HABEAS CORPUS AND PROLONGED DETENTION · 2019. 12. 23. · HABEAS CORPUS – ORIGINS • Common law origin • Suspension Clause (Art. I, Sec. 9, Cl. 2 of the U.S. Constitution) •

#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)


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

https://immigrantjustice.org/sites/default/files/jail-operators_for-web.jpg



Source: https://www.freedomforimmigrants.org/detention-statistics

https://www.freedomforimmigrants.org/detention-statistics



Source: https://www.freedomforimmigrants.org/detention-statistics

https://www.freedomforimmigrants.org/detention-statistics


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.”


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.


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).


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.”


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.


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).


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


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


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.



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.



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.


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);


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)


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


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


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


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.


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


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



❖ “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



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



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



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.



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?


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

Documents

HABEAS CORPUS AND PROLONGED DETENTION · 2019. 12. 23. · HABEAS CORPUS – ORIGINS • Common law origin • Suspension Clause (Art. I, Sec. 9, Cl. 2 of the U.S. Constitution) •