Presentation on theme: "Filing Habeas Corpus Petitions for Immigration Detainees"— Presentation transcript:
1Filing Habeas Corpus Petitions for Immigration Detainees Elizabeth Badger, BU Immigration ClinicDavid Nathanson, Wood & Nathanson LLPKerry E. Doyle, Graves & Doyle (Discussion Leader)
2What 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 lawAt a location within the District Court’s jurisdictionThe warden as the defendant (not ICE)How custody is unlawful
3What Habeas is NotNOT 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
4Custody Chronology & Who Decides Stage 1 - DHSArrest ICE Custody Determination:-Release on Recognizance -Bond ($ amount)-Parole -No bondStage 2 – EOIR Bond Set Either side canMotion for Custody Bond Denied appeal to BIA onlyConditional paroleRedetermination:Unless EOIR has no jurisdiction – ie., prior order, mandatory custody (8 USC § 1226(c))Stage 3 – Federal District CourtPetition for writ of habeas corpus (28 USC § 2241) challenging detention
5Authorities to Detain8 USC § 1226(a) – may detain pending a decision on removal8 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 period8 USC § 1231(a)(6) – may detain certain aliens beyond the removal period
6Potential Habeas Scenarios Post-Order Detention – Zadvydas Petitions – when detained for unreasonable time after a final order of removalDetention during Petition for Review – final order, but PFR pending in Circuit CourtPre-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” Cases8 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)
8Other Scenarios to Challenge 1. Client is released on Order of Supervision but is re- detained and ICE restarts clockNo new likelihood of removalWrongly punitive to detain for a new 90 or 180 daysCounsel 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; orRegs allowing detainers for other than drug offenses may be ultra vires.
9Indefinite Post-Order Detention INA §241; 8 USC §1231 “Send me anywhere, send me to the moon.”– Kestutis Zadvydas
10Post-Order Detainees Post-Order Detainees Final Order of RemovalClient In ICE CustodyImmigration 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.
118 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”).
128 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).
13Zadvydas 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 CambodiaGov't argued for detention beyond the removal periodSupreme Court established 6 months (twice the 90- day removal period) as “presumptively reasonable” for detention
15Can 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.
16ICE's Post-Order Custody Regulations The 180-Day ReviewICE's Post-Order Custody RegulationsThe 90-Day Review8 CFR § 241.4Review by Detention & Removal, Boston30-day notice to detaineeNo travel docs, no danger to community or flight riskDecision sent to detainee and attorney8 C.F.R. §§ 241.4,Review by ICE HQ in D.C.30-day notice to detaineeSignificant likelihood of removalDecision sent to detainee and attorneySubsequent reviews: Usually every 90 days
17Countries With Limited or No Deportation LaosCuba (99% of Cubans cannot be removed)Vietnam (those who entered U.S. before 1995)PalestineFormer USSR citizen with only USSR passport
18Slow/Problem Countries for Deportation Cambodia (under 200 removed since 2002)India; IranMany 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
198 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
20Designation 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 XStruck 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
21Final 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?
22Prolonged 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)
23Mandatory Detention under § 1226(c) Some detainees are not eligible for bond during their removal case if convicted of certain crimesGrounds 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
24Demore v. Kim538 U.S. 510 (2003)Supreme Court ruled 5-4 that mandatory detention of a lawful permanent resident was not a Due Process violationCongress 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 daysIn the 15% of cases with appeals, average 4 monthsKennedy’s concurrence (the 5th vote) warned that “unreasonable delay” in completing proceedings would justify inquiry into purpose of detentionOpens the door to argue client’s detention w/o bond is unreasonably long
26When is Pre-Order Detention Unreasonable? Courts are rejecting naming a time periodFlores-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?
