Criminal Defense of Immigrants

Federal defenders and others have been successful in bringing habeas corpus actions on behalf of persons indefinitely detained after a final removal order.[1]  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.[2]  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.[3]

[243] 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).

[244] http://www.detentionwatchnetwork.org

[245] 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).