondent.

10

A. Jurisdiction

II

The Government argues that§ 1252(t)(l) of the Irmnigration and Nationality Act

12 ("INA"), 8 U.S.C. § 1101 et seq., prohibits this Court from enjoining INS action on a class-

13 wide basis. That section states:

14

(t) Limit On Injunctive Relief-

15

(1) In general - Regardless of the nature of the action or claim or of the

identity of the party or parties bringing the action, no court (other than the

16

Supreme Court) shall have jurisdiction or authority to enjoin or restrain the

operation fo the provision of part IV of this subchapter [which comprises 8

17

U.S.C. §§ 1221-1231], as amended by the Illegal Immigration Reform and

Irmnigrant Responsibility Act of 1996 [IIRIRA], other than with respect to the

18

application of such provisions to an individual alien against whom proceedings

under such part have been initiated.

19
8 u.s.c. § l252(t)(l).

20

Petitioners argue, however, that they do not seek to enjoin the "operation" of l23l(b),

21

but rather seek to enjoin violations of that statute. In other words, when Petitioners allege

22

that the INS is violating its own statute, injunctive relief is not prohibited by§ l252(t)(l ).

23

This argument has been accepted by at least two other courts. Grimaldo v. Reno, 187 F.R.D.

24

643, 648 (D. Colo. 1999) (holding that class action alleging constitutional violations by the

25

INS in the administration of§ 1226 was not barred by§ 1252(t)(l)); Tefel v. Reno, 972 F.

26

Supp. 608, 618 (S.D. Fla. 1997) (allowing putative class action seeking proper

ORDER GRANTING TRO · 3

Case 2:02-cv-02304-MJP Document 18 Filed 12/10/02 Page 4 of 6

1 implementation of the INA), vacated on other grounds, 180 F .3d 1286 (II th Cir. 1999). This

2 Court agrees with the rationale explained in those cases. Petitioners do not seek to enjoin the

3 legal operation of 123l(b); instead, they seek to ensure that the provision is properly

4 implemented. Because the Petitioners have demonstrated a likelihood of success on the

5 merits of showing that the INS has improperly or illegally implemented§ 123l(b), this Court

6 finds that 1252(f)(l) stands as no bar to class-wide relief.

7

Similarly, the Government argues that this Court has no jurisdiction to hear this case

8 based on § 1252(g). That section states:

9

(g) Exclusive jurisdiction

10

Except as provided in this section and notwithstanding any other

provision of law, no court shall have jurisdiction to hear any cause or claim on

11

behalf of any alien arising from the decision or action by the Attorney General

to commence proceedings, adjudicate cases, or execute removal orders against

12

any alien under this chapter.

13 8 u.s.c. § 1252(g).

14

This provision has been significantly narrowed by the Supreme Court. The Court has

15 held that§ 1252(g) is limited to three discrete, discretionary actions that the Attorney General

16 may take: "her 'decision or action' to 'commence proceedings, adjudicate cases, or execute

17 removal orders."' Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,482

18 (1999). Petitioners here do not challenge the Attorney General's discretionary decision to

19 execute their removal; rather they challenge the legality of removal to Somalia, a country that

20 has no government to accept Petitioners for removal. Therefore§ 1252(g) stands as no bar to

21 this Court's review of alleged illegal action by the INS. For the same reason, Petitioners'

22 claims are not barred for failing to exhaust administrative remedies - the administrative

23 decision to remove Petitioners to Somalia is not challenged, only the legality under statute of

24 removal to a country with no goverurnent to accept Petitioners. Accordingly, the Court

25 concludes that it has jurisdiction to consider the TRO.

26

ORDER GRANTING TRO · 4

Case 2:02-cv-02304-MJP Document 18 Filed 12/10/02 Page 5 of 6

B. Nationwide Class Certification

2

Petitioners have demonstrated a strong likelihood of prevailing on certification of a

3 nationwide class. Courts may certify nationwide habeas and declaratory classes. Nguyen Da

4 Yen v. Kissinger, 528 F.2d 1194, 1203 (9th Cir. 1975); Perez-Funez v. INS, 611 F. Supp. 990,

5 1000 (C.D. Cal. 1984) (quoting Califano v. Yamasaki, 442 U.S. 682 (1979)). Courts have

6 not required petitioners to show next-friend standing in habeas and declaratory classes.

7 Nguyen Da Yen, 528 F.2d at 1203; United States ex rei. Sero v. Preiser, 506 F.2d 1115, 1126

8 (2d Cir. 1974), cert. denied, 421 U.S. 921 (1975). Because the named Petitioners have

9 individual standing, Fed. R. Civ. P. 23 addresses whether the named Petitioners are

10 appropriate class representatives, and the next-friend issue does not arise. It is appropriate

11 for the Court to rule on a TRO before certifying the class. Nguyen Da Yen, 528 F.2d at

12 1203-4. Apart from the jurisdictional arguments above, Respondents do not contest the

13 Court's authority to certify a nationwide declaratory class, and such a class may be

14 particularly appropriate when a discrete matter of federal law is at issue.

15

A nationwide habeas class, however, may be maintained only in a much more narrow

16 set of circumstances, because the proper respondent is generally the director of the detention

17 facility where a petitioner is held. Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-

18 95 (1973); but see Henderson v. INS, 157 F.3d 106, 128 (2d Cir. 1998), cert. denied sub

19 nom., Reno v. Navas, 526 U.S. 1004 (1999) ("the question of whether the Attorney General

20 is an appropriate respondent in habeas corpus petitions brought by aliens is one that evokes

21 powerful arguments on each side ... Accordingly, its resolution should be avoided unless

22 and until it is manifestly needed to decide a real case in controversy."). A nationwide habeas

23 class with the Attorney General as respondent is appropriate when the location of the

24 putative class members is unclear. Nguyen Da Yen, 523 F.2d at 1204; see Demjanjuk v.

25 Meese, 784 F.2d 1114, 1116 (D.C. Cir. 1986). A broad habeas class may also be appropriate

26 if class members have been transferred out of the district. See Ex parte Mitsuye Endo, 323

ORDER GRANTING TRO- 5

Case 2:02-cv-02304-MJP Document 18 Filed 12/10/02 Page 6 of 6

1 U.S. 283, 304-7 (1944); Nwankwo v. Reno, 828 F. Supp. 171, 174-75 (E.D.N.Y. 1993).

2 Despite Petitioners' Freedom oflnformation Act ("FOIA") request, and Court's questions to

3 Respondents during oral argument, the INS has not disclosed the location of putative class

4 members. Accordingly, both nationwide habeas and declaratory classes appear appropriate at

5 this juncture.

6

CONCLUSION

7

The Petitioners have raised a matter of grave importance. Because the matter was

8 brought as a TRO, and the Government was willing to delay removal of the Somali

9 Petitioners for only a short time pending the TRO, the matter was hurriedly considered. The

10 Court requires more time and full briefing to properly consider the merits of the action.

11 Given Petitioners' showing on both harm and merits, the Court has no choice but to issue a

12 TRO and schedule a prompt full hearing on the matter. By agreement, the parties will submit

13 briefs to the Court for consideration of the merits of a preliminary injunction on the

14 following dates: Respondents are to submit a Response by December 16. 2002; Petitioners

15 may file their Opposition by January 10. 2003. The Court will hear oral argument at 9 a.m.

16 on January 14. 2003.

17

The Clerk is directed to send copies of this order to all counsel of record.

18

Dated this_/..!!_ day of December, 2002.

19 20

~~

21

United States District Judge

22

23

24

25

26

ORDER GRANTING TRO · 6

 
 Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 1 of 10

111111111111111111111111111111111111111111111111111111111111
111111111111111111111111111111111111111111111
cv 02-02304 uoooooos-

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6

7 YUSUF ALI ALI, et al ,

8

Petitioners,

9 v

10 JOHN D ASHCROFT, et al.,

11

Respondents

12

No. C02-2304P ORDER ON PETITIONERS' MOTION FOR ATTORNEY'S FEES
\

13

Th1s matter comes before the Court on Petltwners' Motion for Attorney's Fees and Costs

14
v15 16
[ 17 18
J 19
~ 20

under the Equal Access to Justice Act ("EAJA"), 28 USC § 2412 (Dkt No 50) Pehtwners are Somah natwnals who moved th1s Court for an order enJmmng the Imrmgratwn and Naturahzatwn Serv1ce ("INS") from deportmg them (and others similarly s1tuated) to Somalia and a declaratiOn that the INS did not have the statutory authonty to do so Th1s Court, by order of January 17, 2003, granted the requested rehef on a class-w1de bas1s, and on request of the parties, made the mJunction permanent The Court also ordered three of the four named Petitioners released pursuant to the Supreme Court's d1rechve m Zadvvdas v Dav1s, 533 US 678 (2001) The Government appealed

21 that declSlon to the Nmth C1rcmt Court of Appeals, and the matter 1s currently pendmg

22

Pehtwners now bnng th1s motwn seekmg an award of attorney's fees and costs as the

23 "prevmlmg party" under the EAJA. The Government to date has not opposed th1s motwn on the

24 ments, but asserts that the mol!on IS not yet timely because of the pendmg appeal The Government

25 therefore argues that an award of fees and costs would be premature. Havmg carefully considered

26 the papers and pleadmg submitted by the part1es, the Court holds that the motwn 1s timely Further,

ORDER ON MOTION FOR FEES AND COSTS - I

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 2 of 10

I because the Government cames the burden of estabhshmg that 1ts hhgatwn pos1t10n was

2 substantiallyJUStified and has chosen not to address the ments of the fee petition, the Court finds the

3 motion unopposed, and GRANTS the petition for an award of fees.

4

BACKGROUND

5

Petitioners move for an award of attorney's fees under the Equal Access to Justice Act, 28

6 U S C § 2412. In support ofthat motwn, petltwners submit an affidaVIt from one of the attorneys

7 workmg on the case, attestmg to the hours worked by the vanous other attorneys and nonattorneys

8 for the petitwners The affidav1t provides the total number of hours worked by each person and a

9 bnef descnption of the 1ssues researched work performed by each attorney The total number of

I0 hours clmmed IS 953 I hours of attorney time and I07 15 hours of paralegal and assistant time At a

II rate of$125 per hour of attorney time, and between $47 and $125 per hour ofparalegal/assJstant

12 lime, the total amount requested 1s $146,873 II

13

Respondents presently defend on only one ground that the request for fees under the EAJA 1s

14 premature Respondents argue that a successful hhgant has a 30-day "wmdow" m wh1ch to file a

15 request for fees, and that that wmdow does not begm until Judgment has become final and IS no

16 longer appealable Therefore, Respondents move th1s Court to dJsmJss the EAJA motion for lack of

17 JunsdJctwn, or m the alternative to hold the motwn m abeyance pendmg appeal Respondents do not

18 make any arguments concernmg 1ts pos1t1on as bemg "substantiallyJUStified," nor do they presently

19 dispute any of the fee clmms. Respondents do, however, request that Jf1ts motion to dismiss the

20 EAJA claim and motwn to hold EAJA motion m abeyance are both demed, that they be afforded

21 more time to respond to the substance of the motwn, c1tmg the need to spend time workmg on the

22 present appeal and "other htJgatwn matters." No competent affidavit was submitted attestmg to

23 what "other htJgatlon matters" were so demandmg of counsel's time

24

Movmg to the pehtwners' motwn, the prec1se 1ssue that the Court must first address 1s to

25 define the time at wh1ch the penod begms that a prevmlmg party may file a motion for fees and costs

26 under the EAJA In other words, the Court must dec1de whether the EAJA estabhshes a fixed

ORDER ON MOTION FOR FEES AND COSTS - 2

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 3 of 10

1 wmdow m wh1ch a preva1hng party must file an apphcahon for fees, or a deadlme by wh1ch the party

2 must file Because the Court determmes that a deadlme 1s estabhshed and that the apphcatton for

3 fees 1s therefore timely, the Court then considers the underlymg cla1m w1th respect to the substantial

4 JUstlficatton 1ssue and the affidavit submitted m support of the apphcatton, and GRANTS the

5 motton

6

ANALYSIS

7

1

T1mehness

8

The EAJA prov1des for an award of attorney's fees m cases htlgated agamst the Federal

9 Government Specifically, the EAJA prov1des.

10

(d)(l)(A) Except as otherw1se spec1ficallyprov1ded by statute, a court shall award to a

preva1hng party other than the Umted States fees and other expenses, m additton to

11

any costs awarded pursuant to subsectton (a), mcurred by that party many c1v1l action

(other than cases soundmg m tort), mcludmg proceedmgs for JUdiCial rev1ew of

12

agency action, brought by or agamst the Umted States m any court havmg JUnsdtctlon

of that action, unless the court finds that the posttlon of the Umted States was

13

substantially JUstified or that spec1al circumstances make an award unJust

14

(B) A party seekmg an award of fees and other expenses shall, wtthm thtrty days of

final mdgrnent m the actton, subm1t to the court an apphcatton for fees and other

15

expenses whtch shows that the party IS a prevathng party and IS ehgtble to rece1ve an

award under thts subsection, and the amount sought, mcludmg an 1tem1zed statement

16

from any attorney or expert w1tness representmg or appeanng m behalf of the party

statmg the actual time expended and the rate at wh1ch fees and other expenses were

17

computed The party shall also allege that the posttton of the Umted States was not

substantially JUstified Whether or not the pos1tton of the Umted States was

18

substantially Justified shall be determmed on the basts of the record (mcludmg the

record wtth respect to the action or fa1lure to act by the agency upon whtch the c1v1l

19

actwn ts based) whtch IS made m the c1vtl achon for whtch fees and other expenses

are sought

20

28 U.S C § 2412 (2002) (emphasis added) "Fmaljudgment" ts defined as "a judgment that ts final

21

and not appealable" IQ_ at§ 2412(d)(2)(G)

22

At first glace, the language "w1thm thtrty days" may appear to 1mply that an apphcatwn for

23

fees must be made dunng a fixed wmdow ofttme begtntlmg when an actton can no longer be

24

appealed- 30 days after Judgment ts entered by a d1stnct court 1f that JUdgment 1s not appealed, or 90

25

days after JUdgment 1s entered by a c1rcutt court tf the Governt11ent does not file for a wnt of

26

certtoran Yet courts that have exammed the legtslatlve history of the act and tts 1985 amendments

ORDER ON MOTION FOR FEES AND COSTS- 3

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 4 of 10

1 have come to the contrary conclusiOn, that the EAJA establishes a dead1me for filing fee requests,

2 not a fixed wmdow dunng wh1ch they must be filed Th1s appears to be an unresolved 1ssue m the

3 Nmth C1rcmt

4

Pnor to the amendments to the act, a c1rcmt split ex1sted as to whether the 30-day deadlme

5 for filing a fee applicatiOn commenced upon a final but appealable order of the d1stnct court,

6 McOmston v Marsh, 707 F 2d 1802 (9th C1r 1983), or not unttl the exp1rat10n of the !lme for appeal

7 or the comple!lon of any appeal taken Mass Umon Public Housmg Tenants v P1erce, 755 F 2d 177

8 (D C. C1r 1985), McDonald v Schwe1ker, 726 F 2d 311 (7th C1r 1983) Congress resolved the

9 d1fference of op1mon by clearly defimng "final JUdgment" as "a Judgment that 1s final and not

10 appealable" Pub.L No 9980, § 2, 99 Stat. 185 (Aug. 5, 1985) In enactmg the amendments,

11 Congress expressly stated 1ts mtent to "rattfy the approach taken by the courts" m McDonald and

12 Mass Umon. Cervantezv Sullivan,739FSupp 517,519(ED.Cal.1990)cltmgHR.Rep No

13 99-120, 99th Cong, 1st Sess, U.S Code Cong & Admm News 1985, at 132.

14

Thus, 1t IS clear that the EAJA establishes a deadline after wh1ch an applicatiOn for fees IS

15 !tme-barred, occumng 30 days after JUdgment 1s entered by a d1stnct court 1fthe actwn IS not

16 appealed, or 90 days after JUdgment IS entered by a c1rcmt court 1f the Government does not file for a

17 wnt of certwran AI Harb1 v INS, 284 F 3d 1080, I084, 1086 (9th C1r. 2002) Yet McDonald also

18 noted that "the 30-day prov1s10n m the Act was meant to establish a deadline, not a startmg pomt"

19 726 F.2d at 314 At least two courts have adopted th1s ratwnale after the amendments took effect

20 Utu Utu Gwattu Pamte Tnbe v DOl, 773 F Supp 1383 (ED. Cal 1991), Cervantez v Sullivan, 739

21 FSupp 517(E.D.Cal 1990)

22

A recent c1rcmt court dec1s10n also sheds light on th1s 1ssue In Adams v SEC, 287 F 3d 183,

23 186-89 (D.C. C1r. 2002), the court mterpreted § 504 of the EAJA, the parallel attorney's fees

24 proVISIOn applicable m admm1strattve proceedmgs, to also establish a "deadlme" for filmg for fees of

25 30 days after an adm1mstra!tve order IS no longer appealable In domg so, the court analogtzed § 504

26 to§ 2412, and found McDonald to be persuas1ve authonty. The court found that havmg a deadline

ORDER ON MOTION FOR FEES AND COSTS - 4

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 5 of 10

I by whiCh the prevmlmg party could file a smgle application for fees would reduce the costs to that

2 party Yet the court acknowledged that

3

Even 1fEAJA may shll allow the filing of two apphcatwns by readmg EAJA's 30-day

penod as not a wmdow for filing, but rather merely as a deadlme for filmg, allowmg

4

the applicant to choose when to file does not disadvantage the government "[G]1vmg

the claimant a chmce whether to ask for fees after he wms m the d1stnct court or after

5

the appeal max1m1zes h1s welfare, at some cost perhaps to the courts but none we can

thmk of to the executive branch "

6

Admns, 287 F 3d at 188 (emphasis m ongmal), c1t1ng McDonald, 726 F 2d at 314-15

7

The Court finds the above rationale persuasive. There IS no disadvantage to allowmg a

8

prevmlmg party to apply for fees along the way, each hme 1t prevmls In general, 1t would appear

9

that allowmg for applicatiOn of fees 1mmedmtely after a d1stnct court Issues 1ts judgment would tend

10

to promote JUdiCial efficiency, smce any fee award or demal thereof could be addressed 1mmed1ately

11

and contemporaneously w1th the ments, 1f even by way of separate appeal. The Court concludes that

12

the EAJA does not create a fixed wmdow dunng wh1ch all fee applications must be filed, but rather a

13

deadlme before wh1ch such applicatiOns must be filed The chmce of whether to file for an award of

14

fees as the case proceeds m the appellate process or to wmt unhl all litigation has ceased should be

15

left to the litigant

16

The Supreme Court's declSlon m Melkonyan v Sullivan, 501 US 89 (1991), and related

17

cases do not compel a d1fferent result Those cases clearly hold that a prevmlmg party may choose to

18

wa1t until the end of the htlgatwn to apply for fees and costs at all levels at wh1ch he or she

19

prevalied Id. at 96 Yet nothmg m those dec1s10ns precludes the prevmhng party from fihng

20

separately at each level as the lihgatlon proceeds A filing deadlme was estabhshed, not a filing

21

wmdow

22

2. "Substantially Jushfied"

23

"[A] court shall award to a prevmlmg party . fees and other expenses . mcurred by that

24

party many c1v1l actwn . brought by or against the Umted States many court havmgJunsd!ctwn

25

of that actwn, unless the court finds that the pos1hon of the Umted States was substantially JUshfied"

26

28 USC § 2412. Although a prevmhng party must allege m 1ts motwn that the Government's

ORDER ON MOTION FOR FEES AND COSTS - 5

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 6 of 10

I positiOn was not substanliallyJUSl!fied, the Government bears the burden of showmg substantial

2 JUStificatiOn Edwards v McMahon, 834 F 2d 796, 802 (9th C1r 1987)

3

The Court considers the 1ssue of substanlial JUstificatiOn to be unopposed for several reasons

4 Fust, the Local Rules of the Western D1stnct ofWashmgton set forth clear deadlines for pleadmgs

5 subm1tted on motwns on the Court's calendar Local Rule CR 7(d)(3), under whiCh the present

6 motiOn was properly noted, reqmres that "[a]ny opposlllon papers shall be filed and served not later

7 than the Monday before the notmg date " If more time 1s reqmred to respond to a motwn, the

8 opposmg party has the optiOn of filing a "motwn for relief from a deadline or lim1t 1mposed by an

9 order, federal rule or local rule." Local Rule CR 7(d)(2)(A) Such a motwn would be noted on the

I0 Court's calendar for cons1deratwn seven days after 1ts filmg date In the present case, the

II Government filed a limely response to the motwn, but rather than address the ments of the mol!on or

12 move the Court for a contmuance, 1t chose to argue solely that the molion was unlimely The

13 Government then asked that 1t be giVen another opportumty to address the ments of the motiOn

14 should the Court dec1de that the motwn was timely No motwn for leave of court was filed, no

15 motiOn for relief from a deadlme was noted on the Court's calendar The Court has no sympathy for

16 such complete disregard for the Local Rules ofth1s d1stnct To allow such a tache to succeed would

17 mv1te chaos, CIVil litigants could s1mply choose not to respond to arguments whenever they were too

18 busy m their Jaw practices to comply w1th the Local Rules, expectmg to get another chance to argue

19 1f their pnmary argument did not succeed Th1s approach would not be countenanced With any other

20 represented litigant before th1s Court, and 1t w1ll not be countenanced here

21

Second, the Local Rules prov1de that "[1]fthe motiOn reqmres cons1deratwn of facts not

22 appeanng of record, the movant shall also serve and file cop1es of all affidavits, declarations,

23 photographic or other evidence presented m support of the motiOn" Local Rule CR 7(b)(l)

24 Respondents assert that the1r "opemng bnefm the Nmth C1rcmt [m the appeal ofth1s case]1s due on

25 or before March 21, 2003, and the time of undersJgned counsel must be directed toward wntmg the

26 bnef as well as handlmg other litigalion matters" Opp at 6 Even 1f demands on counsel's lime

ORDER ON MOTION FOR FEES AND COSTS- 6

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 7 of 10

I were a legJhmate excuse for not addressmg the ments of a motwn properly before the Court,

2 Respondents put forth no affidaVIt or declaratwn of counsel attestmg to what "other h!igatwn

3 matters" are so pressmg.

