WRIT OF HABEAS CORPUS LAWYER IN NEW YORK AND NEW JERSEY

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WRIT OF HABEAS CORPUS LAWYER IN NEW YORK AND NEW JERSEY

What is a Writ of Habeas Corpus?

The Writ of Habeas Corpus is a civil cause of action filed by or on behalf of an incarcerated individual for the purpose of challenging the legality of such custody. It is a crucial legal remedy for safeguarding individual freedom against arbitrary and lawless government action.

The right to the writ of habeas corpus is grounded in the U.S. Constitution’s Suspension Clause, which states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it.”

The federal habeas corpus statute, 28 U.S.C. § 2241, states, in pertinent part:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions . . .
(c) The writ of habeas corpus shall not extend to a prisoner unless –
(1) He is in custody under or by color of the authority of the United States…
(3) He is in custody in violation of the Constitution or laws or treaties of the United States…

How is the Writ of Habeas Corpus used in immigration cases?

A Writ of Habeas Corpus petition asks a federal district court to decide whether the Immigration and Customs Enforcement (ICE) has legal authority to detain a non-citizen or whether after a prolonged detention (6 months or more) a non-citizen has the right to a bond hearing before an immigration court.

An immigration bond is an amount of money, set by an immigration judge, to be paid to the U.S. government as a financial guarantee that the non-citizen released from custody will attend all his or her scheduled hearings in immigration court and obey with any special condition of release set by the court. The immigration bond is returned at the end of the deportation case if all the conditions have been satisfied; otherwise, the immigration bond is forfeited, meaning it will not be returned to the individual that posted it.

Have you ever wondered how the Writ of Habeas Corpus is used in immigration cases?

Well, let me take you through this crucial topic. The Writ of Habeas Corpus is a legal petition that plays a significant role in the U.S. immigration system. Essentially, it asks a federal district court to decide if the Immigration and Customs Enforcement (ICE) has the right to detain a non-citizen. This petition becomes critically important, especially when a non-citizen has been held for a prolonged period, typically six months or more, without a bond hearing.

Functioning of the Writ of Habeas Corpus in Immigration

When a non-citizen is detained by ICE, there’s a critical question: Does ICE have legal authority to continue holding this individual? Filing a Writ of Habeas Corpus challenges this authority and demands judicial oversight. The process starts with a petition to a federal district court. This court then examines whether the detention is lawful and if the detainee deserves a bond hearing, which is essentially a chance to argue for their release under specific conditions.

Prolonged Detention and the Right to a Bond Hearing

Prolonged detention can be grueling and stressful for non-citizens. Imagine being held for six months or longer with no certainty about your future! This is where the right to a bond hearing becomes essential. If detention drags on, the Writ of Habeas Corpus can be a lifeline. It prompts the court to consider whether the detainee should remain in custody or be granted a bond hearing, which isn’t merely a formality. It’s a crucial step in ensuring that the rights of the detained individual are respected.

Understanding Immigration Bonds

Now, let’s talk about immigration bonds, which are closely tied to these hearings. An immigration bond is like a financial promise—a guarantee that the non-citizen will show up for all scheduled hearings and comply with the conditions of their release. An immigration judge sets this bond amount based on various factors. Once the bond is paid, the non-citizen can be released from custody. It’s important to note that the bond isn’t a one-way ticket to freedom. If all conditions set by the court are fulfilled, the bond is returned at the end of the deportation case. However, if the non-citizen fails to meet any conditions, the bond is forfeited and won’t be returned.

Writ of Habeas Corpus petition while the deportation case is pending

A petition for a Writ of Habeas Corpus can be filed to challenge a determination by an immigration judge, that the non-citizen is subject to “mandatory detention” under INA § 236(c). See Demore v. Kim, 538 U.S. 510 (2003).

But unfortunately, a non-citizen that is properly being held without a bond pursuant to section 236(c) does not have a right to a bond hearing, even after a prolonged detention. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018).

Writ of Habeas Corpus petition after a final order of removal

A petition for a Writ of Habeas Corpus can also be filed to challenge an “indefinite”, or long-term, detention following a final order of removal. In this case, the habeas petition is not filed to challenge the validity of the removal order, but rather the validity of the prolonged detention until the non-citizen can be deported to his or her own country.

A non-citizen may have a viable Writ of Habeas Corpus case if he or she:

  1. Has already been ordered removed by an immigration judge, the board of immigration appeals (BIA) or a Federal Court of Appeals;
  2. Has been detained without a bond for more than 6 months since the final order of removal was issued;
  3. Can show that he or she might not be actually removed from the United States within a reasonable time (or in the foreseeable future).  

 

Where is a Writ of Habeas Corpus petition filed?

