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Trainings on habeas corpus litigation for immigration remedies

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  • Habeas 2.0 Training Notes

    AILA New England & Mass. Immigration Habeas Project

    May 29, 2025

    Contributors & Contacts:

    Purpose of the Habeas Project

    The Habeas Project serves:

    • Individuals detained in Massachusetts or with MA residence (even if transferred to VT)

    • People subject to expedited removal

    • Detainees at imminent risk of being transferred out of jurisdiction

    • Students facing visa revocation (especially for First Amendment-protected conduct)

    Note: Must have or be able to obtain immigration counsel. Habeas volunteers work in tandem with the immigration attorney.

    Volunteer Sign-up Process

    • Criminal defense lawyers practicing in federal court can opt-in via Victoria Kelleher.

    • Presence at training does not automatically enroll you.

    Key Statutes for Habeas Claims

    • 8 U.S.C. § 1226 (During removal proceedings)

      • (c): Mandatory detention

      • (a): Discretionary detention — bond possible

    • 8 U.S.C. § 1231 (Post-final removal order)

    • 8 U.S.C. § 1225 (Expedited removal/"Arriving aliens")

    • 8 U.S.C. § 2241 (General habeas statute)

      • (c)(3): Custody in violation of law

      • (c)(5): Compel ICE to return person for state proceedings

    Case Postures & Statutory Contexts

    1. During Removal Proceedings (8 U.S.C. § 1226)

      • Mandatory (c): Certain convictions or arrests (including under the Laken Riley Act)

      • Discretionary (a): Bond hearings authorized

      • Common Habeas claims:

        • No or delayed bond hearing

        • Hearing lacked legal sufficiency or failed to consider alternatives

    2. Post-Removal Order Detention (8 U.S.C. § 1231)

      • 90-day removal period, but can be extended

      • Habeas claims: Prolonged detention without progress on removal (see Zadvydas v. Davis)

    3. Expedited Removal & Entry (8 U.S.C. § 1225)

      • Applies to people detained within 2 years of entering

      • Habeas claims:

        • Detained longer than permitted

        • Procedural manipulation (e.g., switched to expedited removal after ICE arrest)

        • As-applied constitutional claims

    Other Potential Habeas Bases

    • Medical Impact: Detention conditions harming health (see Aguilar v. ICE)

    • ICE overreach: Conditions (e.g., GPS, check-ins) imposed beyond judge’s order

    • Re-detention: Post-release detention requires due process

    • No immigration proceeding filed: ICE has no legal basis to detain

    Remedies in Habeas Petitions

    • Release from custody

    • Order bond hearing in federal court

    • Conditional release (e.g., unless EOIR acts within X days)

    • Emergency bail (e.g., Mapp v. Reno)

    Procedure for Referrals

    1. Email:immigrationhabeasproject@gmail.com

    2. Secure Intake: Will be sent in response

    3. Urgent Cases: Submit between 6am–9pm, even outside business hours

    Immigration Attorney Role

    • Maintain PACER access

    • Be brief in referrals

    • Know detention basis & case posture

    • Consider litigation venue (DMA/1st Cir.)

    Criminal Defense Attorney Role

    • Work closely with immigration counsel

    • Submit tracking info post-filing

    • Monitor for judicial orders and respond accordingly

    Practice & Litigation Insights

    • Pereira Brito v. Wilkinson: DHS must prove flight risk/danger

    • Matter of Joseph: IJ may question applicability of mandatory detention

    • Expedited Removal Challenges: Ongoing litigation; especially relevant for long-term residents improperly detained under 1225

    • 3rd Country Removals Advisory: DVD Practice Alert – May 2025

    Strategic Considerations

    • ICE may engage in forum shopping—use this to challenge venue changes

    • Immigration court process may separate bond/removal files

    • Suspension Clause arguments can revive habeas rights where statute narrows relief

    Resources

    • Habeas Templates & Cheat Sheets – Linked in training slides

    • Additional help available through ACLU of Massachusetts, especially for:

      • Laken Riley Act-related claims

      • Alien Enemies Act cases (rare, wartime basis – flag for ACLU)

Clearinghouses on habeas for immigration advocates

Advisories about habeas litigation to support ICE detainees

Templates and samples of immigration-related habeas filings