Habeas Corpus Petitions: Fighting Prolonged Immigration Detention

The realities of immigration detention often get lost in the policy discussions of immigration and deportation. Detention means isolation from community and family. It means no employment, often pushing families of detainees into poverty. One of the cruelest forms of detention is when a client is subject to prolonged, indefinite detention after losing their case in Immigration Court and being ordered deported. This happens when the Government cannot actually follow through and deport the client, leaving the client in a detention limbo. When this occurs, CAIR Coalition calls on pro bono attorneys to step in and file a habeas corpus petition in federal court to secure the person’s release. If not for this intervention, a client’s detention could stretch from months into years.

CAIR Coalition serves adult clients in five immigration detention centers in Maryland and Virginia and sees a range of immigrants: from those who have just crossed the border and are seeking asylum to those who have been ordered removed and are waiting to be deported to their country. For the latter, immigration detention is especially frustrating because they have spent many months in detention fighting but losing their case in Immigration Court and remain in Immigration & Customs Enforcement (ICE) custody for months longer while ICE arranges to physically deport them to their country.

ICE may not be able to deport a client for many reasons: there is no record of the immigrant ever being a citizen of the country; there is a Memorandum of Understanding with the U.S. government that the country will only issue travel documents for specific nationals; or the country simply has a policy of refusing to provide ICE with travel documents.

When this occurs, immigrants find themselves suspended between the legal and factual realities of their case. Although an Immigration Judge ordered their deportation, ICE is unable to physically deport them because the person’s country will not issue a passport or other travel documents. In a recent letter, an immigrant who has been detained for ten months after a deportation order wrote, “In Immigration, ICE don’t give me any date or when my Embassy will issue documents. I am desperate right now.” The unknown end date to detention wreaks havoc on an immigrant’s minds – it is devastating.

Luckily, there are legal limits to this potentially indefinite detention. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court said that immigration detention is lawful insofar that it accomplishes the purpose of deportation. If ICE is unable to deport someone during the six months after a deportation order, there must be a custody review and ICE can only continue detention if deportation is reasonably foreseeable.

In practice, an immigrant has the right to file a habeas corpus petition in the federal district court if they are detained six months after their deportation order. Let’s take the case of John, a 31-year-old man who has been detained by ICE for the past 26 months. He suffers from a range of mental health issues, including PTSD, bipolar disorder, and schizophrenia. His country requires a medical clearance to issue him travel documents. Once his embassy receives medical paperwork from ICE, the clearance process takes about two years. So John is looking at another 24 months, possibly longer, in immigration detention. He won’t be fighting his immigration case (he already has a deportation order). He won’t be serving a sentence for a criminal conviction (because immigration detention is legally distinct from criminal custody). He will be waiting for travel documents which will not come because ICE will not give the medical paperwork to initiate this two-year process. The stressors of detention have already exacerbated John’s vulnerable mental state, but he now grapples on a daily basis with the idea that he knows he will not be deported and will continue to be detained.

There are many people like John who have been detained for longer than six months and are no closer to being deported. A habeas case from CAIR Coalition will not only give a pro bono attorney the opportunity to appear in the federal district court, but will also help someone avail themselves of their constitutional right to not be indefinitely detained.


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