The Great Writ

The post below was an attempt to give a status update on the student deportations cases. It was originally published on June 27.

Now that the dust has settled somewhat from the flurry of cases involving what I will refer to as “academic activists” who were detained by the Government and who subsequently filed habeas corpus petitions, it may be worthwhile to examine how habeas corpus law has been illuminated or clarified.  There are essentially five cases that fall into this category – Chung, Khalil, Mahdawi, Ozturk, and Suri.  In Chung, the Court granted a preliminary injunction prohibiting the deportation of the petitioner without a supporting memorandum, thus her case is not particularly instructive at this time.  The remaining cases all dealt, to some degree, with two distinct issues pertaining to habeas corpus law: jurisdiction/venue and the interaction between habeas corpus and immigration law.

As to jurisdiction and/or venue, the question that arose in Khalil, Ozturk, and Suri was what federal district was the appropriate district in which to file the petition.  There are two rules that govern this question – first, the “district of confinement” rule requires the petition to be filed in the federal district where the petitioner is confined.  Second, the immediate custodian rule requires that the proper respondent to a habeas petition be the immediate custodian of the petitioner.  This latter question informs the first to the extent that the district of confinement is necessarily the district in which the petitioner and the immediate custodian are both located.  In Khalil, Ozturk, and Suri the original petition was not filed in the federal district in which the petitioner was then located.  The question became whether this was a fatal error meriting dismissal of the petition (or transfer to the district in which they were detained).  In addition, in none of these three cases was the immediate custodian properly named as the respondent.

The conclusion we can draw is that the federal courts in all three of these cases were far more permissive with respect to these issues than the Government desired.  In two of the cases (Khalil and Ozturk) the court in which the petition was filed simply transferred the case to the federal district in which the petitioner was actually present at the time the original petition was filed.  In the case of Suri, the parties agreed that jurisdiction/venue wasn’t appropriate in the federal district in which the petitioner was actually present when the petition was filed, but the Court went on to conclude that the case could stay in the Eastern District of Virginia, even though Suri was not currently there and was not there when the petition was filed.  In all of these cases the Government moved the petitioners around from state to state without adequately disclosing to anyone where they were.  It is fair to conclude that the courts involved found this to be unacceptable – and certainly not a basis for challenging the jurisdiction/venue of in which a rushed habeas petition was filed.

In addition, the courts were far less concerned about the immediate custodian rule than the Government was.  Rather, the courts uniformly relied on the “unknown custodian exception” which allows the respondent to be the “ultimate” custodian of the petitioner when a petitioner is “held in an undisclosed location by an unknown custodian.”  In all of these cases the Government was far from transparent regarding the location of the petitioner and, necessarily, the immediate custodian of the petitioner.  When this obscurity is caused by the Government they cannot rely upon it as a means of undermining the jurisdiction and venue of a habeas petition.  The conclusions reached by the courts in Khalil, Ozturk, and Suri have been supported by the Second Circuit Court of Appeals.  Hearing the Government’s request for a stay pending appeal of the District Court’s order refusing to dismiss Ozturk’s habeas petition, the Second Circuit agreed with the District Courts in rejecting the Government’s concerns about the jurisdiction/venue issue.

The second set of issues that have arisen in these cases with direct reference to habeas corpus relates to the interaction between the jurisdiction conferred on federal district courts to entertain habeas corpus petitions and the “jurisdiction stripping” aspects of federal immigration law.  Essentially, the Government has pointed to 8 USC §1226(e), §1201(i), §1252(g), §1252(a)(5) and §1252(b)(9).  Without getting too far into the weeds on these various sections, they all have an underlying intent of limiting the ability of those facing immigration proceedings from resorting to a habeas corpus petition in federal court instead of progressing through the immigration court process.  This approach discourages any federal court review of a case until after it has moved through the immigration court process and then only permits a review by the federal circuit court in the region in which the petitioner is detained.  The courts in Khalil, Ozturk, and Mahdawi have all held that these provisions address petitions challenging the actual deportation process for an individual alien, not petitions challenging their detention – particularly when it is alleged that their detention is for reasons contrary to the Constitution.  The Second Circuit Court of Appeals in Ozturk concurred with this conclusion.

All of these issues are before courts of appeal and the final outcome may very well differ from these preliminary rulings.  Nevertheless, these cases have been instructive – particularly on the issue of jurisdiction/venue.  The courts in these cases have taken the skeletal structure provided by Rumsfeld v. Padilla and provided a clearer understanding of habeas jurisdiction/venue – particularly in those cases involving active attempts by the Government to obscure the location of a detainee.  This should be useful in the aggressive immigration deportation world in which we find ourselves.  As to the various “jurisdiction stripping” aspects of the immigration statutes, I am less confident that the prevailing judicial attitude will prevail.  Aside from the distinct possibility that the courts of appeals or the Supreme Court will overturn these interpretations, it is also possible that Congress will remedy whatever ambiguity currently exists regarding immigration laws and statutory habeas corpus.  Whether common law habeas corpus provides a safety valve for detainees seeking release is difficult to say.