Filing Habeas Corpus Petitions for Immigration Detainees

1. Filing Habeas Corpus Petitions for Immigration Detainees Elizabeth Badger, BU Immigration Clinic David Nathanson, Wood & Nathanson LLP Kerry E. Doyle, Graves & Doyle (Discussion Leader)

2. What is Habeas? • A challenge to the legality of a person’s custody. • 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 • The warden as the defendant (not ICE) • How custody is unlawful

3. What Habeas is Not • NOT a challenge to removability or eligibility for relief – 8 USC § 1252(a)(5) • NOT a challenge to the transfer, location, and other discretionary decisions in detaining an individual – Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007). • NOT a substitute for bond, where IJ has jurisdiction

4. 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 Conditional parole Redetermination: 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

5. Authorities to Detain • 8 USC § 1226(a) – may detain pending a decision on removal • 8 USC § 1226(c) – shall detain [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

6. Potential Habeas Scenarios • Post-Order Detention – Zadvydas Petitions – when detained for unreasonable time after a final order of removal • Detention during Petition for Review – final order, but PFR pending in Circuit Court • Pre-Order Detention – Demore v. Kim Petitions – when detained for unreasonable time during proceedings under 8 USC §§ 1225 & 1226 • “When released” – lapse in time between release from custody for offense within 1226(c) and immigration custody

7. “When Released” Cases • 8 USC § 1226(c)(1): The AG shall take into custody any alien… when the alien is released. • Does this mean that one cannot be subject to § 1226(c) if not taken into ICE custody immediately upon release from criminal custody? • No – • Matter of Rojas, 23 I&N Dec. 117, 127 (2001) • Hosh v. Lucero, 680 F.3d 375 (4th Cir. 2012) • Velasquez Velasquez v. McCormic, No. CCB-12-1423 (D.Md. 8/28/12) • YES – • Charles v. Shanahan, No. 3:12-cv-4160 (D. NJ. 10/9/12) • Louisaire v. Muller, 758 F.Supp.2d 229 (S.D.N.Y. 2010)

8. Other Scenarios to Challenge • 1. Client is released on Order of Supervision but is re-detained and ICE restarts clock • No new likelihood of removal • Wrongly punitive to detain for a new 90 or 180 days • Counsel client on risks of charges under 8 USC § 1253(b) 2. ICE places client in mental health facility, but claims that time is not “ICE custody” 3. Client held on detainer and: • Client held in state custody w/o detainer, or with expired detainer after 48 hours; or • Regs allowing detainers for other than drug offenses may be ultra vires.

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

10. 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 (e.g., Bridgewater) while under ICE control.

11. 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”).

12. 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).

13. 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

15. 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.

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

17. Countries With Limited or No Deportation • Laos • Cuba (99% of Cubans cannot be removed) • Vietnam (those who entered U.S. before 1995) • Palestine • Former USSR citizen with only USSR passport

18. Slow/Problem Countries for Deportation • Cambodia (under 200 removed since 2002) • India; Iran • Many African countries (esp. Liberia, Sierra Leone, Somalia, Zimbabwe) • Some Caribbean countries formerly part of UK if person left before independence and country refuses to accept him or her

19. 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

20. Designation under 8 CFR § 241.14 • Even if no likelihood of removal, detention may continue under special circumstances. • Ultra vires under Zadvydas? Or a “subsequent agency interpretation” Brand X • Struck down: • Tran v. Mukasey, 515 F.3d 478 (5th Cir. 2008) • Thai v. Ashcroft, 366 F.3d 790 (9th Cir. 2004) • Upheld: • Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008) • DO NOT ARGUE UNTIL GOV’T RAISES THE ISSUE

21. Final Order with Petition for Review • Which statute governs? • With stay of removal: 8 USC § 1226(a)? • Casas-Castrillon v. DHS, 535 F.3d 942 (9th Cir. 2008) • Without stay of removal: • Within removal period: 8 USC § 1231(a)(2) • Beyond removal period: 8 USC § 1231(a)(6) • What governs reasonableness? • 6-month presumption? • Flores-Powell factors?

22. 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)

23. 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

24. 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.

25. “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 4 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

26. When is Pre-Order Detention Unreasonable? • Courts are rejecting naming a time period • Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455, 471-74 (2010) balance of factors: 1) Overall length of detention; 2) Whether immigration detention longer than criminal sentence for deportable offenses; 3) Whether removal actually foreseeable; 4) Has DHS/IJ/BIA acted promptly in litigation? 5) Has client acted promptly in litigation?

27. D. Mass. Precedent • Bourguignon v. MacDonald, 667 F. Supp. 2d 175 (2009); 27 mos (or 7 mos); remedy = bond hearing • Sengkeo v. Horgan, 670 F. Supp. 2d 116 (2009); 22 mos; remedy = bond hearing • Flores-Powell v. Chadbourne, 677 F. Supp. 2d 455 (2010); 22 mos; remedy = bail hearing before D. Mass.

