V Indonesian Journal of International & Comparative Law 511-27 (July 2018)
In Hamama v. Adducci, 1,444 Iraqi nationals—subject to removal—
secured a temporary stay of execution of their removal orders, per-
suading the district court that their deportation prior to prosecuting
their challenges to the removal orders would amount to a suspension
of the writ of habeas corpus.1 Subsequently, over a dozen district courts
across six circuits considered similar arguments. Four district courts
agreed that executing removal orders prior to a fully reviewed chal-
lenge to those orders strips deportees of their privilege to the writ
under “extraordinary circumstances.”2 Equating deportation in these
extraordinary circumstances with an unconstitutional suspension of
the writ of habeas corpus, district courts are temporarily enjoining de-
portations, notwithstanding a statutory jurisdictional bar to doing so.3
ese courts reason that the immigration-related jurisdictional limits
violate the Suspension Clause when those jurisdictional restrictions
prevent a district court from ensuring a person’s privilege to the writ
of habeas corpus.4
ese decisions potentially create a new fact-specic extraordinary
circumstances standard for challenging deportations in district
court—prior to a full review of removal orders—as violations of the
Suspension Clause.5 No appellate courts have reviewed these decisions.
However, surveying the district court orders gives insight to the
requirements and scope of this avenue for relief for those subject to
removal. And analyzing the rationale for the decisions in light of the
historical purpose of the writ may indicate whether the extraordinary
circumstances standard has legal longevity.
1. 258 F. Supp. 3d 828, 829 (E.D. Mich. 2017).
2. See, e.g., Ibrahim v. Acosta, No. 17-CV-24574, 2018 WL 582520, at *6 (S.D. Fla.
3. See, e.g., Hamama, 258 F. Supp. 3d at 842 (“To enforce [the jurisdictional bar]
in these circumstances would amount to a suspension of the right to habeas
corpus. e Constitution prohibits that outcome.”).
4. See id.
5. See U.S. C. art. I, § 9, cl. 2 (“e Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the pub-
lic safety may require it.”).