Habeas Corpus for Immigration Detainees

1. Habeas Corpus for Immigration Detainees Mary Yanik, New Orleans Workers Center for Racial Justice Jeremy Jong, Catholic Charities Diocese of Baton Rouge

2. Immigration History • Founding era – mostly Western European Protestants • 1830s/40s – Catholics from Ireland and Germany • 1880s/90s – Eastern and Southern Europeans come; Chinese Exclusion Laws • 1910s/20s – Chinese Exclusion extended to all of Asia; country quotas established based on 1890 %s; bracero temporary Mexican worker program • 1950s – immigration preferences established along with more ideological restrictions • 1976 – current system of family/employment preferences along with numerical quotas • 1980s – Refugee Act establishes asylum; work authorization • 1996 – removal process changed; “crim-imm” • 2005 – restrictions on judicial review

3. Foundational Immigration Law • Fong Yue Ting v. United States, 149 U.S. 698 (1893). • Is it constitutional for • Congress to require an • immigrant to present • the testimony of a white • witness in deportation • proceedings?

4. Foundational Immigration Law • Fong Yue Ting v. United States, 149 U.S. 698 (1893). Is it constitutional for Congress to require an immigrant to present the testimony of a white witness in deportation proceedings? • [Chinese laborers] continue to be aliens, having taken no steps towards becoming citizens, and incapable of becoming such under the naturalization laws; and therefore remain subject to the power of congress to expel them, or to order them to be removed and deported from the country, whenever, in its judgment, their removal is necessary or expedient for the public interest. • … • The order of deportation is not a punishment for crime. It is not a banishment, in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority, and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process of law; and the provisions of the constitution, securing the right of trial by jury, and prohibiting unreasonable searches and seizures and cruel and unusual punishments, have no application.

5. Foundational Immigration Law • Fong Yue Ting v. United States, 149 U.S. 698 (1893). Is it constitutional for Congress to require an immigrant to present the testimony of a white witness in deportation proceedings? • Justice Brewer dissents: • I rest my dissent on three propositions: First, that the persons against whom the penalties of section 6 of the act of 1892 are directed are persons lawfully residing within the United States; secondly, that as such they are within the protection of the constitution, and secured by its guaranties against oppression and wrong; and, third, that section 6 deprives them of liberty, and imposes punishment, without due process of law, and in disregard of constitutional guaranties, especially those found in the 4th, 5th, 6th, and 8th articles of the amendments.

6. Foundational Immigration Law • Wong Wing v. United States, 163 U.S. 228 (1896). Is it constitutional for Congress to punish Chinese immigrants with imprisonment at hard labor before they were deported? • We think it clear that detention or temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens, would be valid. Proceedings to exclude or expel would be vain if those accused could not be held in custody pending the inquiry into their true character, and while arrangements were being made for their deportation. Detention is a usual feature in every case of arrest on a criminal charge, even when an innocent person a wrongfully accused; but it is not imprisonment in a legal sense. • But when congress sees fit to further promote such a policy • by subjecting the persons of such aliens to infamous punishment • at hard labor, or by confiscating their property, we think such • legislation, to be valid, must provide for a judicial trial to establish • the guilt of the accused.

7. Immigration History • Founding era – mostly Western European Protestants • 1830s/40s – Catholics from Ireland and Germany • 1880s/90s – Eastern and Southern Europeans come; Chinese Exclusion Laws • 1910s/20s – Chinese Exclusion extended to all of Asia; country quotas established based on 1890 %s; bracero temporary Mexican worker program • 1950s – immigration preferences established along with more ideological restrictions • 1976 – current system of family/employment preferences along with numerical quotas • 1980s – Refugee Act establishes asylum; work authorization • 1996 – removal process changed; “crim-imm” • 2005 – restrictions on judicial review

8. Immigration Detention

9. Immigration Detention 440,557 Total number of immigrants detained in 2013 34,000 Average number of immigrants detained daily Detention bed quota, established by Congress through appropriations

10. Louisiana Detention Centers

11. Impact of Detention Detention essentially determines the outcome of deportation cases. • In New York Immigrant Representation Study, immigrants who had lawyers and were not detained had a 74% success rate, compared to 3% success rate for those without lawyers and detained. • Detention centers are remote • No access to counsel • Judges with detained dockets basically never grant relief • In New York City, 60% of detained immigrants don’t have counsel. Likely closer to 90% in Louisiana.

13. What is Habeas? “The Great Writ” A challenge to the legality of government detention. Article I, Section 9, clause 2: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Historically, a legal mechanism to challenge executive detention. Originated in England in 1305. Now most countries have a process for habeas corpus or a similar challenge to unlawful detention.

14. Habeas 101 • Sue the custodian for unlawful detention under 28 USC § 2241. • Bring the suit in federal district court where the detainee is being held. • Government must, in response, “deliver the body” or show cause (why the detention is justified).

15. What Habeas is Not • Right now, CANNOT challenge removability or eligibility for substantive immigration relief through habeas corpus. Federal district courts were stripped of jurisdiction over removal proceedings in the REAL ID Act of 2005. 8 USC § 1252(a)(5). • Usually seeking a bond hearing (that may be conducted by the Immigration Judge in Immigration Court). Less likely to win direct release or a bond hearing in federal court.

