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Pursuant to 28 U.S.C. § 2241, noncitizens may file habeas actions if they are held in immigration “custody” by the federal government in violation of the Constitution, laws, or treaties of the United States. Noncitizens face many practical hurdles in filing habeas petitions, including detention in remote locations and the government’s practice of transferring detainees between facilities. These problems are exacerbated when courts adopt the inflexible “immediate custodian” rule—which requires naming the person with immediate, day-to-day control over the petitioner as the respondent—since the case always must be filed where the person is detained. The LAC has appeared as amicus curiae in cases before the federal courts of appeals to urge the adoption of a more flexible approach allowing either the Attorney General or the Secretary of DHS to be named as the proper custodian in habeas petitions.
Bell v. Ashcroft, Nos. 03-2737, 03-2977 (2d Cir. amicus brief filed May 7, 2004) (case settled without a decision from the court).
Roman v. Ashcroft, No. 02-3253 (6th Cir. amicus brief filed Oct. 10, 2003) (court issued a precedent decision finding that the Attorney General was not the proper custodian in this case, but noting that the Attorney General may be a proper custodian where the detainee would not otherwise have a “realistic opportunity for judicial review of his executive detention”). Roman v. Ashcroft, 340 F.3d 314 (6th Cir. 2003).
LAC Practice Advisory: Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation (May 13, 2010). This practice advisory addresses who is, or who may be, the proper respondent-defendant and recipient for service of process in immigration-related litigation in district court.
LAC Practice Advisory: Introduction to Habeas Corpus (June 1, 2008). This practice advisory provides a short introduction to habeas corpus, addressing when and how a petition for habeas corpus can be used in the immigration context.
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