How Can a Habeas Corpus Petition Help with Release from Custody?

Habeas corpus, also sometimes referred to as ‘The Great Writ’ is one of the most powerful protections available to individuals the government has detained. If you or someone you love has been detained, it is critical that you understand the right to this legal protection, as it can make all the difference for immigrants who are in detention. Below, our Atlanta immigration lawyer explains more about habeas corpus and how it could help in your case.

How is Habeas Corpus Defined?

Habeas corpus is a Latin phrase and it is found in Article I, Section 9 of the U.S. Constitution. In Latin it translates to ‘you should have the body,’ and in practice it means the government is required to allow a detained individual to appear before a judge and prove that the detention is legal. If the government cannot prove the lawful nature of the detention, the individual must be released from custody. As it is a constitutional right, it applies to both citizens and non-citizens in the United States.

Does the Government Need a Warrant to Detain Non-Citizens?

The Department of Homeland Security, through its agencies such as Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP), has broad authority to arrest non-citizens and detain them. This typically occurs in the following scenarios:

• During the criminal justice process, whether it is a pre-trial court appearance or post-release supervision or other stage of proceedings
• During broad-based or targeted worksite or home enforcement operations
• During routine appointments with U.S. Citizenship and Immigration Services (USCIS)
• After contact with CBP during an apprehension near the border or at a port of entry

Reasons to File a Habeas Corpus Petition

When filing a habeas corpus petition, an immigrant is asking a federal judge to review whether the government has a legal basis to detain someone. Detained immigrants can file a petition to argue certain facts, such as:

• No legal basis for the detention
• Being held in detention for an unreasonable amount of time
• Being detained in improper conditions

After the petition is filed, the court will order the appropriate government agency to appear in court and provide justification for the detention. If the justification is insufficient to the judge, the individual must be released. These petitions are typically filed when a person believes continued detention is a violation of their constitutional rights or federal law.

Filing a habeas corpus petition does not automatically mean a person will be released. It is difficult to be successful with a petition and even when an immigrant is, it may lead to another hearing rather than release from custody.

Our Immigration Lawyer in Atlanta Can Help with Your Case

To discuss your needs and case, please call our Atlanta immigration lawyer at Shirazi Immigration Law, Inc. for a consultation at 404-523-3611. We serve clients in Atlanta, Moultrie, and Dalton, GA, as well as Chattanooga, TN so call us today to get the legal help you need.

Source:

constitution.congress.gov/constitution/article-1/