                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 20a0003p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 USAMA JAMIL HAMAMA, et al.,                             ┐
                                Petitioners-Appellees,   │
                                                         │
                                                         │
        v.                                               >      No. 19-1080
                                                         │
                                                         │
 REBECCA ADDUCCI, Director of the Detroit District of    │
 United States Immigration and Customs Enforcement,      │
 et al.,                                                 │
                              Respondents-Appellants.    │
                                                         ┘

                         Appeal from the United States District Court
                        for the Eastern District of Michigan at Detroit.
                   No. 2:17-cv-11910—Mark A. Goldsmith, District Judge.

                              Decided and Filed: January 3, 2020

               Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.
                               _________________

                                          COUNSEL

ON BRIEF: Michael A. Celone, William C. Silvis, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellants. Miriam J. Aukerman, AMERICAN CIVIL
LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Judy Rabinovitz, Lee Gelernt,
Anand Balakrishnan, AMERICAN CIVIL LIBERTIES UNION, New York, New York, Margo
Schlanger, Ann Arbor, Michigan, Nadine Yousif, CODE LEGAL AID INC., Madison Heights,
Michigan, Kimberly L. Scott, Wendolyn Wrosch Richards, MILLER, CANFIELD, PADDOCK
& STONE, PLC, Ann Arbor, Michigan, William W. Swor, WILLIAM W. SWOR
& ASSOCIATES, Detroit, Michigan, for Appellees.

     SUTTON, J., delivered the opinion of the court in which BATCHELDER, J., joined.
WHITE, J. (pp. 9–13), delivered a separate opinion concurring only in the judgment.
 No. 19-1080                      Hamama, et al. v. Adducci, et al.                       Page 2


                                      _________________

                                           OPINION
                                      _________________

        SUTTON, Circuit Judge. Last time around, we held that Congress removed jurisdiction
from the district courts to enter class-wide injunctions restraining the enforcement of the
following immigration statutes: 8 U.S.C. §§ 1221–1232. See generally 8 U.S.C. § 1252(f)(1),
(g). Just before we decided that appeal, the district court issued another class-wide injunction.
We vacate that injunction, too, and remand again for further proceedings.

                                                I.

        Usama Hamama is the named plaintiff in a class of over one thousand Iraqi nationals.
The federal government entered final removal orders against Hamama and the class members
between March 1 and June 24, 2017, and the government has detained them or will do so in the
future. So far, most of them remain in the United States due to diplomatic difficulties preventing
their return to Iraq.

        The district court certified three subclasses: (1) all primary class members without
individual habeas petitions who are or will be detained by Immigration and Customs
Enforcement, (2) those in the first subclass who are also subject to final removal orders, and
(3) those in the first subclass whose motions to reopen their removal proceedings have been
granted and who are being held under a statute mandating their detention. Today’s appeal
concerns the first subclass.

        The district court now has entered a trio of preliminary injunctions. We vacated two of
them the last time we encountered this case. Hamama v. Adducci, 912 F.3d 869, 871–72 (6th
Cir. 2018). The first injunction prevented removal of certain Iraqi nationals located throughout
the country. The district court, we explained, lacked jurisdiction to grant this relief under 8
U.S.C. § 1252(g). Id. at 875–76. The second injunction required bond hearings for each class
member who had been detained for at least six months. The district court, we explained, lacked
jurisdiction to grant that injunction on a class-wide basis under 8 U.S.C. § 1252(f)(1). Id. at
877–79.
 No. 19-1080                         Hamama, et al. v. Adducci, et al.                         Page 3


          In today’s appeal, the government challenges the third injunction, issued shortly before
we decided the last appeal. The third injunction presumptively requires the government to
release all primary subclass members, those in the first subclass, once the government has
detained them for six months, no matter the statutory authority under which they were held.

