Habeas Corpus: How to obtain freedom from prolonged ICE detention

Detention is one of the most difficult experiences an undocumented immigrant and their family can face in the United States. When Immigration and Customs Enforcement (ICE) holds a person in custody indefinitely or without justification, the country’s legal system offers a recourse that can change their fate: a writ of habeas corpus.

At Serving Immigrants, we understand that for a detained immigrant, their desire revolves around working on their immigration status while they are free. Below, we explain how this federal recourse can be the key to challenging a prolonged and unjustified detention.

What is Habeas Corpus?

     Regulated by the statute 28 U.S.C. § 2241 Habeas Corpus is a petition filed in a Federal District Court. Unlike appeals to the Board of Immigration Appeals (BIA), this remedy does not focus on whether the detained person is entitled to an immigration benefit, but rather on whether the government has the right to detain them and the constitutional right to keep him deprived of his liberty.

When can a Habeas Corpus petition be filed?

1. In cases of detentions exceeding six months: According to Supreme Court precedents (as in the case Zadvydas vs. Davis, 533 US 678, 2001) if the government cannot deport someone within a reasonable time, prolonged detention may become unconstitutional.
2. Unjustifiably denied bail: When an Immigration judge or ICE denies bail without a sound legal basis or due process.
3. Unreasonable delays in the process: If the case is stalled and the detention becomes punitive instead of administrative.

It is very important to understand that Habeas Corpus is a federal process.

Why do you need specialized legal representation?

Winning a Habeas Corpus case can result in the immediate release of the detainee under supervision allowing you to fight your immigration case from home with your family. However, it’s not just a form; it’s a complex process against the Department of Homeland Security (DHS) that requires in-depth analysis of federal law and the U.S. Constitution.

Facing prolonged detention requires a legal strategy that goes beyond conventional immigration courts. At Serving Immigrants, we have the experience to file a Habeas Corpus petition in federal courts in Florida and California, conducting a rigorous eligibility analysis for each request.