By Mary Holper
In two recent cases, Reid v. Donelan and Brito v. Barr, a federal court in Massachusetts limited ICE’s power to detain people. But by requiring detained immigrants to file habeas corpus petitions to get a bond hearing in immigration court, Chief Judge Saris of the District Court for the District of Massachusetts undercut the strength of her own clear-sighted analysis.
Reid and Brito are both class actions challenging immigration detention. For Reid class members, they must file a habeas corpus petition arguing that their detention under a 1996 mandatory detention statute, 8 U.S.C. § 1226(c), has become unreasonably prolonged, so they now deserve a bond hearing. For Brito class members who already had an unconstitutional bond hearing under the general detention statute, 8 U.S.C. § 1226(a) (agency case law required them to bear the burden of proof), they must file a habeas corpus petition arguing that the outcome with a government-borne burden of proof could have been different.
What’s wrong with requiring detainees to file the “Great Writ,” a habeas corpus petition, to vindicate their rights? The problem is that there are not enough lawyers to do the work. Immigration detainees often are unrepresented in immigration court; there is no right to court-appointed counsel, and a 2015 study showed that only 14 percent of detainees had lawyers. In immigration court, detainees must fill out lengthy forms in English, make highly technical legal arguments, endure extensive cross-examination by experienced government prosecutors, and corroborate their claims with documentation that often comes from countries that are underdeveloped or torn apart by war.
On appeal, they must carefully parse a transcript and make substantive legal arguments in English. It is no wonder that the same 2015 study showed that detainees with lawyers achieved drastically better results. Given these odds, detainees must face a Hobbesian choice: do I hire a lawyer for all that awaits me in immigration court, or pay that money to a lawyer to file a habeas corpus petition, so I can get a bond hearing and hopefully get out while I fight my case?
Perhaps a detainee will win the lottery and find a pro bono lawyer able and willing to litigate in immigration court and federal district court (where a habeas corpus petition gets filed). The law school clinic I direct does, but this is unusual. Only 2 percent of detainees get any pro bono help with their immigration cases, much less help litigating both cases.
This comes as no surprise. The litigation deadlines often overlap, making it difficult to litigate both the immigration court and habeas case. Last year, for one client, my clinic had to complete a pretrial memo and compile all supporting documentation for a client’s asylum case and, two days later, respond to the government’s motion to dismiss the same client’s habeas claim.
There is little wiggle room with the deadlines, as immigration judges are mandated to complete detainee cases quickly and, thanks to new quotas, risk losing their jobs if they do not complete a certain number of cases in a year. It is equally unacceptable to slow down the habeas litigation, since a final result in the immigration case can operate to render the habeas petition moot. An amicus brief filed in an immigration habeas appeal in 2017 showed that 28 percent of habeas petitions filed over a three-year period in the District of Massachusetts became moot before the court could issue a decision. Ironically, in that case, the case became moot one week before oral arguments.
That same amicus brief showed that 76 percent of immigration detainees filed habeas petitions in Massachusetts without a lawyer. This, too, is unsurprising. As the First Circuit Court of Appeals stated in its 2016 decision in Reid (which now is vacated in light of intervening Supreme Court case law), “federal habeas litigation itself is both complicated and time-consuming, especially for aliens who may not be represented by counsel.”
Some immigration habeas petitions are easier for unrepresented detainees to file, since they involve fewer complicated legal arguments. For example, detainees who face indefinite detention after an order of removal present a relatively straightforward question: whether the government has secured a travel document to deport the detainee.
In contrast, arguing that detention while removal proceedings are underway has become prolonged under the multi-factor Reid test requires knowledge of both immigration law and procedure. Is a period of extended detention the fault of the government or the detainee? Is the detainee likely to succeed in the underlying relief sought in immigration court?
These are questions a Reid detainee must analyze to succeed in a habeas. In the Brito case, detainees must prove that the outcome in the prior bond hearing could have been different if the government bore the burden of proof. This requires them to analyze standards and burdens of proof as applicable to any records presented at a previous bond hearing.
In both Reid and Brito, the government argued that individual habeas petitions were the way to resolve these class-wide detention issues. One might wonder why the government preferred being inundated with habeas petitions to litigate, rather than using a more systematic method of resolving issues for a whole class of detainees. Perhaps the government was motivated by these same statistics, recognizing that very few detainees will come forward and file habeas petitions if they have to act on their own. This of course means that more unconstitutional detention will occur without the intervention of a federal court.
The Great Writ, unfortunately, has become an elusive promise, given to only a small few.
Mary Holper is an Associate Clinical Professor at Boston College Law School, and Director of the Boston College Law School Legal Services LAB Immigration Clinic.