          In issuing this injunction, the district court offered three explanations. First, it relied on
Zadvydas v. Davis, 533 U.S. 678, 701 (2001), which required release of certain immigration
detainees after six months if the detainees could show that there was no “significant likelihood”
that they would be removed in the “reasonably foreseeable future.” The government held the
detainees in Zadvydas under 8 U.S.C. § 1231(a)(6), which applies to aliens with final removal
orders.     Id. at 682.   Section 1231 requires their detention for up to 90 days, then grants
discretionary authority to continue detaining certain criminal aliens after that period. The district
court extended Zadvydas to impose the same six-month time limit on other immigration statutes
that require or permit detention in other contexts: §§ 1225(b) and 1226(a), (c).

          Second, the district court concluded that the class members showed that the government
was unlikely to repatriate them to Iraq in the reasonably foreseeable future. Even though the
government has sent some of the affected individuals back to Iraq since 2017, the evidence
showed that diplomatic discussions had stalled and repatriation attempts had failed. The court
concluded that this trouble likely would persist.

          Third, the district court reasoned that the government “acted ignobly” throughout the
litigation process and found no substantial likelihood of removal as a sanction for its conduct.
R. 490 at 1, 53.

          For the reasons offered in our last opinion and others elaborated below, the district court
lacked jurisdiction to enter its class-wide preliminary injunction and at any rate had no license to
extend Zadvydas to this setting.

                                                    II.

          The district court had no jurisdiction to do what it did. Congress stripped all courts, save
for the Supreme Court, of jurisdiction to enjoin or restrain the operation of 8 U.S.C. §§ 1221–
 No. 19-1080                         Hamama, et al. v. Adducci, et al.                         Page 4


1232 on a class-wide basis. 8 U.S.C. § 1252(f)(1). Thus, for many of the same reasons we
reversed the district court before, we must do so again. See Hamama, 912 F.3d at 877.

          In each case, the government detained the aliens under §§ 1225, 1226, or 1231. Yet those
are the statutes covered by the jurisdictional bar, and the court’s injunction prevented those
statutes from operating, whether with respect to mandatory or permissive detentions. What was
true the first time around remains true today.

          Hamama defends the district court’s most recent injunction on four grounds, each
unavailing.

          He starts by insisting that the district court in truth did not enjoin the statutes. It merely
granted habeas corpus relief instead. As proof, he points out that the order required the release
of detainees from confinement, a form of relief that resembles a grant of the writ of habeas
corpus and that is consistent with the styling of the lawsuit as a habeas petition.

          That is a hard sell. As a matter of form, the district court entered a “preliminary
injunction.”     R. 490 at 1.    That’s just what Hamama asked for in his motion, and that’s
presumably why the court called it one. As a matter of substance, the district court considered
the four-factor test for a preliminary injunction, never mentioning 28 U.S.C. § 2241, any other
habeas statute, or any test for habeas relief. As a matter of process, the district court granted
release from detention on a preliminary basis. Section 2241 does not permit preliminary grants
of habeas. It prohibits the writ from issuing unless the prisoner “is” being held “in custody in
violation of the Constitution or laws or treaties of the United States,” not merely because he
likely could make that showing in the future. Id. § 2241(c)(3). Whether as a matter of form,
substance, or procedure, this was a preliminary injunction, not a grant of the writ of habeas
corpus.

          Hamama could not succeed, moreover, even if this were a grant of habeas relief. One
problem is that not all members of this subclass currently are in custody. The subclass includes
individuals who will be detained in the future. Eligibility for habeas relief, as noted, covers only
those individuals currently in custody, id. § 2241(c), while this order applies to the entire
subclass. Another problem is that the order applies prospectively. It requires the release of
 No. 19-1080                       Hamama, et al. v. Adducci, et al.                         Page 5


detainees once they reach six months in detention.          But § 2241(c) offers the writ only to
prisoners whose confinement currently is unlawful, not to those whose confinement might
become unlawful in the future.

