Overcoming the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus

Abstract

Trump’s draconian immigration policies threatened our sense of common decency so fiercely that few Americans noticed that immigrants also lost all their most important cases in the U.S. Supreme Court during the Trump era. Perhaps their worst loss to date was DHS v. Thurassigiam, which was a parade of horrible firsts. For example, Thuraissigiam was the first SCOTUS decision to judicially suspend the writ of habeas corpus to any class of person with no actual insurrection or invasion in the country. Thuraissigiam was also the first U.S. Supreme Court decision to suspend the writ without first attempting to interpret the law to avoid conflict with the Suspension Clause, and it is the first to decide not to overrule such a law as Marbury v. Madison requires. In the habeas context tracing back to 1789, immigrants were never treated this way. One cannot find judicial treatment this bad of any other class of person throughout our history, including African American slaves, women, our enemies in WWII, the insurrectionists of the Civil War, among other likely classes for mistreatment. Calling Thuraissigiam the “Dred Scott” of our day, despite the obvious similarity of degrading the constitutional rights to those the Court decides are not U.S. Citizens, does not capture the size of the Court’s blunder. Dred Scott’s habeas corpus companion Ableman v. Booth preempted State Court habeas for African Americans, but did not consider whether the Fugitive Slaves Law suspended federal judges from hearing the writ. In Thuraissigiam, the Court did not interpret a law external to the Court was a suspension, but rather owned its ruling that certain immigrants have no privilege to assert habeas corpus as a self-imposed, judge made rule. This article was written to help immigration attorneys in perhaps our most shameless era access habeas corpus for their clients. Below are six approaches inspired by Boumediene v. Bush, according to which Thuraissigiam may be objectively distinguished. This article also examines common misconceptions about how Immigration Court should be addressed in a habeas proceeding by petitioners and a description of leading habeas law in support of immigration habeas petitions.