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#ImmigrationLaw #FBA
HABEAS CORPUS AND PROLONGED DETENTION
Panelists: Kate Melloy Goettel, National Immigrant Justice Center Ranjana Natarajan, Civil Rights Clinic, University of Texas School of Law Claudia Valenzuela, American Immigration Council Anam Rahman, Calderon Seguin PLC (Moderator)
#ImmigrationLaw #FBA
REALITY OF IMMIGRATION DETENTION
How many people in immigration detention? FY 2018 = 39,322 people per ICE
https://immigrantjustice.org/sites/default/files/jail-operators_for-web.jpg
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REALITY OF IMMIGRATION DETENTION
Source: https://www.freedomforimmigrants.org/detention-statistics
#ImmigrationLaw #FBA
REALITY OF IMMIGRATION DETENTION
Source: https://www.freedomforimmigrants.org/detention-statistics
#ImmigrationLaw #FBA
HABEAS CORPUS – ORIGINS
• Common law origin• Suspension Clause (Art. I, Sec. 9, Cl. 2 of the U.S. Constitution)• INS v. St.Cyr, 533 U.S. 289, 301 (2001):
• Historically the writ has “served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”
• 8 U.S.C. § 2241(c)(3) grants district courts jurisdiction to hear habeas corpus petitions from noncitizens claiming that they are held “in violation of the Constitution or laws or treaties of the United States.”
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IMMIGRATION DETENTION HABEAS REQUIREMENTS: 28 U.S.C. § 2241
◦ Petitioner is in custody under color of authority of U.S. or committed for trial before court thereof; or
◦ In custody for act / omission under federal law, or order of U.S. judge; or◦ In custody in violation of the Constitution, laws or treaties of the U.S.; or◦ Citizen of foreign state and domiciled therein is in custody for act/
omission under foreign law, based on law of nations; or ◦ It is necessary to bring the detained person into court to testify
or for trial.
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IMMIGRATION HABEAS: PROPER RESPONDENT• Majority of circuits follow “immediate custodian rule”: proper respondent is the physical custodian (warden of the detention facility) ◦ This means that ICE and DHS are not generally a proper respondents◦ See, e.g., Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. 2006); Nken v. Napolitano,
607 F. Supp. 2d 149, 159-61 (D.D.C. 2009); Zhen Yi Guo v. Napolitano, No. 09 CIV 3023 PGG, 2009 WL 2840400, at *5 (S.D.N.Y. Sept. 2, 2009). But see Saravia v. Sessions, 280 F. Supp. 3d 1168, 1186 (N.D. Cal. 2017), aff'd sub nom. Saravia for A.H. v. Sessions, 905 F.3d 1137 (9th Cir. 2018).
◦ Whether Attorney General is proper respondent open question, Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).
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IMMIGRATION DETENTION HABEAS: JURISDICTION
◦ District courts, appellate courts, and Supreme Court may grant writ (but usually filed in district courts)
◦ Best to file “in the district court for the district wherein such person is in custody.”
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IMMIGRATION DETENTION HABEAS: JURISDICTION (CONT’D)
8 U.S.C. § 1226(e):
• Demore, 538 U.S. at 517: 1226(e) does not bar a noncitizen from bringing a “constitutional challenge to the legislation authorizing his detention without bail.”
• Jennings, 138 S.Ct. at 841: Claims “contesting the constitutionality” of statutory detention authority fall outside the scope of 1226(e)’s jurisdictional bar.
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IMMIGRATION DETENTION HABEAS: JURISDICTION (CONT’D)
8 U.S.C. § 1252(b)(9):
• States that “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien . . . shall be available only in judicial review of a family order. . .” .
• Jennings, 138 S.Ct. at 841 -- Section 1252(B)(9) does not strip court of jurisdiction over claims that are collateral to the removal process, including those that challenge the legality and constitutionality of detention.
• Recently affirmed in Nielsen v. Preap, 139 S. Ct. 954, 960, 962 (2019).