        No matter, Hamama responds: The court had authority to order the class members’
release as a sanction for the government’s misconduct during the litigation, either under its
inherent powers or under Rule 37. Three problems there. One: A federal court does not have
authority to ignore a directive of the legislature as punishment for conduct of the executive
branch, least of all a directive that the court has no power to issue that kind of class-wide relief.
Two: The plaintiffs’ description of what the court did is not exactly right. In truth, it never
ordered the class members’ release as a sanction. It instead adopted a finding of fact—that there
is no substantial likelihood of class members’ repatriation in the reasonably foreseeable future—
as an adverse inference against the government. R. 490 at 53. Three: What the court did still
exceeds its authority. It used the sanction as part of its explanation for granting a class-wide
preliminary injunction. But nesting a sanction within an order the district court lacked authority
to issue does not solve the problem: that 8 U.S.C. § 1252(f)(1) prohibits class-wide preliminary
injunctions. Hamama, 912 F.3d at 877 (holding that § 1252(f)(1) “unambiguously strips federal
courts of jurisdiction to enter class-wide injunctive relief” on these very claims).

        Hamama’s third attempt to rehabilitate the district court’s injunction echoes an argument
from the last appeal. He claims that the district court did not enjoin or restrain the immigration
statutes; it just implemented them. But as we pointed out last time in responding to a similar
argument, the district court ordered detainees released, created new time limits on detention, and
adopted new standards that the government had to meet to continue detention.               Hamama,
912 F.3d at 879–80. “If these limitations on what the government can and cannot do under the
. . . detention provisions are not ‘restraints,’ it is not at all clear what would qualify as a
restraint.” Id. at 880.

        Last of all, Hamama asks us to uphold the preliminary injunction on the ground that the
court could have entered it as a declaratory judgment. Maybe; maybe not. Whatever we think
about that issue in the abstract, however, the district court did not enter its preliminary order as a
declaratory judgment. And Hamama at any rate did not seek that relief in the motion, making it
 No. 19-1080                       Hamama, et al. v. Adducci, et al.                          Page 6


forfeited anyway.     Nor should anyone assume Hamama could have obtained preliminary
declaratory relief. The Supreme Court has suggested preliminary declaratory judgment does not
exist. Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975).

        The broader point, through all of Hamama’s attempts to reconceptualize this unlawful
district court order, is that one does not lightly cleanse a prohibited action by identifying after the
fact some other form of relief that might work sometimes in some circumstances. That is no way
to run a railroad.

                                                 III.

        The district court separately read too much into Zadvydas, 533 U.S. at 678, and
overlooked the teachings of Jennings v. Rodriguez, 138 S. Ct. 830 (2018), in granting relief.

        In Zadvydas, aliens detained under 8 U.S.C. § 1231(a)(6) sought release. On its face,
§ 1231(a)(6) authorizes indefinite detention of certain aliens with final removal orders—those
who have committed certain sets of crimes enumerated elsewhere in the statute, who are likely to
flee, or who will endanger the community. Concerned about the constitutional implications of
indefinite detention susceptible to challenge only through administrative review, the Supreme
Court construed the statute to avoid these problems. Zadvydas, 533 U.S. at 699. It concluded
that, after six months of confinement under § 1231(a)(6), a detainee could try to show “good
reason to believe that there is no significant likelihood of removal in the reasonably foreseeable
future.” Id. at 701. The government could then offer evidence to rebut that showing. Id. If the
government failed to rebut the showing, it would have to release the detainee. Id.

        Today’s case differs in material ways. The government has detained class members
under four provisions: § 1231(a)(6), the statute the Zadvydas court considered; § 1225(b), which
mandates detention of aliens during asylum proceedings; § 1226(c), which mandates detention of
certain criminal aliens until entry of a final removal order; and § 1226(a), which permits
detention of all other aliens until entry of a final removal order. Despite the differences between
these provisions, the court grafted the Zadvydas standard onto the last three provisions.
 No. 19-1080                      Hamama, et al. v. Adducci, et al.                        Page 7


       None of those three provisions implicates Zadvydas’s concern about indefinite detention.
Zadvydas sprang from the observation that a “statute permitting indefinite detention of an alien
would raise a serious constitutional problem.” 533 U.S. at 690. But, as Jennings noted, all three
of these provisions, unlike the Zadvydas provision, have endpoints: conclusion of asylum
proceedings or entry of a removal order. 138 S. Ct. at 844, 846. The Supreme Court, moreover,
has separately upheld detention during deportation proceedings against constitutional challenge,
allaying any constitutional concerns on that front. Demore v. Kim, 538 U.S. 510 (2003).