16. 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 Redetermination Conditional parole 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

17. Authorities to Detain • 8 USC § 1226(a) – may detain pending a decision on removal • 8 USC § 1226(b) – must detain arriving aliens • 8 USC § 1226(c) – shall detain those w/ certain crim convictions [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

18. Legal Challenges – See Chart! • Can seek release in cases where immigrant has a removal order but can’t be removed (stuck in legal limbo) • Can seek individualized bond hearings for immigrants in removal proceedings • Detained versus non-detained docket

19. Potential Habeas Scenarios • Post-Order Detention – Zadvydas Petitions – when detained for unreasonable time after a final order of removal • Pre-Order Detention – Demore v. Kim Petitions – when detained for unreasonable time during proceedings • Detention during Petition for Review – final order, but PFR pending in Circuit Court • Withholding Only Proceedings- previous removed, then returned with fear and passed reasonable fear interview • “When released”– lapse in time between release from custody for offense within 1226(c) and immigration custody • Detainers- held in state custody w/o detainer, or with expired detainer after 48 hours; or

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

21. 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 while under ICE control.

22. 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”).

23. 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).

24. 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 • Burden on detainee to show “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.”Zadvydas, 533 U.S. at 701

25. Why 6 Months • Fifth Amendment's Due Process Clause • Presumption Against Civil Detention Foucha v. Louisiana, 504 U. S. 71, 80 (1992) • Narrow exception where special justification, outweighs the "individual's constitutionally protected interest in avoiding physical restraint."Kansas v. Hendricks, 521 U. S. 346, 356 (1997). • Cannon of Constitutional Avoidance

26. 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.

27. The 180-Day Review ICE's Post-Order Custody Regulations The 90-Day Review • 8 CFR § 241.4 • Review by Detention & Removal • 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

28. Countries With Limited or No Deportation • Laos • Cuba • Vietnam (those who entered U.S. before 1995) • Palestine

29. Slow/Problem Countries for Deportation • Cambodia • Certain Countries with hostile relations w/US: Iran, Syria, Burma • Many African countries: Liberia, Sierra Leone, Somalia, Congo Resource: https://www.ice.gov/removal-statistics

30. 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 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

31. 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)

32. 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

33. 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.

34. “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 5 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

35. “The Brief Period Necessary”

36. Mandatory Detention Beyond “Brief Period”? • 2nd and 9th Circuits: 6 month bright line rule • Lora v. Shanahan, 804 F.3d 601 (2d Cir.2015); Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013), cert. granted • 1st, 3rd, 6th, and 11th Circuits: Circumstance specific approach based on time in detention, fault for length of detention • Reid v. Donelan, 819 F.3d 486 (1st Cir. 2016); Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011); Ly v Hansen, 351 F.3d 263 (6th Cir. 2003); Sopo v. U.S. Attorney Gen., 825 F.3d 1199 (11th Cir. 2016) • The government has never won in a federal appellate court that they can indefinitely detain • Other Circuits: Nothing… yet ;) • Jennings awaiting decision

37. 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

38. MANATorEE detention

39. 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)

40. Filing a Habeas Petition

41. Practical To-Do List • Get client to sign retainer • May want to specify you can keep attorney’s fees if you win them • Seek a bond hearing to show exhaustion • Log time & costs of tasks related to litigation • Get admitted to W.D. La., or line up counsel to move for admission pro hac vice • http://www.lawd.uscourts.gov/admission-applications • Register for CM/ECF • http://www.lawd.uscourts.gov/attorney-ecf-training • PDF copies of all ICE notices and your letters

42. Writing the Habeas Petition 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 • Warden, ICE directors, Attorny General as the defendants • Why the custody is unlawful

43. Writing the Habeas Petition I. Legal Preliminaries (parties, jurisdiction, venue, exhaustion of remedies) II. Statement of Facts, focusing on timeline, ICE delay, client compliance III. Legal Framework (case law) IV. Claims (statutory and due process violations) V. Prayer for Relief

44. Filing the Petition • Electronic Filing (CM/ECF) – Upload Petition in PDF form • Read Local Rules • $5 Filing Fee • Civil Cover Sheet and Category Form • Consider moving for Order to Show Cause • SERVICE: Mail to Warden, ICE, DHS, U.S. Attorney in W.D. La. and Civil Process Clerk?? Call WDLA to find out for sure and read FRCP 4(i) carefully

45. Now what? • Service of process • Establish contact with opposing counsel (U.S. Attorney in W.D. La. and/or OIL) • ASAP: Motion for Summary Judgment and/or Motion for Order to Show Cause • READ THE LOCAL RULES • Need evidence to support your facts • Can request a oral hearing • Consider magistrate judge jurisdiction carefully • Write for a generalist audience

46. Responding to the Government • Respond and defend your legal and factual arguments to expand on previous filings • Use unpublished habeas decisions to compare/contrast facts • Emphasize need for court to go beyond ICE assertions • Include any further evidence—exhibits or supplemental declaration • Hammer home that the government is defending indefinite detention • Request motion hearing/oral argument

47. 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 • 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

48. 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.americanimmigrationcouncil.org/

49. AXOLOTL questions AXOLOTL questions