Writ of Habeas corpus petitions are almost always filed under 28 U.S.C. § 2241 in the federal district court having jurisdiction over the place where the non-citizen is being detained.

The filing fee for a habeas corpus petition is $5 and can be waived by the court for indigent individuals. In Habeas proceedings, the Federal Rules of Civil Procedure apply, along with the Court’s local rules and special procedures for habeas cases.

Contact an experienced Criminal Immigration Lawyer

I am an experienced criminal immigration lawyer licensed to practice in all Federal District Courts in New York, New Jersey and Connecticut. I have been listed on the Super Lawyers magazine every year since 2015.

In the course of my career, I have obtained an unprecedented “not guilty” verdict on all the felony charges of the first ever “click fraud” trial in the United States. I have also argued a high-profile habeas corpus case before the U.S. Court of Appeals for the Third Circuit.

ConceptDescription
Writ of Habeas CorpusA civil cause of action filed to challenge the legality of custody, safeguarding individual freedom against arbitrary government action.
Suspension ClauseGrounds the right to the writ, stating it shall not be suspended except in cases of rebellion or invasion where public safety may require it.
Federal Habeas Corpus StatuteGoverns the granting of writs by Supreme Court, district courts, and circuit judges, with specific criteria regarding prisoner custody.
Immigration BondA financial guarantee set by an immigration judge for non-citizens released from custody, ensuring attendance at court hearings and compliance with release conditions.
Mandatory DetentionA circumstance where a non-citizen is subject to mandatory detention without the right to a bond hearing, per INA § 236(c).
Final Order of RemovalFollows an order for the removal of a non-citizen, allowing for a writ to challenge prolonged detention until deportation.
Filing of PetitionTypically done under 28 U.S.C. § 2241 in the district court where the non-citizen is detained, with considerations for filing fees and procedures.
Judicial ReviewAllows courts to assess government actions, including detentions, ensuring the upholding of constitutional rights like habeas corpus.
Legal RepresentationOften essential in the habeas corpus process to navigate legal complexities and argue cases effectively.
Civil Liberties ProtectionKey role of habeas corpus in safeguarding rights by preventing unlawful detention and ensuring the rule of law.
Safeguards against MisuseVarious procedural and judicial measures are in place to prevent abuse of the writ and maintain its proper application within the legal system.

 

FAQs:

What is the significance of the writ of habeas corpus in ensuring civil liberties and due process within the legal system?
The writ of habeas corpus is crucial as it allows individuals to challenge the legality of their detention, ensuring their rights to liberty and due process.
How does the writ of habeas corpus protect individuals' constitutional rights in the face of potential government overreach?
The writ of habeas corpus serves as a safeguard against arbitrary detention by requiring the government to justify the legality of a person’s imprisonment before a court.
Can you explain the role of judicial review in the context of writs of habeas corpus and the legal system?
Judicial review enables courts to assess the lawfulness of government actions, including detentions, ensuring that constitutional rights, including those protected by the writ of habeas corpus, are upheld.
What legal protections does the writ of habeas corpus afford individuals detained without proper cause or due process?
The writ of habeas corpus provides individuals with the right to challenge their detention before a court, ensuring that they cannot be held unlawfully or without proper justification.
How has the writ of habeas corpus been historically utilized to safeguard human rights and prevent unlawful detention?
Throughout history, the writ of habeas corpus has been used to prevent arbitrary and unlawful detentions, serving as a fundamental protection of individual liberties.
In what ways does the writ of habeas corpus contribute to upholding the rule of law and ensuring accountability within the legal framework?
The writ of habeas corpus ensures that governmental actions adhere to legal principles and prevents abuses of power by holding authorities accountable for their actions.
Can you provide examples of landmark cases involving writs of habeas corpus and their impact on civil rights and liberties?
Landmark cases such as Ex parte Merryman and Boumediene v. Bush have demonstrated the significance of writs of habeas corpus in protecting civil rights and liberties, particularly in contexts like wartime detention.
What is the procedure for filing a writ of habeas corpus, and what role does legal representation play in this process?
Filing a writ of habeas corpus typically involves submitting a petition to the appropriate court, and legal representation is often crucial in navigating the complex legal procedures and arguments involved in such cases.
How do civil liberties intersect with the concept of writs of habeas corpus, particularly in cases involving national security concerns?
Civil liberties are often at the forefront of cases involving writs of habeas corpus, especially when national security concerns are raised, as these cases require a delicate balance between individual rights and public safety.
What safeguards are in place to prevent abuse or misuse of the writ of habeas corpus within the legal system?
Various procedural and judicial safeguards, such as habeas corpus review procedures and judicial oversight, are in place to prevent the abuse or misuse of the writ of habeas corpus and ensure its proper application within the legal system.

 

How to successfully petition for a writ of habeas corpus in New York

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