       More, Congress wrote two of the statutes—§§ 1225(b) and 1226(c)—too clearly to
permit a constitutional-avoidance reading. Both statutes mandate detention, which forecloses an
interpretation premised on the permissive nature of the detention authority in § 1231(a)(6).
Zadvydas, 533 U.S. at 697 (“[W]hile ‘may’ suggests discretion, it does not necessarily suggest
unlimited discretion. In that respect the word ‘may’ is ambiguous.”).

       Jennings indeed forbade this precise form of interpretation in construing § 1225(b).
“Here, by contrast,” it reasoned, § 1225(b) “do[es] not use the word ‘may.’           Instead, [it]
unequivocally mandate[s] that aliens falling within [its] scope ‘shall’ be detained.” 138 S. Ct. at
843–44. And it said the same thing about § 1226(c), another mandatory detention statute, for the
same reason. Id. at 846.

       Ly v. Hansen does not require a different result. 351 F.3d 263 (6th Cir. 2003). Yes, it
extended Zadvydas and its reasoning to other detention statutes.         But Ly did not survive
Jennings.

       Jennings restored the constitutional distinction between pre- and post-removal order
detention that Ly collapsed. Ly held that pre-removal order detention for those who could not be
deported at the close of removal proceedings implicated the same constitutional concerns as
indefinite detention after entry of a final removal order. Id. at 268–69. But that difference is
precisely where Jennings began its analysis. In the Supreme Court’s own words, “the Court of
Appeals in this case . . . failed to address whether Zadvydas’s reasoning may fairly be applied in
this case despite the many ways in which the provision in question in Zadvydas . . . differs
 No. 19-1080                       Hamama, et al. v. Adducci, et al.                        Page 8


materially from those at issue here. . . . To start, [§ 1225(b)], unlike § 1231(a)(6), provide[s] for
detention for a specified period of time.” Jennings, 138 S. Ct. at 843–44.

       Ly also turned on a constitutional avoidance reading of § 1226(c), one that Jennings
expressly foreclosed. Read Ly: “Since permanent detention . . . under [§ 1226(c)] would be
unconstitutional, we construe the statute to avoid that result, as did the Court in Zadvydas.” 351
F.3d at 267. Now read Jennings: Constitutional avoidance “permits a court to choose between
competing plausible interpretations of a statutory text,” one of which implicates constitutional
problems the other would avoid. 138 S. Ct. at 843 (quotation and emphasis omitted). But these
texts are “quite clear”—so clear that application of that canon “falls far short of a plausible
statutory construction.” Id. at 845–48 (quotation omitted). As between the approaches in
Jennings and Ly, only one can survive. It is not Ly.

       We vacate the district court’s injunction and remand for further proceedings.
 No. 19-1080                      Hamama, et al. v. Adducci, et al.                        Page 9


                        ________________________________________

                            CONCURRING IN THE JUDGMENT
                        ________________________________________

       HELENE N. WHITE, Circuit Judge, concurring in the judgment only. I recognize that
the majority’s opinion in Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018) (Hamama I) requires
us to vacate the class-wide preliminary injunction. I therefore concur in the judgment. However,
I adhere to my dissent in Hamama I and disagree with the conclusions the majority draws from
Supreme Court and Sixth Circuit precedent.

                                                I.

