Transcript Slide 1

Filing Habeas Corpus Petitions
for Immigration Detainees
Elizabeth Badger, BU Immigration Clinic
David Nathanson, Wood & Nathanson LLP
Kerry E. Doyle, Graves & Doyle (Discussion Leader)
What is Habeas?
A challenge to the legality of a person’s custody.
Under 28 USC § 2241, one must plead:
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An individual is in custody under color of law
At a location within the District Court’s jurisdiction
The warden as the defendant (not ICE)
How custody is unlawful
What Habeas is Not
• NOT a challenge to removability or eligibility for relief
– 8 USC § 1252(a)(5)
• NOT a challenge to the transfer, location, and other
discretionary decisions in detaining an individual –
Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007).
• NOT a substitute for bond, where IJ has jurisdiction
Custody Chronology & Who Decides
Stage 1 - DHS
Arrest
ICE Custody Determination:
-Release on Recognizance
-Bond ($ amount)
-Parole
-No bond
Stage 2 – EOIR
Motion for Custody
Bond Set
Either side can
Bond Denied
appeal to BIA only
Conditional parole
Redetermination:
Unless EOIR has no jurisdiction – ie., prior order, mandatory custody (8 USC §
1226(c))
Stage 3 – Federal District Court
Petition for writ of habeas corpus (28 USC § 2241) challenging detention
Authorities to Detain
• 8 USC § 1226(a) – may detain pending a decision
on removal
• 8 USC § 1226(c) – shall detain [during removal
proceedings, w/in const'l limits - Demore v. Kim]
• 8 USC § 1231(a)(2) – shall detain certain aliens
during removal period
• 8 USC § 1231(a)(6) – may detain certain aliens
beyond the removal period
Potential Habeas Scenarios
 Post-Order Detention – Zadvydas Petitions – when
detained for unreasonable time after a final order of
removal
 Detention during Petition for Review – final order,
but PFR pending in Circuit Court
 Pre-Order Detention – Demore v. Kim Petitions –
when detained for unreasonable time during
proceedings under 8 USC §§ 1225 & 1226
 “When released” – lapse in time between release
from custody for offense within 1226(c) and
immigration custody
“When Released” Cases
8 USC § 1226(c)(1): The AG shall take into custody any
alien… when the alien is released.
• Does this mean that one cannot be subject to § 1226(c)
if not taken into ICE custody immediately upon release
from criminal custody?
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Matter of Rojas, 23 I&N Dec. 117, 127 (2001)
Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)
Velasquez Velasquez v. McCormic, No. CCB-12-1423 (D.Md. 8/28/12)
YES –
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Charles v. Shanahan, No. 3:12-cv-4160 (D. NJ. 10/9/12)
Louisaire v. Muller, 758 F.Supp.2d 229 (S.D.N.Y. 2010)
Other Scenarios to Challenge
1. Client is released on Order of Supervision but is redetained and ICE restarts clock
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No new likelihood of removal
Wrongly punitive to detain for a new 90 or 180 days
Counsel client on risks of charges under 8 USC § 1253(b)
2. ICE places client in mental health facility, but claims that
time is not “ICE custody”
3. Client held on detainer and:
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Client held in state custody w/o detainer, or with expired
detainer after 48 hours; or
Regs allowing detainers for other than drug offenses may be
ultra vires.
Indefinite Post-Order Detention
INA §241; 8 USC §1231
“Send me anywhere, send me to the moon.”
– Kestutis Zadvydas
Post-Order Detainees
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Final Order of Removal
Immigration Judge or Board
of Immigration Appeals has
ordered removal.
No appeals, remands, or
motions are pending.
No stay has issued.
Immigration & Customs
Enforcement (ICE) is
processing client for
deportation.
see 8 C.F.R. § 1241.1
Client In ICE Custody
• Criminal sentence, if any, is
complete.
• Client is detained in facility
controlled by ICE (e.g., a jail
where ICE contracts) or a
medical facility (e.g.,
Bridgewater) while under
ICE control.
8 USC §1231(a)(1)(A)
Except as otherwise provided in this section,
when an alien is ordered removed, the
Attorney General shall remove the alien from
the United States within a period of 90 days
(in this section referred to as the “removal
period”).
8 U.S.C. § 1231 – Detention Beyond Removal
Period
(a)(6) - An alien ordered removed who is
inadmissible . . ., removable . . . or who has been
determined . . . to be a risk to the community or
unlikely to comply with the order . . ., may be
detained beyond the removal period and, if
released, shall be subject to . . . terms of
supervision . . . See also 8 C.F.R. § 241.4(g)(1).
