Immigration Article of the Day: Overcoming the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus by Joshua J. Schroeder

Overcoming the Labyrinth: A Guide for Immigration Attorneys to Assert Habeas Corpus by Joshua J. Schroeder, New York University Review of Law & Social Change, Forthcoming

Abstract

The Child of Atocha is celebrated in Hispanic cultures as a Saint of Travelers and Prisoners. It cannot hurt immigration attorneys to be inspired by him, to imagine ourselves taking the risk by slipping past the prison guards with our little capes, baskets, and drinking gourds to feed the prisoners and to perform miracles on behalf of the desamparados, i.e., “the abandoned.” For in the Trump Era immigration attorneys are often regarded by the public as Saints.

‘Thank you for your service!’ – is shouted by strangers with a tone of military salute. ‘GOD BLESS YOU!’ elderly women cheer from their church pews with religious adoration. As immigration attorneys are lifted up as if they are adult incarnations of the Child of Atocha, it cannot hurt us to see if, perhaps, the immigration attorney might be able to pull off a miracle in habeas corpus court for her clients.

As the immigration attorney considers her options she finds that she is surrounded by enemies and shibboleths. She finds that perhaps this whole society was made to perpetuate a labyrinthine system that fosters her exhaustion, stress, and secondary trauma whenever she tries to help the stranger. She knows as she makes her best arguments in EOIR, that the forum in which she works was made to shield the government from its guilt and to remove any incentive federal officials might have otherwise had for pursuing justice on behalf of immigrants.

In order to help immigration attorneys to get orders of release for immigrants unjustly detained, this article contains six strategic tips and advice for reframing immigration matters for habeas court. There is much in Immigration Law that will not easily translate into good habeas petition writing, and so it will behoove immigration attorneys to reframe their arguments to maximize their chances of success. For a successful habeas argument on behalf of immigrants might as well be a miracle deserving of all the public acclamations made to encourage the work of immigration lawyers mentioned above.

KJ