       The majority asserts that Hamama could not succeed even if the district court’s order is
characterized as habeas relief because it “applies prospectively . . . to those whose confinement
might become unlawful in the future.” Maj. Op. at 4-5. Under a Zadvydas analysis, however, it
is necessary to examine the possibility of future indefinite and unconstitutional detention.
Zadvydas did not neatly establish that detention shorter than six months is lawful while detention
longer than six months is unlawful. Instead, in balancing the liberty interests of detainees with
the executive branch’s need for leeway in accomplishing removals, Zadvydas established a
presumption that six months of detention is reasonable. 533 U.S. 678, 700–01 (2001). After six
months, Zadvydas provides process to detainees whose confinement might be unlawful—a
review of the likelihood of removal in the reasonably foreseeable future. Id. Here, the district
court conducted this review and found that “the record unquestionably demonstrates that there is
no significant likelihood of repatriation in the reasonably foreseeable future.” R. 490, PID
14171. This is not a case in which “confinement might become unlawful in the future,” but a
case in which confinement will be unlawful once class members reach six months of detention.

       This court has acknowledged that the Supreme Court “has construed the ‘in custody’
requirement in a reasonably liberal fashion and held that the writ may be appropriate in situations
beyond the traditional one in which petitioner’s claim would, if upheld, result in an immediate
release from present custody.” Ward v. Knoblock, 738 F.2d 134, 138 (6th Cir. 1984). In Peyton
v. Rowe, 391 U.S. 54 (1968), the Supreme Court “reexamined the so-called ‘prematurity
 No. 19-1080                      Hamama, et al. v. Adducci, et al.                       Page 10


doctrine’ in the context of section 2241(c)(3) habeas corpus actions and rejected it as ‘an
indefensible barrier to prompt adjudication of constitutional claims in the federal courts.’”
Ward, 738 F.2d at 139 (quoting Peyton, 391 U.S. at 55). The Peyton prisoners sought to
challenge the constitutionality of consecutive sentences they had not yet begun to serve. Peyton,
391 U.S. at 55–57. The district courts dismissed their habeas petitions as premature but the
Supreme Court held that the prisoners were “‘in custody in violation of the Constitution’ if any
consecutive sentence they [were] scheduled to serve was imposed as the result of a deprivation
of constitutional rights.” Id. at 64–65. The Court reasoned that this approach is “consistent with
the canon of construction that remedial statutes should be liberally construed.” Id. at 65. And in
Preiser v. Rodriguez, 411 U.S. 475, 487 (1973), the Supreme Court observed “that habeas corpus
relief is not limited to immediate release from illegal custody” but is also available “to attack
future confinement and obtain future releases.” Of course, these cases are not on all fours with
the instant case, but they demonstrate that the habeas remedy is not to be rejected simply because
the confinement will become illegal in the near future.

       Here, the Zadvydas subclass members whose periods of detention will reach six months
have already established that there is no reasonably foreseeable likelihood of repatriation.
Therefore, upon the expiration of the six-month presumption “each day they are incarcerated . . .
while their cases are in the courts will be time that they might properly have enjoyed as free
men.” Peyton, 391 U.S. at 64. The district court’s order releasing any subclass member whose
detention reaches six months, allowing the government to show special justification for
continued detention of specific individuals, and allowing the government to remove individuals
prior to the time required for release, would constitute permissible habeas relief under § 2241.

       Even if we assume the district court could not grant habeas relief prospectively, Part 1 of
the order, applying to subclass members who have been detained for more than six months,
would remain a valid form of habeas relief. Part 2 of the order, applying to any subclass member
whose detention reaches six months, could be reissued upon the actual expiration of six months
of detention.
 No. 19-1080                      Hamama, et al. v. Adducci, et al.                       Page 11


        The majority also casts doubt on the possibility of declaratory relief. As I observed in
Hamama I, “the request for such relief is part of the case and should be entertained by the district
court on remand without prejudgment by this court.” 912 F.3d at 887 (White, J., dissenting).

                                                 II.

        I disagree with the majority’s conclusion that Demore v. Kim, 538 U.S. 510 (2003) and
Jennings v. Rodriguez, 138 S. Ct. 830 (2018) foreclose all relief and that Ly v. Hansen, 351 F.3d
263 (6th Cir. 2003) does not survive Jennings.