4

Th1rd, 1t 1s well-established that fa~lure to argue an 1ssue m one's bnef constitutes wa1ver of

5 that 1ssue Jones v Wood, 207 F 3d 557, 562 n 2 (9th C1r 2000) (failure to argue an 1ssue man

6 opemng bnef constitutes wa~ver), Bazauye v. INS, 79 F 3d 118, 120 (9th Cu 1996) (1ssues ra1sed for

7 the first time m reply bnef are waJVed) Further, 1ssues ra1sed m a party's bnefbut not specifically

8 argued are hkew1se deemed abandoned Acosta-Huerta v Estelle, 7 F 3d 139, 144 (9th C1r. 1992)

9 (fmlure to argue reasons for new tnal and severance of charges constituted wa1ver of those

I 0 arguments). Here, the Government has fmled to put forth any argument on the 1ssue of substantial

II Justificatwn of 1ts posJtwns m the underlymg case, those arguments are therefore deemed waJVed

12 As the Government bears the burden of showmg substantial JUS!ificahon, the Court cons1ders the

13 assertwn of pe!ihoners to be unopposed, and grants the motwn on th1s issue

14

In any case, a bnefrev1ew ofth1s Court's order of January 17, 2003, demonstrates that, taken

15 as a whole, the underlymg position of the agency and the Government's htigatwn posJ!ion were not

16 substantially JUS!ified Fust, th1s Court found that every source of law presented by the part1es

17 contradiCted the INS' legal pos1t10n regardmg 1ts mterpretatwn of the relevant statute, mcludmg the

18 "structure of the statute, the relevant case law, the leg~slative history of the precursor statute, [and]

19 mternatwnallaw," and that Pe!itioners' readmg was "the only mterpreta!ion that would g1ve effect to

20 all sections of the statute" January 17,2003 Order at 19 Second, pnor to th1s actwn Respondents

21 had twiCe htJgated these same statutory 1ssues unsuccessfully Jama v. INS, 2002 WL 507046 (D

22 Mmn March 31, 2002) (Tunhe1m, J ); Farah v INS, 2002 WL 31866481 (D Mmn Dec 20, 2002)

23 (Frank, J.) Third, where an agency's posJtJOn vwlates 1ts own regulatwns, the pos1hon 1s not

24 substantially JUstified Gu!ierrez v. Barnhart, 274 F 3d 1255, 1258 (9th C1r 2001) This Court has

25 already found that Respondents' htigatwn position IS mcons1stent w1th 1ts own regula!ions January

26 17,2003 Order at 17-18 Fmally, Respondents' deciSion not to release the Jdenti!Jes and locatwns of

ORDER ON MOTION FOR FEES AND COSTS- 7

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 8 of 10

I the members ofpelitwners' class was not substan!iallyJUS!ified, makmg class cerlificatwn necessary

2 m order to "address[] the problem of mterstate transportalion of mdtvtduals subject to final orders of

3 removal and the correspondmg dtfficulty m obtammg counsel." Mi. at 24

4

3

Pe!itioner's "ttemtzed statement"

5

An affidavit submttted m support of a motiOn for fees and costs under the EAJA must mclude

6 an "ttemtzed statement from any attorney or expert wttness representmg or appeanng m behalf of the
7 party statmg the actual lime expended and the rate at whtch fees and other expenses were computed "
8
28 USC § 2412(d)(l)(B) The Supreme Court has observed that. "[t]here IS no prectse rule or 9

10 formula for makmg fee determmalions under EAJA The Dtstnct Court may attempt to tdenbfy

II spectfic hours that should be ehmmated The court necessanly has dtscretwn m makmg thts

12 eqmtablejudgment" Hensleyv. Eckerhart, 461 U.S 424,434-37 (1983)

13

Ftrst, for the reasons stated above, the Court finds the ttemtzed statement to be unopposed

14

Next, the Court finds the statement submttted by PetitiOners does contam the "actual time

15 expended" and the "rate at whtch the fees were computed." The Court notes that the rate charged by
16 Pelitwners' counsel was the statutory rate of$125, pursuant to 28 U.S C § 2412(d)(2)(A), whtch
17 counsel states IS far below normal billable rates charged to pnvate clients The declaratiOn submttted
18
by counsel mdtcates each attorney's area of work, as well as a statement of actual lime expended by 19

20 each attorney to the tenth of an hour The reqmrements of the statute havmg been met, and there

21 bemg no oppostlion, the Court hereby GRANTS the motiOn for attorney's fees m the amount of

22 $119,137.50 The Court finds thts amount to be reasonable m hght of the complexity ofthe

23 h!igatwn and the quality and thoroughness of the work performed

24

Next, work done by paralegals and legal asststants can be compensable under the EAJA See

25 Krecwch v Umted States, 316 F.3d 684,687 (7th Ctr 2003). "The Supreme Court, and lower
26 courts, have approved the meluston of fees for paralegals, law clerks, and law students, m fee awards

ORDER ON MOTION FOR FEES AND COSTS- 8

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 9 of 10

I under EAJA or analogous fee-shlflmg statutes, on the theory that thetr work contnbuted to the1r
2 superviSing attorney's work product, was traditionally done and btlled by attorneys, and could be
3 done effectively by nonattorneys under supervtswn for a lower rate, thereby lowenng overall 4
litigatwn costs" Cook v Brown, 68 F 3d 447,453 (Fed Ctr 1995), cltmg M1ssoun v. Jenkins, 491, 5
US 274, 288 n 10 (1989) However, paralegal and assistant work 1s normally only compensable 6
when the work was that "traditionally done by an attorney." Hyatt v Barnhart, 315 F 3d 239, 255 7
(4th Ctr 2002), Celeste v Sullivan, 988 F.2d I 069, 1070 (lith Ctr 1992) 8
The declaratwn submttted attests to spectfic tasks performed by Ms Kathy Rtley, the lead 9
paralegal who worked on th1s case, mcludmg the collection and organtzatwn of matenals from other 10
JUnsdtctlons, as well as organtzatwn of cases, statutes and regulatwns and other mater~als Gellert 11 Dec! at 5 These tasks can be srud to have been tradttionally done and btlled by attorneys However, 12 g~ven that the JUstificatiOn for allowmg such compensatiOn 1s the lower~ng of overall litigatwn costs, 13 the Court finds that the proposed rate IS unreasonable, and lowers the rate to $65 per hour. Therefore
14 the total runount of compensatiOn for Ms. Rtley's time ts 145 6 hours x $65/hour = $9464 As to the
15 other paralegals workmg on th1s case, not enough mformatwn 1s provtded for the Court to determme
16 whether the tasks performed were tradttlonally those done and btlled by attorneys These runounts
17 are therefore DENIED

18

Fmally, costs are requested m the runount of$847 96 The Court finds these costs to be

19 reasonable, and therefore GRANTS the request.

20

CONCLUSION

21 In light ofthe leg~slatlve htstory of the EAJA and the relevant case law, the Court holds that
22 Petitioners' application for fees 1s timely. As the mer~ts of the motwn were not opposed by
23
Respondents, the Court hereby GRANTS the motwn Fees and costs are awarded m the total amount 24

25 of$129,449 46

26

ORDER ON MOTION FOR FEES AND COSTS- 9

Case 2:02-cv-02304-MJP Document 57 Filed 05/27/03 Page 10 of 10

I

The Clerk IS directed to send copies of th1s order to all counsel of record

2

dj:_, Dated May

2003

3

4

5

1Z~J~
Marsha J Pecrunan Umted States D1stnct Judge

6

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER ON MOTION FOR FEES AND COSTS- 10

 
 Case 2:02-cv-02304-MJP Document 163 Filed 04/27/06 Page 1 of 2 Case 2:02-cv-02304-MJP Document 161 Filed 04/21/2006 Page 1 of2

_filED I _LODGED

2

APR 2 7 2006

Judge Pechman

3

4 '

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7

8 YUSUF ALI ALI, INS# A73-426-435;

9 MOHAMED AWEYS, A73-428-026;

10 MOHAMED HUSSEIN HUNDIYE,

No. C 02-2304 P

II A70-378-487; and GAMA KALIF 12 MOHAMUD, A71-714-960, 13

14

Petitioners,

--Order

15

16

v.

17

18 ALBERTO GONZALES, Attomey General of 19 the United States~ ct al., 20

21

22

Respondents.

23

111111111111111111111111111111111111111111111 11111111111111111111111111111111111
02-C'V-02304-0Ril
... - - - - ---,--······--·

f

24

Upon consideration of the Parties' Joint Status Reporl and the record in this matter.

25 THE COURT HEREBY ENTERS THE FOLLOWING ORDERS:

26

(I) The injunction entered on January 17,2003 is HEREBY VACATED;

27

28

Case 2:02-cv-02304-MJP Document 163 Filed 04/27/06 Page 2 of 2 Case 2:02-cv-02304-MJP Document 161 Filed 04/21/2006 Page 2 of 2

1

(2) The nationwide class certified on January 17,2003 is Jlf.REBY DE·

2

CERTIFIED AS MOOT;

3

(3) The detention claims in the habeas petitions submitted by Petitioners Yusuf

4

Ali Ali, Mohamed Aweys, and Mohamed Hussein Hundiyc arc HEREBY

s

DJSMISSED WITHOUT PREJUDICE;

6

(4) The Summary of Proceedings and Status of Case (the "Notice") currently

7

posted to the Court's website and the subject of the Court's prior Orders

8

regarding notice to detained class members is hereby modified as indicated

9

in the attachment to this Order (the "Final Notice");

10

(5) The Notice currently posted to the Court's website shall be removed and

11

replaced with the Final Notice;

12

(6) The Final Notice shall remain on the Court's website for the next 90 days;

13

(7) Counsel for Petitioners shall have the Final Notice promptly translated into

14

Somali and shall promptly provide a G,ppy ofthl\translated Final Notice to

15

the Court and counsel for Respondents; and

16

(8) Within 20 days of receipt of the translated Final Notice as provided under

17

paragraph 7 above, the Government shall serve both the English and Somali

18

versions of the Final Notice on all persons with final orders of removal to

19

Somalia currently in detention.

25

26

27

28

2

 
 Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 1 of 12

1

UNITED STATES DISTRICT COURT

2

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

3

4 YUSUF ALI ALI, et al.,

5

Petitioner(s),

6

v.

7 ALBERTO GONZALES, et al.,

NO. C02-2304P
ORDER ON MOTION FOR EAJA AWARD OF ATTORNEY FEES

8

Respondent(s).

9

10

This motion comes before the Court on remand from the Ninth Circuit. All the substantive

legal issues in the matter have been resolved, and the question remaining to be determined is whether 11

Petitioners’ counsel are entitled to an award of attorney fees under the Equal Access to Justice Act 12

(“EAJA”). The case was remanded to permit this Court to “revisit prevailing party status” 13

(Memorandum Opinion, No. 03-35620, p. 6), and answer the question of whether Petitioners could 14

still be found to be prevailing parties for EAJA purposes despite having failed to achieve all the relief 15

they sought. For the reasons cited below, the Court finds that Petitioners are prevailing parties in this 16

action and are entitled to attorneys fees commensurate with the relief which they achieved. Those fees 17

shall be made payable to Perkins Coie LLC, the firm that provided Petitioners’ legal representation on 18

a pro bono basis. 19

20

It is the further finding of this Court that Respondents submitted an overlength responsive brief

(per Local Rule 7(e)(4)) and failed to request permission to do so until Petitioners objected to the 21

additional pages in their reply. The Court will GRANT Respondents’ Motion for Leave to File an 22

Overlength Brief (Dkt. No. 176) and consider the arguments contained in the extra pages, and 23

Respondents will be sanctioned $1,000, payable to the Clerk of the Court, for the violation of the 24

Local Rules of this district. 25

ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 1

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 2 of 12

1

Background

2

Prior to the initiation of this lawsuit, final orders of removal to Somalia had been issued to the

3 four individual petitioners – Yusuf Ali Ali, Mohamed Hussein Hundiye, Mohamed Aweys and Gama

4 Kalif Mohamud. See Ali v. Ashcroft, 213 F.R.D. 390, 397-98 (W.D. Wash. 2003) (Dkt. No. 44).

5 Each of the petitioners had been detained for many months while the Government tried to achieve

6 their removal, and were released from post-removal-order detention only in the wake of Zadvydas v.

7 Davis, 533 U.S. 678 (2001) (which holds that an alien may not be held in confinement once it is

8 determined that there is no likelihood of removal in the reasonably foreseeable future. Id. at 701.).

9

Petitioner Mohamud was re-detained in July 2002 upon revocation of his order of supervision.

10 In November 2002, Petitioners Ali, Hundiye and Aweys were re-detained “because the local district

11 directors office was informed that plans were underway for [their] imminent removal to Somalia.” Ali,

12 213 F.R.D. at 397-98. All the petitioners were informed that they would soon be removed to

13 Somalia. Id.

14

Shortly after their re-detention, the petitioners filed a habeas petition with the Court requesting

15 that their removal to Somalia be enjoined on the ground that it would violate 8 U.S.C. § 1231(b)(2)

16 because Somalia had no government which could accept deportees. Id. The Court issued a stay

17 preventing their removal on the day Petitioners filed their petition. On December 4, 2002, Petitioners

18 filed an amended petition seeking certification of a nation-wide class entitled to the requested

19 injunctive relief, and this Court extended the stay to a class of all individuals with final orders of

20 removal to Somalia. Id.

21

On December 8, 2002, the Court granted the TRO was granted and certified a nation-wide

22 class of aliens. On January 13, 2003, a hearing was held on the merits of Petitioners’ request for a

23 preliminary injunction. Respondents did not contest Petitioners’ evidence regarding the threat of

24 torture or death if they were removed to Somalia. Instead, the Government argued that (1) this Court

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 2

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 3 of 12

1 had no jurisdiction to hear the case; (2) the Petitioners had failed to exhaust their administrative

2 remedies; (3) 8 U.S.C. § 1231(b)(2) allowed the removals to Somalia without the necessity of

3 government acceptance; and (4) in any event, class relief was not available. Id. at 397-405.

4

The Court granted Petitioners’ request for a class-wide injunction preventing the removals to

5 Somalia. Id. at 388-411. In response to the Court’s request for further briefing on the effect of the

6 injunction on the pending litigation, the Government conceded that the injunction should be converted

7 to a permanent injunction. Id. at 405. A permanent injunction was entered on January 17, 2003. Id.;

8 see also May 28, 2003 Judgment (Dkt. Nos. 58 and 59).

9

On the ground that there was no likelihood that Petitioners would be removed in the

10 reasonably foreseeable future, the Court also ordered that three of the petitioners (Ali, Hundiye and

11 Aweys) be released from detention pursuant to Zadvydas. (Petitioner Mohamud had a separate habeas

12 proceeding pending before Judge Barbara Rothstein of this district – C02-1686BJR – and was

13 thereafter ordered released by Judge Rothstein.)

14

On May 27, 2003, the Eighth Circuit held that the United States immigration authorities did

15 not have to obtain the acceptance of the removal country’s government before the United States could

16 repatriate an alien. See Jama v. INS, 329 F.3d 630 (8th Cir. 2003) (construing 8 U.S.C. §

17 1231(b)(2)).

18

The Government appealed this Court’s order (Notice of Appeal; Dkt. No 73). On September

19 17, 2003, the Ninth Circuit affirmed the entry of the class injunction and the order of release from

20 detention. Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003). The Government’s request for rehearing was

21 held in abeyance pending the Supreme Court’s ruling in Jama v. Immigration and Customs

22 Enforcement, 543 U.S. 335 (2005). In the wake of the Jama ruling that the Government had authority

23 to remove individuals to Somalia without the necessity of obtaining the acceptance of the removal

24 country’s government, the Government moved to vacate the panel decision of the Ninth Circuit and

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 3

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 4 of 12

1 remand with instructions that this Court vacate the injunction, de-certify the class and reverse the

2 order releasing the Petitioners from detention.

3

On August 26, 2005, the Ninth Circuit granted the unopposed request to vacate the injunction,

4 but (citing the long history of logistical difficulties in deporting Jama himself) remanded to this Court

5 the issue of whether or not Petitioners could be re-detained. Ali v. Ashcroft, 421 F.3d 795 (9th Cir.

6 2005); see also Jama v. Immigration and Customs Enforcement, No. Civ. 01-1172RTAJB, 2005 WL

7 1432280, *1 (D. Minn. April 7, 2005); Jama v. Immigration and Customs Enforcement, No. Civ. 01-

8 1172RTAJB, 2005 WL 12205160, *7 (D. Minn. May 20, 2005).

9

Upon returning to this Court, the parties submitted a joint report in which they agreed that the

10 injunction should be dissolved, the class decertified, and the detention claims of Petitioners dismissed

11 without prejudice. Dkt. No. 161. The Court entered an order adopting the parties’ requests. (Dkt.

12 No. 163.)

13

Following the Court’s granting of relief on the merits in January 2003, Petitioners had moved

14 for an award of attorney fees under the EAJA (for their work billed through January 2003). (Dkt. No.

15 50.) The Government opposed the request on the ground that it was premature. Respondents’

16 Opposition to E.A.J.A. Motion (Dkt. No. 55). This Court rejected that argument, found the

17 application to be timely and (except for some of the requested paralegal fees) granted Petitioners their

18 requested fees. May 27, 2003 Order (Dkt. No. 57). A motion for reconsideration was denied. July

19 30, 2003 Order (Dkt. No. 71). Both those orders were appealed by the Government, but the EAJA

20 portion of the appeal was stayed while the decision on the appeal on the merits proceeded forward.

21

The briefing on the EAJA appeal commenced following the Ninth Circuit’s reversal and

22 remand. The Ninth Circuit remanded to this Court to determine whether Petitioners were still

23 prevailing parties. The Government never maintained that an EAJA award was inappropriate because

24

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 4

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 5 of 12

1 its position was substantially justified (one of the grounds for denial of an EAJA attorney fee award),

2 and Petitioners never sought any fees for work done on this case beyond January 31, 2003.

3

Analysis

4

EAJA provides for the award of attorney fees and costs to a party in a civil action against the

5 United States where that party is the prevailing party. See 38 U.S.C. § 2412(d)(1)(A). The burden is

6 upon Petitioners, as the applicants for attorney fees, to establish “prevailing party” status. See Reich

7 v. King Plumbing and Heating, 98 F.3d 147, 150 (4th Cir. 1996); Shepard v. Sullivan, 898 F.2d 1267,

8 1273 (7th Cir. 1990).

9

The statute does not define what the term “prevailing party” means. Buckhannon Bd. and

10 Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598 (2001), a

11 leading case on the fee award issue, cites to the historical requirement of a “material alteration of the

12 legal relationship of the parties” as a condition precedent of a “prevailing party” fee award and holds

13 that “enforceable judgments on the merits and court-ordered consent decrees create” the requisite

14 material alteration. Id. at 604. The Buckhannon court rejected the “catalyst theory” (under which a

15 voluntary change in the parties’ legal relationship as a result of filing a lawsuit would create a

16 “prevailing party” award) on the ground that it lacked the critical factor of “judicial sanction.” Id. at

17 605. The dual factors of (1) a material alteration in the parties’ legal relationship that is (2) judicially

18 sanctioned comprise the current test for whether a litigant is a “prevailing party.” The issue here is

19 whether the results of this litigation pass muster under that test.

20

The Government has urged the position that, under Buckhannon, “an irreversible, enforceable

21 judgment on the merits is essential and non-dispensable to a party’s claim to prevailing party status.”

22 Respondents’ Opposition, p. 7. They want the Court to find that, because “Petitioners sought nothing

23 less than the wholesale cessation of the U.S. Government’s removal operations regarding Somalia”

24 and failed to achieve that, Petitioners cannot be declared prevailing parties. Id. at p. 8. This is too

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 5

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 6 of 12

1 narrow a reading of the law, and too restrictive a view of Petitioners’ efforts. Case law in the Ninth

2 Circuit and elsewhere that developed in the wake of Buckhannon has not utilized this all-or-nothing

3 approach and the Court declines to use such an approach here.

4

Even in Buckhannon, the Supreme Court discerned an underlying Congressional intent in the

5 “prevailing party” fee-shifting statutes to “permit an interim award of counsel fees . . . when a party

6 has prevailed on the merits of at least some of his claims.” 532 U.S. at 604 (citations omitted)

7 (emphasis supplied). In Carbonell v. Immigration and Naturalization Service, 429 F.3d 894 (9th Cir.

8 2005), the Ninth Circuit held that “[a] party need not succeed on every claim in order to prevail.

9 Rather a plaintiff prevails if he has ‘succeeded on any significant issue in litigation which achieved

10 some of the benefit [he] sought in bringing suit.’” Id. at 900 n. 5. (citing Tex. State Teachers Ass’n v.

11 Garland Indep. Sch. Dist, 489 U.S. 782, 791-92 (1989)).1

12

It is not necessary that a party who seeks to avoid removal actually succeed in that goal in

13 order to achieve “prevailing party” status for EAJA purposes. The Tenth Circuit deemed a plaintiff

14 who obtained an injunction prohibiting his deportation while his immigration claims were being

15 litigated to be a prevailing party entitled to a fee award. Kopunec v. Nelson, 801 F.2d 1226, 1227

16 (10th Cir. 1986). The opinion in Kopunec does not state whether Plaintiff ever achieved his ultimate

17 goal. What was significant to the court was that his reversal of an automatic visa revocation

18 (equivalent to the automatic removal of Petitioners sought by the Government here) and his

19 preliminary injunction against deportation “constitute[d] a substantial victory of his position

20 significantly discrete from the ultimate conclusion to warrant separate treatment.” Id. at 1229.

21

22

23

1 In dicta that addresses the Government’s interpretation of Buckhannon, the Ninth Circuit cited a number of

cases which had rejected “overly narrow” interpretations of the case and had classified judgments and consent decrees as

24 “only examples” of the kinds of judicial action required to convey “prevailing party” status. 429 F.3d at 898-99; citing
Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002); Tippington-Whittingham v. City of L.A., 316 F.3d

25 1058, 1062 (9th Cir. 2003).

ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 6

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 7 of 12

1

In Vacchio v. Ashcroft, the Second Circuit conferred “prevailing party” status upon a

2 petitioner who obtained (via a habeas petition) his release from detention pending a determination of

3 his immigration status. 404 F.3d 663 (2nd Cir. 2005). Although Vacchio did ultimately succeed in

4 his quest for cancellation of his removal, the appellate court (in awarding him “prevailing party” status

5 for the petition which resulted in his release from INS detention) rejected the lower court’s

6 characterization of his relief as “retention of his lawful permanent resident status” and instead

7 identified his release from custody pending determination of his removal case as the relevant relief for

8 determination of whether he had “prevailed.” Id. at 674. Admittedly, in Vacchio it was only the

9 litigant’s habeas petition (not the ultimate challenge to his removal) which was at issue, but this Court

10 rejects as inefficient and wasteful any argument that petitioning aliens must file separate actions to

11 obtain their release pending a ruling on their lawsuit to determine their removal status in order for their

12 counsel to qualify for attorney fee awards should they be successful in obtaining their release pendente

13 lite; i.e., while the action is pending.

14

The Court is aware that the circuits are not unanimous on the issue of whether injunctive relief

15 qualifies as an “enforceable judgment on the merits” sufficient to satisfy the Buckhannon test. The

16 Tenth Circuit found that a preliminary injunction against deportation qualified the plaintiff for

17 “prevailing party” status in Kopunec. See also Grano v. Barry, 783 F.2d 1104, 1108-09 (D.C. Cir.

18 1986) (where an injunction halting demolition of a historic building – which was eventually demolished

19 – was found to be a sufficiently “significant benefit” to entitle plaintiffs to an attorney fee award as

20 prevailing parties). The Fourth Circuit, however, found that injunctive relief did not meet the

21 Buckhannon test, citing the “less stringent assessment of the merits of claims that are part of the

22 preliminary injunction context.” Smyth v. Rivero, 282 F.3d 268, 277 (4th Cir. 2002). Similarly, in

23 Northern Cheyenne Tribe v. Jackson, 433 F.3d 1083 (8th Cir. 2006), the Eighth Circuit held that “a

24 preliminary injunction that grants only temporary relief pendente lite is not, without more, a judicially

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 7

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 8 of 12

1 sanctioned material alteration of the parties’ legal relationship within the meaning of Buckhannon.”