Zadvydas v. Davis, 533 U.S. 678 (2001)
• Plaintiffs: Zadvydas born in Germany to Lithuanian
parents, whom no country would accept, and Ma –
born in Cambodia, where the U.S. had no
repatriation agreement with Cambodia
• Gov't argued for detention beyond the removal
period
• Supreme Court established 6 months (twice the 90day removal period) as “presumptively reasonable”
for detention
Can You File A Habeas Before 6 Months?
• 6 months is not a jurisdictional time limit.
• It is the point where the presumption shifts
from the government’s favor to the detainee’s
favor – detention is presumptively
unreasonable.
• A detainee can file a habeas petition before 6
months if undisputed evidence exists that he
or she cannot be removed.
ICE's Post-Order Custody Regulations
The 90-Day Review
• 8 CFR § 241.4
• Review by Detention &
Removal, Boston
• 30-day notice to detainee
• No travel docs, no danger to
community or flight risk
• Decision sent to detainee
and attorney
The 180-Day Review
8 C.F.R. §§ 241.4, 241.13
Review by ICE HQ in D.C.
30-day notice to detainee
Significant likelihood of
removal
• Decision sent to detainee
and attorney
• Subsequent reviews:
Usually every 90 days
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Countries With Limited or No Deportation
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Laos
Cuba (99% of Cubans cannot be removed)
Vietnam (those who entered U.S. before 1995)
Palestine
Former USSR citizen with only USSR passport
Slow/Problem Countries for
Deportation
• Cambodia (under 200 removed since 2002)
• India; Iran
• Many African countries (esp. Liberia, Sierra
Leone, Somalia, Zimbabwe)
• Some Caribbean countries formerly part of UK
if person left before independence and
country refuses to accept him or her
8 U.S.C. § 1231 - Cooperation
(a)(1)(C) - The removal period shall be extended
beyond . . . 90 days and the alien may remain in
detention during such extended period if the alien fails
or refuses to make timely application in good faith for
travel or other documents necessary to the alien’s
departure or conspires or acts to prevent the alien’s
removal subject to an order of removal.
Refusal to cooperate will likely bar argument that
removal not reasonably foreseeable
Designation under 8 CFR § 241.14
• Even if no likelihood of removal, detention may continue
under special circumstances.
• Ultra vires under Zadvydas?
Or a “subsequent agency interpretation” Brand X
• Struck down:
– Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008)
– Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004)
• Upheld:
– Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir.
2008)
• DO NOT ARGUE UNTIL GOV’T RAISES THE ISSUE
Final Order with Petition for Review
• Which statute governs?
– With stay of removal: 8 USC § 1226(a)?
• Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008)
– Without stay of removal:
• Within removal period: 8 USC § 1231(a)(2)
• Beyond removal period: 8 USC § 1231(a)(6)
• What governs reasonableness?
– 6-month presumption?
– Flores-Powell factors?
Prolonged Pre-Order Detention
“Beyond the sheer length of time Vongsa has
already spent in custody, there appears to
be…no end in sight.” – Vongsa Sengkeo v.
Horgan (D.Mass 2009)
Mandatory Detention under §
1226(c)
Some detainees are not eligible for bond during
their removal case if convicted of certain crimes
Grounds for mandatory detention listed in 8 U.S.C.
§ 1226(c)
Crimes include drugs, guns, aggravated felonies,
certain crimes of moral turpitude and other
convictions
Demore v. Kim
• 538 U.S. 510 (2003)
• Supreme Court ruled 5-4 that mandatory
detention of a lawful permanent resident was
not a Due Process violation
• Congress can require criminal aliens detained
“for the brief period necessary” for their
removal proceedings. 538 U.S. at 513.
“The Brief Period Necessary”
In Demore, DHS claimed mandatory detention
was short:
• 85% of cases completed in 47 days, median 30 days
• In the 15% of cases with appeals, average 4 months
• Kennedy’s concurrence (the 5th vote) warned that
“unreasonable delay” in completing proceedings
would justify inquiry into purpose of detention
• Opens the door to argue client’s detention w/o bond
is unreasonably long
When is Pre-Order Detention
Unreasonable?
• Courts are rejecting naming a time period
• Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455,
471-74 (2010) balance of factors:
1) Overall length of detention;
2) Whether immigration detention longer than
criminal sentence for deportable offenses;
3) Whether removal actually foreseeable;
4) Has DHS/IJ/BIA acted promptly in litigation?
