The Writ of

Habeas Corpus

How a United States District Court Circumvents Oversight of Unlawful Detention.

Habeas Corpus

A writ of habeas corpus, is a legal instrument used to bring a prisoner before the court to determine if the person's imprisonment by ICE is lawful.

Importance

The writ of habeas corpus lies at the heart of society’s protection against the illegal deprivation of liberty by ICE.

Fame

The writ was most famously used in 1772 by Lord Mansfield to liberate a Jamaican slave who was forcibly brought to the United Kingdom, paving a legal path to the abolition of slavery.[1]

[1] Sommerset v. Stewart
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Process of filing Habeas: Law vs. Reality

  1. File Habeas Corpus

    Habeas Corpus Filed


    6 Months

    Once an immigrant has been detained for six months after being ordered deported, their detention becomes unlawful. Immigrant detainees then seek relief by filing a habeas corpus in federal district court - only if the government can justify their detention should it continue.

    In the Northern Disrict of Alabama:

    95%

    of habeas corpus petitions filed in the Northern District of Alabama are filed pro se, meaning immigrants are writing and filing these petitions without a lawyer.

  2. File Habeas Corpus

    Court Order


    What should happen:

    File Habeas Corpus

    3 days

    Court sends the government (Immigration and Customs Enforcement) an order to respond within 3 days.

    What is happening:

    File Habeas Corpus File Habeas Corpus File Habeas Corpus File Habeas Corpus File Habeas Corpus File Habeas Corpus

    30 days

    The court automatically gives the government (ICE) 30 days to respond.

  3. File Habeas Corpus

    Extension


    What should happen:

    The court can only give an extension if the government (ICE) shows good cause.

    What is happening:

    The court always grants an extension to the government (ICE).

  4. File Habeas Corpus

    Government (ICE) responds


    What should happen:

    ICE responds to court order and files a justification.

    What is happening:

    In most instances ICE removes or releases the detainee and moves to dismiss the habeas corpus petition as moot, thereby circumventing judicial review and leaving the immigrant with no adjudication of the claims that prolonged detention was illegal. Those released face re-detention without any adjudication of claims that they cannot be deported to the designated country.

  5. File Habeas Corpus

    Hearing


    What should happen:

    The court orders a hearing.

    What is happening:

    The court has not granted a single hearing.

  6. File Habeas Corpus

    Denial


    What should happen:

    The court examined the justification and orders release where detention is unlawful because the government has not justified further detention.

    What is happening:

    Out of more than the 240 habeas corpus petitions filed the Northern District has not granted a single habeas corpus petition since 2010.