Habeas corpus is a federal court remedy used to challenge unlawful detention. In the immigration context, it allows a person in ICE custody to ask a district court a focused question: is the government legally allowed to detain me right now? It does not decide the underlying removal case. It just addressed detention.
With the aggressiveness (and illegality of) ICE detentions over the past year, habeas has become the most effective, and in many cases the only, manner of challenging immigration detention that is unconstitutionally prolonged, procedurally flawed, or maintained without the chance for a bond hearing. Some common scenarios include:
- “No bond” determinations after entry without inspection. Following the Board of Immigration Appeals Matter of Yajure Hurtado, noncitizens who had entered the U.S. without a visa have generally been told that immigration judges cannot give them a bond. But the legal conclusions in Yajure Hurtado have been rejected by most courts and thousands of noncitizens in this situation have been released after bringing habeas challenges in federal court.
- Bond hearings with the wrong burden of proof. Immigration judges generally require the noncitizen to prove they are not a flight risk or a danger. Courts have increasingly held that due process requires the government to justify continued detention rather than having the noncitizen justify their liberty. Where an immigration judge denies a bond finding that the noncitizen failed to establish that they weren’t a flight risk or that they weren’t a danger, a habeas challenge in federal court may be viable.
- Detention after a final order of removal. The Supreme Court in Zadvydas v. Davis made clear that post-order detention is not indefinite. If removal is not reasonably foreseeable, continued detention may be unlawful. It is not uncommon that an immigration judge orders a person removed from the U.S. but the country of origin refuses to accept the individual. In such cases, ICE is not permitted to simply maintain the individual forever. Where detention reaches six months after the order of removal becomes final, a habeas challenge may be possible.
- Individuals granted withholding of removal who remain detained. Similarly, where the noncitizen has an order of removal with a restriction that they cannot be removed to their country of origin, ICE cannot simply detain the person indefinitely while it tries to find a third country to accept the individual. A habeas challenge in such a scenario can often secure the individual’s release from custody.
- Re-detention after years of release. Some individuals are taken back into custody after long periods of compliance, often without any meaningful explanation for the change. Often times immigration agents will fail to comply with regulations governing how to revoke a supervised release. Such violations can justify a federal court ordering release if the detention is challenged with habeas.
With both ICE and the immigration courts situated under the President’s authority in the executive branch, habeas corpus is the route to federal court when detention grows prolonged, unjustified, or otherwise illegal.
If you are concerned about the immigration detention for a loved one and would like to discuss whether habeas corpus might be an option, please don’t hesitate to schedule a consultation.