2 Id. at 1086 (emphasis in original).

3

But the Ninth Circuit has aligned itself with those courts willing to grant prevailing party status

4 to litigants who achieve partial or injunctive relief, as illustrated by cases such as Carbonell and

5 Watson v. County of Riverside, 300 F.3d 1092, 1093 (9th Cir. 2002) (which found that plaintiff’s

6 injunctive relief “satisfie[d] the prevailing party test” because the plaintiff “achieved some the benefit

7 [he] sought in bringing the suit” and because “the injunction altered the legal relationship between the

8 parties.”).

9 The Court is cognizant of the language in Watson which noted that, on “occasions when the plaintiff

10 scores an early victory by securing a preliminary injunction, then loses on the merits as the case plays

11 out and judgment is entered against him . . . [t]he plaintiff would not be a prevailing party. . .” 300

12 F.3d at 1096. While Petitioners lost on their 1231(b)(2) claim here, their “prevailing party” status is

13 based on their results concerning their Zadvydas detention claims, an issue on which they did not lose

14 (as their continued non-detention status attests).

15

This Court also notes that the Buckhannon opinion does not define what it means by an

16 “enforceable judgment on the merits” and (despite the Government’s fondness for the term in their

17 briefing) nowhere requires that such judgment be “irreversible.” A finding in favor of Petitioners as

18 prevailing parties is further supported by the nature of the Zadvydas rule which underpins their release

19 from detention. Inherent in any finding that a detainee may not be held if there is no likelihood of

20 removal in the reasonably foreseeable future is the possibility that, at some point in the future, there

21 will be a likelihood of removal.

22

In other words, any ruling made pursuant to Zadvydas is provisional and may be reversed at a

23 later date upon a change of circumstances. The position which the Government urges upon this Court

24 would result in a situation where no detainee who petitioned for, and obtained, release on Zadvydas

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 8

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 9 of 12

1 grounds would be entitled to prevailing party status and an attorney fee award. Such a result is not in

2 keeping with the rationale of Buckhannon or the current position of the Ninth Circuit on the

3 “prevailing party” issue. The fact that Petitioners remain out of custody at the present moment is

4 further evidence of their materially altered relationship with the Government.2

5

Petitioners sought the certification of a class of aliens subject to removal to Somalia, and a

6 judicial determination that the government of this country did not have the authority to remove the

7 members of that class to Somalia on the grounds that there was no governmental entity in that nation

8 to accept them. They failed in both of those objectives. But these four men, who had been detained

9 under removal orders by governmental authorities, also sought (1) relief from the threat of removal

10 and (2) release from custody while their immigration status was determined. First Amended

11 Complaint, pp. 7-8; Dkt. No. 8. In this they prevailed. Petitioners are prevailing parties for EAJA

12 purposes because they “succeeded on [a] significant issue in litigation which achieved some of the

13 benefit [they] sought in bringing suit,” Carbonell, 429 F.3d at 900 n. 5 (citations omitted), and because

14 the government was “required to do something directly benefitting [Petitioners] that they otherwise

15 would not have had to do.” Id. at 900. (citations omitted).

16

Respondents’ singular focus on Petitioners’ attempts to obtain the “wholesale cessation of the

17 U.S. Government’s removal operations regarding Somalia” is misplaced because that is not the only

18 relief Petitioners sought through their lawsuit. Nor is the fact that the injunctive relief achieved by

19 Petitioners was eventually overturned fatal to their EAJA fee award request. It is the nature of

20 Zadvydas-based relief that it may not be permanent.

21

Following the Jama decision, the Government could have sought the re-detention and removal

22 of Petitioners; instead they joined Petitioners in a request to dismiss this action. Joint Status Report,

23

24

2 This fact also distinguishes this case from the Eighth Circuit’s Northern Cheyenne decision. The relief

obtained by Petitioners here was not simply “temporary relief pendente lite;” the Government has not sought to re-detain

25 the named aliens since the conclusion of this litigation.

ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 9

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 10 of 12

1 Dkt. No. 161. Respondents challenge the significance of Petitioners’ release from detention on the

2 grounds that it was obtained “through an erroneous interpretation of 8 U.S.C. § 1231(b)(2),” an

3 “error. . . compounded by the Court’s conclusion that Petitioners’ release was compelled by Zadvydas

4 because there was no significant likelihood of their removal in the reasonably foreseeable future. . . .”

5 Respondents’ Opposition, p. 14. However, the fact that the Government agreed to a dismissal of

6 Petitioners’ detention claims and has declined to pursue the re-detention or removal of these

7 petitioners since the Jama decision invokes the Zadvydas standard of “no significant likelihood of

8 removal in the reasonably foreseeable future.”

9

Finally, the Government seeks denial of Petitioners’ EAJA request on the ground that

10 Petitioners Hundiye and Mohamud have failed to report to ICE as required and are currently on

11 fugitive status. They contend that the Court should invoke the “fugitive disentitlement doctrine,”

12 which holds that parties who are avoiding an action of the same court from whom they are seeking a

13 benefit ought not be permitted to pursue such a claim for reasons of equity. See Sapoundjiev v.

14 Ashcroft, 376 F.3d 727, 729 (7th Cir. 2004); United States v. Eng, 951 F.2d 461, 465 (2nd Cir. 1991).

15 Respondents cite the case of Zapon v. Dept. of Justice, 53 F.3d 283, 284 (9th Cir. 1995), in which an

16 alien family that refused to comply with an order to surrender for deportation (even though the order

17 was later invalidated) was denied EAJA fees.

18

This argument is not persuasive. First, it has no relevance to the Court’s analysis of whether

19 Petitioners are prevailing parties for EAJA purposes. Second, it does not address the issue of the

20 remaining, non-fugitive aliens. This matter presented nearly pure legal issues. Counsel for Petitioners

21 would have had to expend the same amount of analysis and preparation for this petition whether there

22 was a single named petitioner or several. The fugitive status of some but not all of the Petitioners has

23 no bearing on this decision.

24

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 10

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 11 of 12

1

Calculation of Fees

2

Having decided that Petitioners are prevailing parties under the EAJA and entitled to an award

3 of attorney fees under the statute, the question remains: are Petitioners’ counsel entitled to the entire

4 amount that they were initially awarded following the grant of injunctive relief in January 2003? The

5 answer to that question is “no.” Having found that Petitioners are prevailing parties only to the extent

6 that they secured their release from detention, the Court further finds that the current award should be

7 reduced by the amount that represents the work related to the putative class issues of this action.

8

The award will be reduced by the amount of fees related to identification of a nation-wide

9 class, preparation of pleadings in support of class relief, and the argument for class certification.

10 Petitioners have proposed (and Respondents have not objected) that eliminating the hours of Thomas

11 Boeder, Susan Foster, Sally Morgan and Erin Childress Tahkkar, as well as half the hours of the

12 remaining attorneys and paralegal Kathy Riley would represent a deduction of the time fairly

13 attributable to class issues. Gellert Decl. II, ¶ 4. Regarding costs, Petitioners are still entitled to the

14 filing fee; however, Petitioners have advised that court and deposition transcripts were prepared

15 primarily for discovery in support of class certification issues. Id. at ¶ 6. Based on the above

16 representations, the Court orders that, in view of Petitioners prevailing on the issue of their detention,

17 an award of $49,631.25 in attorneys’ fees, $4,732.00 in paralegal fees and costs of $105.00 should be

18 made to pro bono counsel in this matter. The fees and costs total is $54,468.25 and should be made

19 payable to the law firm of Perkins Coie LLC; that payment is due within 30 days of this order.

20

Respondents’ Overlength Brief

21

Although the Court did grant Respondents’ request to file an overlength brief, and did read and

22 consider the analysis and argument contained in the extra pages of the Government’s briefing, the fact

23 remains that Respondents filed the additional material in violation of the Local Rule 7(e)(4) and did

24 not request permission to do so until Petitioners objected in their reply brief. The Government will be

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 11

Case 2:02-cv-02304-MJP Document 178 Filed 03/30/2007 Page 12 of 12

1 sanctioned $1,000.00 for this violation of the Local Rules, said amount to be payable to the Clerk of

2 the Court within 30 days of the date of this order.

3

Conclusion

4

As a result of filing this lawsuit, Petitioners obtained a preliminary and permanent injunction

5 that resulted in their release from custody and relief from imminent removal to Somalia. Petitioners’

6 mandated release from detention represents a material alteration in their legal relationship with the

7 Government, and that alteration was judicially sanctioned by the Court’s previous orders releasing

8 Petitioners and the final approval of the parties’ joint request for dismissal of Petitioners’ detention

9 claims. On that basis, they are prevailing parties for purposes of EAJA and entitled to an award of

10 attorney fees and costs. The Court orders entry of an award of $54,468.25 in fees and costs,

11 commensurate with the work attributable to Petitioners’ release from custody, payable to Perkins Coie

12 LLC within 30 days of the date of this order.

13

For their violation of Local Rule 7(e)(4), Respondents will be assessed a sanction of

14 $1,000.00, payable to the Clerk of the Court within 30 days of the date of this order.

15

16

The clerk is directed to provide copies of this order to all counsel of record.

17

Dated: March _30__, 2007.

18

19

20

A
Marsha J. Pechman U.S. District Judge

21

22

23

24

25
ORDER ON MOTION RE:
26 PREVAILING PARTY STATUS - 12

 
 Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 1 of 17
CLOSED, REMAND, REOPEN
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:02−cv−02304−MJP

Ali, et al v. Ashcroft, et al Assigned to: Judge Marsha J. Pechman Demand: $0 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa
Petitioner

Date Filed: 11/13/2002 Date Terminated: 09/19/2008 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Yusuf Ali Ali TERMINATED: 04/27/2006

represented by Nicholas Peter Gellert PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101−3099 206−359−8680 Fax: FAX 359−8500 Email: NGellert@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas L Boeder PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101−3099 206−583−8888 Fax: FAX 583−8500 Email: tboeder@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rolf Brye Johnson WASHINGTON STATE ATTORNEY GENERAL'S OFFICE UNIVERSITY OF WASHINGTON DIVISION UW MAILBOX 359475 SEATTLE, WA 98195−9475 (206) 543−4150 Fax: (206) 543−0779 Email: rolfbj@u.washington.edu TERMINATED: 10/31/2008

Petitioner
Mohamed Aweys TERMINATED: 04/27/2006

represented by Thomas L Boeder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Mohamed Hussein Hundiye TERMINATED: 04/27/2006

represented by Thomas L Boeder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 2 of 17

Petitioner Gama Kalif Mohamud
Petitioner Ahmad Noor Yusuf
Petitioner Awad Garad
Petitioner Mr. Khalif Mohamed Duale TERMINATED: 03/27/2006

Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Rolf Brye Johnson (See above for address) TERMINATED: 10/31/2008
represented by Thomas L Boeder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Rolf Brye Johnson (See above for address) TERMINATED: 10/31/2008
represented by Thomas L Boeder (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Rolf Brye Johnson (See above for address) TERMINATED: 10/31/2008
represented by Nicholas Peter Gellert (See above for address) ATTORNEY TO BE NOTICED
Rolf Brye Johnson (See above for address) TERMINATED: 10/31/2008
Christine Stebbins Dahl FEDERAL PUBLICE DEFENDERS OFFICE 101 SW MAIN ST STE 1700 PORTLAND, OR 97204 503−326−2123 Email: Christine.dahl@yahoo.com ATTORNEY TO BE NOTICED
represented by Barbara J Kastama CORR CRONIN MICHELSON BAUMGARDNER &PREECE 1001 4TH AVE STE 3900

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 3 of 17
SEATTLE, WA 98154−1051 206−625−8600 Fax: 206−625−0900 Email: bkastama@corrcronin.com
Michael A Ponzoli LATHAM &WATKINS (DC) 555 ELEVENTH STREET NW STE 1000 WASHINGTON, DC 20004−1304 202−637−2200 Email: michael.ponzoli@lw.com

V. Respondent John D Ashcroft Attorney General
Respondent Immigration and Naturalization Service US

represented by Greg D Mack US DEPARTMENT OF JUSTICE (BOX 878) PO BOX 878 BEN FRANKLIN STATION WASHINGTON, DC 20044 202−616−9095 Email: Greg.Mack@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian C Kipnis US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−7970 Email: Brian.Kipnis@usdoj.gov ATTORNEY TO BE NOTICED
Christopher Lee Pickrell US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−4088 Email: ECF−Civ.USAWAW@usdoj.gov TERMINATED: 05/16/2008
Rebecca Shapiro Cohen US ATTORNEY'S OFFICE (SEA) 700 STEWART ST STE 5220 SEATTLE, WA 98101−1271 206−553−6526 Fax: 206−553−4073 Email: rebecca.cohen@usdoj.gov ATTORNEY TO BE NOTICED
represented by Greg D Mack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brian C Kipnis (See above for address)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 4 of 17

ATTORNEY TO BE NOTICED

Christopher Lee Pickrell (See above for address) TERMINATED: 05/16/2008

Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Respondent Robert S Coleman, Jr

represented by Greg D Mack (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian C Kipnis (See above for address) ATTORNEY TO BE NOTICED

Christopher Lee Pickrell (See above for address) TERMINATED: 05/16/2008

Rebecca Shapiro Cohen (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/13/2002
11/13/2002 11/13/2002 11/13/2002 11/13/2002
11/14/2002
11/15/2002 11/15/2002 11/18/2002 11/26/2002
12/04/2002

# Docket Text
1 CONSOLIDATED PETITION FOR 2241 WRIT OF HABEAS CORPUS FOR INDIVIDUALS IN FEDERAL CUSTODY by petitioners Receipt No. 308425 (DM) (Entered: 11/13/2002)
2 MOTION by petitioners for temporary restraining order (DM) (Entered: 11/13/2002)
3 DECLARATION of Nicholas Gellert (DM) (Entered: 11/13/2002)
LODGED ORDER: re: motion for temporary restraining order [2−1] (DM) (Entered: 11/13/2002)
4 AFFIDAVIT OF SERVICE by petitioner order lodged [0−0], declaration [3−1], motion for temporary restraining order [2−1], habeas corpus petition [1−1] (DM) (Entered: 11/13/2002)
5 ORDER by Judge Marsha J. Pechman GRANTING motion for temporary restraining order [2−1] until 11/22/02 at 1:30; Order to Show Cause ddl 11/19/02 (cc: counsel, Judge) (DM) (Entered: 11/14/2002)
LODGED ORDER: stipulated motion and order extending TRO and setting schedule (MD) (Entered: 11/18/2002)
6 ATTORNEY APPEARANCE for respondent John D Ashcroft, respondent INS, respondent Robert S Coleman Jr by Chris Pickrell (MD) (Entered: 11/18/2002)
7 STIPULATION and ORDER by Judge Marsha J. Pechman extending TRO and setting schedule. (cc: counsel, Judge) (MD) (Entered: 11/18/2002)
8 FIRST AMENDED COMPLAINT/CONSOLIDATED PETITION by petitioners for Habeas Corpus for Individuals in Federal Custody − Class Action (MD) (Entered: 11/27/2002)
9 MOTION by petitioners for temporary restraining order maintaining status quo until ruling by the court on the merits (MD) (Entered: 12/05/2002)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 5 of 17

12/04/2002 12/04/2002 12/04/2002 12/04/2002 12/04/2002 12/05/2002
12/06/2002 12/06/2002 12/09/2002 12/09/2002 12/09/2002 12/09/2002
12/10/2002
12/11/2002 12/16/2002 12/16/2002 12/16/2002 12/16/2002 12/16/2002

10 DECLARATION of Thomas L Boeder re motion for temporary restraining order maintaining status quo until ruling by the court on the merits [9−1] (MD) (Entered: 12/05/2002)
11 DECLARATION of Karol Dezwager Brown re motion for temporary restraining order maintaining status quo until ruling by the court on the merits [9−1] (MD) (Entered: 12/05/2002)
12 DECLARATION of Michele Garnett McKenzie re motion for temporary restraining order maintaining status quo until ruling by the court on the merits [9−1] (MD) (Entered: 12/05/2002)
LODGED ORDER: re: motion for temporary restraining order maintaining status quo until ruling by the court on the merits [9−1] (MD) (Entered: 12/05/2002)
13 AFFIDAVIT OF SERVICE by petitioner of motion for temporary restraining order maintaining status quo until ruling by the court on the merits [9−1] (MD) (Entered: 12/05/2002)
14 ORDER by Judge Marsha J. Pechman SETTING hearing on petitioners' motion for temporary restraining order maintaining status quo until ruling by the court on the merits [9−1] at 3:00 12/9/02; response due 12/9/02; parties agree to maintain status quo until 12/9/02 hearing on TRO (cc: counsel, Judge, ES) (VK) (Entered: 12/05/2002)
15 AMENDED ATTORNEY APPEARANCE for respondents by Greg D Mack (MD) (Entered: 12/09/2002)
16 NOTICE by respondent OF RELATED CASE(s) C01−1614L;C02−832P et al (MD) (Entered: 12/09/2002)
17 MOTION by respondent INS for leave to file overlength brief: opposition to petitioners' motion for tro NOTED FOR 12/9/02 (MD) (Entered: 12/09/2002)
LODGED ORDER: re: motion for leave to file overlength brief: opposition to petitioners' motion for tro [17−1] (MD) (Entered: 12/09/2002)
PROPOSED Respondents' opposition and exhibits re: motion for leave to file overlength brief: opposition to petitioners' motion for tro [17−1] (MD) (Entered: 12/09/2002)
20 MINUTES: MJP; ; CR: Laurene Kelly; Pla Counsel Thomas Boeder; Def Counsel Mack/Pickrell/Klein. Telephonic Oral argument held on 12/9/02. MJP Grants the TRO and briefing schedule was established. No bond will be required. Respondents' request to stay the effect of the fuling on the TRO was denied. (MD) (Entered: 12/13/2002)
18 ORDER by Judge Marsha J. Pechman GRANTING petitioner's motion for temporary restraining order maintaining status quo until ruling by the court on the merits [9−1] Oral Argument scheduled for 9:00 1/14/03; response due 12/16/02; petitioners may file opposition by 1/10/03 (cc: counsel, Judge) (LS) (Entered: 12/10/2002)
19 TRANSCRIPT of proceedings for the following date(s): 12/9/02 (Re: Emergency Motion Hearing) CR initials: L. Kelly (SA) (Entered: 12/13/2002)
21 NOTICE by respondents of filing INS Administrative Records (MD) (Entered: 12/17/2002)
22 RESPONSE and Return by respondent to petitioners' first amended consolidated petition for HC for individuals in Fed Custody−Class Action re: complaint [8−1] (MD) (Entered: 12/17/2002)
23 EXHIBITS re: response [22−1] (MD) (Entered: 12/17/2002)
24 MOTION by respondent for leave to file overlength return brief in opposition NOTED FOR 12/16/02 (MD) (Entered: 12/17/2002)
LODGED ORDER: re: motion for leave to file overlength return brief in opposition [24−1] (MD) (Entered: 12/17/2002)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 6 of 17

12/16/2002 12/18/2002
12/24/2002
12/30/2002 12/30/2002 12/30/2002 12/30/2002 12/31/2002 01/10/2003 01/10/2003 01/10/2003 01/10/2003 01/10/2003 01/13/2003 01/13/2003 01/13/2003 01/13/2003 01/14/2003
01/16/2003 01/16/2003 01/16/2003 01/16/2003
01/17/2003

25 ADMINISTRATIVE RECORD by respondent INS (in expando) (MD) (Entered: 12/17/2002)
26 ORDER by Judge Marsha J. Pechman GRANTING respondents' motion for leave to file overlength return brief in opposition [24−1] (cc: counsel, Judge) (MD) (Entered: 12/19/2002)
27 MINUTES: BJR; Pla Counsel Susan Foster/Nick Gellert; Def Counsel Greogry Mack. Telephone conference held on 12/24/02 re: discovery dispute (MD) (Entered: 12/26/2002)
28 MOTION by petitioner to certify class action NOTED FOR 1/14/03 (VK) (Entered: 12/30/2002)
29 DECLARATION of Thomas L. Boeder by petitioner re motion to certify class action [28−1] − atty qualifications (VK) (Entered: 12/30/2002)
LODGED ORDER: re: motion to certify class action [28−1] (VK) (Entered: 12/30/2002)
30 AFFIDAVIT OF SERVICE by petitioner motion to certify class action [28−1] etc. (VK) (Entered: 12/30/2002)
31 ERRATA to declaration of Thomas L Boeder [29−1] (MD) (Entered: 01/02/2003)
32 REPLY and Traverse by petitioners [28−1] (MD) (Entered: 01/13/2003)
33 DECLARATION of Nicholas P Gellert re: reply [32−1] (MD) (Entered: 01/13/2003)
34 DECLARATION of Susan E Foster re: reply [32−1] (MD) (Entered: 01/13/2003)
35 DECLARATION of Joan M Fitzpatrick re: reply [32−1] (MD) (Entered: 01/13/2003)
36 AFFIDAVIT OF SERVICE by petitioners of reply [32−1] (MD) (Entered: 01/13/2003)
37 MEMORANDUM by respondent in opposition to petitioners' motion and memorandum in support to certify class action [28−1] (MD) (Entered: 01/14/2003)
38 SUPPLEMENT by petitioner traverse and reply re motion to certify class action [28−1] (MD) (Entered: 01/14/2003)
39 DECLARATION (supplemental) of Susan E Foster re: supplemental [38−1] (MD) (Entered: 01/14/2003)
40 AFFIDAVIT OF SERVICE by petitioner of supplemental [38−1] (MD) (Entered: 01/14/2003)
41 MINUTES: MJP; Dep Clerk: Eileen; CR: L Kelly; Pla Counsel Thomas Boeder; Def Counsel Gary Mack. In−court hrg held on 1/14/03 re: petitioner's motion for prel inj. GRANTING motion to certify class action [28−1] and motion for prel inj. Court will issue a written opinion by Friday 1/17/03. Petitioners are remanded to custody. (MD) (Entered: 01/15/2003)
42 TRANSCRIPT of proceedings for the following date(s): 1/14/03 (Re: Court's Ruling) CR initials: L. Kelly (SA) (Entered: 01/16/2003)
43 TRANSCRIPT of proceedings for the following date(s): 1/14/03 (Re: Oral Argument) CR initials: L. Kelly (SA) (Entered: 01/16/2003)
45 SUPPLEMENTAL MEMORANDUM by petitioners' re jurisdiction and detention [28−1] (MD) (Entered: 01/21/2003)
46 RESPONSE by respondent to court's request for briefing on procedural matters regarding detention of petitioners and re: motion to certify class action [28−1] (MD) (Entered: 01/21/2003)
44 ORDER GRANTING INJUNCTION AND CERTIFYING CLASS by Judge Marsha J. Pechman. The use of a class action is necessary to litigate to open the

