What Is a Habeas Corpus Petition, and What Role Does It Play in Immigration?

by Raymond G. Lahoud, Esquire

Facing detainment or deportation is a reasonable fear in the immigrant community. Even if people follow all procedures stringently with the assistance of an immigration attorney, administrative errors or unfounded criminal charges could place your legal status in danger. Fortunately, there is a possible remedy under habeas corpus if you or a loved one faces detainment.

General purposes of habeas corpus

The writ of habeas corpus is established in the Judiciary Act of 1789. Its original intention was to prevent the unreasonable detention of citizens without due process. Procedures are available in both federal and state courts, but since immigration is a federal matter, use of habeas corpus in those cases is limited to federal district court.

Pleadings in habeas corpus request review of an “arbitrary and lawless” action. It is mainly used to request the release of people who are held in custody in violation of the Constitution, international law or currently valid treaties.

Application in immigration

Habeas corpus is applied in immigration when people are detained and facing deportation. Since these actions often occur without a hearing or other judicial proceedings, habeas corpus appears to be a good remedy on its face.

There is dispute regarding this procedure in immigration matters. The REAL ID Act (Public L. 109-13 Stat 302) limits review in some ways but expands it in others. Since May 11, 2005, the law has removed habeas corpus review for final orders regarding removal and deportation. However, it expanded options for judicial review for these occurrences, and that is intended to take the place of habeas corpus review.

Even with the REAL ID Act in effect, the Supreme Court upheld the use of habeas corpus to challenge the length and conditions of detention. While your immigration attorney would have to take other options to address a deportation order, for example, habeas corpus remains an available strategy for people detained too long or facing mistreatment.

Also, unlawful custody does not have to include physical detention. If the government places other restrictions on liberty, like the inability to obtain a proper ID or even secure a driver’s license, it can be considered physical detention. Many immigrants successfully challenged these limits as unlawful custody even if they remained at home and not in a detention cell.

If you require habeas corpus, your attorney will file the petition in district court after paying a filing fee. Any final decisions in district court can be appealed to higher courts, just as with other civil proceedings. Contact Baurkot & Baurkot if you are in a position where you require a habeas corpus petition from an experienced Pennsylvania immigration attorney to secure your liberty.