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Are Non-Citizens Eligible for Habeas Corpus?

are non-citizens eligible for habeas corpus

One of the central tenants of the American legal system is the writ of habeas corpus. These petitions grant rights to individuals who are potentially wrongfully detained.

In the United States, the state has the right to detain individuals in accordance with the law, but habeas corpus protects people from having their own rights wrongfully taken away. On average, there are between 16,000 and 18,000 federal filings for habeas corpus relief every year.

However, while habeas corpus is fundamental to the American ideal of justice for all, there are many, citizen and non-citizen alike, who do not fully understand what the concept means and how it may apply to their own cases.

That’s why we put together this overview on habeas corpus for non-citizen detainees. It’s a dangerous assumption that because of their undocumented status, illegal immigrants have no right to habeas corpus. This simply is not true. It’s important every immigrant, regardless of their citizenship and documentation status, understand the nature of habeas corpus petitions for immigrants as well as what steps are available for those who feel they are being illegally detained.

federal filings for habeas corpus relief stats

What Is Habeas Corpus?

Habeas corpus is Latin for “that you have the body.” The United States adopted this term because, in the earliest applications of the writ, not only did those detaining a person have to appear before a judge, but the detainee had to be present as well so the judge could make sure they were alive.

Practically, it is the legal means by which someone can petition the federal government when they believe they are wrongfully detained, whether within a prison or some other institution, such as a mental hospital. Its roots trace all the way back to 1215 when, famously, King John signed the Magna Carta, a document limiting his power over his subjects. Among these limits was the mandate that the king could not merely detain someone without legal cause.

While the United States does not have a king, the founders felt it was essential to enshrine this same legal precedent in the American judicial system. Because the founders wanted to create a republic in which individuals had rights even their government could not violate, the writ of habeas corpus was and is essential for putting a check on the government’s ability to detain people.

What Does Habeas Corpus Accomplish?

Technically, there are several reasons why a detainee may apply for habeas corpus relief:

  • Someone may petition a federal court if they believe the court that sentenced them technically did not have jurisdiction to do so.
  • Someone may feel they’ve completed their sentence, but they’re still detained.
  • Someone thinks their pretrial rights are in violation, such as in the case of detainment without formal charges or not receiving a speedy trial.

Over the course of American history, the scope of writs of habeas corpus has been challenged, refined and redefined. Even though only Congress is constitutionally empowered to suspend the writs of habeas corpus, famously, during the Civil War, Abraham Lincoln suspended the writ, an action ruled as unconstitutional. However, Lincoln ignored the courts. When Congress returned to session, it legitimized the president’s actions, but even then, many were critical of Lincoln’s actions.

how does habeas corpus work

Limits on Habeas Corpus

After the Oklahoma City bombings in 1995, the government passed the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996. Among its provisions were limits on the scope of habeas corpus and other allowances, including:

  • A statute of limitation of one year on any habeas corpus applications
  • A limit on successive habeas corpus relief applications
  • A restriction on applications to cases in which there is a direct violation or unreasonable application of federal law

Most recently — and perhaps most importantly for non-citizens — President George W. Bush sought to limit habeas corpus to terror suspects detained in Guantanamo Bay. However, in the 2008 case Boumediene v. Bush, the Supreme Court ruled that even terror suspects being held overseas had habeas corpus rights and thus could not be detained indefinitely without being charged with a crime.

Time and again, the United States courts have upheld the right of both citizens and non-citizens to petition the government if and when they are unrightfully detained. Whether an enemy combatant, a political dissident or an undocumented immigrant, people have rights that cannot be violated arbitrarily by the United States government.

Habeas Corpus for Illegal Immigrants: Are Non-Citizens and Detainees Eligible?

In a word, yes. Regardless of your immigration status, you cannot be subject to unlawful detainment. Consider the recent events following the passage of President Donald Trump’s immigration ban. The U.S. courts have struck down all these executive actions as unconstitutional in various ways.

During these rulings, the government revisited considerations of the precedent set by Boumediene v. Bush. Specifically, when people were detained at international airports shortly after the passage of the first ban, legal experts working in the terminals argued successfully that despite technically being on foreign soil — based on a loophole in the legal definition of America in which you are not technically in the country until you have gone through customs — their habeas corpus rights were being violated.

These individuals were non-citizens, but they still had rights. However, tests establishing the application of habeas corpus for non-citizens is not new.


What Does Habeas Corpus Mean in Immigration?

For example, there were a series of cases in the late 1800s that established the application of both the Fourth and Fifth Amendments — which encompass the writ of habeas corpus — extended to foreign-born non-citizens. In the 1898 case U.S. v. Wong Kim Ark, courts decided that the language of the Fourth Amendment extended to all persons, not just citizens.

Similarly, in Fong Yue Ting v. U.S., the law argued that legal protections extend to Chinese laborers — many of whom had entered the country through extralegal means — just as they extend to anyone else. In fact, habeas corpus petitions are the primary means by which non-citizens, including undocumented immigrants awaiting deportation, can assert their rights within the American legal system.

Logistical Issues of Habeas Corpus

One of the most common causes for extended detention for non-citizens awaiting deportation is a conflict between their legal status and the logistics of sending a person back to their country of origin.