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 7 of 17

01/27/2003 02/07/2003 02/07/2003 02/10/2003 02/11/2003 02/11/2003
02/19/2003 02/20/2003 02/20/2003 02/20/2003 02/20/2003 02/22/2003
03/03/2003 03/05/2003 05/23/2003 05/27/2003 05/28/2003 05/28/2003

doors of the courthouse for a large number of Somalis whose identity and location the Government refuses to reveal. A permanent injunction shall issue on behalf of the class. The individual Petitioners Ali Hundiye, and Aweys shall be released pursuant to this Court's Order. (cc: counsel, Judge) (CL) (Entered: 01/17/2003)
47 NOTICE by respondents of petitioners' release as to Ali; Aweys; and Hussein re: order [44−1] (MD) (Entered: 01/28/2003)
48 NOTICE OF APPEAL (03−35096) by respondent Robert S Coleman Jr, respondent INS, respondent John D Ashcroft from Dist. Court decision [44−1] (cc: CCA, Judge, counsel) (SA) Modified on 02/12/2003 (Entered: 02/10/2003)
APPEAL FEE NOT RECEIVED: Fee not required, government agency. (SA) (Entered: 02/10/2003)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (SA) (Entered: 02/10/2003)
NOTIFICATION by Circuit Court of Appellate Docket Number 03−35096 (SA) (Entered: 02/12/2003)
49 TIME SCHEDULE ORDER (CCA 03−35096) Appellant notify appellee of trans. ordered 2/18/03; appellee notify appellant of additional trans. 2/27/03; appellant file trans with district court 3/10/03; Court Reporter file trans. 4/9/03; Appellant opening brief due 5/27/03; Appellee brief due 6/25/03; Reply brief due w/in 14 days of service of appellee brief. (SA) (Entered: 02/12/2003)
53 TRANSCRIPT DESIGNATION and Ordering Form for dates: 12/9/02, 1/14/02 [48−1] filed by Christopher Pickrell. (SA) (Entered: 02/24/2003)
50 MOTION by petitioner for attorney fees and costs NOTED FOR 3/7/03 (MD) (Entered: 02/21/2003)
51 DECLARATION of Nicholas P Gellert re motion for attorney fees and costs [50−1] (MD) (Entered: 02/21/2003)
LODGED ORDER: re: motion for attorney fees and costs [50−1] (MD) (Entered: 02/21/2003)
52 AFFIDAVIT OF SERVICE by petitioner of motion for attorney fees and costs [50−1] (MD) (Entered: 02/21/2003)
54 ORDER (CCA 03−35096) Appellants' motion to expedite briefing, oral argument, is GRANTED. Motion to expedite disposition shall be referred to the panel. District Court Clerk is requested to issue Certificate of Record as soon as practicable. Opening brief due 3/21/03; answering brief due 4/21/03; optional reply brief due 14 days from service of answering brief. CCA, Judge, counsel) (SA) (Entered: 02/25/2003)
55 RESPONSE by respondents IN OPPOSITION to motion for attorney fees and costs [50−1] (LS) (Entered: 03/04/2003)
56 REPLY by petitioners' re: on fee motion [50−1] (MD) (Entered: 03/06/2003)
CLERK'S RECORD ON APPEAL transmitted to Circuit (vol. 1−4, exp. 1−3) (SA) (Entered: 05/23/2003)
57 ORDER by Judge Marsha J. Pechman GRANTING petitioners' motion for attorney fees and costs [50−1] (cc: counsel, Judge) (MD) (Entered: 05/28/2003)
58 JUDGMENT: by Judge Marsha J. Pechman, It is ordered and adjudged petitioners are awarded costs and fees in the amount of $129,449.46 (cc: counsel, Judge, Jgm. Book) Entered on: 5/28/03 (MD) (Entered: 05/28/2003)
59 JUDGMENT: by Judge Marsha J. Pechman, It is ordered and adjudged− pursuant to this Court's order of 1/17/03 a permanent injunction prehibiting removal of Somali nationals to Somalia is entered. Petitioners Aweys, Ali and Hundiye are ordered release. Filing of this judgment was intended to be concurrent with that order. (cc: counsel, Judge, Jgm. Book) Entered on: 5/28/03 (MD) (Entered:

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 8 of 17

06/09/2003
06/09/2003
06/19/2003
06/23/2003
06/26/2003 06/27/2003 06/27/2003 06/27/2003
07/11/2003 07/11/2003 07/28/2003
07/29/2003 07/29/2003 07/30/2003 07/30/2003 07/30/2003 09/26/2003
09/30/2003 09/30/2003 10/01/2003

05/28/2003)
60 MOTION by respondents for reconsideration/alter or amend the Court's 5/28/03 judgment awarding fees and costs to petitioners NOTED FOR 6/27/03 (MD) (Entered: 06/10/2003)
LODGED ORDER: re: motion for reconsideration/alter or amend the Court's 5/28/03 judgment awarding fees and costs to petitioners [60−1] (MD) (Entered: 06/10/2003)
61 MINUTE ORDER: by Judge Marsha J. Pechman Court hereby calls for a response pursuant to Local Rule CR7(h)(3). Such response shall be due on 6/23/03 and a reply due on 6/26/03 re: Gov motion to alter or amend judgment. (cc: counsel, Judge) (MD) (Entered: 06/19/2003)
62 RESPONSE/OPPOSITION to Motion filed by Petitioner Yusuf Ali Ali re 60 Motion for Reconsideration/alter or amend judgment awarding fees and costs to petitioners (MD, ) (Entered: 06/26/2003)
63 REPLY to Response to Motion filed by Respondent John D Ashcroft re 60 Motion for Reconsideration/alter or amend judgment (MD, ) (Entered: 07/01/2003)
64 SURREPLY filed by Petitioner Yusuf Ali Ali re 60 Motion for Reconsideration (Attachments: # 1)(MD, ) (Entered: 07/07/2003)
65 MOTION to Amend/correct EAJA reply by Respondent John D Ashcroft. Noting Date 7/18/2003. (Attachments: # proposed order (1))(MD, ) (Entered: 07/07/2003)
66 REPLY to Response to Motion filed by Respondent John D Ashcroft re 60 Motion for Reconsideration/alter or amend judgment awarding fees and costs to petitioners (MD, ) (Entered: 07/07/2003)
67 RESPONSE to Motion filed by Petitioner Yusuf Ali Ali re 65 MOTION to Amend (MD, ) (Entered: 07/17/2003)
68 CERTIFICATE OF SERVICE re 67 Response to Motion. (MD, ) (Entered: 07/17/2003)
69 NOTICE OF APPEAL (03−35620) as to 58 Judgment, 57 Order by Respondent John D Ashcroft. (Pickrell, Christopher) Modified on 8/6/2003 (SA, ). (Entered: 07/28/2003)
Appeal Fees not received: fee in the amount of $ 0. (receipt # n/a) re 69 Notice of Appeal filed by John D Ashcroft (SA, ) (Entered: 07/29/2003)
APPEAL NOTIFICATION packet sent to US Court of Appeals re 69 Notice of Appeal (SA, ) (Entered: 07/29/2003)
70 MINUTE ORDER granting 65 Motion to Amend Reply Brief. by Judge Marsha J. Pechman. (JS) (Entered: 07/30/2003)
71 ORDER denying 60 Motion to Alter or Amend Judgment pursuant to FRCP 59(e). by Judge Marsha J. Pechman. (JS) (Entered: 07/30/2003)
USCA Case Number (03−35620) for 69 Notice of Appeal filed by John D Ashcroft. (SA, ) (Entered: 08/06/2003)
73 NOTICE OF APPEAL (03−35791) as to 71 Order on Motion for Reconsideration by Respondent John D Ashcroft. (Pickrell, Christopher) Modified on 10/3/2003 (SA, ). (Entered: 09/26/2003)
Appeal Fees NOT received: fee not required for government appellant. (SA, ) (Entered: 09/30/2003)
APPEAL NOTIFICATION packet sent to US Court of Appeals re 73 Notice of Appeal (SA, ) (Entered: 09/30/2003)
USCA Case Number 03−35791 for 73 Notice of Appeal filed by John D Ashcroft. (SA, ) (Entered: 10/03/2003)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 9 of 17

07/26/2004 08/03/2004
08/03/2004 08/10/2004 08/10/2004
08/10/2004 08/10/2004 08/10/2004 08/25/2004
09/02/2004 09/02/2004 09/08/2004 09/08/2004 09/08/2004 09/13/2004

76 REQUEST by Abdulaziz Abdi Hashi seeking exclusion from Ali class certification (RS, ) (Entered: 07/29/2004)
77 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Pla Counsel: Nick Gellert; Def Counsel: Greg Mack; Telephone Conference held on 8/3/2004. The parties are to submit briefing on 1) whether this Court has jurisdiction to take any action in light of the current posture before the Ninth Circuit, and 2) proposed notice to the class members currently in detention regarding the current status of the case. Briefing should be filed by 8/11. Oral Argument set for 8/24/2004 at 9:00 am, before Hon. Marsha J. Pechman. Class counsel directed to contact the two individuals who have contacted the Court to inform them of the current status.(RG, ) (Entered: 08/03/2004)
Set/Reset Hearings: Oral Argument/In−court Hearing set for 8/24/2004 09:00 AM before Hon. Marsha J. Pechman. (MD, ) (Entered: 08/04/2004)
78 MEMORANDUM re 77 Telephone Conference,, Re: Notice to Detained Class Members by Petitioner Yusuf Ali Ali. (Gellert, Nicholas) (Entered: 08/10/2004)
79 MEMORANDUM Concerning the Court's Post−Appeal Authority and Proposed Notice to Class Members by Respondents John D Ashcroft, Robert S Coleman Jr, Immigration and Naturalization Service US. (Attachments: # 1 Exhibit A − part 1# 2 Exhibit A − part 2# 3 Exhibit 2− Filed Under Seal)(Pickrell, Christopher) (Entered: 08/10/2004)
81 DECLARATION of Kevin Magnuson re 78 Memorandum re: Notice to Detained Class Members by Petitioner Yusuf Ali Ali. (Attachments: # 1 Exhibit pages 7−16)(Gellert, Nicholas) (Entered: 08/10/2004)
82 SEALED DOCUMENT Declaration of Nicholas Gellert by Petitioner Yusuf Ali Ali re 78 Memorandum. (Attachments/exhibits: # 1 # 2 # 3 # 4 # 5 # 6)(Gellert, Nicholas) Modified text on 8/11/2004 (MD, ). (Entered: 08/10/2004)
83 SEALED DOCUMENT Exhibit 2 by Respondents John D Ashcroft, Robert S Coleman Jr, Immigration and Naturalization Service US re 79 Memorandum. Originally filed electronically by counsel on 8/10/2004 as Ex Parte/Sealed.(AF, ) (Entered: 08/12/2004)
84 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; CR: Joseph Roth; Pla Counsel: Nicolas Gellert, et al; Def Counsel: Greg Mack, et al; In Court Hearing held on 8/25/04. Discussion re Notice, order on website, receipt mechanism, etc. Court directs counsel to work with Law Clerk,Joseph Shaeffer. (ES) (Entered: 08/25/2004)
85 REQUEST by Petitioner Yusuf Ali Ali for Entry of Order Regarding Notices re 84 In Court Hearing,. (Attachments: # 1 Proposed Order RE Notice of Classwide Injunction# 2 Exhibit to Proposed Order [pgs 5−19])(Gellert, Nicholas) (Entered: 09/02/2004)
86 DECLARATION of Nicholas Gellert re 85 Request for Entry of Order Re Notices by Petitioner Yusuf Ali Ali. (Attachments: # 1 Exhibit to Declaration of Nicholas Gellert)(Gellert, Nicholas) (Entered: 09/02/2004)
87 RESPONSE by Respondents John D Ashcroft, Immigration and Naturalization Service US re 85 Request Respondents' Response to Petitioners' Request for Entry of Order Regarding Notices. (Pickrell, Christopher) (Entered: 09/08/2004)
88 NOTICE of Appearance (Dahl, Christine) (Entered: 09/08/2004)
89 MOTION to Exclude Petitioner Garad from Class (Unopposed) by Petitioner Awad Garad. Noting Date 9/9/2004. (Attachments: # 1 Proposed Order)(Dahl, Christine) (Entered: 09/08/2004)
90 IMAGE RESTRICTED; Incorrect image attached; Document to be re−filed ORDER for Notice to Class and those Excluded from the Class re 85 Request filed by Yusuf Ali Ali, 86 Declaration filed by Yusuf Ali Ali, 87 Response filed by Immigration and Naturalization Service US, John D Ashcroft by Judge Marsha J. Pechman. (Attachments: # 1 Certificate of Service # 2 Notice to those included in Class# 3 Notice to those Excluded from the class# 4 Public Summary of Class

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 10 of 17

09/13/2004
09/13/2004 09/21/2004 09/27/2004 09/30/2004 09/30/2004 09/30/2004 09/30/2004 10/04/2004 10/04/2004 10/04/2004 10/06/2004 10/06/2004
10/07/2004

Action to be posted on the web)(RP, ) Modified access and docket text on 9/13/2004 (JEM, ). (Entered: 09/13/2004)
91 CORRECTED ORDER re 85 Request filed by Yusuf Ali Ali, 86 Declaration filed by Yusuf Ali Ali, 87 Response filed by Immigration and Naturalization Service US, John D Ashcroft by Judge Marsha J. Pechman. (Attachments: # 1 Notice to Class Members# 2 Notice to Those Excluded# 3 Summary of the Class Action for the Public to be Posted on the Web# 4 Certificate of Service)(RP, ) (Entered: 09/13/2004)
NOTICE of Docket Text Modification re 90 Order: IMAGE RESTRICTED; Incorrect image attached; Document to be re−filed. (JEM, ) (Entered: 09/13/2004)
92 CERTIFICATE OF SERVICE by Petitioner Awad Garad re 91 Order, (Proof of Service of Notice to Class Members). (Dahl, Christine) (Entered: 09/21/2004)
Set Motion Hearing re 89 MOTION to Exclude Petitioner Garad from Class (Unopposed): Motion Hearing set for 9/30/04 at 9:00 a.m. before Hon. Marsha J. Pechman. (ES) (Entered: 09/27/2004)
93 MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) by Petitioner Awad Garad. Noting Date 10/1/2004.Oral Argument Requested. (Dahl, Christine) (Entered: 09/30/2004)
94 MINUTE ORDER 93 regarding MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) filed by Awad Garad by Judge Marsha J. Pechman. (RP, ) (Entered: 09/30/2004)
95 EXHIBIT in Support of Motion for Release from Indefinite Detention by Petitioner Awad Garad. (Attachments: # 1 Exhibits 1# 2 Exhibits 2# 3 Exhibits 3)(Dahl, Christine) (Entered: 09/30/2004)
Motion termed in error on 10/07/04 re 93 MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) NOTED on motion calendar; Noting Date 10/1/2004. (JEM, ) (Entered: 11/17/2004)
96 MINUTE ORDER recording oral rulings at September 30, 2004 hearing. by Judge Marsha J. Pechman. (RP, ) (Entered: 10/04/2004)
97 RESPONSE, by Respondents John D Ashcroft, Immigration and Naturalization Service US, to 93 MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) (Pickrell, Christopher) (Entered: 10/04/2004)
98 PRAECIPE to attach document (Exhibits) Garad Exhibit Package re 97 Response to Motion by Respondents John D Ashcroft, Immigration and Naturalization Service US. (Pickrell, Christopher) (Entered: 10/04/2004)
99 REPLY, filed by Petitioner Awad Garad, TO RESPONSE to 93 MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) (Attachments: # 1 Motion to Transfer Case to Western District of Washington)(Dahl, Christine) (Entered: 10/06/2004)
100 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman − Dep Clerk: Eileen Scollard; Pla Counsel: Christine Dahl; Def Counsel: Greg Mack; CR: Laurene Kelly; Time of Hearing: 9:00 a.m.; In Court Hearing held on 9/30/04. Court directs defense counsel to investigate alleged issuance of Somali travel documents &report back with thisinformation and the affidavit to be submitted by Michael Garcia, no later than10/29/04. (ES) (Entered: 10/06/2004)
105 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman by telephone conference call. Dep Clerk: Eileen Scollard; Pla Counsel: Christine Dahl; Def Counsel: Greg Mack; CR: Joseph Roth; Motion Hearing held on 10/7/2004 re 93 MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) filed by Awad Garad. Argument by counsel. Court directs Mr. Mack to advise her of status of transfer &to submitproposed restrictions if she were to release him. (ES) (Entered: 10/19/2004)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 11 of 17

10/13/2004
10/13/2004
10/13/2004
10/14/2004 10/25/2004 10/26/2004
10/26/2004 10/28/2004 10/28/2004 10/29/2004
10/29/2004 11/02/2004 11/03/2004
11/03/2004

101 MOTION for Leave to File a Response to Awad Garad's Reply to Respondents' Opposition to Garad's Motion for Release by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Noting Date 10/13/2004. (Attachments: # 1 Proposed Order Granting Respondents' Motion for Leave to File a Response)(Pickrell, Christopher) (Entered: 10/13/2004)
102 RESPONSE by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr re 99 Reply by Awad Garad to Respondents' Opposition to Garad's Motion for Release from Custody. (Attachments: # 1 Exhibit A − Kovensky Declaration# 2 Exhibit B− Oregon Order)(Pickrell, Christopher) (Entered: 10/13/2004)
103 MOTION for Extension of Time to File Statement of Reasonable Release Conditions Concerning Awad Garad by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Noting Date 10/13/2004. (Attachments: # 1 Proposed Order)(Pickrell, Christopher) (Entered: 10/13/2004)
104 STATEMENT of Reasonable Release Conditions Regarding Awad Garad by Respondents John D Ashcroft, Immigration and Naturalization Service US. (Attachments: # 1 Exhibit 1 Custody Decision# 2 Exhibit 2 Form I−213)(Pickrell, Christopher) (Entered: 10/14/2004)
112 TRANSCRIPT of proceedings filed for the following date(s): 9/20/04 9/30/2004 Morning Session before Judge Marsha J. Pechman, Court Reporter: L. Kelly. (SA, ) Modified text to correct date on 11/9/2004 (AF, ). (Entered: 11/01/2004)
106 Sealed Email Correspondence between Class Counsel and Counsel for the GovernmentSEALED DOCUMENT. (Attachments: # 1 Supplement Email between parties# 2 Supplement Email between the parties# 3 Supplement Email between the parties# 4 Supplement Abdirahman bag and baggage notice)(RP, ) (Entered: 10/26/2004)
107 MINUTE ORDER 106 noting email correspondence between parties, by Judge Marsha J. Pechman. (RP, ) (Entered: 10/26/2004)
108 ERRATA RE: ATTACHMENTS TO CR 95 by Petitioner Awad Garad. (Attachments: # 1 Respondent's Exhibits 8/23/04 Hearing# 2 Transcript 8/23/04 hearing# 3 Transcript 9/14/04 hearing)(Dahl, Christine) (Entered: 10/28/2004)
109 REPLY, filed by Petitioner Awad Garad, IN SUPPORT of 93 MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) (Dahl, Christine) (Entered: 10/28/2004)
110 MOTION for Leave to File Declaration of Leonard Kovensky, Deputy Assistant Director, United States Immigration and Customs Enforcement("ICE") by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Noting Date 10/29/2004. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Proposed Order)(Pickrell, Christopher) (Entered: 10/29/2004)
111 REPORT Respondent's Supplemental Report Submitting Conviction and Sentencing Records Regarding Awad Garad by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. (Attachments: # 1 Exhibit A)(Pickrell, Christopher) (Entered: 10/29/2004)
113 AFFIDAVIT of Rod Saiki, Investigator, Federal Public Defender's Office filed by Petitioner Awad Garad re 93 MOTION for Writ (FOR RELEASE FROM INDEFINITE DETENTION ) (Dahl, Christine) (Entered: 11/02/2004)
114 NOTICE by Respondents John D Ashcroft, Immigration and Naturalization Service US Respondents' Notice of Temporary Transfer of Awad Garad to Oregon for Hearing Before the United States District Court for the District of Oregon (Pickrell, Christopher) Modified docket text on 11/3/2004 (JEM, ). (Entered: 11/03/2004)
NOTICE of Docket Text Modification re 114 Notice by Respondents John D Ashcroft, Immigration and Naturalization Service US Respondents' Notice of Temporary Transfer of Awad Garad to Oregon for Hearing Before the United

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 12 of 17

11/04/2004 11/15/2004
11/15/2004 11/15/2004 11/15/2004 11/15/2004 11/17/2004 11/18/2004
11/19/2004
11/19/2004 11/19/2004 11/23/2004
11/24/2004 11/24/2004
11/29/2004

States District Court for the District of Oregon : Per filer's request, docket text was modified to correctly reflect USDC, District of Oregon. (JEM, ) (Entered: 11/03/2004)
115 TRANSCRIPT of proceedings filed for the following date(s): 8/24/04 before Judge Marsha J Pechman, (re 73 Notice of Appeal) Court Reporter: J. Roth. (SA, ) (Entered: 11/05/2004)
116 NOTICE by Respondents John D Ashcroft, Immigration and Naturalization Service US Respondents' Second Notice of Supplemental Report Concerning Awad Garad's Arrest and Conviction Records (Attachments: # 1 Exhibit A (FILED UNDER SEAL))(Pickrell, Christopher) Modified on 11/15/2004, PER PHONE CALL FROM COUNSEL, SEALED EXHIBIT A (KN, ). (Entered: 11/15/2004)
117 RESPONSE by Respondents John D Ashcroft, Immigration and Naturalization Service US Respondents' Response to Awad Garad's Reply to Proposed Conditions of Supervision. (Pickrell, Christopher) (Entered: 11/15/2004)
NOTICE of Docket Text Modification re 116 Notice−Other, : per phone call from counsel, sealed exhibit A (KN, ) (Entered: 11/15/2004)
118 CERTIFICATE OF SERVICE by Respondents John D Ashcroft, Immigration and Naturalization Service US re 116 Notice−Other,. (Pickrell, Christopher) (Entered: 11/15/2004)
119 NOTICE by Petitioner Awad Garad of Proposed Residence (Dahl, Christine) (Entered: 11/15/2004)
120 ORDER granting Awad Garad's Motion for Release from Indefinite Detention (Dkt. No. 93) and imposing conditions of release by Judge Marsha J. Pechman.(RP, ) (Entered: 11/17/2004)
121 MOTION for Reconsideration of the Court's November 16, 2004 Order Granting Awad Garad by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Noting Date 11/18/2004. (Attachments: # 1 Exhibits)(Pickrell, Christopher) (Entered: 11/18/2004)
122 MINUTE ORDER 121 MOTION for Reconsideration of the Court's November 16, 2004 Order Granting Awad Garad filed by Immigration and Naturalization Service US,, Robert S Coleman, Jr, John D Ashcroft, Responsive Brief due by 11/23/2004. by Judge Marsha J. Pechman. (RP, ) (Entered: 11/19/2004)
123 ORDER granting 110 Motion for Leave to File by Judge Marsha J. Pechman.(RP, ) (Entered: 11/19/2004)
124 ORDER renewing 106 91 Order on Class Notice, Status Report due by 11/29/2004. by Judge Marsha J. Pechman. (RP, ) (Entered: 11/19/2004)
125 RESPONSE, by Petitioner Awad Garad, to 121 MOTION for Reconsideration of the Court's November 16, 2004 Order Granting Awad Garad. (Attachments: # 1 Exhibit 4 −− Mack Email# 2 Exhibit 5 −− Miller Mohamud Memo# 3 Exhibit 6 −− ICE Unveils New Alternative to Detention# 4 Exhibit 7 −− ISAP Participant Handbook# 5 Exhibit 8 −− ISAP Exhibits# 6 Exhibit 9 −− Form Order of Supervision)(Dahl, Christine) (Entered: 11/23/2004)
126 ORDER 121 DENYING Respondents' motion for a stay of release. by Judge Marsha J. Pechman.(RP, ) (Entered: 11/24/2004)
127 SEALED DOCUMENT Class Counsel's Report re Certificates of Service by Petitioner Yusuf Ali Ali re 124 Order. (Attachments: # 1 pages 7−34)(Gellert, Nicholas) Modified on 11/26/2004; described attachment (AF, ). (Entered: 11/24/2004)
128 SEALED DOCUMENT Respondents' Late Notice Providing Certificates of Service in Respondents' Possession and Request to File One Day Out of Time by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. (Attachments: # 1 Exhibit A)(Pickrell, Christopher) (Entered: 11/29/2004)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 13 of 17