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IMMIGRATION DETENTION HABEAS: PROCEDURE
• Federal Rules of Civil Procedure do not apply • But can be argued as persuasive authority
• Statutory Procedure: 28 U.S.C. §§ 2242-2243• Petition, return, traverse, evidence, and hearing
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IMMIGRATION DETENTION HABEAS: PROCEDURE● PETITION ◦ Petition must be in writing, signed and verified by petitioner or
someone on his/her behalf.◦ Petition must allege facts relating to detention, name the
custodian, and name authority under which s/he is held, if known◦ Petition must identify the constitutional or federal statutory issue
at issue◦ Ask for a 3-day return. See 28 U.S.C. 2243.◦ ALLEGE JURISDICTION AND VENUE
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IMMIGRATION DETENTION HABEAS: PROCEDURERETURN (ANSWER) ◦ Judge shall forthwith issue writ or issue order directing respondent
(custodian) to show cause why the writ should not be granted (unless it’s meritless on its face). Shall require a return within three days or maximum of twenty days.
◦ Custodian shall state in the return the true reasons for detention.◦ Judge shall set day for hearing after return is made. ◦ Unless the return only presents legal issues, the person in custody must
be produced at the hearing.◦ Return may be amended by leave of court.
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IMMIGRATION DETENTION HABEAS: PROCEDURE
TRAVERSE (REPLY)◦ Petitioner may deny the facts in the return or allege other
material facts (called a traverse). ◦ Return may be amended by leave of court.
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IMMIGRATION DETENTION HABEAS: PROCEDURE
EVIDENCE AND HEARING ◦ Court shall “summarily hear and determine the facts, and dispose
of the matter as law and justice require.”◦ Evidence may be taken orally or by deposition, or by affidavits. ◦ Documentary evidence, criminal proceeding transcripts, and
transcripts of previously given oral testimony are all admissible.
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IMMIGRATION DETENTION HABEAS: REMEDY
• Outright release: Writ of habeas corpus ordering release of Petitioner
• Bond hearing: Order requiring DHS to hold a custody hearing before an Immigration Judge
◦ Burden of proof on DHS to show the need for continued detention, based on flight risk and danger to the community.
◦ See Diop v. ICE/Homeland Sec., 656 F.3d 221, 321 (3d Cir. 2011); Pensamiento v. McDonald, 315 F. Supp. 3d 684, 687 (D. Mass. 2018);
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IMMIGRATION DETENTION STATUTES• Pre-removal:◦ INA § 236(a) aka 8 U.S.C. § 1226(a): discretionary/ eligible for release
on bond or conditional parole ◦ INA § 235(b) aka 8 U.S.C. § 1225(b)(1) and (b)(2): mandatory until
credible fear determination; mandatory during expedited removal; asylum-seekers and others may be paroled (INA § 212(d)(5); 8 C.F.R. §212.5) for humanitarian reasons.
◦ INA § 236(c) aka 8 U.S.C. § 1226(c): mandatory detention of noncitizens with certain criminal convictions (CMT, drug offenses, firearm offenses, aggravated felonies)
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IMMIGRATION DETENTION STATUTES (CONT’D)
• Post-removal◦ INA § 241 aka 8 U.S.C. § 1231(a)(2): mandatory during 90-day
removal period, then:◦ INA § 241 aka 8 U.S.C. § 1231(a)(6): once removal period expires
detention = discretionary
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HABEAS CORPUS – RELEVANT PRECEDENT• Zadvydas v. Davis, 533 U.S. 678 (2001):
• Examined post-removal detention statute (INA 241(a)(6); 8 USC 1231(a)(6))
• Noted due process concerns with prolonged and potentially indefinite detention where “no significant likelihood of removal in the reasonably foreseeable future”
• Applied constitutional avoidance doctrine, read implicit temporal limitation in statute: six months presumptively reasonable
• When individual makes showing that removal not likely, gov ’t bears the burden to justify continued detention
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HABEAS CORPUS – RELEVANT PRECEDENTDemore v. Kim, 538 U.S. 510 (2003): • Upheld constitutionality of mandatory detention under pre-
removal statute (INA 236(c); 8 U.S.C. 1226(c)), based on procedural safeguard and short length of the detention
• Kennedy concurrence: Due Process Clause prohibits arbitrary detention, and requires a “reasonable relation” to a legitimate purpose
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HABEAS CORPUS – RELEVANT PRECEDENTJennings v. Rodriguez, 138 S.Ct. 830 (2018):
Court ruled that it would not read a six-month presumptive limit to the pre-removal detention statutes, thus requiring bond hearings afterward; remanded to Ninth Circuit for analysis of the constitutional claims.
