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Hussein v. Brackett

United States District Court, D. New Hampshire

June 21, 2018

Abdigani Faisal Hussein
v.
Strafford County Department of Corrections Superintendent Christopher Brackett and U.S. Immigration and Customs Enforcement Boston Field Office Director Chris M. Cronen

          Mark J. Devine, Esq., Benjamin J. Wahrer, Esq., Twain Asher Braden, Esq., Terry L. Ollila, AUSA

          MEMORANDUM ORDER

          JOSEPH N. LAPLANTE UNITED STATES DISTRICT JUDGE

         Abdigani Faisal Hussein filed a petition for a writ of habeas corpus, see 28 U.S.C. § 2241, and complaint for declaratory and injunctive relief, seeking to stay his removal to his native Somalia until the Board of Immigration Appeals (BIA) has decided his recently-filed motion to reopen his removal proceedings, see 8 U.S.C. § 1229a(c)(7). As the court explained in its order of May 16, 2018, it has subject-matter jurisdiction over this petition, despite the provisions of 8 U.S.C. § 1252, because, under the narrow circumstances present in this case, Hussein's challenge to the constitutionality of that statute as applied to his case colorably alleges an impermissible suspension of the writ of habeas corpus. It thus denied the respondents' motion to dismiss this action for lack of subject-matter jurisdiction. See Hussein v. Brackett, 2018 DNH 101.

         Following that order, the respondent notified the court that Hussein was scheduled to be transferred from this District and transported to a detention facility in another district in preparation for his removal from the United States on June 28, 2018. Hussein moved for a temporary restraining order preventing his inter-district transfer from this District pending his filing of a motion for a preliminary injunction or the Board of Immigration Appeals's (“BIA”) ruling on his motion to reopen his immigration proceedings. He also sought an order preventing his removal from the United States.

         The court denies Hussein's motion to stay his transfer from this District and takes his motion to stay his removal from the United States under advisement.

         I. Background

         The court set forth the general background of this action in its May 16, 2018 order denying the respondent's motion to dismiss Hussein's petition. See Hussein, 2018 DNH 101, 3-6. It does not repeat that information here.

         On June 15, 2018, pursuant to the court's order requiring 48 hours' notice before petitioner's removal, [1] the United States Attorney notified the court and petitioner's counsel that ICE had obtained travel documents for Hussein and that Hussein would be transferred from the District of New Hampshire on June 18, 2018, in preparation for his removal to Somalia on June 28, 2018.[2] Hussein moved for a temporary restraining order that same day, seeking an order that would “preserve the status quo until he has sufficient time to adequately brief a motion for a preliminary injunction barring his removal and until the Board of Immigration Appeals rules on his still-pending Motion to Reopen.”[3]

         The court convened a telephone conference that same afternoon, during which respondents' counsel explained the present situation. Specifically, she represented that:

• Hussein's travel schedule had been changed and that ICE would not transfer him out of New Hampshire to a facility in Louisiana until June 25, 2018, in preparation for removal to Somalia on June 28, 2018.
• She had informed the BIA Emergency Stay Unit (“ESU”) of Hussein's scheduled removal.
• In light of Hussein's scheduled departure date, the BIA ESU informed her that his motion to reopen his removal proceedings and his motion for an emergency stay of removal were under consideration and that the BIA ESU would issue an opinion on Hussein's emergency motion to stay on June 26 or 27 -- before the June 28 removal date.[4]

Following that telephone conference, the respondent “agree[d] and stipulate[d] to a stay on any transport of Petitioner Hussein from the District of New Hampshire to another district until June 25, 2018.”[5]

         The court held a telephonic hearing[6] on Hussein's motion for a temporary restraining order on June 21, 2018. During that hearing, respondents' counsel supplied further detail about Hussein's scheduled flights, including that Hussein will be flown to Louisiana on the morning of June 25, 2018 and that his flight to Somalia is scheduled to depart from there between 5:00 and 7:00 on the morning of June 28, 2018. ...


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