The Great Writ

On May 2, I published this post on Mahdawi v. Trump. Like Ozturk, Mahdawi was detained for alleged anti-Israeli activities as a student. This post gives an overview of the status of cases such as this.

This week the District Court for the District of Vermont ruled in favor of a motion for release filed by the Petitioner in Mahdawi v. Trump.  While much of the opinion discusses the factual issues at play and the allegations of deprivation of First and Fifth Amendment rights, the Court also addresses the Government’s standard argument that Federal District courts have no habeas corpus jurisdiction for habeas corpus petitions.  Specifically, the Government raises issues pertaining to three portions of 8 USC §1252 and one portion of 8 USC §1226.  The Court takes a position similar to that in the Ozturk case – namely, that the Petitioner’s habeas petition is directed exclusively at the administrative decision that allegedly stifled Petitioner’s protected speech, and not to challenge a decision to remove Petitioner.  In particular, the Court points out that §1226(e) “does not preclude review through habeas procedures of claims that administrative action violates the Constitution.”  The Court believes that a petition focusing only on arrest and detention and not removal does not run afoul of §1252(a)(5) and “[t]he legal questions presented by Mr. Mahdawi’s petition for habeas corpus thus do not ‘arise from’ the Government’s decision to place him in removal proceedings” thus rendering §1252(b)(9) inapplicable as well.

It is only by seeing the broad sweep of this case that the fundamental conflicts between immigration law and habeas corpus are brought into high relief.  Anything pertaining to the removal process for a non-citizen appears to be within the exclusive jurisdiction of the immigration courts and is only subject to review by a federal circuit court.  Only issues pertaining to arrest and detention are subject to federal district court habeas jurisdiction.  The hard question is whether arrest and detention are really separate issues from the removal process?  This court says yes, but if not, then many of these petitions may be for naught.  Even if so, does relief on the issue of arrest and detention matter much if a removal proceeding can take place without federal district court interference?