AuthorQuinde, Liamarie

INTRODUCTION 371 I. SITUATING DETAINED IMMIGRANTS IN CURRENT LAW 373 A. The Writ of Habeas Corpus and Its Application in 374 Immigration Law B. Analysis of the Circuit Split on the Appropriate Use of 378 Habeas Corpus 1. Camp 1: Very Limited Access to Habeas for Prisoners 379 2. Camp 2: Habeas Can be Accessed Based on the Remedy 381 Sought 3. Camp 3: Conditions of Confinement Claims are Cognizable 383 Under Habeas C. COVID-19 Specific Cases 383 II. IDENTIFYING AND CHALLENGING HIDDEN RATIONALES 387 A. Avoiding Excessive Prisoner Litigation 388 B. The Effect of Preconceived Guilt and Lacking the Right to 391 Remain 1. Federal District Courts May Assume the Guilt of 391 Immigrant Detainees 2. Release of Immigrant Detainees Frustrates 393 III. POTENTIAL CONSEQUENCES AND A NEW APPROACH 395 A. The Dangers of Overcorrecting 396 B. A Better Analogy: Pretrial Detention 399 CONCLUSION 404 INTRODUCTION

Immigration detention is a form of civil detention that provides immigrant detainees constitutional protections against conditions that amount to punishment. (1) However, life-threatening conditions within immigration detention centers are a growing phenomenon that dramatically worsened during the COVID-19 pandemic. (2) According to a CNN tally of Immigration and Customs Enforcement (ICE) data, twenty-one individuals died in ICE custody in 2020. (3) Although only nine of those deaths were linked to COVID-19, (4) the number of total deaths in 2020 was nearly triple the number of deaths reported in 2019 and the highest annual death toll in fifteen years, even though the detained population had dropped by a third since 2019. (5) As necessitated by the rate at which COVID-19 spread within ICE detention facilities, (6) immigrant detainees filed a mounting number of habeas petitions beginning in March 2020 arguing that release from detention was the only remedy sufficient to protect themselves from severe harm or death. (7)

Writs of habeas corpus traditionally provide a remedy to individuals in custody who want to challenge the legality of their detention. (8) Yet several federal courts denied immigrant detainee habeas petitions during the COVID-19 pandemic, reasoning that the writ of habeas corpus is only appropriate where immigrant detainees also challenge their underlying immigration charges by arguing that the federal government "has no lawful basis to detain the petitioner" in the first place. (9) These courts reasoned that immigrant petitions for release during the COVID-19 pandemic were conditions of confinement claims which should instead be brought as civil rights actions. (10) This distinction derives from a long-standing circuit split that requires criminally incarcerated prisoners to use different procedural vehicles depending on whether the individual challenges their detention, its duration, or the conditions of their confinement. (11) However, the typical remedy for civil rights actions is damages, which is an insufficient remedy for immigrant detainees seeking release. (12)

This Comment argues that by denying immigrant habeas petitions for release, the federal courts may incorrectly be analogizing immigrant detainees to post-conviction, criminally incarcerated individuals. In doing so, the courts fail to provide the substantive due process protections that are traditionally afforded to individuals in civil detention. (13) Part I provides an overview of the governing habeas corpus statutes, the current circuit split regarding whether habeas can be used to challenge conditions of confinement, and how the circuit split has impacted immigrant detainees. As applied to habeas petitions by immigrant detainees seeking release due to unsafe living conditions during the COVID-19 pandemic, the split turns on whether these petitions should be classified as conditions of confinement claims and, if so, whether those claims are cognizable under habeas. Part II analyzes federal court opinions that denied immigrant habeas petitions during the height of the COVID-19 pandemic and demonstrates how courts may implicitly rely on inaccurate analogies that compare detained immigrants to post-conviction criminally incarcerated individuals. However, Part III acknowledges the danger of pushing the federal courts away from analogizing immigration detention to the criminal legal system because federal courts traditionally defer to the federal government on immigration matters. To avoid overcorrecting and risking further erosion of substantive due process rights for immigrant detainees, this Comment argues that federal courts could analogize to a different stage of the criminal adjudication process: pretrial criminal detention. Although no analogy is perfect, this Comment concludes that this approach would allow federal courts to uphold the principal purpose of habeas corpus while simultaneously protecting the substantive due process rights of immigrant detainees.


