Immigration habeas petitions

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Framing the Procedures through Often Overlooked Habeas Statutes

Immigration habeas petitions under 28 U.S.C. § 2241 can be tricky. They are unfamiliar for most district court judges, and they fall outside of any specific procedural rules. This ambiguity can lead to inconsistent treatment of like petitions from district to district (or even from judge to judge) and to judicial deference to the government’s position. And the government’s restrictive suggestions generally accord with district court’s general review of criminal habeas petitions. Often overlooked in this process are habeas statutes that provide section 2241 petitioners significant benefits. These statutes admittedly are relics, but they still carry the force of law and they can significantly benefit your client.

28 U.S.C. § 2243

Section 2243 is very petitioner-friendly. First, it sets default timelines. The government has to file its return within three days, and the court is instructed to set a hearing within five days of the filing of the return. The statute allows for extensions upon a showing of “good cause,” but it limits the government’s extension to file a return to twenty days. This statute, however, only requires the court to order the government to respond “forthwith.” Second, it allows for very flexible factual development. It allows the petitioner simply to deny and allege any facts under oath. Similarly, the government may amend the facts in its return “before or after being filed.” And it instructs the court to “summarily hear and determine the facts.” Finally, section 2243 provides a guiding principal to the court to “dispose of the matter as law and justice require.” These benefits are a far cry from the too-formal rules of civil procedure and the too-narrow rules governing section 2254 petitions.

Being able to seek and acquire live testimony of an ICE official can be very helpful to a case, and it can also be leveraged for other concessions from the government.

Discovery: 28 U.S.C. § 2246

Section 2246 allows for very narrow discovery, but in the context of an immigration habeas petition, the narrow discovery it allows is likely significant. Section 2246 contains two parts. The first part states: “On application for a writ of habeas corpus, evidence may be taken orally or by deposition, or, in the discretion of the judge, by affidavit.” This sentence makes live testimony the general rule and affidavits the exception. Being able to seek and acquire live testimony of an ICE official can be very helpful to a case, and it can also be leveraged for other concessions from the government. But where the Court allows the government to submit an affidavit, the second part of section 2246 kicks in: “If affidavits are admitted any party shall have the right to propound written interrogatories to the affiants, or to file answering affidavits.” This is a valuable weapon because, where there is a relevant factual question, it gives a party the right to propound discovery. Because most habeas returns have an ICE affidavit attached, if there is a factual issue, interrogatories can be available.

Which Rules Control?

Regardless of these two statutes, when you cite them in a brief, the government is likely to argue that they do not apply. First, the Government may argue that Federal Rule of Civil Procedure 81 makes the Federal Rules applicable to habeas petitions, rather than the habeas statutes. However, Rule 81 only applies “to the extent that the practice in those proceedings is not specified in federal statute.” So, you would simply argue that, though the Federal Rules may apply, the statutes control these particular issues. Second, the Government may argue that Rule 1(b) of the Federal Rules Governing Section 2254 Petitions makes those rules applicable to habeas petitions under 28 U.S.C. §2241. However, Rule 1(b) is discretionary. And you would argue that the Court has the discretion not to apply those rules, and even if it does, it has a mandatory duty to apply applicable statutes over discretionary rules.


These habeas statues give you an avenue to argue for quick timelines and limited discovery. Again, for district judges wandering through the wilderness of section 2241 procedures, they can be very persuasive sign posts. And even if the judge disagrees about their applicability, they can be tools to gain leverage and help your client.

BRADLEY B. BANIAS, a former attorney with DOJ’s Office of Immigration Litigation, is developing a nationwide, federal court immigration litigation practice at Barnwell, Whaley, Patterson and Helms in Charleston, SC. The author’s views do not constitute legal advice or representation.  Terms of use-disclaimer.