        Although the Court in Jennings observed that “§§ 1225(b)(1) and (b)(2), unlike
§ 1231(a)(6), provide for detention for a specified period of time,” the Court was nevertheless
concerned about the possibility of prolonged or permanent detention without judicial review.
138 S. Ct. at 844. Before “reaching the merits of the lower court’s interpretation,” the Court
considered whether § 1252(b)(9) deprived the Court of jurisdiction. 138 S. Ct. at 839. The Court
concluded that it retained jurisdiction, in part because an interpretation of the statute that would
deprive the Court of jurisdiction would bar review of the very type of detention at issue here.
Such an interpretation would

        make claims of prolonged detention effectively unreviewable. By the time a final
        order of removal was eventually entered, the allegedly excessive detention would
        have already taken place. And of course, it is possible that no such order would
        ever be entered in a particular case, depriving that detainee of any meaningful
        chance for judicial review.

Id. at 840.

        The Supreme Court has not allayed all constitutional concerns regarding detention during
deportation proceedings. Although Demore considered detention under § 1226(c), one of the
provisions at issue in the present case, and concluded that detention was constitutionally
permissible, the Court also noted that “the detention at stake under § 1226(c) lasts roughly a
month and a half in the vast majority of cases in which it is invoked, and about five months in
the minority of cases in which the alien chooses to appeal,” and that the respondent himself “was
detained for somewhat longer than the average—spending six months in INS custody.” Demore,
538 U.S. at 530–31. The detention here lasted three times as long—some class members were
 No. 19-1080                      Hamama, et al. v. Adducci, et al.                      Page 12


detained for a year and a half before the district court issued its injunction.        See R. 490
(explaining that DHS began arresting Iraqi nationals in June 2017, and the district court issued
the preliminary injunction on November 20, 2018). The Court in Demore held that Congress
“may require that persons such as respondent be detained for the brief period necessary for their
removal proceedings,” 538 U.S. at 513 (emphasis added), and noted its “longstanding view that
the Government may constitutionally detain deportable aliens during the limited period
necessary for their removal proceedings,” id. at 526 (emphasis added). The Court did not have
the opportunity to consider the degree of prolonged detention at issue in the present case. The
Court distinguished Zadvydas on that ground, explaining that “the period of detention at issue in
Zadvydas was ‘indefinite’ and ‘potentially permanent,’” id. at 528 (quoting Zadvydas, 533 U.S.
at 690–91), while the detention considered in Demore was “of a much shorter duration,” id. The
court also distinguished Zadvydas on the basis that in Zadvydas “the aliens challenging their
detention following final orders of deportation were ones for whom removal was ‘no longer
practically attainable.’” Id. at 527 (quoting Zadvydas, 533 U.S. at 690).

       Thus, on the very grounds the Supreme Court distinguished Demore from Zadvydas, the
situation here is closer to Zadvydas. The class members here were detained for a year and a half,
not a “brief” or “limited period” by any measure, and the district court found that removal is not
significantly likely in the reasonably foreseeable future. It therefore remains possible, under the
majority’s approach, that removal is never completed “in a particular case, depriving that
detainee of any meaningful chance for judicial review.” Jennings, 138 S. Ct. at 840.

       Further, as Hamama argues, Jennings did not disturb Ly’s discussion of constitutional
principles. Neither should this court. See United States v. Adewani, 467 F.3d 1340, 1342 (D.C.
Cir. 2006).    Unlike the constitutional avoidance and statutory interpretation of § 1226(c)
considered in Jennings, this court in Ly did not construe the statute to include a bright-line rule
regarding a time limitation on pre-removal detention, 351 F.3d at 271, and did not require bond
hearings, id. at 270.   This court instead concluded that “although criminal aliens may be
incarcerated pending removal, the time of incarceration is limited by constitutional
considerations, and must bear a reasonable relation to removal,” id. at 269, and that the
“reasonableness of the length of detention is subject to review by federal courts in habeas
 No. 19-1080                     Hamama, et al. v. Adducci, et al.                     Page 13


proceedings,” id. at 273. The Jennings Court explicitly declined to reach these constitutional
issues. 138 S. Ct. at 851.

                                              III.

       In sum, I would vacate the preliminary injunction, and remand for reconsideration in light
of Hamama I and for consideration of any remedies consistent with this opinion.
