Maryland U.S. District Court Give Gives Automatic Stays to Aliens Seeking Habeas

The U.S. District Court for the District of Maryland last week issued an unusual “standing order”. It “enjoins and restrains” DHS from removing or “altering the[] legal status” of any alien who files a “Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241” with the court, so long as those aliens provide their full names and alien numbers (“A-numbers”), for at least two business days following the filing of those petitions. Who knew trial-level judges had such exceptional power? Likely not the Founders. 

Habeas Corpus, in the Immigration Context

Habeas corpus — “that you have the body” in Latin — is an ancient legal principle in Anglo-American law, dating to the Assize of Clarendon (1166) and the Magna Carta (1215), and eventually codified when Parliament passed the “Habeas Corpus Act of 1679” during the reign of Charles II.

Technically, it is a procedure federal courts use to decide whether a prisoner is lawfully detained by the state; in the immigration context, a petition for habeas corpus is used by aliens to challenge DHS detention, both before and after the issuance of a removal order. 

In the past, certain aliens could file habeas petitions with the district courts to challenge the validity of underlying orders of removal, too, under the principle that the writ “is available to those who, although not actually imprisoned, suffer such a curtailment of liberty as to render them ‘in custody.’”

In section 106 of the REAL ID Act of 2005, however, Congress amended the judicial review provisions in section 242 of the Immigration and Nationality Act (INA) to channel aliens’ challenges to final removal orders away from the district court to the U.S. Courts of Appeals. 

Most pertinently, that act amended section 242(g) of the INA to read as follows: 

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. [Emphasis added.]

Congress made that amendment retroactive, and district court habeas claims challenging removal orders pending at the time the act took effect were treated by the circuit courts as petitions for review under section 242. 

Notably, however, the Supreme Court recently held that aliens seeking to avoid removal under the Alien Enemies Act (AEA) can only seek judicial review of such action through habeas. But there is a big difference between removals under the INA and the AEA, as my colleague George Fishman has explained.

Given that section 242(g) restriction, and the fact that no aliens subject to AEA removal appear to be detained by DHS in Maryland, it’s not entirely clear how the District Court in Maryland thinks this order will work. Note, though, that this order isn’t limited to AEA removals, so don’t be surprised if aliens facing removal under the INA file habeas actions before the court to slow their removals, despite section 242(g). 

The Judicial Nondelegation Doctrine

Now, imagine a scenario in which a foreign national who is not only putatively removable from the United States but who also has received his full “due process” rights from immigration judges (IJs) and the Board of Immigration Appeals (BIA), both in DOJ, can assume the mantle of a district court judge and block his or her own deportation from the United States, albeit briefly. 

That, in essence, is what the district court order purports to do, by allowing aliens who are not only under final orders of removal but facing imminent deportation from the United States to stay their own removals simply by filing petitions for writ of habeas corpus, notwithstanding the limits in section 242(g) of the INA and the validity (or lack thereof) of that petition. 

There is a doctrine in law known as “nondelegation”, commonly thought of as a constitutional bar that prevents Congress from “ceding its legislative power to other entities not vested with legislative authority under the Constitution” — usually the executive. 

But nondelegation applies to the judicial branch, as well. Article III, section 1 of the U.S. Constitution specifically begins: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” (Emphasis added.)

That doesn’t mean federal judges can’t delegate certain peripheral, quasi-judicial issues to those outside the judicial branch. For example, bankruptcy trustees aren’t judges, but in chapter 11 bankruptcies they assist the court by making “all decisions about property of the estate”. 

But the idea that a court could cede its power over such a significant issue as enjoining removal to the subject of that removal is unprecedented, particularly as the Supreme Court has described motions to reopen deportation orders as “disfavored” because “in a deportation proceeding. . . every delay works to the advantage of the deportable alien who wishes merely to remain in the United States”.

An “Extraordinary and Drastic Remedy”

In its standing order, the District Court cites a 1966 opinion, F.T.C. v. Dean Foods Co., for the proposition that “the Supreme Court recognizes a limited judicial power to preserve the court’s jurisdiction or maintain the status quo by injunction pending review of an agency’s action through the prescribed statutory channels.”

The “limited judicial power” in Dean Foods was a preliminary injunction (a legal block that preserves the status quo of the parties pending final judgment), and in Winter v. NRDC, an opinion issued 42 years after Dean Foods, the justices set forth the factors for granting such relief:

A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.

The chief judge of the District Court in Maryland signed the standing order, and in a memorandum he issued in Brown v. Nationstar Mort., LLC that same day, he concluded those same Winter factors apply to requests for temporary restraining orders (“TROs”, temporary pre-trial injunctions), as he described TROs as “an ‘extraordinary and drastic remedy.’” 

Keep those standards in mind when you consider that under the court’s standing order, petitioners don’t have to make any showing of success on the merits to automatically enjoin the government from removal, let alone show the balance of equities is in their favor or that the public interest would be served by such injunctive relief (questionable in the context of most aliens facing removal).

The court has essentially crafted is a “do-it-yourself”, automatic reprieve from removal for any alien facing imminent deportation with the wherewithal to file a habeas. What about that “extraordinary and drastic remedy” standard? 

Regardless of whether that reprieve is for two days or two hours, it has no sanction in any law I’m aware of — which may be why the 1966 opinion in Dean Foods is the only precedent the court cites. 

“Case or Controversy” 

The last issue — and perhaps the most significant — has to do with Article III, sec. 2, cl. 1 of the U.S. Constitution, which defines the authority of the federal judiciary and is better known as the “case or controversy clause”.

As Congress has explained: 

Justiciable cases and controversies not only require that disputes be of the types specified in Article III, Section 2, Clause 1, but also that the disputes be, in fact, actual cases and controversies. Consequently, the parties must truly be adverse to each, the dispute must be concrete, not hypothetical, and the dispute must be capable of being resolved through an award of specific relief. [Emphasis added.]

In that vein, in its 1911 opinion in Muskrat v. U.S., the Supreme Court defined “judicial power” as: “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” (Emphasis added.) 

The district court’s special order by its terms, however, is purely prospective; it doesn’t apply to any party before the court, plaintiff or defendant, petitioner or respondent, but nonetheless grants at least short-term relief to the former class.

Again, I may be missing something, but this order appears to blow through the limits the Founders placed on the district courts, and the federal judiciary as a whole, in the case or controversy clause. 

Kilmar Abrego Garcia — The “Elephant in the Room”

The issue that hangs over this order — the metaphorical “elephant in the room” — is DHS’s removal of Kilmar Abrego Garcia, a Salvadoran national alleged by the government to be an MS-13 member, despite the fact that he had been granted the limited protection of statutory withholding in what DOJ admits was an error. 

Abrego, of course, is a “Maryland man”, and the judge hearing his case is one of 15 on the District Court in Maryland that issued this order. At least one outlet, however, the Baltimore Sun, drew a connection between the order and Abrego’s removal: 

The directive comes as the government flouts one judge’s orders to return Maryland resident Kilmar Abrego Garcia to the United States. Legal experts said that [the chief judge’s] order is a direct response to the government’s handling of the mistakenly deported man’s case.

Some pique might be expected from the court given the government’s failure to bring Abrego back despite a judge’s orders to do so, but the question is whether that justifies a blanket restriction on DHS’s ability to deport other aliens after they received due process. 

The Sun quoted Prof. Carl Tobias, who teaches constitutional law at the University of Richmond and who told the paper that he was surprised the government hadn’t “raised hell” about the district court’s standing order temporarily barring removals. Let’s just say Tobias isn’t the only one who’s surprised.