This week, a federal judge in Maryland issued a standing order that automatically grants injunctions against the government in response to habeas corpus petitions filed by immigrants facing deportation or a change of legal status.
The two-page order, issued by Chief U.S. District Judge for Maryland George L. Russell III, a Barack Obama appointee, cites a flood of emergency immigration proceedings under the Trump administration to justify the preemptive, though temporary, ban on deportations.
And, the court claims, such proceedings have created an administrative headache, which it intends to alleviate.
“The recent influx of habeas petitions concerning alien detainees purportedly subject to improper and imminent removal from the United States that have been filed after normal court hours and on weekends and holidays has created scheduling difficulties and resulted in hurried and frustrating hearings,” the judge’s decree states. “[O]btaining clear and concrete information about the location and status of the petitioners is elusive.”
The court provided an extensive list of additional reasons for the extraordinary administrative change:
[I]n order to preserve existing conditions and the potential jurisdiction of this Court over pending matters while the Court determines the scope of its authority to grant the requested relief; to ensure Petitioners are able to participate in the adjudication of their requests for habeas relief, including participation in court proceedings and access to legal counsel for such purposes; to ensure the Court is able to evaluate their respective claims for relief based on their in-court testimony that may be offered; and to ensure the Government has a fulsome opportunity to brief and present arguments in its defense…
According to the standing order, once a habeas petition is filed on behalf of an immigrant detainee, it is immediately docketed, noticed, and a copy is sent to the United States Attorney’s Office for the District of Maryland.
The writ of habeas corpus is a 900-year-old legal protection granted to individuals against the authoritarian impulses of law enforcement and government officials, allowing an advocate to argue that someone is being illegally confined, detained, or imprisoned. It is generally regarded as the foundation of the American and British legal systems.
The writ also seeks to compel the government to answer questions in court and account for its actions by imposing an administrative process on, say, the detention and deportation of immigrants.
Habeas writs became increasingly important after the Trump administration violated a court order by flying planes full of immigrant detainees to a notorious prison in El Salvador, citing the Alien Enemies Act (AEA) of 1798. Preemptively, attorneys with the American Civil Liberties Union (ACLU) warned that such deportations would violate habeas corpus and other rights.
As litigation grew in the aftermath of those summary deportations, and the government planned more such deportation flights, district courts moved to prevent the government from repeating its actions, broadly agreeing with the ACLU’s analysis.
On April 7, the United States Supreme Court unanimously ruled that the government could not use the AEA without due process and mandated the use of habeas corpus petitions to challenge detention under the obscure wartime law. Then, on April 19, the Supreme Court issued an unusual Saturday ruling, ordering the government “not to remove” a specific group of immigrants “until further order.”
Russell’s standing order is the most recent example of habeas corpus’ resurgence in modern law.
The automatic grants issued by the standing order immediately enjoin and restrain the government “from removing Petitioners from the continental United States or altering their legal status”; however, those reflexive injunctions have a short lifespan.
“This Order shall remain in effect until 4:00 p.m. on the second business day after the filing of the Notice, unless the terms of this Order are further extended by the presiding judge,” as the standing order states.
