Filing Habeas Corpus Petitions On Behalf Of Detained Aliens Ordered Removed - ABA YLD 101 Practice Series

By Sarah L. Cave, Beatriz Biscardi, Carl Mills, and Nkasi Okafor

A habeas corpus petition is an application by which a detained individual obtains judicial review of his or her detention. While Congress has authorized the detention of aliens who have been ordered removed from the United States, see 8 U.S.C. § 1231, there are limits to that authority. Indefinite civil detention of any individual, regardless of their citizenship status, may raise serious constitutional issues concerning the liberty protected by the Due Process Clause of the United States Constitution. Zadvydas v. Davis, 533 U.S. 678, 679 (2001). Lack of cooperation from the destination country or bureaucratic obstacles are just some of the reasons why removal may be significantly delayed. For example, government instability in Somalia has resulted in the detention of Somalian aliens in the United States for many months beyond the date of their removal order. See Ali v. Ashcroft, 346 F.3d 873 (9th Cir. 2003); Jabir v. Ashcroft, No. Civ.A. 03-2480, 2004 WL 60318 (E.D. La. Jan. 8, 2004).

The Supreme Court addressed this "indefinite detention"; problem in Zadvydas v. Davis, and rendered a decision that now governs courts' review of petitions for writs of habeas corpus where an alien has been ordered removed but the government has been unable to effectuate the alien's removal during the statutory 90-day "removal period";, after final order of removal was entered. Id. at 682 (citing 8 U.S.C. § 1231). In Zadvydas, the Supreme Court established that once a final order of removal is entered, six months is a reasonable period to detain the alien while the government endeavors to effect removal. Id. at 701. Although the expiration of this presumptively reasonable period of time does not necessitate the immediate release of the alien, the court may order supervised release if the alien can show "there is good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future."; Id. If the alien makes this showing, "the Government must respond with evidence sufficient to rebut that showing."; Id. The Court explained that, "for detention to remain reasonable, as the period of prior post-detention removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink."; Id.

An alien detained longer than six months after a final order of removal may file a petition for a writ of habeas corpus. Id. These petitions should follow the format required by the federal court, and Memoranda of Law should make certain important arguments. The following are some mechanical steps that will improve the likelihood of success of this type of petition:

  1. Petition For Writ Of Habeas Corpus Must Identify All Necessary Respondents
    The warden or director of the facility where the detainee is currently being held must be identified as a respondent to the petition. Other necessary respondents to the petition are the detainee, the Secretary of the United States Department of Homeland Security, and the District Director of the Immigration and Customs Enforcement ("ICE";) District in which the detention center is located. 
  2. The Petition Must Clearly State When The Alien's Final Order Of Removal Was Entered to Determine The Period Of Post-Removal Order Detention
    The Zadvydas six-month removal period begins once the removal order is final. A removal order becomes final on the date it is issued by the immigration judge, if the detainee did not appeal to the Board of Immigration Appeals ("BIA";), or if an appeal was filed, on the date the BIA renders its decision. If the alien challenges his or her removal in federal court, the order of removal becomes final when the court enters a final decision on the order of removal.
  3. The Memorandum Of Law Must Make The Showing That There Is Good Reason To Believe That There Is No Significant Likelihood Of Removal In The Foreseeable Future
    A petition for writ of habeas corpus under Zadvydas must demonstrate that there is no significant likelihood of removal in the foreseeable future. There is no established test or standard courts use to determine whether the alien has made this showing; rather courts conduct case-specific inquiries. Some of the factors courts have considered include, but are not limited to:
    • The amount of time the alien has spent in custody,
    • The willingness of the destination country to accept the alien,
    • Admissions made by ICE,
    • The history of the alien's efforts to comply with the order of removal,
    • The alien's assistance with ICE's efforts to effectuate his or her removal,
    • The history of the government's efforts to remove other aliens to the country in question, and
    • The views of the Department of State regarding the prospects for removal of aliens to the country in question.
    See, e.g., 8 CFR § 241.13(f).

    Attorneys for detained aliens must pay particular attention to which factors courts in their jurisdiction consider, how courts balance these factors, and whether the outcomes cut for or against the alien. For example, in the U.S. District Court in New Jersey, judges have emphasized whether the country accepting the alien has issued, or is making efforts to issue, travel documents. See, e.g., Nasrallah v. Quarantillo, No. Civ.A. 06-527, 2006 WL 1540807, at *4 - 6 (D.N.J. May 31, 2006). Also, some district courts found that if the country accepting the alien had historically accepted aliens ordered removed, then the country was likely to accept petitioner-alien. See, e.g., Khan v. Fasano, 194 F. Supp. 2d 1134, 1137 (S.D. Cal. 2001). On the contrary, other courts found that if the country accepting the alien had historically accepted aliens ordered removed, but alien's removal was taking longer than usual, this fact suggested that the destination country was not likely to accept that alien, in particular. See, e.g., Gui v. Ridge, No. 3:CV-03-1965, 2004 U.S. Dist. LEXIS 16959, at *14 - 16 (M.D. Pa. Aug. 13, 2004). 

    These factors must also be put within the context of the period of detention. According to Zadvydas, as the period of detention grows, the "reasonably foreseeable future"; shrinks. 533 U.S. at 701. It follows that the alien's burden diminishes as his or her period of confinement grows.
  4. The Memorandum Of Law Should Demonstrate That The Alien Has Cooperated With ICE's Efforts To Effectuate Removal And Has Complied With His Or Her Removal Order
    In opposition to a petition for writ of habeas corpus, the government will seek to demonstrate that the alien failed to cooperate with ICE to effectuate his or her removal or failed to comply with his or her removal order. Cooperation on the part of the alien typically means providing to the deportation officer his or her passport, birth certificate, identity document or any other necessary information or documentation. To preempt the government's argument on rebuttal, the alien should explain in the petition what specific steps he or she has taken to cooperate with ICE and comply with the removal order.
  5. The Memorandum Of Law Should Explain That No Special Circumstances Exist To Justify The Alien's Continued Detention
    The relevant regulations allow for continued detention after a final order of removal if (1) the alien has a "highly contagious disease posing a danger to the public,"; 8 C.F.R. § 241.14(b); (2) the alien's release would cause "serious adverse foreign policy consequences,"; 8 C.F.R. § 241.14(c)(1); (3) the alien was detained on account of security or terrorism concerns (8 C.F.R. § 241.14(d)(1)); or (4) the alien has committed a violent crime as would classify him as "specially dangerous,"; 8 C.F.R. § 241.14(f)(1). If none of these conditions exist, the petition should so state.  

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About the Author

Ms. Cave, Ms. Biscardi, Mr. Mills, and Ms. Okafor are associates in the Litigation Department at Hughes Hubbard & Reed LLP in New York, New York. Ms. Cave is Vice Chair of the Special Projects and Resolutions Subcommittee of the Individual Rights and Responsibilities Committee, and she is a member of the Accountants' Liability Subcommittee of the Professional Liability Committee.

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