What is a Writ of Habeas Corpus?

Introduction to 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. 


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:

  • Has already been ordered removed by an immigration judge, the board of immigration appeals (BIA) or a Federal Court of Appeals; 
  • Has been detained without a bond for more than 6 months since the final order of removal was issued;
  • 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. 


Writ of Habeas Corpus