Children's Rights Litigation

    Habeas Practice Advisory for Immigrant Children in Detention

    This practice advisory has four parts. The first part is an analysis of the laws governing the detention of UCs and recent decisions on the question of whether a writ of habeas corpus should be granted by a court. The second part includes a template form “Petition for Writ of Habeas Corpus” (Petition). The Petition is provided as a starting point only. Given the fact driven nature of habeas petitions, this Petition cannot address all points of law and fact that should be used in a particular case. Rather, it should be revised by advocates to address the unique circumstances of each UC’s claims. The third part includes a list of practical inquiries and procedural guidelines advocates may want to review in preparing their case. The fourth part is an appendix that includes a list of additional resources that may further aid advocates in preparing their case.

    Under Additional Resources, you will also find a link to a webinar on this topic that took place on December 16, 2019.

    This practice advisory was prepared for the ABA Section of Litigation, Children’s Rights Litigation Committee. Special thanks to Jennifer Cook Purcell, Saher Valiani, and John Wellschlager from DLA Piper for their assistance in drafting this advisory.

    Full Practice Advisory

    Introduction

    Part 1 — Habeas Corpus for Unaccompanied Children: Legal Framework

    Part 2 — Habeas Corpus Pleading Template

    Appendix A — Sample Fact Patterns

    Due to the fact specific nature of a habeas petition, advocates should modify and personalize their petitions to address the unique circumstances of each UC’s claims. These sample Statement of Facts have been excerpted from filed habeas petitions (though modified and redacted to protect the UCs’ privacy) to illustrate the types of information that are helpful to include.

    Part 3 — Practical Considerations for Filing in Federal Court

    Appendix — Additional Resources

    The webinar “Utilizing Habeas Corpus Petitions for Unaccompanied Immigrant Children” was presented December 16, 2019 by the Children’s Rights Litigation Committee. The free recording of the webinar can be listened to here.

    1. Department of Health and Human Services – Administration for Children and Families – Unaccompanied Alien Children Program
    2. Department of Health and Human Services – Administration for Children and Families – ORR Guide: Children Entering the United States Unaccompanied
    3. The American Bar Association’s “The ABCs of Representing Unaccompanied Children in Removal Proceedings”
    4. The American Bar Association’s “Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States”
    5. The American Bar Association’s “‘Say What?’—Using Interpreters in Children’s Cases” by Jennifer Baum
    6. The American Immigration Lawyers Association’s “Ethical Issues in Representing Children in Immigration Proceedings”
    7. The Catholic Legal Immigration Network’s “A Practice Advisory on Strategies to Combat Government Efforts to Terminate ‘Unaccompanied Child’ Determinations”
    8. The American Immigration Council’s “A Guide to Children Arriving at the Border: Laws, Policies and Responses, Special Report | June 2015”