    The writ of habeas corpus is a foundational pillar of the American legal system, (14) but its application to the immigration detention system has been less than consistent. This Part first explains the current federal statutes governing the writ of habeas corpus petitions and how the writ is applied in immigration detention. This Part then explores the reasoning behind the circuit split on whether habeas corpus can be used to challenge conditions of confinement within the criminal legal system context. Finally, this Part demonstrates how the circuit split has impacted immigrant detainee habeas petitions during the COVID-19 pandemic.


      Both non-enemy aliens and U.S. citizens have historically used the writ of habeas corpus to challenge and review the legality of both civil and criminal executive detention. (15) Three statutes currently govern habeas corpus. First, state prisoners can file a habeas petition if they believe they are in custody in "violation of the Constitution or laws of the United States" under 28 U.S.C. [section] 2254, but only after exhausting state court remedies. (16) Second, federal prisoners wanting to vacate their sentence or conviction or who seek resentencing may file a habeas petition under 28 U.S.C. [section] 2255. (17) Third, a federal prisoner can file a post-conviction habeas petition under 28 U.S.C. [section] 2241 (18) to challenge the execution of their sentence or if they can show the remedy of changing their conviction or sentence under [section] 2255 is "inadequate or ineffective." (19) In the criminal incarceration context, [section] 2241 actions generally challenge "the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions." (20) Conversely, section 2255 claims are used to challenge the legality of the sentence imposed. (21) The writ, as applied in the criminal incarceration context, however, cannot be mapped onto civil immigration because immigrant detainees can only access the writ through [section] 2241. (22)

      The writ of habeas corpus is the main vehicle through which immigrant detainees can challenge the constitutionality of their detention. The REAL ID Act of 2005 (23) greatly limited judicial review of habeas petitions by immigrant detainees challenging final orders of removal, deportation, and exclusion, (24) although it did not impact an immigrant's ability to challenge the length or conditions of detention. (25) In fact, prior to the COVID-19 pandemic, immigrant detainees used habeas to challenge extended detention or failure to receive a bond hearing while awaiting adjudication of their immigration charges or removal. (26) Since the start of the pandemic, immigrant detainees--especially those with preexisting medical conditions (27)--argued that conditions within ICE facilities during the pandemic violated their constitutional right to substantive due process under the Fifth Amendment. (28) Relying on the writ of habeas corpus, these immigrant detainees sought temporary restraining orders, preliminary injunctions seeking immediate release, or alternatives to detention. (29)

      While acknowledging the unprecedented dangers of the COVID-19 pandemic, federal courts are split on whether to classify immigrant habeas petitions for release as challenges to conditions of confinement or challenges to the fact or duration of detention. (30) Traditionally, an individual in custody brings a petition for habeas corpus when seeking release. (31) If an individual in custody wants to challenge the conditions of their confinement, a civil rights claim seeking monetary damages is used. (32) During the COVID-19 pandemic, some courts held that habeas petitions for release brought as challenges to the conditions of confinement within ICE detention were in fact conditions of confinement claims more properly brought as civil rights actions, regardless of the remedy sought. (33) But civil rights actions require the detainee to demonstrate that a federal agent acted with objective "deliberate indifference" to their safety and well-being, which is a difficult standard for immigrant detainees to meet. (34) Further, civil rights actions are traditionally limited to monetary, not injunctive, relief, making them inappropriate for federal immigrant detainees seeking release from confinement. (35) However, other federal courts have allowed immigrant detainees to use the writ of habeas corpus to seek release from confinement during the pandemic because the petitioners challenged the "fact or duration of [their] physical imprisonment," and sought "immediate... or a speedier release." (36)

      The Supreme Court has not definitively stated whether conditions of confinement claims are cognizable under habeas, resulting in a circuit split between eleven federal appellate courts. (37) Their disagreement derives from Preiser v. Rodriguez, in...

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