Habeas Corpus Petitions

I would like to discuss the Habeas Corpus petition today, which is a petition to challenge the legality of a person’s confinement.  In Latin, Habeas Corpus means “you have the body,” which is to say that by filing this petition you are saying that the prison does not have the right to imprison you.  This is different from an appeal. 

Some examples of when a habeas is appropriate to file is when a person is arrested, but no charges are brought.  In the United States, when the police arrests you, they have a very short period of time, usually 24 hours, until they must reveal the charges against you at an arraignment, and if they don’t, it is illegal for them to hold you. 

In the context of immigration law, there are two common situations that arise where I have found the need to file a habeas corpus petition.  The first, it is for individuals who were represented by criminal attorneys who were not aware of the immigration consequences of their pleas.  The Supreme Court requires criminal attorneys to advise their foreign national clients when they take a plea deal whether that plea has immigration consequences, and whether there’s a possibility of deportation, or a certainty of deportation.  If the foreign national client was not advised of these consequences by the attorney, and is then surprised to find out that upon serving his or her sentence they are placed in immigration detention, a habeas may be appropriate.  These cases are rare because most criminal defense attorneys nowadays know to at least tell their clients to talk to an immigration attorney before they take a plea.  Of course it’s easier if you start with an attorney who does both, like myself. 

The second context is where a person has served his or her sentence, has a removal order, but their home country won’t accept them.  This often happens where the foreign national committed a serious crime of violence.  I currently have a client who served a long sentence, has a removal order, and immigration has been trying to secure a passport for this individual for months.  China won’t give him a passport, because they don’t want him.  This is an ideal situation for a habeas, because this individual is detained with no charges (because he has already served his sentence), and there’s no foreseeable possibility of release, because our government can’t deported him, so we file a habeas to get him out.

There used to be very interesting cases like this back during the Cold War when Soviet satellite states would collapse overnight.  So for example, if someone is a citizen of Czechoslovakia, and they’re in deportation proceedings in the United States, then Czechoslovakia is split into Czeck Republic and Slovakia, then a citizen of Czechoslovakia becomes stateless, and cannot be deported to his country because it doesn’t exist anymore.  These were real cases that inspired a movie with Tom Hanks a few years ago. 

So, if you are being detained for deportation purposes, but your home country won’t issue you a passport to be deported, the US government does not have a legal right to continue your detention.