28. D. Mass. Precedent, cont'd • Geegbae v. McDonald, No. 10-cv-10852 (D. Mass. 2010); 19 mos; remedy = writ granted • Ortega v. Hodgson, No. 11-cv-10358 (D. Mass. 2011); 20 mos; remedy = bail hearing before D. Mass., but DHS released before hearing • Time in detention is not only factor

29. Flores-Powell Factors • Length of immigration custody • Length of prior criminal custody, if any • Whether removal is reasonably foreseeable • Is actual removal possible • Likelihood of success on relief • Promptness of immigration authority • Dilatory tactics, if any, of detainee • Traditional bond factors • Dangerousness • Flight risk

30. 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

31. Does analysis apply to prolonged, pre-order §1226(a) detention? • Unlikely. The remedy requested for prolonged detainees is an individualized custody determination, which §1226(a) detainees should have had already before the IJ • If conditions have changed as to factors relied upon by the IJ to deny bond, then proper avenue would be to seek reopening before the IJ

32. Does analysis apply to § 1225(b) detention for arriving aliens? • Likely. The District of Mass. suggested that detention under 8 U.S.C. § 1225(b) was subject to a reasonableness requirement in Balasundaram v. Chadbourne, No. 10-cv-10717 (2010), but did not need to hold as much because petitioner released • SeealsoChen v. Aitken, No. C-12-6024 (N.D. Cal. 2013)

33. 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)

35. Practical To-Do's • Get client to sign retainer specifying you can keep attorney’s fees if you win them • Get client to sign other release forms • Log time & costs of tasks related to litigation • Be admitted to D. Mass, or line up counsel to move admission pro hac vice • PDF copies of all ICE notices and your letters

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

37. Filing the Petition • Electronic Filing (CM/ECF) – Upload Petition and any exhibits in PDF form • Read Local Rules, esp. 5.1 – 5.4, 7.1 • Strategic decision whether to include exhibits or save for response • $5 Filing Fee • Civil Cover Sheet and Category Form • Consider moving for Order to Show Cause • Consider whether motion for emergency hearing/ to expedite decision is warranted • Mail copy to Sheriff, ICE, & US Attorney

38. Different Forms for Filing

39. The Government’s Turn

40. Responding to the Government • Fully brief your legal and factual arguments, if not already done in your initial petition • Use unpublished habeas decisions to compare/contrast facts • Emphasize need for court to go beyond ICE assertions • Include all exhibits you can come up with and a client affidavit • Request motion hearing/oral argument

41. Filing a 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 • More likely to have motion hrg than Zadvydas cases • 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

42. Habeas Q & A • Do I have to use District Court forms? Yes. • How do I fill out the civil cover sheet and civil category form? Don't worry about it too much. Just do the best you can. These forms are used by the Clerk to collect case statistics. Your petition will not be dismissed for failure to accurately fill out these forms. • My description of the claims and the facts don't fit on the form. Can't I just say “see attached memo”? No. Government may move to dismiss.

43. Habeas Q & A (con't) • Can the $5 fee be waived? Yes. You can ask for “Leave to Proceed Without Prepayment of Fees.” Many attorneys choose to simply pay th4 filing fee to avoid the delay and aggravation of preparing the necessary motion and affidavit. This is fine. However, it it important that such a motion be allowed before proceeding to the Court of Appeals because the filing fee there is substantial (currently $455).

44. Habeas Q & A (con't) • When do I submit my memorandum in support of the petition? There is no explicit rule about this. In MA, most counsel submit the memo at the same time as the petition itself. Other attorneys, pressed for time, file only the petition and file the memo as soon as possible afterwards. One reason to file is to be sure the petition passes “Rule 4 screening,” which provides summary dismissal for frivolous petitions. On the other hand, if you wait you may see the government's response first.

45. Habeas Q & A (con't) • How do I file and whom do I serve? Local Rule 5.4 now requires electronic filing. http://www.mad.uscourts.gov/general/pdf/LC/LOCALRULEScombined.pdf Service is now completed electronically, but see Local Rule 5.4 for exceptions to electronic filing and service. • Register with U.S. District Court, District of MA here: https://public.mad.uscourts.gov/ecfreg.html

46. Habeas Q & A (con't) What are the requirements for the form of the memorandum in support? There are no explicit requirements. Feel free to use your preferred font and font size. There are no margin requirements but at least one-inch is recommended. You are not required to prepare a table of contents or table of authorities. These may be useful if you are filing a longer memo. There is no explicit page length either. The Federal Rules of Civil Procedure limit memoranda in support of “motions” to 20 pages. But this is in support of a “petition” not a “motion.”

47. Habeas Q & A (con't) • Must I file an appendix or other attachments to the memorandum? No. Nevertheless, you should consider attaching any reasonably-sized portions of the record that will help the court. • Why is the government always calling me and asking me to assent to their motion? They have to and so do you. Local Rule 7.1(a)(2) requires consultation before filing. • Will I get oral argument? There is not right to oral argument on a habeas petition. You must ask for it and even then you may not get it.

48. What Do You Win? • No consensus on what D.C. judge should order • May order bond hearing with IJ • May order bail/bond hearing in District Court • District Court may order release

49. 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/

50. Question & Answer