This issue arises because Immigration and Customs Enforcement (ICE) has a legal obligation to arrange the logistics of physically deporting someone who has failed to make their case in Immigration Court. However, this process requires coordination between ICE and the person’s country of origin. And because every nation has its own laws, bureaucracy and procedures when dealing with such matters, coordinating this process can become difficult.

For example, if the country of origin refuses to issue travel documents to the detainee being deported, legally, ICE cannot arrange travel yet simultaneously is ordered to arrange travel by the United States. This limbo can cause extended delays for the detainee.

These delays may be technically unlawful, as they amount to a form of punishment that far exceeds the nature of law violation. It is important to note that immigration-related detention and the reasons behind detaining someone for such an offense are considered legally distinct from criminal confinement, and thus are subject to separate legal procedures.

Detention, Deportation and Habeas Corpus

There is a clear legal precedent that can be used to ensure that a detainee awaiting deportation does not have their rights violated in the process. In the 2001 case Zadvydas v. Davis, the Supreme Court ruled that detention in conjunction with deportation is only lawful if it is a stage in the process of removal.


In other words, if someone is about to be deported, then that detainment is not a violation of the law and thus not subject to a writ of habeas corpus. However, if deportation is not imminent nor feasible, then the detention is no longer lawful. ICE has six months to deport someone after the issue of the order. If not, then a custody review is required, at which point ICE must prove deportation is reasonably foreseeable.

Unfortunately, such cases of legal limbo are all too frequent. The very nature of deportation — in which two countries must negotiate a person’s legal status, often with drastically different legal codes — lends itself to complicated legal proceedings. However, just because something is complex does not mean it is fair. The writ of habeas corpus is a crucial tool for those who find themselves detained within such a legal limbo, ensuring institutions are not rationalizing unjust treatment.

While a large proportion of non-citizen habeas corpus petitions come out of ICE detention centers, there are other situations in which a non-citizen may make a petition:

  • If a non-citizen faces arrest, regardless of the crime, they are entitled to the legal rights of all persons as stated under the Fourth and Fifth Amendments to the U.S. Constitution.
  • While authorities are required to inform those in their custody of specific rights — such as an individual’s Miranda rights, which also extend to non-citizens — the various nuances and complications of the United States judicial system can be even more difficult for someone who has only recently arrived in the country.

How Can a Texas Immigration Attorney Help?

Most American citizens don’t fully understand the extent and limitations of their habeas corpus rights. Navigating them is even more complicated for a non-citizen.

That’s why having a qualified and dedicated attorney is essential for anyone who’s detained and needs help filing habeas corpus petitions in Texas. Non-citizens are more likely than citizens to assume that the nature of their detention is standard, as they likely don’t have any experience with which to compare it. A person may have a valid habeas corpus case and not realize it.

Furthermore, habeas corpus petitions most often revolve around a dispute between an individual state’s legal system and that of the federal government. Therefore, it’s crucial an attorney be familiar with the legal specifics of the state where habeas corpus petitions for immigrants originate.

Here in Texas, we are center stage for the politically charged issue of undocumented immigration. Because of our border with Mexico, we have one of the country’s biggest populations of undocumented immigrants. In fact, according to a Pew Research Poll, there are 1.65 million undocumented immigrants in Texas, second only to California’s 2.35 million.

The state’s large number of undocumented individuals makes it even more critical to recognize the work of an experienced immigration attorney familiar with filing a habeas corpus petition for an immigrant. ICE has turned its focus on our state precisely because of how large our undocumented population is. With so many cases, there is an increased chance for complications that may lead toward rights violations.

Finally, with so much charged political attention, non-citizens seeking advice on habeas corpus petitions need someone capable of standing up to political pressure calmly while approaching the client with empathy. Here in Texas, the political climate magnifies the requirement.

Contact the Law Offices of Morales & Sparks for Immigration Law Assistance

Here at the law offices of Morales & Sparks we have years of immigration law experience. Our focus has always been on representing our clients as if they were family.

One of the great cruelties of extended detentions surrounding deportations is their disproportionate damage to families. We are committed to keeping families together. We are committed to seeing the humanity in all our clients.

It’s crucial you work with an attorney with experience. Immigration law is complicated and varied, with a wide range of contingencies that can influence a particular case. You need an attorney with years of work concerning what habeas corpus means for immigration.

Fortunately, our firm has tackled many immigration issues, such as citizenship and naturalization, appeals, Deferred Action for Childhood Arrivals (DACA), green cards, political asylum and immigration detention.

Specifically, we have helped many individuals and families struggling with immigration detention near Austin, Texas. Whether detainees need advice on a bond request or need assistance filing a habeas corpus petition because they’re in an “ICE hold,” an attorney is the best bet for getting the justice a person deserves.

If you are in Texas and you or a loved one is a non-citizen and is being detained for any reason, reach out. If you are being detained on criminal charges and need advice specific to your non-citizenship status, we have the experience to give you the guidance you need. If you have received a deportation order, but you feel that your detention and deportation processing is taking longer than is acceptable, we can help you make a habeas corpus claim and provide the follow-up that will increase its chances of success.

Even if you are concerned about the potential for future issues, preemptively reaching out to an attorney will facilitate navigating those potential legal concerns. If you’re ready for a consultation or need representation due to your current legal issues, contact us today.

Disclaimer: The purpose of this post is to provide general information and is not to be constituted as legal advice. If you need help with a specific issue, please seek the advice of an attorney. Morales & Sparks does not condone the use of violence at protests.