01/14/2005 01/14/2005 01/18/2005 01/27/2005
01/27/2005 04/20/2005 05/03/2005 07/14/2005
08/18/2005
10/03/2005 12/12/2005 12/12/2005 12/20/2005 12/29/2005
01/03/2006

129 NOTICE OF APPEAL (05−35055) as to 120 Order on Motion Calendar by Respondent John D Ashcroft. (Pickrell, Christopher) Modified on 1/31/2005 (SA, ). (Entered: 01/14/2005)
Appeal Fees NOT received: Government filed appeal, fee not required re 129 Notice of Appeal filed by John D Ashcroft, (SA) (Entered: 01/18/2005)
130 APPEAL NOTIFICATION packet sent to US Court of Appeals re 129 Notice of Appeal (Attachments: # 1 Docket)(SA, ) (Entered: 01/18/2005)
131 TIME SCHEDULE ORDER as to 129 Notice of Appeal filed by John D Ashcroft, : Appellant shall notify Appellee regarding transcripts by 1/24/05; Appellee to notify Appellant regarding any additional transcripts by 2/3/05; Transcript designation due by 2/14/05; Transcript by court reporter due by 3/16/05; Appellants opening brief due by 5/2/05; Appellees response brief due by 6/1/05; Appellants optional reply brief due within 14 days of service of the response brief. (SA, ) (Entered: 01/31/2005)
USCA Case Number 05−35055 for 129 Notice of Appeal filed by John D Ashcroft,. (SA, ) (Entered: 01/31/2005)
132 MEMORANDUM re 91 Order, Re: Notice to class members by Petitioner Yusuf Ali Ali. (Attachments: # 1 Exhibit proposed modification to notice)(Gellert, Nicholas) (Entered: 04/20/2005)
133 ORDER by Judge Marsha J. Pechman. (Attachments: # 1 Updated Class Notice)(RP, ) (Entered: 05/03/2005)
134 ORDER of USCA (05−35055) as to 129 Notice of Appeal filed by John D Ashcroft, Motion for summary reversal of this appeal is DENIED because the arguments raised are sufficiently substantial to warrant further argument. Opening brief due 8/15/05; answering brief due 9/14/05; optional reply due within 14 days after service of answering brief.(SA, ) (Entered: 07/19/2005)
135 ORDER of USCA (05−35055) as to 129 Notice of Appeal filed by John D Ashcroft, The government's unopposed motion for extension of time to file opening brief is GRANTED. Opening brief due 9/22/05; answering brief due 10/24/05; optional reply brief due 14 days after service of answering brief. The government shall monitor the issuance of the certificate of record.(SA) (Entered: 08/23/2005)
136 MANDATE of USCA (05−35055) as to 129 Notice of Appeal filed by John D Ashcroft, Appellant's unopposed motion for dismissal of this case is GRANTED. This case is DISMISSED. (SA) (Entered: 10/07/2005)
137 MOTION to Amend CLASS NOTICE by Petitioners Yusuf Ali Ali, Mohamed Aweys, Awad Garad, Mohamed Hussein Hundiye, Gama Kalif Mohamud, Ahmad Noor Yusuf. Noting Date 12/30/2005. (Attachments: # 1 Proposed Order)(Gellert, Nicholas) (Entered: 12/12/2005)
138 DECLARATION of NICHOLAS GELLERT filed by Petitioners Yusuf Ali Ali, Mohamed Aweys, Awad Garad, Mohamed Hussein Hundiye, Gama Kalif Mohamud, Ahmad Noor Yusuf re 137 MOTION to Amend CLASS NOTICE (Gellert, Nicholas) (Entered: 12/12/2005)
139 NOTICE by Petitioner Yusuf Ali Ali that the following is RE−NOTED: 137 MOTION to Amend CLASS NOTICE Noting Date 1/6/2006. (Gellert, Nicholas) (Entered: 12/20/2005)
140 MOTION for Extension of Time Respondents' Motion to Re−Set Noting Date by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Noting Date 1/9/2006. (Attachments: # 1 Proposed Order Order Granting Respondents' Motion to Re−Set Noting Date)(Pickrell, Christopher) (Entered: 12/29/2005)
141 STATEMENT of Non−Opposition to Motion to Modify Noting Date re 140 MOTION for Extension of Time Respondents' Motion to Re−Set Noting Date by Petitioner Yusuf Ali Ali. (Gellert, Nicholas) (Entered: 01/03/2006)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 14 of 17

01/04/2006 01/09/2006
01/12/2006 02/17/2006
03/02/2006 03/02/2006 03/02/2006 03/03/2006 03/09/2006 03/13/2006 03/14/2006 03/17/2006
03/27/2006 03/27/2006 04/07/2006 04/10/2006 04/14/2006 04/14/2006

142 ORDER GRANTING RESPONDENTS' MOTION TO RE−NOTING 137 MOTION to Amend CLASS NOTICE; RE−Noting Date 1/13/2006. by Judge Marsha J. Pechman. (MD, ) (Entered: 01/04/2006)
143 RESPONSE, by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr, to 137 MOTION to Amend CLASS NOTICE. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Pickrell, Christopher) (Entered: 01/09/2006)
144 REPLY, filed by Petitioner Yusuf Ali Ali, TO RESPONSE to 137 MOTION to Amend CLASS NOTICE (Gellert, Nicholas) (Entered: 01/12/2006)
146 APPLICATION by Petitioners Yusuf Ali Ali, Mohamed Aweys, Awad Garad, Mohamed Hussein Hundiye, Gama Kalif Mohamud, Ahmad Noor Yusuf AND ORDER admitting Michael A Ponzoli for Yusuf Ali Ali and Mohamed Aweys pro hac vice. Receipt # 320853. (MD, ) (Entered: 02/17/2006)
147 NOTICE of Appearance (Ponzoli, Michael) (Entered: 03/02/2006)
148 MOTION and Proposed Order of Exclusion from Class by Petitioner Khalif Mohamed Duale. Noting Date 3/17/2006. (Ponzoli, Michael) Modified/Added 'proposed order' on 3/3/2006 (ECS, ). (Entered: 03/02/2006)
149 DECLARATION of Michael A. Ponzoli filed by Petitioner Khalif Mohamed Duale re 148 MOTION for Order of Exclusion from Class (Ponzoli, Michael) (Entered: 03/02/2006)
150 CERTIFICATE OF SERVICE by Petitioner Khalif Mohamed Duale re 149 Declaration, 148 MOTION for Order of Exclusion from Class, 147 Notice of Appearance. (Ponzoli, Michael) (Entered: 03/03/2006)
151 UNOPPOSED MOTION by Petitioner Omar Abdi Mohamed for an order excluding him from the class . (Attachments: # 1 Proposed Order to motion to exclude )(MD, ) (Entered: 03/10/2006)
152 RESPONSE, by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr, to 148 MOTION for Order of Exclusion from Class. (Pickrell, Christopher) (Entered: 03/13/2006)
153 ORDER granting 151 Petitioner Omar Abdi Mohamed's unopposed Motion exclude from class and protections of all relief granted to the class by Judge Marsha J. Pechman.(MD, ) (Entered: 03/15/2006)
154 MANDATE of USCA (03−35096) as to 48 Notice of Appeal filed by Immigration and Naturalization Service US, Robert S Coleman, Jr, John D Ashcroft; it is ordered and adjudged by this Court, that the judgment of the said District Court in this cause be REMANDED. (LMK) (Entered: 03/21/2006)
155 Joint Status Report due by 4/14/2006; by Judge Marsha J. Pechman. (RP, ) (Entered: 03/27/2006)
156 ORDER granting 148 Petitioner Khalif Mohamed Duale's Motion to exclude from the class and protections of all relief granted to the class by Judge Marsha J. Pechman.(MD, ) (Entered: 03/27/2006)
157 MOTION by Qasim A Bashir to opt out of the Ali injunction (motion not noted) . (MD, ) (Entered: 04/10/2006)
Set/Reset Motion Noting Dates re 157 MOTION to opt out of the Ali injunction: Response by Government due by 4/17/2006; Replies by Plaintiffs due by 4/21/2006. (RP, ) (Entered: 04/10/2006)
158 MINUTE ORDER re: 155 Joint Status Report Order Joint Status Report due by 4/21/2006; by Judge Marsha J. Pechman. (RP, ) (Entered: 04/14/2006)
159 RESPONSE, by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr, to 157 MOTION to opt out of the Ali injunction. (Pickrell, Christopher) (Entered: 04/14/2006)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 15 of 17

04/17/2006 04/21/2006 04/25/2006 04/27/2006
04/27/2006 05/01/2006 05/03/2006 09/28/2006 12/04/2006 12/18/2006 01/11/2007 01/19/2007 01/19/2007

160 ORDER of USCA (03−35620, 03−35791) as to 69 Notice of Appeal filed by John D Ashcroft,, 73 Notice of Appeal filed by John D Ashcroft; Reavley, Tashima, and Paez, Circuit Judges. The Panel will retain jurisdiction of this appeal. (LMK) (Entered: 04/17/2006)
161 JOINT STATUS REPORT filed by all parties.. (Attachments: # 1 Final Notice# 2 Proposed Order)(Pickrell, Christopher) (Entered: 04/21/2006)
162 ORDER granting 157 Motion to Opt Out of Class by Judge Marsha J. Pechman.(RP, ) Modified on 4/26/2006 − mailed copy of order to Qasim A Bashir on 4/26/06 (MD, ). (Entered: 04/25/2006)
163 ORDER − The injunction entered on 1/17/03 is HEREBY VACATED. The nationwide class certified on 1/17/03 is HEREBY DECERTIFIED AS MOOT. The detention claims in the habeas petitions submitted by petitioners Yusuf Ali Ali, Mohamed Aweys and Mohamed Hussein Hundiye are HEREBY DISMISSED WITHOUT PREJUDICE. The Summary of Proceedings and Status of Case (The "Notice") currently posted to the Court's website and the subject of the Court's prior Orders regarding notice to detained class members is hereby modified as indicated in the attachment to this order (the "Final Notice"). The Notice currently posted to the Court's website shall be removed and replaced with the Final Notice. The Final Notice shall remain on the Court's website for the next 90 days. Counsel for Petitioners shall have the Final Notice promptly translated into Somali and shall promptly provide a copy of the translated Final Notice to the Court and counsel for Respondents and within 20 days of the receipt of the translated Final Notice as provided under paragraph 7 above, the Government shall serve both the English and Somali versions of the Final Notice on all persons with final orders of removal to Somalia currently in detention re 161 Joint Status Report by Judge Marsha J. Pechman. (MD, ) (Entered: 04/27/2006)
164 MOTION Unopposed motion by petitioner Abdukadir Mohamed Gure for an order excluding him from the class w/proposed order and certificate of service. . (MD, ) (Entered: 04/27/2006)
165 ORDER/FINAL NOTICE re 163 Order− Lifted the nationwide injunction and de−certified the class by Judge Marsha J. Pechman. (MD, ) (Entered: 05/01/2006)
166 MINUTE ORDER re: Attorney list on Docket− correction made by Judge Marsha J. Pechman. (MD, ) (Entered: 05/03/2006)
CLERK'S RECORD ON APPEAL transmitted to US Court of Appeals re 73 Notice of Appeal;(CCA Case#03−35791) CASE IS FULL ELECTRONIC. (LMK, ) Modified on 10/5/2006 to correct link to docket #73 Notice of Appeal (SA). (Entered: 09/28/2006)
167 MINUTE ORDER: Joint Status Report due by 12/18/2006; signed by Docket Clerk M. Duett at the direction of Judge Marsha J. Pechman. (SC, ) (Entered: 12/04/2006)
168 JOINT STATUS REPORT filed by all parties.. (Gellert, Nicholas) (Entered: 12/18/2006)
169 MINUTE ORDER re: briefing on "prevailing party" issue: Opening Brief due by 1/19/2007. Responsive Brief due by 2/5/2007. Reply Brief due by 2/12/2007. Signed by Docket Clerk M. Duett at the direction of Judge Marsha J. Pechman. (SC, ) Modified on 1/17/2007 − mailed copy of order to Attorney Rolf Johnson (MD, ). (Entered: 01/11/2007)
170 MOTION for Attorney Fees on Remand for Determination of Prevailing Party Status with Respect to EAJA Award by Petitioners Gama Kalif Mohamud, Ahmad Noor Yusuf. Noting Date 2/15/2007. (Attachments: # 1 Exhibit # 2 Proposed Order)(Gellert, Nicholas) (Entered: 01/19/2007)
171 DECLARATION of Nicholas P. Gellert in Support of Petitioner's Motion on Remand for Determination of Prevailing Party Status with Respect to EAJA Award filed by Petitioners Gama Kalif Mohamud, Ahmad Noor Yusuf re 170 MOTION for Attorney Fees on Remand for Determination of Prevailing Party Status with Respect to EAJA Award (Gellert, Nicholas) (Entered: 01/19/2007)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 16 of 17

01/26/2007 02/05/2007 02/05/2007 02/12/2007 02/14/2007 03/06/2007 03/30/2007 05/22/2007
05/22/2007 05/24/2007 05/25/2007
06/18/2007 09/13/2007
05/16/2008

172 MANDATE of USCA (03−35620, 03−35791) as to 69 Notice of Appeal filed by John D Ashcroft; it is ordered and adjudged by this Court that the judgment of the said District Court is hereby VACATED AND REMANDED. (LMK, ) (Entered: 01/29/2007)
173 RESPONSE, by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr, to 170 MOTION for Attorney Fees on Remand for Determination of Prevailing Party Status with Respect to EAJA Award. (Attachments: # 1 Exhibit A−C)(Pickrell, Christopher) (Entered: 02/05/2007)
174 MOTION for Order To Hold in Abeyance Petitioners' Motion for Attorney Fees by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Noting Date 2/23/2007. (Attachments: # 1 Exhibit A)(Pickrell, Christopher) (Entered: 02/05/2007)
175 REPLY, filed by Petitioner Awad Garad, TO RESPONSE to 170 MOTION for Attorney Fees on Remand for Determination of Prevailing Party Status with Respect to EAJA Award (Gellert, Nicholas) (Entered: 02/12/2007)
176 MOTION for Leave to File Excess Pages Respondents' Motion for Leave to File Over−Length E.A.J.A. Brief by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Noting Date 2/14/2007. (Attachments: # 1 Proposed Order)(Pickrell, Christopher) (Entered: 02/14/2007)
177 ORDER denying 174 Motion for Order to Hold in Abeyance; signed by Judge Marsha J. Pechman.(SC, ) (Entered: 03/06/2007)
178 ORDER granting 170 Motion for Attorney Fees; granting 176 Motion for Leave to File Excess Pages. Signed by Judge Marsha J. Pechman.(SC, ) (Entered: 03/30/2007)
179 NOTICE OF APPEAL (07−35422) as to 178 Order on Motion for Attorney Fees, Order on Motion for Leave to File Excess Pages by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. (Pickrell, Christopher) Modified on 5/29/2007; added CCA case number (LMK, ). (Entered: 05/22/2007)
Appeal Fees NOT received: FEE NOT REQUIRED re 179 Notice of Appeal filed by Immigration and Naturalization Service US, John D Ashcroft, Robert S Coleman, Jr (SA, ) (Entered: 05/24/2007)
180 APPEAL NOTIFICATION packet sent to US Court of Appeals re 179 Notice of Appeal (Attachments: # 1 Docket)(SA, ) (Entered: 05/24/2007)
181 TIME SCHEDULE ORDER (07−35422) as to 179 Notice of Appeal filed by Immigration and Naturalization Service US, John D Ashcroft, Robert S Coleman, Jr : Appellant shall notify Appellee regarding transcripts by 06/01/07; Appellee to notify Appellant regarding any additional transcripts by 06/11/07; Transcript designation due by 06/21/07; Transcript by court reporter due by 07/23/07; Appellants opening brief due by 09/07/07; Appellees response brief due by 10/09/07; Appellants optional reply brief due within 14 days of service of the response brief. (LMK, ) (Entered: 05/29/2007)
182 NOTICE of Intent Not to Designate or Order Transcripts for Appeal in CA9 # 07−35422 ; filed by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. (Pickrell, Christopher) (Entered: 06/18/2007)
183 ORDER of USCA (07−35422) as to 179 Notice of Appeal, filed by Immigration and Naturalization Service US, John D Ashcroft, Robert S Coleman, Jr; Respondent's motion for extension of time to file opening brief is GRANTED. Opening brief due 10/12/07; answering brief due 11/15/07; optional reply brief due 14 days after service of answering brief. (SA, ) (Entered: 09/14/2007)
184 NOTICE OF WITHDRAWAL AND SUBSTITUTION OF COUNSEL on behalf of Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. Rebecca Shapiro Cohen is substituted as counsel for Respondents. Attorney Christopher Lee Pickrell terminated. (Cohen, Rebecca) (Entered: 05/16/2008)

Case: 2:02-cv-02304-MJP As of: 06/14/2012 12:24 PM PDT 17 of 17

07/01/2008 09/19/2008 09/30/2008 10/21/2008 10/31/2008

185 MANDATE of USCA (07−35422) as to 179 Notice of Appeal, filed by Immigration and Naturalization Service US, John D Ashcroft, Robert S Coleman, Jr, The judgment of this Court, entered 5/9/08, takes effect this date. VACATED; REMANDED. (SA) (Entered: 07/01/2008)
186 ORDER rescinding sanction previously imposed on US Attorneys Office; signed by Judge Marsha J. Pechman. (SC) (Entered: 09/19/2008)
187 MOTION for return of funds by Respondents John D Ashcroft, Immigration and Naturalization Service US, Robert S Coleman, Jr. (Attachments: # 1 Proposed Order) Noting Date 10/17/2008 (Cohen, Rebecca) (Entered: 09/30/2008)
188 ORDER OF DISTRIBUTION of Funds re: 187 MOTION for return of funds filed by Immigration and Naturalization Service US, John D Ashcroft, Robert S Coleman, Jr.by Judge Marsha J. Pechman. (MD, copy to Fin'l Dept) (Entered: 10/22/2008)
189 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Rolf Brye Johnson (Johnson, Rolf) (Entered: 10/31/2008)

 
 Print Page

General Docket
US Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 03-35791 Nsuit: 2530 Habeas Corpus(USpl) Ali, et al v. Gonzales, et al Appeal from: Western District of Washington (Seattle)

Filed: 10/1/03

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Case type information:
1) prisoner petition 2) federal 3) habeas corpus - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Lower court information:

District: 0981-2 : CV-02-02304-MJP presiding judge: Marsha J. Pechman, District Judge court reporter: Laurene Kelly, Court Reporter Date Filed: 11/13/02 Date order/judgment: 7/30/03 Date NOA filed: 9/26/03 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Fee status: USA: no fee required

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Prior cases:
03-35096 tmr AWT RAP Date filed: 2/10/03 Date disposed: 9/17/03 Disposition: af/opn

Current cases:

Lead

Member

Start

End

consolidated:

03-35620 03-35791 1/12/04

related:

03-35791 05-35055 1/21/05

03-35620 05-35055 1/21/05

Docket as of January 23, 2007 11:17 pm

Page 1

03-35791 Ali, et al v. Gonzales, et al

YUSUF ALI ALI Petitioner - Appellee

Thomas L. Boeder, Esq. 206/359-8000 Suite 4800 [COR LD NTC ret] Nicholas P. Gellert, Esq. 206/359-8000 Suite 4800 [COR LD ret] PERKINS COIE, LLP 1201 Third Ave. Seattle, WA 98101-3099

MOHAMED AWEYS Petitioner - Appellee

Thomas L. Boeder, Esq. (See above) [COR LD NTC ret] Nicholas P. Gellert, Esq. (See above) [COR LD ret]

MOHAMED HUSSEIN HUNDIYE Petitioner - Appellee

Thomas L. Boeder, Esq. (See above) [COR LD NTC ret]

file://C:\DOCUME~1\Miles\LOCALS~1\Temp\3TPQOVEK.htm

Page 1 of 6 8/2/2007

GAMA KALIF MOHAMUD Petitioner - Appellee

Thomas L. Boeder, Esq. (See above) [COR LD NTC ret]

AHMAD NOOR YUSUF Petitioner - Appellee

Thomas L. Boeder, Esq. (See above) [COR LD NTC ret]

v.