5) Has client acted promptly in litigation?
D. Mass. Precedent
• Bourguignon v. MacDonald, 667 F. Supp. 2d
175 (2009); 27 mos (or 7 mos); remedy = bond
hearing
• Sengkeo v. Horgan, 670 F. Supp. 2d 116 (2009);
22 mos; remedy = bond hearing
• Flores-Powell v. Chadbourne, 677 F. Supp. 2d
455 (2010); 22 mos; remedy = bail hearing
before D. Mass.
D. Mass. Precedent, cont'd
• Geegbae v. McDonald, No. 10-cv-10852 (D.
Mass. 2010); 19 mos; remedy = writ granted
• Ortega v. Hodgson, No. 11-cv-10358 (D. Mass.
2011); 20 mos; remedy = bail hearing before
D. Mass., but DHS released before hearing
• Time in detention is not only factor
Flores-Powell Factors
1. Length of immigration custody
2. Length of prior criminal custody, if any
3. Whether removal is reasonably foreseeable
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Is actual removal possible
Likelihood of success on relief
4. Promptness of immigration authority
5. Dilatory tactics, if any, of detainee
6. Traditional bond factors
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Dangerousness
Flight risk
No, Really . . . How Long?
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Nearly 3 years (Diop, 3rd Cir.)
9 mos (Alli, M.D. Pa.)
10 mos (Parlak, E.D. Mich)
14 mos (Singh, N.D. Cal.)
15 mos (Hyppolite, D. Conn)
16 mos (Prince, M.D. Pa.)
8 mos (Ly, 6th Cir.)
20 mos (Alli)
20 months (Vongsa)
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21 mos (Diomande,Mich.)
22 mos (Flores-Powell)
27 mos (Bourguignon)
30 mos (Wilks, M.D. Pa.)
32 mos (Tijani, 9th Cir.)
3 yrs (Madrane, M.D. Pa.)
5 yrs (Martinez, C.D. Cal)
LOSS: 7 mos (Matthias, M.D.
Pa.)
• LOSS: 15 mos (Abdille, S.D.
Cal
Does analysis apply to prolonged,
pre-order §1226(a) detention?
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Unlikely. The remedy requested for prolonged
detainees is an individualized custody determination,
which §1226(a) detainees should have had already
before the IJ
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If conditions have changed as to factors relied upon by
the IJ to deny bond, then proper avenue would be to
seek reopening before the IJ
Does analysis apply to § 1225(b)
detention for arriving aliens?
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Likely. The District of Mass. suggested that
detention under 8 U.S.C. § 1225(b) was subject to a
reasonableness requirement in Balasundaram v.
Chadbourne, No. 10-cv-10717 (2010), but did not
need to hold as much because petitioner released
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SeealsoChen v. Aitken, No. C-12-6024 (N.D. Cal.
2013)
Preparing and Filing the Habeas
Petition
“Petitioner’s counsel had repeatedly asked
if ICE alleged any lack of compliance.” –
Agbata v. Cabral (D.Mass. 2009)(ordering
release)
Practical To-Do's
• Get client to sign retainer specifying you can
keep attorney’s fees if you win them
• Get client to sign other release forms
• Log time & costs of tasks related to litigation
• Be admitted to D. Mass, or line up counsel to
move admission pro hac vice
• PDF copies of all ICE notices and your letters
Writing the Habeas Petition
I. Legal Preliminaries (parties, jurisdiction,
venue, exhaustion of remedies)
II. Statement of Facts, focusing on post-order
chronology, ICE and consulate delay, client
compliance
III. Legal Framework (case law)
IV. Claims (statutory and due process violations)
V. Prayer for Relief
Filing the Petition
• Electronic Filing (CM/ECF) – Upload Petition and
any exhibits in PDF form
• Read Local Rules, esp. 5.1 – 5.4, 7.1
• Strategic decision whether to include exhibits or
save for response
• $5 Filing Fee
• Civil Cover Sheet and Category Form
• Consider moving for Order to Show Cause
• Consider whether motion for emergency
hearing/ to expedite decision is warranted
• Mail copy to Sheriff, ICE, & US Attorney
Different Forms for Filing
Habeas Petition
• Petition contains fully
briefed legal arguments +
exhibits, OR
Eliciting Government
Response
• Separate motion for
Order to Show Cause +
proposed order, OR
• Short petition + separate • Include request for order
MOL w/ exhibits, OR
to show cause in prayer for
relief, OR
• Short petition + wait to
brief & submit exhibits in • Wait for govt to file
response/reply
Motion to Dismiss
The Government’s Turn
Release
Litigate
• Happens when ICE
has forgotten about
client
• Often occurs just
before govt briefing
deadline
• Govt will usually
file motion to
dismiss with release
documents
• Govt will allege
that deportation is
likely or client noncooperative
• If govt responds to
