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)

2. What is Habeas? A challenge to the legality of a person’s custody.
Under 28 USC § 2241, one must plead:
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

3. 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

4. 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
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

5. 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

6. 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

7. “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 I&N Dec. 117, 127 (2001)
Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012)
Velasquez Velasquez v. McCormic, No. CCB (D.Md. 8/28/12)
YES –
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)

8. 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.

9. Indefinite Post-Order Detention INA §241; 8 USC §1231
“Send me anywhere, send me to the moon.”
– Kestutis Zadvydas

10. 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. §
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.

11. 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”).

12. 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).

13. 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

15. 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.

16. ICE's Post-Order Custody Regulations
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,
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

17. 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

18. 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

19. 8 U.S.C. § Cooperation
(a)(1)(C) - The removal period shall be extended beyond 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

20. 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 )
DO NOT ARGUE UNTIL GOV’T RAISES THE ISSUE

21. 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?

22. 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)

23. 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

24. 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 U.S. at 513.

25. “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

26. When is Pre-Order Detention Unreasonable?
Courts are rejecting naming a time period
Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455, (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?

27. 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.

28. D. Mass. Precedent, cont'd
Geegbae v. McDonald, No. 10-cv (D. Mass. 2010); 19 mos; remedy = writ granted
Ortega v. Hodgson, No. 11-cv (D. Mass ); 20 mos; remedy = bail hearing before D. Mass., but DHS released before hearing
Time in detention is not only factor

29. 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

30. 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

31. 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

32. 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 (2010), but did not need to hold as much because petitioner released
SeealsoChen v. Aitken, No. C (N.D. Cal )

33. 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)

35. 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

36. 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

37. 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

38. Different Forms for Filing Eliciting Government Response
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

39. The Government’s 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

40. 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

41. 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

42. 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.

43. 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).

44. 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.

45. Habeas Q & A (con't)
How do I file and whom do I serve? Local Rule 5.4 now requires electronic filing.
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:

46. 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.”

47. 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.

48. 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

49. 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,

50. Question & Answer