ALBERTO R. GONZALES, Attorney General
Respondent - Appellant

Christopher Lee Pickrell, Esq. FAX 206/553-4067 206/553-4088 Suite 5220 [COR LD NTC aus] USSE - OFFICE OF THE U.S. ATTORNEY 700 Stewart St. Seattle, WA 98101-1271

Greg D. Mack, Esq. FAX 202/305-7211 202/616-4858 [COR LD NTC gov] DOJ - U.S. DEPARTMENT OF JUSTICE Civil Div./Office of Immigration Lit. P.O. Box 878, Benjamin Franklin Station

Docket as of January 23, 2007 11:17 pm

Page 2

03-35791 Ali, et al v. Gonzales, et al

1331 Pennsylvania Ave., NW Washington, DC 20044

PHIL CRAWFORD, Acting Field Director, Bureau of Immigration and Customs Enforcement
Respondent - Appellant

Christopher Lee Pickrell, Esq. (See above) [COR LD NTC aus]
Greg D. Mack, Esq. (See above) [COR LD NTC gov]

BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT
Respondent - Appellant

Christopher Lee Pickrell, Esq. (See above) [COR LD NTC aus]

Greg D. Mack, Esq. (See above) [COR LD NTC gov]

Docket as of January 23, 2007 11:17 pm

Page 3

03-35791 Ali, et al v. Gonzales, et al YUSUF ALI ALI; MOHAMED AWEYS; MOHAMED HUSSEIN HUNDIYE; GAMA KALIF MOHAMUD; AHMAD NOOR YUSUF
Petitioners - Appellees v.

file://C:\DOCUME~1\Miles\LOCALS~1\Temp\3TPQOVEK.htm

Page 2 of 6 8/2/2007

ALBERTO R. GONZALES, Attorney General; PHIL CRAWFORD, Acting Field Director, Bureau of Immigration and Customs Enforcement; BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT

Respondents - Appellants

Docket as of January 23, 2007 11:17 pm

Page 4

03-35791 Ali, et al v. Gonzales, et al

10/1/03

DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. CADS SENT (Y/N): N. setting schedule as follows: appellant's designation of RT is due 10/6/03,, ; appellee's designation of RT is due 10/16/03; appellant shall order transcript by 10/27/03; court reporter shall file transcript in DC by 11/26/03; certificate of record shall be filed by 12/3/03 ; appellant's opening brief is due 1/12/04; appellees' brief is due 2/11/04; appellants' reply brief is due w/in 14 days of svc of aple's brief. [03-35791] (kym) [03-35791]

10/23/03

Filed order MOATT (HS) The court sua sponte consolidates appeal nos. 03-35620 and 03-35791. etc. The briefing schedule established un appeal no. 03-35791 shall govern these consolidated appeals. [03-35620, 03-35791] (vt) [03-35620 03-35791]

10/23/03

Filed John Ashcroft in 03-35620 and 03-35791 unopposed motion to consolidate cases. served on 10/22/03 nan/per order of 10/23/03 case file (vt) [03-35620 03-35791]

1/12/04

Filed motion & order (Deputy Clerk: gss/PROMO) The aplts' motion for an ext of time to file the opening brief is granted. The opening brief is now due Feb. 2, 2004. The answering brief is due Mar. 3, 2004. The optional lreply brief is duoe 14 days after service of the answering brief. in 03-35620, 03-35791 ( Motion recvd 1/6/04) [03-35620, 03-35791] (vt) [03-35620 03-35791]

1/26/04

Filed John Ashcroft in 03-35620 and 03-35771 motion to hold briefing schedule in abeyance. served on 1/23/04 WIP/PROMO (vt) [03-35620 03-35791]

2/18/04

Filed order (Deputy Clerk: gss/PROMO) The Gov's motion to stay appellate proceedings is granted in part. Proceedings are stayed until May 3, 2004. At or prior to the expiration of the stay, the aplt shall file the opening brief or request for appropriate relief. If the opening brief is filed, the answering brief is due June 2, 2004. The optional lreply brief is due 14 days after service of the answering brief. [03-35620, 03-35791] (vt) [03-35620 03-35791]

5/7/04

Filed motion of Appellant and order (Deputy Clerk gss) The Governement's motio to stay proceedings is granted in part. Proceedings are stayed until 08/02/04. At or prior to the expiration of the stay the government shall file the opening brief or request appropriate relief. If the opening brief is filed the answering brief is ue 09/01/04. The optional reply brief is due 14 days from service. [5055833-1] in 03-35791 ( Motion recvd 05/03/04) [03-35620, 03-35791] (dv) [03-35620 03-35791]

Docket as of January 23, 2007 11:17 pm

Page 5

03-35791 Ali, et al v. Gonzales, et al

file://C:\DOCUME~1\Miles\LOCALS~1\Temp\3TPQOVEK.htm

Page 3 of 6 8/2/2007

8/3/04

Filed John Ashcroft in 03-35620 and 03-35791 third unopposed motion to hold the briefing schedule in abeyance. served on 8/2/04 WIP/PROMO (vt) [03-35620 03-35791]

8/24/04

Filed order (Deputy Clerk: gss/PROMI) The appellants' third unopposed motion to stay is granted in part. Proceedings are stayed until Dec. 2, 2004. at or prior to the expiration of the stay, the aplts shall file the opening brief or move for appropriate relief. If the opening brief is filed, the answering brief is due Jan. 3, 2005. The optional reply brief is due 14 days after service of the answering brief. [03-35620, 03-35791] (vt) [03-35620 03-35791]

12/1/04

Filed Appellant John Ashcroft in 03-35620 and 033-35791's fourth unopposed motion to hold the briefing schedule in abeyance. served on 11/30/04 WIP/ PROMO [03-35620, 03-35791] (vt) [03-35620 03-35791]

1/14/05

Filed order (Deputy Clerk: gss/PROMO) The appellant's fourth motion to stay appelate proceedings is granted in part. Proceedings are stayed until Apr. 4, 2005. At or prior to the expiration of the stay, aplt's shall file the opening brief or request for appropriate relief. If the opening brief is filed, the answering brief is due May 4, 2005. The optional reply brief is due 14 days after the service of the answering brief. [03-35620, 03-35791] (vt) [03-35620 03-35791]

9/1/05

Filed order (Appellate Commissioner) The mtns for smry dispo of appeal no 3-35620 are denied b/c the issues raised are sufficiently substantial to warrant further argument. CITE. The consolidated opening brf is due 9/12/05; the consolidated ans brf is due 10/12/05; and the opt consolidated reply brf is due within 14 days after service of the consolidated asn brf. ( moatt/jz) [03-35620, 03-35791] (ji) [03-35620 03-35791]

9/21/05

Filed Appellants' motion to extend time to file appellant's opening brief until 10/20/05 ; served on 9/20/05 [PROMO] [03-35620, 03-35791] (ji) [03-35620 03-35791]

9/23/05

Received Appellants' addendum to supporting appellant's motion to extend time to file appellant's opening brief , served on 9/22/05 (promo) [03-35620, 03-35791] (ji) [03-35620 03-35791]

9/29/05

Filed order (Deputy Clerk: lkk/promo) granting appellant's motion to extend time to file appellant's opening brief. Appellants' opening brief due 10/20/05; the asn brf is due 11/21/05. The opt reply brf is due 14 days after service of the asn brf. [03-35620, 03-35791] (ji) [03-35620 03-35791]

Docket as of January 23, 2007 11:17 pm

Page 6

03-35791 Ali, et al v. Gonzales, et al

10/21/05

Filed original and 15 copies Appellants ' opening brief ( Informal: NO ) 17 pages; 5 excerpts of record ( 1 Exc.vol ); served on ( minor defcy: Incorrect color cover.) Notified counsel. [03-35620, 03-35791] (ji) [03-35620 03-35791]

10/24/05

Received Appellants' 2nd brief in 15 copies 17 pages ( Informal: NO) (deficient 2nd brf, mtn needed): notified counsel. Excerpts of record in 0 volumes. Served on 10/21/05
[03-35620, 03-35791] (ji) [03-35791]

10/24/05

Received Appellants, replacement opening brief covers, satisfaction of (minor) brief deficiency. [03-35620, 03-35791] (ji) [03-35620 03-35791]

file://C:\DOCUME~1\Miles\LOCALS~1\Temp\3TPQOVEK.htm

Page 4 of 6 8/2/2007

11/15/05

Filed aples motion to extend time to file appellee's brief until 1/9/06; served on 11/8/05 [PROMO] (ji) [03-35620 03-35791]

11/21/05

Filed order (Deputy Clerk: lkk/promo) granting appellee's motion to extend time to file appellee's brief. Appellees' brief due 1/9/06. The opt rpy brf is due 14 days after service of the ans brf. in 03-35620, 03-35791 [03-35620, 03-35791] (ji) [03-35620 03-35791]

1/10/06

Filed original and 15 copies appellees' 18 pages brief, 0 Exc. vols: ; served on 1/9/06 [03-35620, 03-35791] (ji) [03-35620 03-35791]

1/25/06

Filed original and 15 copies aplts reply brief, ( Informal: NO ) 7 pages; served on 1/24/06 [03-35620, 03-35791] (ji) [03-35620 03-35791]

4/4/06

Calendar check performed [03-35620, 03-35791] (rei) [03-35620 03-35791]

4/12/06

Filed order ( Thomas M. Reavley, A. W. TASHIMA, Richard A. PAEZ, ): The panel will retain jurisdiction of this appeal.
[03-35620, 03-35791] (ji) [03-35620 03-35791]

9/18/06

CALENDARED: SEATTLE Oct 20 2006 1:00 pm

Courtroom @

Park Place, 21st Flr [03-35620, 03-35791] (aw)

[03-35620 03-35791]

9/18/06

Filed order (Deputy Clerk: jf) Judge Reavley is unavailable for this case. Judge Smith has been drawn in his place. The panel now consists of Judges TASHIMA, PAEZ and SMITH. Oral argument on the merits will be held on Friday, 10/20/06, at 1pm, in the 21st Flr Courtoom at Park Place Building, 1200 Sixth Avenue, in Seattle, WA. Each side will be allotted twenty (20) minutes to present their arguments. (fax/phone)
[03-35620, 03-35791] (ji) [03-35620 03-35791]

Docket as of January 23, 2007 11:17 pm

Page 7

03-35791 Ali, et al v. Gonzales, et al

10/18/06

Filed Alberto R. Gonzales additional citations, 4/27/06 order of district court (panel) served on [03-35620, 03-35791] (ji) [03-35620 03-35791]

10/18/06

Filed Alberto R. Gonzales additional citations (PANEL) [03-35620, 03-35791] (ji) [03-35620 03-35791]

10/20/06

ARGUED AND SUBMITTED TO A. W. TASHIMA, Richard A. PAEZ, Milan D. SMITH [03-35620, 03-35791] (kym) [03-35620 03-35791]

11/30/06

FILED MEMORANDUM DISPOSITION: VACATED AND REMANDED. ( Terminated on the Merits after Oral Hearing; Vacated and Remanded; Written, Unsigned, Unpublished. A. W. TASHIMA, Richard A. PAEZ, Milan D. SMITH ) FILED AND ENTERED JUDGMENT. [03-35620, 03-35791] (ji) [03-35620 03-35791]

1/23/07

MANDATE ISSUED [03-35620, 03-35791] (ji) [03-35620 03-35791]

Docket as of January 23, 2007 11:17 pm

Page 8

PACER Login:

PACER Service Center Transaction Receipt

08/02/2007 09:57:20

wu0079

Client Code:

file://C:\DOCUME~1\Miles\LOCALS~1\Temp\3TPQOVEK.htm

Page 5 of 6 8/2/2007

Description: Billable Pages:

dkt report 8

Case Number: Cost:

03-35791 0.64

Page 6 of 6

file://C:\DOCUME~1\Miles\LOCALS~1\Temp\3TPQOVEK.htm

8/2/2007

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 YUSUF ALI ALI; MOHAMED AWEYS;

MOHAMED HUSSEIN HUNDIYE; GAMA

KALIF MOHAMUD,

Petitioners-Appellees,

v.



JOHN ASHCROFT, Attorney General; IMMIGRATION AND NATURALIZATION SERVICE; ROBERT S. C OLEMAN, JR.,
 Respondents-Appellants.

No. 03-35096
D.C. No. CV 02-2304 MJP
OPINION

Appeal from the United States District Court for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding

Argued and Submitted July 8, 2003—Seattle, Washington
Filed September 17, 2003

Before: Thomas M. Reavley,* A. Wallace Tashima, and Richard A. Paez, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge Reavley

*The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.
13925

ALI v. A SHCROFT

13929

COUNSEL
Greg D. Mack, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondents-appellants.
Nicholas P. Gellert, Perkins Coie LLP, Seattle, Washington, for the petitioners-appellees.

OPINION
TASHIMA, Circuit Judge:
The question we must answer is whether the United States can remove aliens to Somalia, a country that does not have a functioning government to accept them. In a well-reasoned opinion, the district court found that it cannot. See Ali v. Ashcroft, 213 F.R.D. 390 (W.D. Wash. 2003). We agree with the district court and therefore affirm. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
Tom Ridge, Secretary of the Department of Homeland Security, the Bureau of Immigration and Customs Enforcement, and officials of the former Immigration and Naturalization Service (“INS”)1 (collectively, the “government”) appeal the district court’s order granting a petition for a writ of

1After the district court filed its order in this case, the INS was abolished and its functions transferred to the newly-created Department of Homeland Security. See Homeland Security Act of 2002 §§ 2, 101, 441, 442, 6 U.S.C. §§ 101, 111, 251, 252. For convenience, we refer to the government agency as the INS.

13930

ALI v. A SHCROFT

habeas corpus. Petitioners-Appellees, natives and citizens of Somalia, sought an order enjoining the INS from removing them to Somalia because there is no government in Somalia to accept them. Petitioners also sought certification of a nationwide habeas and declaratory class composed of all persons in the United States who are subject to orders of removal to Somalia. The district court granted a permanent injunction and the motion for class certification. The court ordered the INS not to remove any person in the nationwide class to Somalia and ordered the release of three of the named petitioners.

BACKGROUND

There are four named petitioners on appeal: Yusuf Ali Ali, Mohamed Aweys, Mohamed Hussein Hundiye, and Gama Kalif Mohamud. All four were ordered removed from the United States on various dates in 2000 and 2001, but each had been released from INS custody because removal to Somalia “was not likely to occur in the reasonably foreseeable future. ” Ali, 213 F.R.D. at 397. Mohamud was taken back into custody in June 2000 for alleged violations of the conditions of his release. The other three petitioners were re-detained in November 2002 because “the local District Director’s office was informed that plans were underway for [their] imminent removal to Somalia.” Id.

In response to their renewed detention, Petitioners filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, seeking to enjoin the INS from removing them to Somalia because Somalia does not have a government recognized by the United States and thus could not accept them. Petitioners contended that removing them to Somalia “without acceptance by a stable government ” would subject them to “great risk of robbery, enslavement, injury or death. ” The district court granted a temporary restraining order enjoining the INS from removing Petitioners to Somalia or any other nondesignated country.

ALI v. A SHCROFT

13931

Petitioners then filed an amended habeas petition, raising the issue on behalf of themselves and a nationwide class. In December 2002, the district court granted Petitioners’ motion for a temporary restraining order on behalf of the nationwide class. After hearing oral argument, the court orally granted a preliminary injunction and certified a nationwide class. Following further briefing, the court declared the injunction permanent. The government filed a timely notice of appeal.

STANDARD OF REVIEW

The district court’s decision to grant a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 is subject to de novo review. Angulo-Dominguez v. Ashcroft , 290 F.3d 1147, 1149 (9th Cir. 2002). Whether the district court had jurisdiction over a habeas petition is also reviewed de novo. Barapind v. Reno, 225 F.3d 1100, 1109 (9th Cir. 2000). The district court’s decision to grant a permanent injunction is reviewed for an abuse of discretion, but the rulings of law underlying the grant of injunctive relief are reviewed de novo. Biodiversity Legal Found. v. Badgley , 309 F.3d 1166, 1176 (9th Cir. 2002); Walters v. Reno , 145 F.3d 1032, 1047 (9th Cir. 1998). The district court’s factual findings are entitled to deference unless clearly erroneous. Walters, 145 F.3d at 1047.

DISCUSSION

We first address the government’s challenges to the district court’s jurisdiction. Second, we turn to the government’s argument that the district court erroneously concluded that 8 U.S.C. § 1231 does not allow the INS to remove an alien unless the country of removal accepts the alien. Third, we consider the propriety of the district court’s certification of the nationwide habeas class. Finally, we address the district court order that three of the four named Petitioners be released from custody.

13932

ALI v. A SHCROFT

I. District Court Jurisdiction over Habeas Petition

A. Administrative Exhaustion

[1] The government argues that Petitioners failed to exhaust their administrative remedies as required by 8 U.S.C. § 1252(d)(1), precluding judicial review. Section 1252(d)(1) provides that “[a] court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right. ” We have previously drawn a distinction, however, “between jurisdiction to rule on the merits of an individual deportation order and jurisdiction to rule on an alleged pattern and practice of constitutional or statutory violations.” El Rescate Legal Servs., Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir. 1992), as amended.

[2] Contrary to the government’s contention, Petitioners do not simply challenge the validity of their orders of removal. Instead, they question whether the statute grants the INS authority to remove them to a country that cannot accept them. Thus, this case is similar to El Rescate, in which we held that administrative exhaustion was not required where, rather than challenging “the validity of any deportation or exclusion order or of any ruling in an immigration proceeding,” the appellees were challenging the INS’ failure to require translation of all deportation proceedings. Id. at 747. We therefore agree with the district court that § 1252(d)(1) does not apply here.

[3] A prudential exhaustion requirement may also be applied where agency expertise requires the agency to develop a proper record, relaxation of the exhaustion requirement would encourage deliberate bypass of the administrative scheme, and administrative review would allow the agency to correct its own mistakes. El Rescate, 959 F.2d at 747. Each of the factors involved in prudential exhaustion weighs against applying a prudential exhaustion requirement here.

ALI v. A SHCROFT

13933

Further development of the record is unnecessary because Petitioners have raised a purely legal question. Moreover, the INS’ position—that it is statutorily authorized to remove Petitioners to a country that cannot accept them—is set, making it likely that recourse to administrative remedies would be futile. See id. at 747-48 (stating that it was unrealistic to require the plaintiffs to exhaust their administrative remedies where the Board of Immigration Appeals had already announced and reaffirmed its policy); see also CastilloVillagra v. INS , 972 F.2d 1017, 1024 (9th Cir. 1992) (concluding that prudential exhaustion did not apply where the INS had already taken the challenged position in a number of similar cases). Failure to exhaust administrative remedies does not bar judicial review here.

B. 8 U.S.C. § 1252(g)

[4] Under 8 U.S.C. § 1252(g), “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien. ” The district court concluded that Petitioners raised a purely legal question, rather than a challenge to the Attorney General’s discretionary decision to execute their removal. Ali, 213 F.R.D. at 399. The government asserts, however, that Petitioners’ claims fall within the purview of § 1252(g)’s restriction on jurisdiction; consequently, that the district court erred in concluding that it had jurisdiction. We disagree.

The government takes issue with the district court’s finding that Petitioners raise a purely legal question and thus do not challenge the Attorney General’s discretionary decision to execute their removal. See Ali, 213 F.R.D. at 398. We reject this argument. The issue Petitioners raise is the legal question of whether § 1231 authorizes the Attorney General to remove them to a country that does not have a government that can accept them. Cf. Walters, 145 F.3d at 1052 (stating that the

13934

ALI v. A SHCROFT

government did not and could not assert that § 1252(g) pre-

vented the district court from exercising jurisdiction over the

plaintiffs’ due process claims because the claims “do not arise

from a ‘decision or action by the Attorney General to com-

mence proceedings, adjudicate cases, or execute removal

orders against any alien,’ [8 U.S.C. § 1252(g),] but instead

constitute ‘general collateral challenges to unconstitutional

practices and policies used by the agency’

”) (quoting

McNary v. Haitian Refugee Ctr., Inc. , 498 U.S. 479, 492

(1991)).

The government argues that § 1252(g) bars habeas jurisdiction because the statute authorizes only “one avenue for consideration” of a claim arising from the Attorney General’s decision to commence proceedings, adjudicate cases, or execute removal orders. Section 1252(g) does not, however, mention habeas jurisdiction. The government asserts that § 1252(g)’s “displacement of habeas jurisdiction ” is manifested by its failure to authorize habeas jurisdiction. This argument is foreclosed by our decision in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir. 1999), and by recent Supreme Court precedent.

In Magana-Pizano, we held that § 1252(g) did not eliminate all habeas corpus relief. Id. at 609. Relying on the Supreme Court’s narrow construction of § 1252(g) in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), we reasoned that § 1252(g) does not explicitly refer to habeas jurisdiction under § 2241 and held that § 2241 remained an available remedy. Magana-Pizano, 200 F.3d at 609; see also Kim Ho Ma v. Ashcroft , 257 F.3d 1095, 1101 n.4 (9th Cir. 2001) (relying on Magana-Pizano to hold that § 1252 did not bar consideration of the petitioner’s nonconstitutional arguments on habeas corpus).

The Supreme Court’s reasoning in several cases decided after Magana-Pizano supports this interpretation. First, there is no clear statement in § 1252(g) of congressional intent to

ALI v. A SHCROFT

13935

repeal habeas jurisdiction. See Demore v. Kim , 123 S. Ct. 1708, 1714 (2003) (holding that habeas review was not barred by 8 U.S.C. § 1226(e) because “where a provision precluding review is claimed to bar habeas review, the Court has required a particularly clear statement that such is Congress’ intent, ” and § 1226(e) contained no such explicit provision); INS v. St. Cyr, 533 U.S. 289, 298 (2001) (emphasizing “the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction ”).

[5] Second, in Zadvydas v. Davis , 533 U.S. 678 (2001), where the petitioner did not seek review of the Attorney General’s exercise of discretion, but instead challenged the Attorney General’s authority under 8 U.S.C. § 1231(a)(6) to detain him beyond the statutory removal period, the Court concluded that “§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to postremoval-period detention.” Id. at 688. Similarly here, Petitioners question whether the Attorney General has authority under the statute to take the challenged action; Petitioners do not seek review of the Attorney General’s exercise of discretion. Jurisdiction over the habeas petition was not barred by § 1252(g). Accord Jama v. INS , 329 F.3d 630, 632 (8th Cir. 2003) (holding that the petitioner’s challenge to the Attorney General’s authority under § 1231(b)(2) to remove him to Somalia without establishing that Somalia would accept him was “outside the scope of the jurisdiction-stripping provision of § 1252(g)”); Riley v. INS , 310 F.3d 1253, 1256 (10th Cir. 2002) (holding that “[t]he INS [sic] did not strip § 2241 federal habeas jurisdiction in either 8 U.S.C. § 1252(g) . . . or 8 U.S.C. § 1105(a) because neither contains a clear statement referencing § 2241 as is required when attempting to remove federal habeas jurisdiction ”); Liu v. INS , 293 F.3d 36, 36-41 (2d Cir. 2002) (relying on St. Cyr to hold that § 2241 review remained available for non-criminal aliens, “even though, unlike criminal aliens, they continue to enjoy the right to appeal directly from a final order of removal ”).

13936

ALI v. A SHCROFT

Having concluded that the district court properly exercised jurisdiction over Petitioners’ habeas petition, we now turn to the central issue—the Attorney General’s statutory authority to remove Petitioners to Somalia.

II. Removal under 8 U.S.C. § 1231(b)(2)

[6] Section 1231(b)(2) delineates the process by which the Attorney General determines the country to which an alien can be removed. The first choice, in subparagraph (A)(i), is for the Attorney General to remove the alien to the country that the alien designates. Subparagraph (C) provides, however, that

[t]he Attorney General may disregard a designation under subparagraph (A)(i) if—

(i) the alien fails to designate a country promptly;

(ii) the government of the country does not inform the Attorney General finally, within 30 days after the date the Attorney General first inquires, whether the government will accept the alien into the country;

(iii) the government of the country is not willing to accept the alien into the country; or

(iv) the Attorney General decides that removing the alien to the country is prejudicial to the United States.

§ 1231(b)(2)(C). The statute explicitly provides, therefore, that the government of the country designated by the alien must be willing to accept the alien. Failing that, the Attorney General may move to step two, found in subparagraph (D):

If an alien is not removed to a country designated under subparagraph (A)(i), the Attorney General

ALI v. A SHCROFT

13937

shall remove the alien to a country of which the alien is a subject, national, or citizen unless the government of the country—

(i) does not inform the Attorney General or the alien finally, within 30 days after the date the Attorney General first inquires or within another period of time the Attorney General decides is reasonable, whether the government will accept the alien into the country; or

(ii) is not willing to accept the alien into the country.