27D. Mass. PrecedentBourguignon v. MacDonald, 667 F. Supp. 2d 175 (2009); 27 mos (or 7 mos); remedy = bond hearingSengkeo v. Horgan, 670 F. Supp. 2d 116 (2009);22 mos; remedy = bond hearingFlores-Powell v. Chadbourne, 677 F. Supp. 2d 455 (2010); 22 mos; remedy = bail hearing before D. Mass.
28D. Mass. Precedent, cont'dGeegbae v. McDonald, No. 10-cv (D. Mass. 2010); 19 mos; remedy = writ grantedOrtega v. Hodgson, No. 11-cv (D. Mass ); 20 mos; remedy = bail hearing before D. Mass., but DHS released before hearingTime in detention is not only factor
29Flores-Powell Factors Length of immigration custodyLength of prior criminal custody, if anyWhether removal is reasonably foreseeableIs actual removal possibleLikelihood of success on reliefPromptness of immigration authorityDilatory tactics, if any, of detaineeTraditional bond factorsDangerousnessFlight risk
30No, 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
31Does 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 IJIf 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
32Does 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 releasedSeealsoChen v. Aitken, No. C (N.D. Cal )
33Preparing 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)
35Practical To-Do'sGet client to sign retainer specifying you can keep attorney’s fees if you win themGet client to sign other release formsLog time & costs of tasks related to litigationBe admitted to D. Mass, or line up counsel to move admission pro hac vicePDF copies of all ICE notices and your letters
36Writing 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 complianceIII. Legal Framework (case law)IV. Claims (statutory and due process violations)V. Prayer for Relief
37Filing the PetitionElectronic Filing (CM/ECF) – Upload Petition and any exhibits in PDF formRead Local Rules, esp. 5.1 – 5.4, 7.1Strategic decision whether to include exhibits or save for response$5 Filing FeeCivil Cover Sheet and Category FormConsider moving for Order to Show CauseConsider whether motion for emergency hearing/ to expedite decision is warrantedMail copy to Sheriff, ICE, & US Attorney
38Different Forms for Filing Eliciting Government Response Habeas PetitionEliciting Government ResponsePetition contains fully briefed legal arguments + exhibits, ORShort petition + separate MOL w/ exhibits, ORShort petition + wait to brief & submit exhibits in response/replySeparate motion for Order to Show Cause + proposed order, ORInclude request for order to show cause in prayer for relief, ORWait for govt to file Motion to Dismiss
39The Government’s Turn Release Litigate Deport Happens when ICE has forgotten about clientOften occurs just before govt briefing deadlineGovt will usually file motion to dismiss with release documentsGovt will allege that deportation is likely or client non- cooperativeIf govt responds to order to show cause, then you file reply + leave to replyIf govt moves to dismiss, then you respond in 14 daysICE could allege deportation will occur on X dateDo not agree to dismiss petition until deportation has actually occurredICE should file proof of deportation with motion to dismiss
40Responding to the Government Fully brief your legal and factual arguments, if not already done in your initial petitionUse unpublished habeas decisions to compare/contrast factsEmphasize need for court to go beyond ICE assertionsInclude all exhibits you can come up with and a client affidavitRequest motion hearing/oral argument
41Filing a Pre-Order Habeas Need to see entire ROPArgue bond factors up front to encourage releaseIf there are violent crimes, consider proposing conditions of releaseMore likely to have motion hrg than Zadvydas casesGovernment will argue no such right, Demore language dicta, time in detention is not the only factor, & risk to public safetyGovernment will file motion to expedite in underlying removal proceedingsKeep time log for EAJA fees
42Habeas 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.
43Habeas 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).
44Habeas 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.
45Habeas Q & A (con't)How do I file and whom do I serve? Local Rule 5.4 now requires electronic filing.ULEScombined.pdfService 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
46Habeas 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.”
47Habeas 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.
48What Do You Win? No consensus on what D.C. judge should order May order bond hearing with IJMay order bail/bond hearing in District CourtDistrict Court may order release
49ResourcesLiebman & 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,