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FRAMING HABEAS POST-JENNINGSSUBSTANTIVE DUE PROCESS CLAIMS: ◦ Arbitrary – no substantive basis; does not serve the stated purpose; for
deterrence purpose and not individualized; lacking in procedural safeguards
◦ Prolonged – disproportionate in time period to stated purpose; lacking in procedural safeguards
◦ Indefinite – has no known or knowable end◦ Punitive – purpose is to punish, which is not allowed for civil detention
PROCEDURAL DUE PROCESS CLAIM: ◦ Lacks procedural safeguards to test the basis of detention
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IMMIGRATION DETENTION: EMERGING ISSUES
Bond eligibility for individuals with prior removal orders?➢What statute governs? 8 U.S.C. §§ 1226 or 1231?➢Circuit Split:
■ Padilla v. Ramirez v. Bible, 882 F.3d 826 (9th Cir. 2017)■ Guerra v. Shanahan, 831 F.3d 59 (2d Cir. 2016)■ Awaiting: Cabrera-Diaz v. Hott, 297 F.Supp.3d 618 (EDVA)
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IMMIGRATION DETENTION: EMERGING ISSUES❖ Inability to post monetary bond as a due process issue:➢Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017)■Affirmed preliminary injunction holding that Immigration
courts must consider the immigrant’s ability to pay bond when setting bond
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IMMIGRATION DETENTION: EMERGING ISSUES
❖ “When released” from criminal custody:➢Nielsen v. Preap, 139 S.Ct. 954 (2019)■ ICE does not lose authority to detain an individual under
236(c) if they do not take the individual into custody immediately after release from criminal custody
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IMMIGRATION DETENTION: EMERGING ISSUES
Detention of individuals awaiting U visa adjudication:➢Habeas, APA, and mandamus combo➢Argue that it is unreasonable to detain someone where they
have a bona fide U visa petition on file➢Also argue that USCIS should put petitioner on wait list
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IMMIGRATION DETENTION: EMERGING ISSUES
Blanket denials of parole:➢Damus v. Nielsen, No. 18–578 (JEB), 2018 WL 3232515 (D.D.C.
July 2, 2018)■Covers Detroit, El Paso, Los Angeles, Newark, and Philadelphia
field offices■Preliminary injunction mandates that ICE re-review parole
requests for asylum seekers in these districts
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IMMIGRATION DETENTION: EMERGING ISSUES
Timing, gov’t burden and procedures in immigration bond hearings for asylum-seekers:
➢ Padilla v. ICE, et al., 2:18-cv-928 (W.D. Wash.)■Class of detained asylum seekers granted■Court entered nationwide preliminary injunction: Gov’t must
grant a bond hearing to any class member within seven days of requesting one.
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IMMIGRATION DETENTION: EMERGING ISSUES
Attorney General’s recent decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019):
➢Reverses long-standing precedent allowing bond for individuals who enter without inspection and pass credible fear determinations
➢Statute mandates detention for this group of individuals➢Regulations deprive IJs of authority to consider bond➢Habeas?
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ATTORNEY’S FEES
● Can be eligible for Equal Access to Justice Act (EAJA) fees. ● Requirements:
○ Prevailing party status○ Gov’t not substantially justified○ Statement of total amount of fees & costs sought, along
with itemization of time expended and rates charged■ Keep careful and detailed track of time!
○ Must be filed within 30 days of final judgment
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