Filing Habeas Corpus Petitions for Immigration Detainees

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Filing Habeas Corpus Petitions for Immigration
Detainees
Elizabeth Badger, BU Immigration Clinic David
Nathanson, Wood Nathanson LLP Kerry E. Doyle,
Graves Doyle (Discussion Leader)
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What is Habeas?

• A challenge to the legality of a persons
  custody.
• Under 28 USC 2241, one must plead
• An individual is in custody under color of law
• At a location within the District Courts
  jurisdiction
• The warden as the defendant (not ICE)
• How custody is unlawful

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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

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Custody Chronology Who Decides
Stage 1 - DHS Arrest ICE
Custody Determination -Release on
Recognizance -Bond ( amount) -Parole -No
bond Stage 2 EOIR Bond Set
Either side can Motion for Custody
Bond Denied appeal to BIA
only Conditional parole Redeterminat
ion 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
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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

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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

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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?
• No
• Matter of Rojas, 23 IN 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
• Charles v. Shanahan, No. 312-cv-4160 (D. NJ.
  10/9/12)
• Louisaire v. Muller, 758 F.Supp.2d 229 (S.D.N.Y.
  2010)

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Other Scenarios to Challenge

• 1. Client is released on Order of Supervision but
  is re-detained and ICE restarts clock
• 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
• 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.

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Indefinite Post-Order DetentionINA 241 8 USC
1231
Send me anywhere, send me to the moon.
Kestutis Zadvydas
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Post-Order Detainees
Post-Order Detainees
Final Order of Removal
Client In ICE Custody

• 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

• 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.

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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).
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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).
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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
  90-day removal period) as presumptively
  reasonable for detention

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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 governments favor to the detainees 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.

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The 180-Day Review
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

• 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

• Laos
• Cuba (99 of Cubans cannot be removed)
• Vietnam (those who entered U.S. before 1995)
• Palestine
• Former USSR citizen with only USSR passport

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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

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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 aliens departure or conspires
or acts to prevent the aliens removal subject to
an order of removal. Refusal to cooperate will
likely bar argument that removal not reasonably
foreseeable
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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 GOVT RAISES THE ISSUE

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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?

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Prolonged Pre-Order Detention
Beyond the sheer length of time Vongsa has
already spent in custody, there appears to beno
end in sight. Vongsa Sengkeo v. Horgan (D.Mass
2009)
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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

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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.

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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
• Kennedys concurrence (the 5th vote) warned that
  unreasonable delay in completing proceedings
  would justify inquiry into purpose of detention
• Opens the door to argue clients detention w/o
  bond is unreasonably long

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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?

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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.

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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

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Flores-Powell Factors

• Length of immigration custody
• Length of prior criminal custody, if any
• Whether removal is reasonably foreseeable
• Is actual removal possible
• Likelihood of success on relief
• Promptness of immigration authority
• Dilatory tactics, if any, of detainee
• Traditional bond factors
• Dangerousness
• Flight risk

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No, Really . . . How Long?

• 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)

• 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

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Does analysis apply to prolonged, pre-order
1226(a) detention?

• Unlikely. The remedy requested for prolonged
  detainees is an individualized custody
  determination, which 1226(a) detainees should
  have had already before the IJ
• 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

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Does analysis apply to 1225(b) detention for
arriving aliens?

• 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
• SeealsoChen v. Aitken, No. C-12-6024 (N.D. Cal.
  2013)

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Preparing and Filing the Habeas Petition
Petitioners counsel had repeatedly asked if ICE
alleged any lack of compliance. Agbata v.
Cabral (D.Mass. 2009)(ordering release)
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Practical To-Do's

• Get client to sign retainer specifying you can
  keep attorneys 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

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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

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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

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Different Forms for Filing
Habeas Petition Eliciting Government Response
Petition contains fully briefed legal arguments exhibits, OR Short petition separate MOL w/ exhibits, OR Short petition wait to brief submit exhibits in response/reply Separate motion for Order to Show Cause proposed order, OR Include request for order to show cause in prayer for relief, OR Wait for govt to file Motion to Dismiss
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The Governments Turn
Release Litigate Deport
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 non-cooperative 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 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
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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

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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

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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.

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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).

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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.

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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/LOCALRU
  LEScombined.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

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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.
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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.

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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

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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.americani
  mmigrationcouncil.org/

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Question Answer