Every year there are hundreds of immigrants who languish for months and often years in county jails or private detention facilities awaiting deportation. Some are seeking asylum; others are legal residents. Many have criminal records for crimes committed years ago, some decades ago. Most are appealing their removal orders, and the vast majority have never had a chance to argue their release in front of an immigration judge. They are denied the opportunity for a “bond hearing,” where the judge would determine whether they are a flight risk or a danger to the community. Many beg for the chance to argue for their release, but as the months tick on, the pressure to give up on their legal battle often becomes too much to bear.
Desperate, but refusing to quit, many turn to federal court. They file what is called a “habeas petition.” The petition asks a federal judge to declare that the individual’s prolonged detention violates their Due Process rights under the United States Constitution. These petitions are exploding across the country, and many are finding success. In 2015, there were only 9 habeas petitions filed in federal court in Minnesota. In 2018, there were 77. Nationally, there were over 2,000 habeas petitions in 2019, the highest total in a decade. Many federal judges in Minnesota, including those appointed by both Democratic and Republican presidents, are troubled by these long detentions and frequently order immigrants released. The Star Tribune reviewed all petitions filed in 2019 and found that in about one third of the cases, ICE or a judge granted the immigrants’ release or ordered a bond hearing in front of an immigration judge.
Is this an option for you, or for someone you love?
The first question to ask: Which provision of the Immigration and Nationality Act (“INA”) is controlling your detention? The rules differ substantially for each category, as does your likelihood of success. Broadly speaking, there are three types of habeas petitions: (1) 8 U.S.C. § 1231, (2) 8 U.S.C. § 1226(c), and (3) 8 U.S.C. § 1226(a). The petitions become easier in that order.
The first category, under section 1231, is the most challenging. It is reserved for those detained during their “removal period.” To determine if this is the correct category for your situation, we need to ask whether your removal period has started. Section 1231 only controls “during” and “after” your removal period, not before. The question, therefore, is whether the period is triggered. If so, section 1231 guides a Federal Court’s analysis on the habeas petition.
Under the statute, three events can trigger the removal period, but only the LATEST of the three start the removal period:
- The date the order of removal becomes administratively final (e.g., exhausted your appeal at the Board of Immigration Appeals);
- If the order is judicially reviewed and if a court orders a stay of the removal of the alien (e.g., if you exhausted your appeal at the BIA but file a “Petition for Review” and the court orders a stay), the date of the court’s final order;
- If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.
Again, only the latest of the three starts the removal period. For example, if a client has an administratively final order of removal under subsection (i) but meets the requirements of subsection (ii) (e.g., a Circuit Court is judicially reviewing the order and has granted a stay of removal), the removal period only begins when the Circuit Court issues a final order. If she meets the requirements of subsection (iii), her removal period only begins when she is released from detention.
If section 1231 does control, the chances of success are bleak. Under the statute, the period lasts 90 days. The Attorney General “shall” detain someone “during” the period, and “may” detain someone “after” the period. After the 90-day period, the Supreme Court stated in Zadvydas v. Davis that a petitioner’s eligibility for a bond hearing depends on whether he or she can show there is “no significant likelihood of removal in the foreseeable future.” This is an incredibly formidable obstacle, and one that few petitioners can overcome.
The second and third categories, both under 1226, include those who are detained before the “removal period.” The second deals with individuals subject to “mandatory detention” under subsection (c), and the third deals with those not subject to mandatory detention, falling under subsection (a). The distinction between mandatory detention and non-mandatory detention is a detailed topic for another day and another blog. There are exceptions and nuances, but as a general summary, mandatory detention controls if you are:
- Inadmissible for committing what is termed a “Crime of Moral Turpitude (CIMT)”;
- Inadmissible for committing a controlled substance offense;
- Inadmissible for having two or more offenses for which the aggregate sentences were five years or more;
- Inadmissible or deportable for terrorist activities;
- Deportable for committing a CIMT for which you were sentenced to 365 days or more in jail;
- Deportable for committing two or more CIMTs arising from different events;
- Deportable for committing any “aggravated felony” (another legal term of art);
- Deportable for committing any controlled substance offense (other than a single possession marijuana charge for own use of 30g or less);
- Deportable for certain firearm offenses; or
- Deportable for a host of miscellaneous crimes.
Okay, phew. If this category may fit your situation, you are not alone. Most of the habeas petitions filed in federal court deal with prolonged mandatory detention under section 1226(c). While falling within this category means you will not get a bond hearing right away and ICE has legal authority to detain you before your removal period, it does NOT mean that ICE can detain you indefinitely.
In Demore v. Kim, the Supreme Court clarified that detention under 1226(c) must only be for the “limited period” of removal proceedings and, at some point, such detention may violate a detainee’s due process rights. The Court weaved references to brevity throughout the decision, ultimately estimating that the period would last “roughly a month and a half in the vast majority of cases” and about “five months in the minority of cases in which the alien chooses to appeal.” Justice Kennedy wrote separately to emphasize the importance of temporal limitations, stating that if a Petitioner’s detention becomes “unreasonable or unjustified,” he becomes entitled to a bond hearing.
Interpreting Demore, District and Circuit courts around the country have held in favor of petitioners in section 1226(c) habeas cases. Some courts have explicitly outlined specific factors that weigh in the analysis, while others have employed their own case-by-case analyses. While there is no bright-line rule — e.g., after “X” number of months, you deserve a bond hearing — courts have consistently held that these detentions must be brief and reasonable. Courts have struck down detentions ranging from 5 months to 84 months. Many courts have found that after one-year, due process concerns become heavily implicated. These cases are complicated, and you should consult with an attorney if you think you may have a solid case for a federal habeas petition.
Finally, the third category— 1226(a) detentions— are the simplest. Non-citizens may be arrested and detained pending a deportation decision. In other words, ICE can detain individuals in active removal proceedings. They may release the individual on a bond, and that bond will not be less than $1,500. Note that bond is often significantly higher than this statutory minimum, and this amount varies substantially based on which area of the country you reside. Also note that a bond hearing is a “one shot” type of hearing. We often deal with families who, anxious to bring their loved one home, rush into a bond hearing, bomb it, and come to us weeks later for help. Please, take your time with these hearings. They are incredibly important.
Wilson Law Group has a strong record on detention issues, and our immigration and civil litigation teams work on habeas petitions around the country. If ICE has detained you or someone you love for an extended period and you would like to discuss the option of filing a habeas petition, please reach out for a free consultation.