Hussein v. Strafford County Department of Corrections, Superintendent et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Abdigani Faisal Hussein
v. Civil No. 18-cv-273-JL
Opinion No. 2018 DNH 128
Strafford County Department of Corrections
Superintendent Christopher Brackett and U.S.
Immigration and Customs Enforcement Boston
Field Office Director Chris M. Cronen
MEMORANDUM ORDER
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.
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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.
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
1 See Order (Johnstone, M.J.) (doc. no. 6) at 2.
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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
2 Notice (doc. no. 20).
3 Motion for TRO (doc. no. 21) at 2.
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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 hearing6 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. Were the BIA ESU to
issue a stay before June 28, she noted, Hussein would be
returned to New Hampshire on July 2, 2018.
4 It is unclear from counsels’ representations whether the BIA
would also issue a decision on Hussein’s motion to reopen his
removal proceedings at the same time. Respondents’ counsel
represented that the BIA would resolve both motions;
petitioner’s counsel represented that, in his experience, the
BIA ESU invariably resolves motions for an emergency stay
without simultaneously addressing the underlying motion to
reopen removal proceedings.
5 Docket entry of June 15, 2018.
6 Counsel elected to appear by telephone rather than in the
courtroom.
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Analysis
Hussein asks the court to “bar[] the Respondents from
transferring or causing the transfer of the Petitioner outside
of the jurisdiction of the Boston ICE Field Office.”7 While he
marshals a bevy of arguments in favor of enjoining his removal
from the United States,8 he offers little by way of argument as
to whether this court has authority to enjoin Hussein’s removal
from this District to Louisiana and, if it did, why it should
exercise that authority. He contends only that it would be
“immensely difficult” for his present counsel to work with him
once he has been relocated within the United States, in part
because of geographic distance and in part because none of his
counsel are members of the bar in that state.9 His counsel also
filed an affidavit outlining procedures at the facility in
Louisiana that may prevent Hussein from communicating with
counsel between his arrival there and his removal to Somalia.10
While the court is sensitive to those difficulties, it is
disinclined to enjoin a transfer within the United States.
Hussein has not provided any authority for the proposition that
7 Motion for TRO (doc. no. 21) at 5.
8 See id. at 6-14.
9 See id. at 13.
10 Braden Aff’t (doc. no. 22).
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the court has the power to do so or supporting its exercise of
that power under the circumstances presented here.
While Hussein’s transfer to Louisiana may raise some
questions over the court’s territorial jurisdiction over this
petition following that transfer, cf. Gonzalez v. Grondolsky,
152 F. Supp. 3d 39, 45–46 (D. Mass. 2016), the court need not
resolve them in light of the parties’ agreement, during the
June 21, 2018 telephonic hearing, that this court would retain
jurisdiction despite Hussein’s transfer. This also vitiates any
difficulties that Hussein would face in litigating this petition
-- or filing one anew -- in Louisiana.
Conclusion
Accordingly, the court denies Hussein’s motion for a
temporary restraining order preventing his transfer from this
District to Louisiana. At the same time, it takes under
advisement Hussein’s motion for such an order preventing his
removal from the United States.
Respondents’ counsel shall notify the court immediately of
any change in Hussein’s travel schedule -- specifically, any
change to his transfer on June 25 and removal on June 28 -- and
of any action taken by the BIA.
In any event, respondents’ counsel shall file a status
report with the court on or before 2:00 pm on June 27, 2018.
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SO ORDERED.
Joseph N. Laplante
United States District Judge
Dated: June 21, 2018
cc: Mark J. Devine, Esq.
Benjamin J. Wahrer, Esq.
Twain Asher Braden, Esq.
Terry L. Ollila, AUSA
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