§ 1231(b)(2)(D). Step two, therefore, again provides that the

country to which the Attorney General attempts to remove the

alien—this time to a country of which the alien is a subject,

national, or citizen—must be willing to accept the person.

Failing that, subparagraph (E) provides for

“additional

removal countries”:

If an alien is not removed to a country under the previous subparagraphs of this paragraph, the Attorney General shall remove the alien to any of the following countries:

(i) The country from which the alien was admitted to the United States.

(ii) The country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States.

(iii) A country in which the alien resided before the alien entered the country from which the alien entered the United States.

(iv) The country in which the alien was born.

13938

ALI v. A SHCROFT

(v) The country that had sovereignty over the alien’s birthplace when the alien was born.

(vi) The country in which the alien’s birthplace is located when the alien is ordered removed.

(vii) If impracticable, inadvisable, or impossible to remove the alien to each country described in a previous clause of this subparagraph, another country whose government will accept the alien into that country.

§ 1231(b)(2)(E).

A. Statutory Construction

The government argues that the plain language of § 1231 authorizes the Attorney General to remove Petitioners to Somalia, their country of birth, without acceptance by the country. It is true that acceptance is explicitly required only in steps one and two, § 1231(b)(2)(C) & (D), and clause (vii) of step three, § 1231(b)(2)(E)(vii). We agree, however, with the careful reasoning of the district court deeming acceptance implicitly required for all removals, and adopt it here.

[7] First, to read § 1231(b)(2)(E)(i)-(vi) as not requiring acceptance by the foreign government would render § 1231(b)(2)(C) and (D) superfluous in the majority of instances because

in a situation where a government has actually denied acceptance of a removable person, a person could be airdropped surreptitiously into that same country if it met the requirements of one of the subparts . . . . The only logical interpretation of the plain meaning that gives effect to all sections of the statute is one that requires government acceptance from “additional” countries listed in § 1231(b)(2)(E)(i-vi).

ALI v. A SHCROFT Ali, 213 F.R.D. at 402-03.

13939

[8] Furthermore, “the plain language of the statute indicates that the option to remove a person to the country in which he or she was born only exists where that country is different from the countries in steps 1 and 2. ” Id. at 403. If this were not so, and, for example, the country designated by the alien was the same as his birth country, the anomalous situation could occur where the country designated by the alien in step one refuses to accept the alien yet the INS could still remove the alien to that very same country under step three. “The INS should not be allowed to thwart [the acceptance requirement of step one and step two] by skipping to step 3. ” Id.

[9] We recognize that this problem does not arise and the government’s position does not render subsections (C) and (D) superfluous if the country designated by the alien, the country of which the alien is a subject, national, or citizen, and one of the six “additional removal countries” are all different countries. Cf. Jama, 329 F.3d at 634 (concluding that the government’s position does not eviscerate the acceptance requirement of subsection (D) because “[a]n alien is not always a subject, national or citizen of the country in which he was born ”). In the most common scenario, however, and in that present in the instant case, the country designated by the alien and the country of which the alien is a subject, national, or citizen is one and the same as the country in which the alien was born. Under step one and step two, the governments of those countries must accept the alien prior to removal. We agree with the district court that “[t]he INS should not be allowed to thwart ” the acceptance requirement of step one and step two by relying on step three. Ali, 213 F.R.D. at 403.

B. Case Law

[10] Requiring acceptance before removal is consistent with all of the case law that has touched on the question. The

13940

ALI v. A SHCROFT

one exception is the Eighth Circuit’s decision in Jama, which held that § 1231(b)(2)(E)(iv) authorized the INS to remove the petitioner to Somalia without establishing that Somalia would accept his return. Jama, 329 F.3d at 633-35. We thus disagree not only with the conclusion of the majority opinion in Jama but also with its statement that there is “no settled judicial construction of the provision in question. ” Id. at 63435. In fact, in his dissenting opinion in Jama, Judge Bye stated that “[f]or nearly a half century, the courts have held the United States cannot deport an alien unless the receiving country advises us it is willing to accept the alien, ” and pointed out that the INS’ “long-standing policy and, until recently, practice” had been consistent with this interpretation of the statute. Id. at 635 (Bye, J., dissenting). 2

[11] The Second Circuit addressed the predecessor to § 1231, 8 U.S.C. § 1253(a), in United States ex rel. Tom Man v. Murff, 264 F.2d 926 (2d Cir. 1959). Former § 1253(a) is essentially identical to § 1231, providing the same three-step process, explicitly requiring acceptance in the first two steps and then, in the third step, listing the six additional countries and stating in the seventh clause that the Attorney General may deport the alien to “any country which is willing to accept such alien into its territory. ”3 8 U.S.C. § 1253, histori-
(Text continued on page 13942)

2Judge Bye further reasoned that “a functioning central government [is] an ‘essential aspect’ of a ‘country’ to which an alien can be deported,” and that “the majority’s construction of the statute will only be implicated when there is no functioning government to refuse the alien’s acceptance, currently the case in Somalia.” Jama, 329 F.3d at 637 (Bye, J., dissenting) (quoting Matter of Linnas, 19 I. & N. Dec. 302, 307 (BIA 1985)).
3Former § 1253(a) stated:
The deportation of an alien in the United States provided for in this chapter, or any other Act or treaty, shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory, unless the Attorney General, in his discretion, concludes that deportation to such country would be prejudicial to the interests of the United States . . . . If the government of the country designated by the

ALI v. A SHCROFT

13941

alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may thereafter be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject, national, or citizen if such country is willing to accept him into its territory. If the government of such country fails finally to advise the Attorney General or the alien within three months following the date of original inquiry, or within such other period as the Attorney General shall deem reasonable under the circumstances in a particular case, whether that government will or will not accept such alien into its territory, then such deportation shall be directed by the Attorney General within his discretion and without necessarily giving any priority or preference because of their order as herein set forth either—
(1) to the country from which such alien last entered the United States;
(2) to the country in which is located the foreign port at which such alien embarked for the United States or for foreign contiguous territory;
(3) to the country in which he was born;
(4) to the country in which the place of his birth is situated at the time he is ordered deported;
(5) to any country in which he resided prior to entering the country from which he entered the United States;
(6) to the country which had sovereignty over the birthplace of the alien at the time of his birth; or
(7) if deportation to any of the foregoing places or countries is impracticable, inadvisable, or impossible, then to any country which is willing to accept such alien into its territory.
8 U.S.C. § 1253 (1990). Except for minor editorial revisions, the 1990 version is essentially unchanged from the original 1952 version. See 8 U.S.C. § 1253, historical and statutory notes.
Respondents assert that § 1231 differs from § 1253 because § 1253 did not contain a provision similar to § 1231(h), which provides that “[n]othing in this section shall be construed to create any substantive or procedural right or benefit that is legally enforceable by any party against

13942

ALI v. A SHCROFT

cal and statutory notes. The court concluded that deportation under any of the clauses in step three, now found at § 1231(b)(2)(E), was subject to the condition expressed in the seventh clause, that the country be willing to accept the alien.4 Tom Man, 264 F.2d at 928; see also, e.g. , Chi Sheng Liu v. Holton, 297 F.2d 740, 743 (9th Cir. 1961) (stating that former § 1253(a) “provides that an alien cannot be deported to any country unless its government is ‘willing to accept him into its territory’ ”); Rogers v. Lu , 262 F.2d 471, 471 (D.C. Cir. 1958) (affirming, without explanation, the judgment that the Attorney General may not deport the plaintiff to China “until and unless” the government indicates its willingness to accept the plaintiff); cf. Pelich v. INS, 329 F.3d 1057, 1061 (9th Cir. 2003) (stating that an alien “can be deported to the country of his birth or to a country where he resided prior to entering the United States (assuming these countries would take him) ” (citing § 1231(b)(2)(E))); Amanullah v. Cobb , 862 F.2d 362, 368 (1st Cir. 1988) (Coffin, J., concurring) ( “agree[ing] that it is sheer folly to send an alien to another country without any indication that the country will receive the alien ”); Lee Wei Fang v. Kennedy , 317 F.2d 180, 185 (D.C. Cir. 1963) (“ ‘It must be remembered . . . that the deportation of an alien is not a mere matter of taking him beyond the seas and setting him down on foreign soil. It must be carried out through arrangements made with the foreign government.’ ” (quoting Delany v. Moraitis, 136 F.2d 129, 131 (4th Cir. 1943))).

the United States. ” This provision is irrelevant to the issue at stake here and does not change the fact that § 1231(b)(2) is virtually identical to its predecessor. Moreover, the position that the Attorney General may not remove an alien to a country lacking a functioning government to accept him does not violate § 1231(h).
4The court further reasoned that the preliminary inquiry of steps one and two, requiring the Attorney General to first inquire whether the country will accept the alien, applied to step three as well, stating that “[w]e cannot see any reason to suppose that the necessary consent in such situations should not follow the pattern laid down earlier in the section . . . . In each case there must be a mutual agreement between that ‘country’ and ourselves . . . . ” Tom Man, 264 F.2d at 928.

ALI v. A SHCROFT

13943

The one case cited by the majority opinion in Jama as holding that prior acceptance is not required is In re Niesel, 10 I. & N. Dec. 57 (BIA 1962). In Niesel, the Board of Immigration Appeals ( “BIA”) rejected the alien’s argument that, before deportation to a country can be ordered, the INS must show that the country has agreed to accept the alien. Id. at 59. The BIA distinguished step three from step two of the process, stating that the preliminary inquiry as to whether the country will accept the alien is not required in step three. Id.

Niesel, however, “addressed only the issue of an initial inquiry, not final acceptance of the country to which a person would be returned.” Ali, 213 F.R.D. at 403. Furthermore, not requiring acceptance from the country to which an alien is to be removed is inconsistent with the BIA’s subsequent decision in Matter of Linnas, 19 I. & N. Dec. 302 (BIA 1985).

In Linnas, the alien, a native of Soviet-occupied Estonia, designated Estonia as the country of deportation. Because Estonia was occupied by the U.S.S.R. and the United States did not recognize the legitimacy of this annexation, the alien contended that he should be sent to offices maintained by Estonia in New York City. The BIA rejected this claim, in part because the offices did not satisfy two prerequisites for a “country” as the term was used in former § 1253(a): first, “a foreign place with ‘territory’ in a geographical sense, ” and, second, “a ‘government’ in the sense of a political organization that exercises power on behalf of the people subjected to its jurisdiction.” Id. at 307. The Board reasoned that the language of the statute “expressly requires, or has been construed to require, that the ‘government’ of a country selected under any of the three steps must indicate it is willing to accept a deported alien into its ‘territory.’ ” Id.; see also Matter of Anunciacion, 12 I. & N. Dec. 815, 818 (BIA 1968) (relying on former § 1253 and stating that, “obviously, the United States cannot deport an alien to a country which will not accept her”).

13944

ALI v. A SHCROFT

[12] Other than the recent Eighth Circuit decision in Jama, the law of the courts of appeals and the BIA supports Petitioners’ position.5 Moreover, an INS policy of requiring acceptance prior to removal is seen in its own regulations, as discussed below.

C. INS Policy and Regulations

In reviewing an agency’s construction of the statute it administers, the first question for the court is “whether Congress has directly spoken to the precise question at issue. ” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842 (1984). If so, the court “must give effect to the unambiguously expressed intent of Congress. ” Id. at 843. If, however, the statute is silent or ambiguous regarding the specific issue, the question is “whether the agency’s answer is based on a permissible construction of the statute. ” Id.

[13] The government argues that the district court failed to pay deference to INS regulations. The INS’ proposed construction of the statute, however, is not consistent with its own operating instructions and regulations. For example, INS Operating Instruction 243.1(c)(1) states that “deportation cannot be effected until travel documentation has been obtained ” from the country to which the alien is to be deported. INS Operations Instructions 243.1, available at http:// www.immigration.gov. If the country designated by the alien is unlikely to receive him, a simultaneous request for a travel document is to be made “to the authorities of the country to which he is likely to be deported. ” Id. 8 C.F.R. § 241.4(k)(1) provides for a “custody review . . . where the alien’s removal, while proper, cannot be accomplished during the [removal] period because no country currently will accept the alien. ”

5The government argues only that Niesel and Linnas are inapposite because they deal with former § 1253(a) rather than the current statute, § 1231(b)(2). As noted above, however, the current version is virtually identical to the predecessor statute.

ALI v. A SHCROFT

13945

Other regulations cited by Petitioners support the conclusion

that INS policy has been to remove an alien only to a country

that is willing to accept him. See 8 C.F.R. § 241.5(c)(1)

(authorizing issuance of employment authorization to an alien

released from custody if “[t]he alien cannot be removed

because no country will accept the alien

”); 8 C.F.R.

§ 241.13(f) (in considering whether to release an alien from

custody, the INS is to consider factors including “the views

of the Department of State regarding the prospects for

removal of aliens to the country or countries in question, and

the receiving country’s willingness to accept the alien into its

territory”).

In fact, 8 U.S.C. § 1231(a)(7) provides:

No alien ordered removed shall be eligible to receive authorization to be employed in the United States unless the Attorney General makes a specific finding that . . . the alien cannot be removed due to the refusal of all countries designated by the alien or under this section to receive the alien.

8 U.S.C. § 1231(a)(7). Thus, all indications are that INS policy has been to require a country of removal to accept an alien.

[14] The government’s citation of 8 C.F.R. § 240.10(g) does not support its position. Section 240.10(g) merely states that the INS “may remove the alien to any other country as permitted by” § 1231(b). 8 C.F.R. § 240.10(g). This does not address whether § 1231(b) permits removal to a country that does not have a government to accept the alien. The government’s position is inconsistent with existing INS policy and regulations. The government’s proposed construction of the statute therefore is not entitled to deference. Cf. Defenders of Wildlife v. Norton , 258 F.3d 1136,1145 n.11 (9th Cir. 2001) (according no deference to a litigating position of the Secre-

13946

ALI v. A SHCROFT

tary of the Interior that was inconsistent with prior agency actions).

D. International Law

The district court concluded that Petitioners’ construction of the statute was preferable to the government’s because it was consistent with international law. Ali, 213 F.R.D. at 405 (citing Murray v. The Schooner Charming Betsy , 6 U.S. (2 Cranch) 64, 118 (1804) (stating that “an act of congress ought never to be construed to violate the law of nations, if any other possible construction remains ”)); see also Kim Ho Ma, 257 F.3d at 1114 (discussing “the well-established Charming Betsy rule of statutory construction which requires that we generally construe [c]ongressional legislation to avoid violating international law ” out of respect for other nations); Restatement (Third) of Foreign Relations Law (1987) (“Where fairly possible, a United States statute is to be construed as not to conflict with international law or with an international agreement with the U.S.”). The district court reasoned that the government did not dispute Petitioners’ contentions that removing them to Somalia would subject them to human rights abuses in violation of “customary international law and provisions of three multilateral treaties to which the United States is a signatory. ” Ali, 213 F.R.D. at 405. Because it was undisputed that Petitioners would be at risk of suffering human rights abuses if removed to Somalia, the preferred course was to adopt the construction of the statute that is consistent with international law. Id.

On appeal, the government still does not challenge the assertion that Petitioners would be subject to human rights abuses if removed to Somalia. Rather, it argues that international law has been “trumped by the specific statutory authority promulgated by Congress,” and that the district court erred by using international law to “override” congressional intent expressed in the statute.

ALI v. A SHCROFT

13947

The district court did not use international law to override the statute. Rather, the court relied on the principle of construing the statute in a manner that avoids violating international law merely as further support for the construction it adopted. Moreover, the district court’s conclusion that an interpretation of the statute should be adopted that would not result in “persecution or deprivation of life in violation of international law,” id., is supported by the United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture, which states:

It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.

United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture, Pub. L. No. 105-277, § 2242(a), 112 Stat. 2681, 2681-822 (1998), reprinted in 8 U.S.C. § 1231, historical and statutory notes. “Although Congress may override international law in enacting a statute, we do not presume that Congress had such an intent when the statute can reasonably be reconciled with the law of nations.” Kim Ho Ma, 257 F.3d at 1114 n.30. The district court did not err in relying on international law to support the construction of the statute that it adopted.

[15] For the foregoing reasons, we hold that § 1231(b)(2) does not authorize the Attorney General to remove Petitioners to Somalia because it lacks a functioning government that can accept them. Next, we consider the government’s arguments regarding the district court’s certification of a nationwide class.

13948

ALI v. A SHCROFT

III. Class Certification

A. Jurisdiction

[16] The government asserts that the district court did not have subject matter jurisdiction over the motion for class certification because 8 U.S.C. § 1252(f)(1) restricts the authority to enjoin the operation of § 1231 on a class-wide basis to the Supreme Court. Section 1252(f)(1) provides:

Regardless of the nature of the action or claim or the identity of the . . . parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter [8 U.S.C. §§ 1221-1231], . . . other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.

8 U.S.C. § 1252(f)(1).

[17] We agree with the district court that § 1252(f)(1) is inapplicable because Petitioners seek not to enjoin the operation of § 1231(b) but violations of the statute and “to ensure that the provision is properly implemented. ” Ali, 213 F.R.D. at 406. This reason is analogous to the reason that we conclude that § 1252(g) does not bar jurisdiction. That is, § 1252(f)(1) limits the district court’s authority to enjoin the INS from carrying out legitimate removal orders. Where, however, a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of part IV of subchapter II, and § 1252(f)(1) therefore is not implicated.

We also find persuasive the cases relied on by the district court. In Tefel v. Reno , the district court found that § 1252(f)(1) did not bar injunctive relief for a class because

ALI v. A SHCROFT

13949

the class members sought not to enjoin the statute but “constitutional violations” and INS “policies and practices. ” 972 F. Supp. 608 (S.D. Fla 1997), vacated on other grounds , 180 F.3d 1286 (11th Cir. 1999). Thus, they merely sought to implement the statute “under the appropriate standard. ” Id. at 618; see also Grimaldo v. Reno, 187 F.R.D. 643, 647-48 (D. Colo. 1999) (finding § 1252(f)(1) inapplicable where the plaintiff sought to convert his complaint to a class action “to enjoin alleged constitutional violations by the INS in its administration” of § 1226, not the operation of the statute).

[18] We further note that none of the cases cited by the government addresses the question of whether § 1252(f)(1)’s limit on injunctive relief is inapplicable where an alien seeks to enjoin INS policy or interpretation of a statute, rather than the operation of the statute. In fact, § 1252(f)(1) is not the statute at issue in two of the cases relied on by the government; they only cite § 1252(f)(1) as support for a limitation on judicial review in other contexts. 6 See Am. Immigration Lawyers Ass’n v. Reno , 199 F.3d 1352, 1358-60, 1364 (D.C. Cir. 2000) (analyzing § 1252(e)(3)(A) for standing purposes, but examining other provisions on judicial review that “strengthen[ ] the judicial presumption against suits seeking relief for a large and diffuse group of individuals, none of whom are parties to the lawsuit”); Van Dinh v. Reno, 197 F.3d 427, 432 (10th Cir. 1999) (addressing § 1252(a)(2)(B)(ii), but citing § 1252(f)(1) as one example of a jurisdictional issue in § 1252). We therefore conclude that Petitioners’ contention that the Attorney General’s actions violate § 1231 falls outside the jurisdictional restriction found in § 1252(f)(1).

6The other two cases cited by the government are equally unhelpful. In Catholic Social Servs., Inc. v. INS , 232 F.3d 1139 (9th Cir. 2000) (en banc), we held that § 1252(f)(1) did not bar injunctive relief because the injunction was issued under 8 U.S.C. § 1255a, which is in part V, not part IV, of the subchapter. Id. at 1149-50. Finally, in American-Arab, the Supreme Court was analyzing § 1252(g) and cited § 1252(f)(1) only to reject our “reading of § 1252(f) as a jurisdictional grant.” 525 U.S. at 481.

13950

ALI v. A SHCROFT

B. Proper Custodians

[19] The government argues that the Attorney General and the Commissioner of the INS are not the proper respondents in this case because they do not have “day-to-day control” over Petitioners.7 The government cites Brittingham v. United States, 982 F.2d 378 (9th Cir. 1992), in which we stated that “[t]he proper respondent in a federal habeas corpus petition is the petitioner’s ‘immediate custodian,’ ” and that the custodian is the person with “ ‘day-to-day control over the prisoner.’ ” Id. at 379 (quoting Demjanjuk v. Meese, 784 F.2d 1114, 1115 (D.C. Cir. 1986) (Bork, J., in camera), and Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986)). The government therefore contends that the former INS District Director is the proper respondent and challenges the district court’s conclusion that the law regarding immigration habeas petitions is unsettled.

Contrary to the government’s contention, although the principle that the immediate custodian is the proper respondent to a habeas petition is clear, the application of this principle in immigration habeas petitions does not lead to a simple resolution of how to identify the proper respondent. See, e.g., Armentero v. INS , ___ F.3d ___, No. 02-55368, 2003 WL 22004997, at *9 (9th Cir. Aug. 26, 2003) (stating that “neither Supreme Court case law nor our own precedent states a clear path toward identifying the proper respondent or respondents

78 U.S.C. § 1103(a)(1) has been revised such that the Secretary of Homeland Security, rather than the Attorney General, is now charged with the administration and enforcement of all laws relating to the immigration and naturalization of aliens. See 8 U.S.C. § 1103(a)(1) (2003); Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, sec. 105(a), 117 Stat. 11 (2003) (amending the Homeland Security Act of 2002, Pub. L. No. 107-296, § 1102, 116 Stat.2135, 2273-74 (2002)). 8 U.S.C. § 1226, however, still provides that it is the Attorney General who detains and has custody of aliens. The functions of the Commissioner of Immigration and Naturalization have been transferred to the Under Secretary for Border and Transportation Security. 6 U.S.C. § 251.

ALI v. A SHCROFT

13951

in an immigration detainee’s habeas petition ”); Vasquez v.

Reno, 233 F.3d 688, 691-92 (1st Cir. 2000) (stating that the

case law regarding the proper respondent to habeas petitions

filed by detained aliens is sparse, incoherent, and in disarray),

cert. denied, 534 U.S. 816 (2001). Nonetheless, in Armentero,

we held that the Attorney General was the proper respondent

to an immigration habeas petition, citing the necessity to base

the concept of “custodian” “more on the legal reality of con-

trol than the technicalities of who administers on a day-to-day

basis the facility in which an individual is detained.

”

Armentero, 2003 WL 22004997, at *12; see also Henderson

v. INS, 157 F.3d 106, 125-26 (2d Cir. 1998) (emphasizing the

Attorney General’s “unique role” as the “ultimate decision-

maker” in immigration habeas actions, but ultimately declin-

ing to decide the issue). Because immigration detainees are

often transferred between different institutions around the

country, the local INS District Director is a “local figurehead”

who is not an appropriate respondent. Armentero, 2003 WL

22004997, at *13.

Petitioners are not merely in the custody of the INS District Director but are subject to a removal order that is based on the Attorney General’s interpretation of the statute. Thus, the Attorney General, whose unique role as the ultimate decisionmaker is particularly evident here, is the proper respondent. Armentero, 2003 WL 22004997, at *13.

