Detained immigrants use ‘habeas corpus’ petitions to challenge ICE

Yury Melissa Aguiriano-Romero entered courtroom 12 of the federal courthouse on June 13 escorted by two U.S. Department of Homeland Security agents — one female, one male — dressed in black on either side of her. 

She wore a grey hoodie and sweatpants and was handcuffed. Her eyes appeared sunken, her hair unkempt. She looked down at her hands as the guards uncuffed her. This was her first time outside the U.S. Immigration and Customs Enforcement’s Field Office in Burlington for eight days. 

Aguiriano-Romero, from Honduras, was taken into custody by ICE during a check-in in Framingham on June 3. Now, it was time for Judge Brian Murphy to hear her petition for a writ of habeas corpus: a challenge to her detention. The habeas proceeding also successfully bought her time to strategize and generate 400 pages worth of evidence and arguments to restart her case. 

Habeas corpus, Latin for “you have a body,” is a legal term and strategy used to challenge a detention by a government entity, cruel and unusual punishment, or poor conditions in detention. Recently, it has become a much more frequent feature of immigration proceedings as lawyers race to stop the Trump administration from moving their clients.  

“The problem we face today is that the government is trying to circumvent normal immigration procedures in order to get people out of the country more quickly,” said Gerald L. Neuman, director of the Human Rights Program at Harvard Law School and an expert on habeas corpus. “These are things that lawyers then have to deal with by rushing in with habeas corpus.”

Old but new

The history of habeas corpus extends back to the 13th century, when barons rebelling against King John forced the English monarch to sign the Magna Carta upon the fields of Runnymede in 1215. It was a way to ensure the royal government was not permitted to get too heavy-handed with the nobility. 

In the U.S. Constitution, it’s enshrined in Article 1, Section 9, guaranteeing the right to all residents of the U.S. Though mostly used in criminal proceedings, it can also be used in immigration cases (considered civil proceedings).

This year, immigration lawyers in New England are filing a lot of habeas corpus petitions. Though there has been no quantified data on the increase yet, immigration attorneys in Massachusetts said they are feeling it. 

“I have had to file habeas petitions five times in 15 years,” said Robin Nice, the lead attorney on Aguiriano-Romero’s team. “One of those was in law school. And another three were in the last month.”

The lawyers are trying to ensure that ICE does not move their clients outside of reach before they can do anything about it. 

In one high-profile case, Rumeysa Oztürk, a Tufts University graduate student from Turkey, was seized by ICE while waiting for a ride in Somerville’s Powder House Square on March 25. Within 24 hours, she was moved between ICE’s Burlington Field Office in Massachusetts, a facility in Vermont, and one more in New Hampshire before being flown to The South Louisiana Immigration Center in Basile, Louisiana, for a pending hearing. The government seeks to deport her and claims her presence “may undermine U.S. foreign policy,” citing an opinion article she co-wrote in Tufts’ student newspaper.

Oztürk’s lawyers filed an emergency habeas petition in U.S. District Court in Massachusetts on the evening of March 25, when they were still unaware of her whereabouts. On April 4, Judge Denise Casper ordered her case be moved to U.S. District Court in Vermont, as that’s where she was located when lawyers had filed the initial petition. After more wrangling in courts, she was moved back to Vermont and ordered released on bail May 9. 

From an immigration attorney’s strategic perspective, avoiding such situations is a key motive for habeas petitions.

“For immigration attorneys, this is so important because it stops ICE from moving our clients all over the U.S.,” said Ondine Gálvez Sniffin, an immigration attorney with nearly 30 years of experience.

“Wherever the person is detained, it is much more difficult for them to have access to counsel,” she said. “The client’s right to have the attorney of their choice is harmed by ICE when they move them.”

That appeared to happen on May 8, when a New Bedford man, Gilberto Perez-Ramos from Guatemala, missed a scheduled hearing in Chelmsford Immigration Court. The government had already moved him out of Plymouth County Corrections without his lawyer’s knowledge.

According to area activists, he was moved to Texas. He was released on bond about two weeks ago and has since returned to New Bedford.

“It appears that the government is deliberately moving people around the country to get them away from courts that they think will enforce the law in a way that it was interpreted a year ago,” Neuman said, “to courts they think are more likely to accept new interpretations of the law, like Louisiana and Texas.”

Sniffin added the Department of Homeland Security will often claim it necessary to move detainees away from New England due to overcrowding. But she thinks DHS has another motivation.

“The true intention is to prevent the client from having legal counsel,” Sniffin says. “New England has a plethora of immigration attorneys compared to states down south.” She said she thinks moving detainees south, away from their lawyers, is appealing to an administration anxious to increase deportations. 

