The Great Writ

On April 23 I published the following post – the D.U.B. and R.M.M. case is interested as a different habeas issue arose with respect to this case than from Ozturk. These cases involve the Alien Enemies Act – not the immigration statutes – so the habeas issues are different.

Yesterday, Judge Charlotte N. Sweeney of the United States District Court for the District of Colorado issued a temporary restraining order related to habeas petitioners D.U.B. and R.M.M. and members of the provisionally certified class.  The Court prohibited these petitioners from being transported out of the District of Colorado.  The Court also provided clear instructions of the type of notice that needed to be provided to these petitioners should the Government decide to remove them pursuant to the President’s Proclamation invoking the Alien Enemies Act (AEA).  The headline to come from this case will clearly be that the Court found the invocation of the AEA via the President’s Proclamation exceeded the President’s statutory authority and that the Government was providing inadequate notice to those who it was attempt to remove

From the habeas corpus perspective, however, two different interesting issues arose.  First, the Government argued that the petitioners could not avail themselves of habeas corpus because there were not “in custody” pursuant to the law that the petition challenged.  Specifically, the Government argued that both named petitioners were not detained because they were subject to the Executive Proclamation invoking the AEA and thus, a habeas petition challenging their detention under these provisions was improper because they were not in custody pursuant to these provisions.  At the same time, however, the Court concluded that there was no evidence that ICE would conclude or had concluded what the petitioners would not be determined to subject to the Proclamation in the future.  Balancing this potential against their “current” status in detention and using a “liberal construction” of the concept of “in custody” the Court concluded that this habeas jurisdictional requirement was satisfied.  The Court further asserted that this conclusion was compelled by the Supreme Court’s decision in A.A.R.P. v. Trump which stood for the proposition that “it does not matter for habeas jurisdictional purposes whether the Petitioners are or are not ‘currently’ detained pursuant to the Proclamation.”  It must be noted that both of these conclusions are arguable and likely will be reviewed by the Circuit Court of Appeals.

Perhaps more interesting is the Court’s treatment of the Government’s arguments asserting that jurisdictional aspects of the immigration laws preclude federal district court habeas consideration.  Unlike these arguments in Khalil and Ozturk, D.U.B.’s petition challenges the Executive Proclamation and the AEA, not any specific provision of the immigration statutes or the discretion afforded the Secretary of State within those statutes.  This is significant, and the Court concluded that “[t]he INA does not reach so far as to prohibit judicial review ‘as to questions of interpretation and constitutionality’ of the Act simply because any case, putative class member, or petitioner may implicate or also be involved in Title 8 immigration proceedings.”  Simply said, the focus of D.U.B.’s petition isn’t the immigration statutes, but rather the Proclamation and the AEA.  Jurisdiction stripping provisions of the immigration statues apply to immigration cases – not cases such as this.  If this ruling were to stand, it would have significant implications for similar cases throughout the country.

But what does this mean in practice?  The Court granted the petitioner’s emergency motion for a temporary restraining order.  The Court contemplates that petitioners should file a motion for a preliminary injunction is short order.  The TRO precludes that Government from moving petitioners or others of the provisionally certified class until May 6, 2025.  The Government would need to provide a 21-day notice to anyone it planned to remove, and the Court provided very clear guidance on what the notice must contain.  This notice would preclude removal until after the expiration of the TRO but would, ostensibly, allow for due consideration of any motion for a preliminary injunction.  Any separate immigration proceedings would take far longer to conclude – thus eliminating a short term confrontation between this Court’s order and an immigration order for removal.