C. Nationwide Class

Respondents contend that the district court’s habeas jurisdiction is limited to its territorial jurisdiction and that the court’s certification of a nationwide class accordingly exceeded its jurisdiction. The government cites language in 28 U.S.C. § 2241(a), providing that the district courts may grant writs of habeas corpus “within their respective jurisdictions,” and 28 U.S.C. § 128(b), which specifies the counties comprising the Western District of Washington, where this case was filed.

13952

ALI v. A SHCROFT

The district court reasoned that a nationwide class was appropriate because “the INS is uniformly applying the statutory interpretation at issue to all class members, ” making it “judicially economical” to hear the case in one court. Ali, 213 F.R.D. at 408. The court further reasoned that a nationwide class would “address[ ] the problem of interstate transportation of individuals subject to final order of removal and the corresponding difficulty in obtaining counsel.” Id. Finally, the court noted that by defining the class to exclude pending cases, it had obviated concerns about impinging on other courts. Id. We agree with the district court.

The government points to the Supreme Court’s admonition that “a federal court when asked to certify a nationwide class should take care to ensure that nationwide relief is indeed appropriate in the case before it, and that certification of such a class would not improperly interfere with the litigation of similar issues in other judicial districts. ” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). The Court in Califano went on, however, to reject “the extreme position that such a class may never be certified,” and reaffirmed the rule that the certification of a nationwide class is “committed in the first instance to the discretion of the district court. ” Id. at 702-03. More importantly, the Court rejected the argument that the district court in that case erred in certifying a nationwide class, stating that

[n]othing in Rule 23 . . . limits the geographical scope of a class action that is brought in conformity with that Rule . . . . Nor is a nationwide class inconsistent with principles of equity jurisprudence, since the scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class. If a class action is otherwise proper, and if jurisdiction lies over the claims of the members of the class, the fact that the class is nationwide in scope does not necessarily mean that the relief afforded the plaintiffs will be more burden-

ALI v. A SHCROFT

13953

some than necessary to redress the complaining parties.

Id. at 702 (citation omitted).

In Braden v. 30th Judicial Circuit Court , 410 U.S. 484 (1973), the Supreme Court stated that “the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian ” and traced developments in habeas law indicating the relaxation of habeas jurisdiction, rejecting “an inflexible jurisdictional rule.” Id. at 495500. The Court thus concluded that the Sixth Circuit erred in ordering the dismissal on jurisdictional grounds of a habeas petition filed by an Alabama state prisoner in federal district court in Kentucky. Id. at 500.

[20] Califano and Braden together support the conclusion that in a habeas proceeding the district court may certify a nationwide habeas class, provided that the court has personal jurisdiction over the custodian. See id. at 494-95 (stating that the writ of habeas corpus acts not upon “the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody ”); Roman, 162 F. Supp. 2d at 761 (reasoning that “[o]nce a court takes the step of approving the Attorney General as a proper respondent [to a habeas petition], there would appear to be no jurisdictional reason why the petition could not be heard in any district in which the Attorney General was subject to service of process ”). The Attorney General is subject to service of process in Washington, where the long-arm statute “extends jurisdiction to the limit of federal due process.” Chan v. Soc’y Expeditions, Inc., 39 F.3d 1398, 1405 (9th Cir. 1994). We therefore affirm the district court’s certification of a nationwide class.

D. Standing

The government points to 28 U.S.C. § 2242, which requires a habeas petition to be signed by the petitioner or by someone

13954

ALI v. A SHCROFT

acting in his behalf, and contends that the signatures of the four named Petitioners cannot sustain a nationwide habeas class, citing Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153 (9th Cir. 2002), cert. denied, 123 S. Ct. 2073 (2003).

Next friend standing refers to the procedure by which a third party appears in court on behalf of detained prisoners who are themselves unable to seek relief. See id. at 1157-58 (discussing Whitmore v. Ark., 495 U.S. 149 (1990)). “A ‘next friend’ does not himself become a party to the habeas corpus action in which he participates, but simply pursues the cause on behalf of the detained person, who remains the real party in interest.” Whitmore, 495 U.S. at 163. Unlike Coalition, in which none of the parties who filed the petition was a detainee, here, Petitioners are the detainees. Next friend standing is not at issue. See Ali, 213 F.R.D. at 406 (reasoning that “there is no question that Petitioners meet standing requirements because they are parties to the suit ”).8

The government further argues that Petitioners’ standing is insufficient to confer next friend standing for class members who have not signed the habeas petition, emphasizing that habeas is an “individual” remedy. In Mead v. Parker , 464 F.2d 1108 (9th Cir. 1972), twenty-seven inmates filed a habeas petition that purported to be a class action on behalf of numerous other inmates. We held that the district court erred in holding that “habeas corpus is not an appropriate vehicle for a class action ” because, although habeas relates to “the individual petitioner and to his unique problem[,] . . . there can be cases . . . where the relief sought can be of imme-

8The district court further reasoned that Petitioners had made a strong showing of next friend standing because “the putative class members may not have access to the court due to frequent transfer and lack of access to counsel,” and Petitioners “have some significant relationship with, and are truly dedicated to, the best interests of the putative class members. ” Ali, 213 F.R.D. at 406-07.

ALI v. A SHCROFT

13955

diate benefit to a large and amorphous group. In such cases, it has been held that a class action may be appropriate. ” Id. at 1112-13; cf. Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir. 1987) (stating that, although “[s]uch actions are ordinarily disfavored,” “[t]his court has held that a class action may lie in habeas corpus, ” and citing Mead); United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1126-27 (2d Cir. 1974) (finding a habeas class action appropriate); Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973) (adopting language in Mead and concluding that a class action may be appropriate in a habeas proceeding). Petitioners have clearly established the requisite standing.

E. Federal Rule of Civil Procedure 23

The government contends that the district court erred in looking to Rule 23 for guidance regarding the propriety of certifying a class in this case. 9 Federal Rule of Civil Procedure 81 provides that the Federal Rules of Civil Procedure are displaced when the habeas statute provides the rules of practice and procedure, stating that the rules “are applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of the United States, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Proceedings. ” Fed. R. Civ. P. 81(a)(2).

The only provision cited by the government as “displacing” Rule 23 is § 2242’s requirement that a habeas petition be signed by the petitioner or someone acting on his behalf. This provision in no way displaces Rule 23’s provisions regarding class actions. Nor does the government cite any case law to support its argument. The Second Circuit has held that “the precise provisions of Rule 23 do not apply to habeas corpus

9The government does not challenge the district court’s findings regarding the prerequisites of Rule 23, but only its application of the rule to certify the class.

13956

ALI v. A SHCROFT

proceedings.” Sero, 506 F.2d at 1125; see also Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975) (stating that Rule 23 “does not apply to habeas corpus proceedings for the reasons stated in [Sero]”). Nonetheless, Sero found “a compelling justification for allowing a multi-party proceeding similar to the class action authorized by the Rules of Civil Procedure ” and concluded that “the class action device was appropriately used” in the habeas case. Sero, 506 F.2d at 1125-26; see also Bijeol, 513 F.2d at 968 (finding “a representative procedure analogous to the class action provided for in Rule 23 ” appropriate in a habeas corpus action).

Thus, although Rule 23 might be “technically inapplicable to habeas corpus proceedings, ” the courts have “appl[ied] an analogous procedure by reference to Rule 23. ” Napier v. Gertrude, 542 F.2d 825, 827 (10th Cir. 1976); see also United States ex rel. Morgan v. Sielaff , 546 F.2d 218, 221 (7th Cir. 1976) (describing Sero and Bijeol as looking to Rule 23 “for guidance in determining whether a representative action was appropriate,” and noting that the list of factors relied upon “substantially tracks the prerequisites to a class action listed in Rule 23(a) ”). There is no support for the government’s argument that “Rule 23’s requirements should not be imported as a procedural analogue. ”

IV. Release of Petitioners

8 U.S.C. § 1231(a)(1)(A) provides that the Attorney General must remove an alien who has been ordered removed within a 90-day removal period. Section 1231(a)(6) authorizes further detention of certain aliens who are inadmissible or who are removable for security reasons or criminal violations. In Zadvydas, the Supreme Court held that § 1231(a)(6) “contain[s] an implicit ‘reasonable time’ limitation ” and therefore does not allow indefinite detention. 533 U.S. at 682. An alien’s post-removal-period detention is limited “to a period reasonably necessary to bring about that alien’s removal from the United States.” Id. at 689. For uniformity’s sake, the Court

ALI v. A SHCROFT
deemed six months as a reasonable detention period. 701.

13957 Id. at

Here, the district court ordered the immediate release of Petitioners Ali, Aweys, and Hundiye pursuant to Zadvydas.10 Ali, 213 F.R.D. at 411. The court reasoned that there was no significant likelihood of Petitioners’ removal in the reasonably foreseeable future because of the court’s holding that their removal to Somalia would violate § 1231(b) in conjunction with the lack of evidence that conditions in Somalia are likely to change in the near future. Id.

The government briefly argues that the district court erred in ordering Petitioners’ release, contending for the first time on appeal that Petitioners were being held pursuant to 8 U.S.C. § 1231(a)(1)(C), which provides for extension of the 90-day removal period “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal. ” Petitioners dispute this assertion, pointing out that the government acknowledged to the district court that Petitioners’ detention was based solely on their imminent removal to Somalia. The record supports Petitioners’ assertion that their detention was based on their imminent removal to Somalia.

Even if we were to accept this newly-asserted basis for detention, however, we would still affirm the district court. We recently held that Zadvydas did not apply where the petitioner was being detained pursuant to § 1231(a)(1)(C), rather than § 1231(a)(6). Pelich, 329 F.3d at 1059-61. In Pelich, the petitioner had made numerous conflicting representations to the INS regarding his name, nationality, place of birth, and his parents’ names and nationalities. After the INS issued a

10The court refrained from ruling on the claims of the fourth named petitioner, Mohamud, because he had an earlier-filed petition pending before a different judge in the same district.

13958

ALI v. A SHCROFT

removal order, the INS attempted to obtain travel documents. However, the petitioner remained in INS custody because he “consistently refused” to complete the passport application. Id. at 1058. We accordingly held that Zadvydas did not apply because the petitioner’s “indefinite detention [was] due to his failure to cooperate with the INS’s efforts to remove him. ” Id. at 1061.

Unlike Pelich, Petitioners are not subject to indefinite detention due to a truculent refusal to comply with a minor administrative request. Rather, Petitioners are mounting a legal challenge to the INS’ statutory authority to remove them. This case is thus distinguishable from Pelich and from the cases relied on by Pelich, in which the petitioners simply refused to cooperate with the INS’ attempts to remove them. See Powell v. Ashcroft , 194 F. Supp. 2d 209, 210 (E.D.N.Y. 2002) (stating that the petitioner “has repeatedly provided the INS with inconsistent information regarding his identity, and these inconsistencies have demonstrably hampered the INS in carrying out his removal ”); Sango-Dema v. Dist. Dir., INS , 122 F. Supp. 2d 213, (D. Mass. 2000) (describing the petitioner’s refusal to provide the INS with a passport and birth certificate, to communicate with officials at the embassy of the country of removal, and to “complete any of the applications necessary to facilitate his return to his country of origin ”).

[21] Under Zadvydas, “an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. ” 533 U.S. at 701. Because we hold that the INS may not remove Petitioners to Somalia, there is no significant likelihood of removal in the reasonably foreseeable future; consequently, the district court properly released Petitioners pursuant to Zadvydas.

AFFIRMED.

ALI v. A SHCROFT REAVLEY, Circuit Judge, dissenting:

13959

I agree that we have jurisdiction but dissent from the judgment, and would reverse, because I read 8 U.S.C. § 1231(b) differently. I see subparagraph E as a broad authorization of removal, separate from the prior subparagraphs and without the limitation of acceptance of the alien by the removal country.

The only prior authority is the Eighth Circuit decision in Jama v. Immigration and Naturalization Service , 329 F.3d 630 (8th Cir. 2003), with which I agree. Opinions applying § 1253, the law prior to 1996, follow a statute quite different from the current § 1231. The prior statute did condition willing acceptance for all countries to which aliens could be deported. Congress sought fit to change that aspect of the law, and that resolves the case for me.

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 YUSUF ALI ALI; MOHAMED AWEYS;
MOHAMED HUSSEIN HUNDIYE; GAMA KALIF MOHAMUD,
Petitioners-Appellees,

v.



ALBERTO R. G ONZALES,* Attorney

General; IMMIGRATION AND

NATURALIZATION SERVICE; ROBERT

S. COLEMAN, JR.,

 Respondents-Appellants.

No. 03-35096
D.C. No. 02-2304 MJP
ORDER

Appeal from the United States District Court for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted July 8, 2003—Seattle, Washington
Opinion Filed September 17, 2003 Opinion Withdrawn and
Order Filed August 26, 2005
Before: Thomas M. Reavley,** A. Wallace Tashima, and Richard A. Paez, Circuit Judges.
Order; Concurrence by Judge Reavley

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the United States. Fed. R. App. P. 43(c)(2).
**The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.
11591

11592

ALI v. G ONZALES COUNSEL

Greg D. Mack, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondents-appellants.

Nicholas P. Gellert, Perkins Coie LLP, Seattle, Washington, for the petitioners-appellees.

ORDER
In Ali v. Ashcroft , 346 F.3d 873 (9th Cir. 2003), we held that the United States cannot remove aliens to Somalia because 8 U.S.C. § 1231 does not permit removal if the country does not have a functioning government to accept the aliens. Id. at 876. We also held that the Attorney General was the proper respondent in the habeas petition because of his unique role as the interpreter of the statute and the “ultimate decision-maker” in attempting to remove the Somalians despite the lack of a functioning government to accept them. Id. at 888.
The Supreme Court subsequently held that Somalia’s inability to accept a person does not preclude the alien’s removal from the United States. Jama v. Immigration & Customs Enforcement, 125 S. Ct. 694 (2005). Jama thus has foreclosed the claim that the government may not remove aliens to Somalia. Furthermore, in Rumsfeld v. Padilla , 124 S. Ct. 2711 (2004), the Supreme Court held that the proper respondent in a habeas proceeding, in which Padilla challenged his detention as an enemy combatant, was the warden of the facility where Padilla was being held, not the Secretary of Defense. Id. at 2718, 2721-22. In Padilla, however, the Court explicitly declined to resolve the question of “whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation. ” Id. at 2718 n.8.

ALI v. G ONZALES

11593

The government has filed a petition for panel rehearing and rehearing en banc. Subsequently, it also filed a motion to vacate the panel’s decision and remand to the district court. In the motion, the government “request[s] that the Court vacate the panel’s September 17, 2003 decision and remand this case to the district court with instructions to vacate the existing injunction, de-certify the class, and vacate the order of release regarding the Petitioners-Appellees Yusuf Ali Ali, Mohamed Aweys, and Mohamed Hussein Hundiye. ”

We grant the motion in part, and withdraw our opinion of
September 17, 2003, reported at 346 F.3d 873, and remand
this case to the district court with instructions to vacate the
injunction and to reconsider the class certification in light of the Supreme Court’s decision in Padilla.1 Because we are
remanding for the district court to reconsider the class certifi-
cation, rather than vacating that order, we reject the government’s request to vacate the order of release. 2

The government’s petition for panel rehearing and rehearing en banc of the opinion filed September 17, 2003, is denied as moot.

REMANDED with directions.

1The Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, which requires the district court to transfer to the court of appeals habeas cases challenging a final order of removal, deportation, or exclusion, does not apply to this case because petitioners do not challenge or seek review of any removal order.
2We note that, despite the government’s assurances to the contrary, it has not been successful in removing Mr. Jama, and, based upon the dockets of the United States Court of Appeals for the Eighth Circuit and the United States District Court for the District of Minnesota, it appears that Mr. Jama has been released from custody.

11594

ALI v. G ONZALES

REAVLEY, Circuit Judge, Specially Concurring in Part:

Because there is no longer a claim on behalf of the class, I would vacate the certification and dismiss the case unless the petitioners have individual claims to bring to the attention of the district court. In that event, the proper respondent could be resolved.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 YUSUF ALI ALI; MOHAMED AWEYS;

MOHAMED HUSSEIN HUNDIYE; GAMA

KALIF MOHAMUD; AHMAD NOOR

YUSUF,

Petitioners-Appellees,

v.



ALBERTO R. G ONZALES, Attorney General; IMMIGRATION AND NATURALIZATION SERVICE; ROBERT S. COLEMAN, JR.,
 Respondents-Appellants.

No. 03-35096
D.C. No. CV-02-2304 MJP
ORDER

Filed October 20, 2005
Before: Thomas M. Reavley,* A. Wallace Tashima, and Richard A. Paez, Circuit Judges.

Order
Respondents-Appellants’ petition for a limited panel rehearing is granted. The Order filed August 26, 2005, slip op. 11591, and reported at 421 F.3d 795, is amended as follows:
Footnote 1, slip op. at 11593, 421 F.3d at 797, is amended to read, as follows:
1 Section 106(c) of the Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, which requires the dis-
*The Honorable Thomas M. Reavley, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.
14387

14388

ALI v. G ONZALES

trict court to transfer to the court of appeals habeas cases challenging a final order of removal, deportation, or exclusion, does not apply to this case because petitioners do not challenge or seek review of any removal order.

PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2005 Thomson/West.

 
 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

NOV 30 2006

YUSUF ALI ALI; MOHAMED AWEYS; MOHAMED HUSSEIN HUNDIYE; GAMA KALIF MOHAMUD; AHMAD NOOR YUSUF,

No. 03-35620

CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS

D.C. No. CV 02-02304 MJP

Petitioners - Appellees,

MEMORANDUM *

v.

ALBERTO R. GONZALES, Attorney General; IMMIGRATION AND NATURALIZATION SERVICE; ROBERT S. COLEMAN, JR.; ALBERTO R. GONZALES, Attorney General,

Respondents - Appellants.

YUSUF ALI ALI; MOHAMED AWEYS; MOHAMED HUSSEIN HUNDIYE; GAMA KALIF MOHAMUD; AHMAD NOOR YUSUF,
Petitioners - Appellees,
v.
ALBERTO R. GONZALES, Attorney

No. 03-35791 D.C. No. CV 02-02304 MJP

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

General; PHIL CRAWFORD, Acting Field Director, Bureau of Immigration and Customs Enforcement; BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents - Appellants.
Appeal from the United States District Court for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted October 20, 2006 Seattle, Washington
Before: TASHIMA, PAEZ, and SMITH, Circuit Judges.
In our prior opinion, we remanded to the district court to vacate the injunction against removing the class of aliens to Somalia.1 See Ali v. Gonzales,
421 F.3d 795, 797 (9th Cir. 2005). We also remanded for the district court to
reconsider the class certification and rejected the government’s request to vacate
the order of release. Id. Prior to remand, the district court had awarded Petitioners
attorneys’ fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. The government now challenges the award of fees, contending that
Petitioners are not prevailing parties for purposes of the statute, in light of both the
1 The parties are familiar with the factual and procedural background of this case, so we do not recite it here.
-2-

Supreme Court’s decision in Jama v. Immigration & Customs Enforcement, 543 U.S. 335 (2005), and the district court’s subsequent order vacating the injunction and decertifying the nationwide class. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the award of attorneys’ fees and remand for the district court to reconsider whether Petitioners are prevailing parties on one or more of the issues presented.
In order to qualify as a prevailing party under the EAJA, a party “must achieve a ‘material alteration of the legal relationship of the parties,’” and “that alteration must be ‘judicially sanctioned.’” Carbonell v. INS, 429 F.3d 894, 898 (9th Cir. 2005) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604-05 (2001)). “A party need not succeed on every claim in order to prevail. Rather, a plaintiff prevails if he ‘has succeeded on any significant issue in litigation which achieved some of the benefit [he] sought in bringing suit.’” Id. at 900 n.5 (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989)) (alteration in original).
Although Petitioners’ status as prevailing parties has been undercut by Jama and the order vacating the injunction and decertifying the nationwide class, three of the four petitioners had obtained release from custody pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001). Ali v. Ashcroft, 213 F.R.D. 390, 411 (W.D. Wash.
-3-

2003). Their release from custody may be sufficient under Carbonell to be deemed prevailing parties, at least with respect to their Zadvydas claim. See Carbonell, 429 F.3d at 900 (concluding that Carbonell was a prevailing party where the government agreed to refrain from deporting him for 45 days pending the Board of Immigration Appeals’ (“BIA”) decision on his motion to reopen); see also Vacchio v. Ashcroft, 404 F.3d 663, 672-74 (2d Cir. 2005) (rejecting the district court’s characterization of the relief sought by the petitioner as retention of his lawful permanent resident status and “instead identify[ing] the relief sought as the release on bond by courts of the United States pending determination of his removal case,” and therefore concluding that the petitioner was a prevailing party under the EAJA); Kopunec v. Nelson, 801 F.2d 1226, 1229 (10th Cir. 1986) (agreeing that the plaintiff was a prevailing party where he avoided “immediate deportation by obtaining a reversal of the INS’s automatic revocation of his visa and a preliminary injunction against deportation,” representing “significant achievement of the benefit [he] sought in bringing the suit”).
In addition to obtaining release from detention, Petitioners may also be deemed prevailing parties for obtaining relief from removal. See Carbonell, 429 F.3d at 900 (“[A] litigant can be a prevailing party even if he has not obtained affirmative relief in his underlying action.”). Although Carbonell remained under
-4-

a final order of deportation because his underlying claim was unresolved, “for the pertinent period of time, [he] obtained the desired relief.” Id. Similarly here, the government was forced to refrain from removing Petitioners, whom they had planned to deport immediately.
Although Petitioners ultimately did not succeed in obtaining a permanent injunction against their removal, under Carbonell, this is not necessarily fatal to their claim to prevailing party status. Carbonell’s own status as a prevailing party did not depend on whether or not the BIA ultimately granted his motion to reopen. Rather, it was based solely on his success in avoiding deportation until the BIA decided his motion. See Carbonell, 429 F.3d at 900; see also Rueda-Menicucci v. INS, 132 F.3d 493, 495 (9th Cir. 1997) (concluding that the petitioners were prevailing parties under the EAJA following our remand to the BIA for further consideration of its denial of relief, even though they had not obtained affirmative relief on the merits of their underlying claims for asylum and withholding of deportation); accord Johnson v. Gonzales, 416 F.3d 205, 209-10 (3d Cir. 2005) (concluding that the petitioner was the prevailing party for EAJA purposes where the appellate court “entered judgment in his favor and relinquished jurisdiction,” and remanded to the BIA, “regardless whether he ultimately prevails in his underlying immigration proceeding”); Muhur v. Ashcroft, 382 F.3d 653, 655 (7th
-5-

Cir. 2004) (agreeing with Rueda-Menicucci that, “when a court of appeals . . . reverses a denial of asylum because the denial was erroneous, and sends the case back to the immigration service for further proceedings, the applicant is a prevailing party” under the EAJA).
For the foregoing reasons, we vacate the order and remand for the district court to revisit prevailing party status. If the court finds Petitioners to be prevailing parties, either in whole or in part, it should then award such fees as are reasonable, considering the issues on which they prevailed.2
VACATED and REMANDED.
2 The government did not oppose the motion for EAJA fees on any basis other than that Petitioners were not prevailing parties.
-6-