order to show
cause, then you file
reply + leave to
reply
• If govt moves to
dismiss, then you
respond in 14 days
Deport
• ICE could allege
deportation will
occur on X date
• Do not agree to
dismiss petition
until deportation
has actually
occurred
• ICE should file
proof of
deportation with
motion to dismiss
Responding to the Government
• Fully brief your legal and factual arguments, if not
already done in your initial petition
• Use unpublished habeas decisions to
compare/contrast facts
• Emphasize need for court to go beyond ICE
assertions
• Include all exhibits you can come up with and a
client affidavit
• Request motion hearing/oral argument
Filing a Pre-Order Habeas
• Need to see entire ROP
• Argue bond factors up front to encourage release
• If there are violent crimes, consider proposing
conditions of release
• More likely to have motion hrg than Zadvydas cases
• Government will argue no such right, Demore
language dicta, time in detention is not the only
factor, & risk to public safety
• Government will file motion to expedite in
underlying removal proceedings
• Keep time log for EAJA fees
Habeas Q & A
• Do I have to use District Court forms? Yes.
• How do I fill out the civil cover sheet and civil
category form? Don't worry about it too much. Just
do the best you can. These forms are used by the
Clerk to collect case statistics. Your petition will not
be dismissed for failure to accurately fill out these
forms.
• My description of the claims and the facts don't fit
on the form. Can't I just say “see attached memo”?
No. Government may move to dismiss.
Habeas Q & A (con't)
• Can the $5 fee be waived?
Yes. You can ask for “Leave to Proceed Without
Prepayment of Fees.” Many attorneys choose to
simply pay th4 filing fee to avoid the delay and
aggravation of preparing the necessary motion and
affidavit. This is fine. However, it it important that
such a motion be allowed before proceeding to the
Court of Appeals because the filing fee there is
substantial (currently $455).
Habeas Q & A (con't)
• When do I submit my memorandum in support of
the petition? There is no explicit rule about this. In
MA, most counsel submit the memo at the same
time as the petition itself. Other attorneys, pressed
for time, file only the petition and file the memo as
soon as possible afterwards. One reason to file is to
be sure the petition passes “Rule 4 screening,” which
provides summary dismissal for frivolous petitions.
On the other hand, if you wait you may see the
government's response first.
Habeas Q & A (con't)
• How do I file and whom do I serve? Local Rule 5.4
now requires electronic filing.
http://www.mad.uscourts.gov/general/pdf/LC/LOCALR
ULEScombined.pdf
Service is now completed electronically, but see Local
Rule 5.4 for exceptions to electronic filing and
service.
• Register with U.S. District Court, District of MA here:
https://public.mad.uscourts.gov/ecfreg.html
Habeas Q & A (con't)
What are the requirements for the form of the
memorandum in support?
There are no explicit requirements. Feel free to use
your preferred font and font size. There are no
margin requirements but at least one-inch is
recommended. You are not required to prepare a
table of contents or table of authorities. These may
be useful if you are filing a longer memo. There is no
explicit page length either. The Federal Rules of Civil
Procedure limit memoranda in support of “motions”
to 20 pages. But this is in support of a “petition” not
a “motion.”
Habeas Q & A (con't)
• Must I file an appendix or other attachments to the
memorandum? No. Nevertheless, you should
consider attaching any reasonably-sized portions of
the record that will help the court.
• Why is the government always calling me and
asking me to assent to their motion? They have to
and so do you. Local Rule 7.1(a)(2) requires
consultation before filing.
• Will I get oral argument? There is not right to oral
argument on a habeas petition. You must ask for it
and even then you may not get it.
What Do You Win?
• No consensus on what D.C. judge should order
• May order bond hearing with IJ
• May order bail/bond hearing in District Court
• District Court may order release
Resources
• Liebman & Hertz, Federal Habeas Corpus Practice is
an indispensable treatise.
• Pauw, Robert, Litigating Immigration Cases in Federal
Court (AILA 2d ed.) provides sample forms and
concise explanations of various federal causes of
action in the immigration context including habeas.
• American Immigration Council,
http://www.americanimmigrationcouncil.org/
Question & Answer