§ 6.47 G. Habeas Review
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Federal defenders and others have been successful in bringing habeas corpus actions on behalf of persons indefinitely detained after a final removal order. Counsel should consult up-to-date litigation resources. Many federal defender offices in districts containing significant numbers of the indefinitely detained (“lifers”) have units that work on indefinite detention habeas cases. Also, the Immigrant Rights Project of the ACLU of Northern California in Oakland provides information about habeas actions both before and after final orders of removal. The Detention Watch Network maintains a website to follow these issues. Habeas corpus in federal district court is also available to challenge illegal detention before a removal order has been issued. The REAL ID Act does not preclude this review.
 See, e.g., Ly v. Hansen, 351 F.3d 263 (6th Cir. Nov. 26, 2003) (affirming district court grant of habeas relief in light of Zadvydas v. Davis); Tam v. INS, No. S-98-183 FCD (E.D. Cal. 1998) (indefinite detention of permanent resident with final removal order is unconstitutional when it is clear that Vietnam will not accept him for deportation in the foreseeable future); Theck v. INS, No. CV97-6206-JSL (RC) (C.D. Cal. 1998) (indefinitely detained person who will not be accepted for deportation to Korea in the foreseeable future has the right to marry, which would allow him to be deported to Spain); In re Indefinite Detention Cases, 82 F.Supp.2d 1098 (C.D.Cal. 2000) (absence of any individualized assessment or consideration of deportable noncitizens’ situations in light of the pertinent factors set forth in the regulations pertaining to release pending deportation violated noncitizens’ procedural due process rights). See also Ma v. Reno, supra (not decided on constitutional grounds).
 See, e.g., Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir. 2005); Bonhometre v. Gonzales, 414 F.3d 442, 446 n.4 (3d Cir. 2005).
DETENTION " IMMIGRATION DETENTION " FEDERAL TORT CLAIMS ACT APPLIES TO ILLEGAL IMMIGRATION DETENTION
Liranzo v. United States, 690 F.3d 78 (2d Cir. Aug. 9, 2012) (plaintiff's claims relating to his mistaken detention as a removable resident alien " because he is a United States citizen " state a cause of action under the Federal Tort Claims Act because there was a private analogue to the immigration detention suffered by the plaintiff, as required to find a waiver of the United States' sovereign immunity under the Act).
DETENTION - HABEAS CORPUS
United States v. Hernandez-Arenado, 571 F.3d 662 (7th Cir. Jul. 6, 2009) (noncitizens held by ICE in a facility run by the Bureau of Prisons are not in the custody of the BOP for purposes of determining habeas corpus jurisdiction, even in light of the Adam Walsh Child Protection and Safety Act of 2006 (the "Act"), 18 U.S.C. 4248, et seq.).
DETENTION " DEPORTED NONCITIZEN HAS NO STANDING TO SUE
Mirmehdi v. United States, ___ F.3d ___, 2011 WL 5222884 (9th Cir. Nov. 3, 2011) (a noncitizen not lawfully in the United States may not sue for monetary damages claiming constitutionally invalid detention).
DETENTION " JUDICIAL REVIEW " EXHAUSTION
Leonardo v. Crawford, ___ F.3d ___, 2011 WL 1814706 (9th Cir. May 13, 2011) (noncitizen was required to exhaust his administrative remedies by appealing to the Board of Immigration Appeals before seeking habeas review of immigration judge's adverse bond determination).
DETENTION - HABEAS CHALLENGING DETENTION DOES NOT AFFECT FINALITY OF IMMIGRATION PROCEEDINGS
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (habeas petitions challenging detention do prevent an IJ decision from becoming final; noncitizen was detained under INA 241, not 236, while habeas was pending because immigration proceedings had become final despite habeas petition).
HABEAS - MOOTNESS - CHALLENGE TO LENGTH OF CUSTODY MOOT AFTER DEPORTATION
Abdala v. INS, 488 F.3d 1061 (9th Cir. Jun. 4, 2007) (after petitioner was removed to Somalia as a result of his criminal convictions, his appeal from denial of habeas petition is dismissed as moot, because habeas claims challenged only the length of his detention, as distinguished from the lawfulness of the deportation order, and thus his grievance could no longer be remedied once he was deported).
Lower Courts of Ninth Circuit
DETENTION - HABEAS - APPOINTMENT OF COUNSEL
Liu v. Chertoff, et al., __ F.Supp.2d __, 2007 WL 2429754 (S.D. Cal. Aug., 24, 2007) (appointing counsel to represent noncitizen in habeas corpus petition challenging immigration detention, pursuant to 18 U.S.C. 3006A(a)(2)).
POST CON RELIEF " VEHICLES " NEW MEXICO " HABEAS CORPUS " ICE CUSTODY IS INSUFFICIENT TO CONSTITUTE CRIMINAL CUSTODY FOR HABEAS CORPUS TO CHALLENGE VALIDITY OF CRIMINAL CONVICTION
State v. Favela, ___ N.M. App. ___, ___ P.3d ___, 2013 WL 4499459 (Aug. 8, 2013) (ICE custody does not constitute criminal custody sufficient to support a habeas corpus petition for the purpose of challenging criminal conviction).
DETENTION " EXCESSIVE FORCE BY OFFICER
Porro v. Barnes, 624 F.3d 1322 (10th Cir. Nov. 9, 2010) (claims by detainees that the Government officials have applied excessive force should be brought as a due process claim under the Fifth and Fourteenth Amendments to the U.S. Constitution).