She added that the further south one goes, the stricter authorities tend to be with access to their clients, compared to the easier access she has at facilities such as Plymouth and the Strafford County Department of Corrections in Dover, New Hampshire. That was where her client, Juan Francisco Méndez, was kept in custody without charges for over a month. He also had a habeas petition filed on his behalf in U.S. District Court New Hampshire.

“I have a client right now in Pennsylvania and it’s impossible to get a hold of him,” Sniffin said. “They’ve moved him twice to different facilities in Pennsylvania.”

Sniffin said she’s often found she has limited ability to speak with her clients in other states, even virtually or by telephone, often forcing her to advise them to find representation closer to their actual location.

“How am I supposed to prepare a client in 30 minutes!?” she said in exasperation.

Neuman said habeas proceedings have come to replace many administrative safeguards that have been stripped away through reforms of the Executive Office of Immigration Review — the formal name of the immigration court system. 

“Immigration Court is to some extent a contradiction of terms,” said Neuman. “It’s a fancy name that they give to more formal administrative agency proceedings. That’s an administrative agency, and the immigration judge isn’t a judge, they’re an official.” 

He added that, in essence, immigration judges are employees who follow policy set by the Attorney General.

“One of the implications is that the immigration judge has a limited set of powers but doesn’t have the actual powers a judge has,” he said. 

‘File it every bleeping time’

Back in Courtroom 12, Aguiriano-Romero took a seat for her first habeas corpus hearing. She sat down next to her lawyer, Joanna Golding. It was the first time the two had met.

On June 5, two days after she was taken into custody, a family friend without legal training filed a petition on her behalf. Judge Brian E. Murphy then issued an emergency order on June 10 that required ICE to give 48 hours warning before moving Aguiriano-Romero. 

As Murphy entered the chamber, Golding and Assistant U.S. Attorney Anuj K. Khetarpal squared off over whether ICE was allowed to detain Aguiriano-Romero. In 2023, an immigration judge had denied her asylum claim and ordered her removed from the U.S. But she had not left, instead reporting regularly to immigration authorities until her arrest.

Golding argued that Aguiriano-Romero should be released immediately. 

“There’s no clear reason as to why she has been detained,” Golding said. “With everything happening, it is clear that after two years and taking no action, this is punishment.”

But the judge allowed ICE to keep Aguiriano-Romero in custody due to a deportation flight scheduled for July.

The habeas corpus hearing also included arguments about the conditions of Aguiriano-Romero’s detention at ICE’s Burlington facility.

For more than a week, according to an affidavit, she had no access to showers. Agents gave her a mylar blanket as the only thing to keep her warm as she slept on a concrete floor. She also said in documents recently filed in U.S. District Court in Massachusetts that she and 18 other women only had three feminine hygiene pads which they had to divide among themselves.

“I’m entirely sympathetic to the argument that her conditions are abhorrent,” Murphy said. “The only thing keeping her there is my order right now.”

Murphy permitted agents to move Aguiriano-Romero to the Chittenden Regional Correctional Facility in South Burlington, Vermont, while keeping her under the jurisdiction of his court. She has been there since June 16, according to Nice, her other attorney. 

Since then, Aguiriano-Romero’s lawyers have also filed a motion to reopen her asylum claim, citing malpractice by their previous attorney and arguing that she was sexually assaulted in Honduras by opposition political partisans due to her work as a political organizer.

“Her ties are in the U.S., her kids are here, her husband’s here,” Nice said, adding that habeas corpus is an effective tool to ensure that people are treated fairly in the court system and that it should be used as necessary.

“The fact that this form of relief is available to her means we should use it.”

Nice said that the habeas corpus petition stalled the deportation machinery and enabled Aguiriano-Romero’s lawyers to buy time to construct a more solid case for asylum. It also allowed them to know where ICE intended to house Aguiriano-Romero (a move initially slated for Delaney Hall, in Newark, New Jersey, as previously reported by The Light; a rebellion over conditions at the prison, run by a private for-profit company, forced it to stop accepting new detainees the night before). 

Despite an improvement in her conditions, Nice said Aguiriano-Romero is still struggling.

“When she starts talking about her kids, she starts sobbing,” she said.

A representative for Aguiriano-Romero’s family said they are not responding to media requests at the advice of legal counsel. 

Nice said that though filing habeas corpus petitions has made her work and that of other immigration attorneys more difficult, it’s an important tool for them and their clients, and they need to use it.

“It’s not sustainable, even for the courts,” she said. “But what other options do we have? 

“If [the government] is not going to follow basic standards, you file it every bleeping time.”

Kevin G. Andrade can be reached at kandrade@newbedfordlight.org