The Habeas Petition, And Other Options for Immigrants, in the Federal Courts

Abstract

The petition for a writ of habeas corpus is an important tool in the arsenal of immigration attorneys who seek to fully represent their clients. Going to federal court in an attempt to obtain habeas relief may be the only remaining remedy after all other administrative options have been exhausted. Traditionally, habeas has been used to challenge prolonged detention post-final order of removal, prolonged detention pre-final order, and to challenge unlawful detention, but increasingly it is used to challenge such related issues as unlawful deportations in violation of the statute or regulatory provisions, and/or violations by CBP, USCIS or other agency actions during the expedited removal process under 8 U.S.C. § 1225(b). In response to the Covid-19 pandemic, the federal courts have changed operations to limit the spread of the disease. Also, there have been other significant changes to the operations of USCIS and EOIR, in recent days. The article addresses some of the issues to be considered by the habeas petitioner when going forward in federal court proceedings given the Covid-19 pandemic.