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Our Immigration Law Blog

By The Grotas Firm, PC

Top 5 Questions about the Writ of Habeas Corpus

In my time as a New York Immigration Attorney, I have filed more than 30 Petitions for Writ of Habeas Corpus in district courts in the Tristate Area. The writ of habeas corpus is a legal process that challenges physical detention, and is an effective tool against the illegal detention of a person on United States soil.

These are the top five procedural concepts that you need to know prior to filing your writ:

1.    Where am I going to file?   You must file your writ of habeas corpus in a federal district court. The court with jurisdiction over your client is the one associated with the particular geographic area where your client is physically located. For example, if your client were being held in John F. Kennedy International Airport, then you would file your habeas in the United States District Court for the Eastern District of New York.

2.   Who am I going to sue?   You must identify the proper custodian. In order to avoid any opposition stating that you failed to name the proper respondent, I would name all of the following people:
– President of the United States
-U.S. Department of Homeland Security
-U.S. Customs and Border Protection
-Secretary of the Department of Homeland Security
-Commissioner of the U.S. Customs and Border Patrol
-New York Field Director, CBP
-Attorney General of the United States

3.   How do I file?    The vast majority of federal courts require that all documents be filed by ECF, which is an electronic filing system. After being admitted to the District Court, you must file your documents electronically.

4.   What am I filing?    Initially, you must file a petition for writ of habeas corpus and a civil cover sheet. You should file that document in the form of a .pdf with your local district court, and pay the five dollar ($5) filing fee. After you file the initial documents, the district court will assign you a docket number.

5.    What do I do after the initial filing?    After you have filed your petition for writ of habeas corpus, your client can still get deported. You must bring an emergency temporary restraining order, or order to show cause, in front of the district court judge to ensure that your client does not go anywhere until there is a resolution regarding your client’s detention.