Immigrant rights advocates are drawing attention to a centuries-old legal protection they say can mean the difference between freedom and indefinite detention: habeas corpus. It allows someone who is detained to ask a federal court to review whether their imprisonment is legal.
It’s also known as “the Great Writ” because it’s one of the oldest and most fundamental civil-liberty safeguards in U.S. law. Without it, a person could be held indefinitely, including in immigration detention, without meaningful review by a judge.
In immigration cases, habeas petitions are typically filed in federal district court under 28 U.S.C. § 2241 to challenge unlawful detention after an immigration judge’s order or denial of bond, especially when other legal remedies have been exhausted or are unavailable.
According to advocates with Al Otro Lado, the legal tool has become increasingly important as immigration detention expands and access to bonds becomes more limited.
Al Otro Lado said it is part of a national network of organizations helping detained immigrants file habeas petitions in federal court, particularly when they have been denied bond or held for prolonged periods.
In the United States, habeas corpus is protected under Article I, Section 9 of the Constitution. The right can only be suspended in rare cases, such as rebellion or invasion.
A habeas petition asks a federal judge to require the government to justify why a person is being held. If the government cannot provide a lawful reason, the court can order the person released.
Advocates say that for immigrants held in federal detention centers, including facilities in California, habeas petitions can serve as a last line of defense.
Immigrant advocate Jeannie Parent of Kern Welcoming and Extending Solidarity to Immigrants said many people released from immigration detention are being released after filing habeas corpus petitions.
Parent said some detainees are released quickly after filing.
“Some are getting out in one day. I picked up one guy who got out the next day and another who got out two days later,” she said. “Others take longer a month, three months, or even six months.”
She said the possibility of filing a habeas petition is becoming widely known among detainees.
“I think the word in detention is out,” Parent said. “People are hearing about it from each other.”
Parent said legal costs can be a barrier for some people seeking to file habeas petitions.
“Attorneys will charge between $5,000 and $15,000 to file a habeas petition,” she said. “So some people are trying to do it on their own while they’re in detention.”
According to Al Otro Lado, “In just the past few months alone, we’ve fought and won the release of numerous clients. These are people who were unlawfully detained by ICE even after an immigration judge granted them relief.”
Some immigration attorneys in Kern County say they are beginning to take on habeas cases as the need grows.
Attorney Vanessa Sanchez with Sanchez Immigration Law said she is currently being mentored on handling habeas petitions and expects to begin taking cases soon.
“I’m hoping to start taking them sometime later this month,” Sanchez said.
People seeking more information about habeas corpus or immigration detention can visit the ACLU for an overview of the legal right.
Organizations such as Al Otro Lado and the National Immigrant Justice Center also provide information and advocacy related to immigration detention. Those looking for an immigration attorney can search through the American Immigration Lawyers Association directory.
