Immigration Detention and Illusory Alternatives to Habeas

Authors

Fatma Marouf, Texas A&M University School of LawFollow

Document Type

Article

Publication Date

5-2022

Journal Title

U.C. Irvine Law Review

ISSN

2327-4514

Abstract

The Supreme Court has never directly addressed whether, or under what circumstances, a writ of habeas corpus may be used to challenge the conditions of detention, as opposed to the fact or duration of detention. Consequently, a circuit split exists on habeas jurisdiction over conditions claims. The COVID-19 pandemic brought this issue into the spotlight as detained individuals fearing infection, serious illness, and death requested release through habeas petitions around the country. One of the factors that courts considered in deciding whether to exercise habeas jurisdiction was whether alternative remedies exist, through a civil rights or tort-based action. This Article examines that question in depth, focusing specifically on the availability of meaningful alternatives for detained noncitizens. The Article analyzes challenges for noncitizens in bringing civil rights actions under Section 1983 or Bivens, tort actions under the Federal Tort Claims Act and state tort laws, and actions for injunctive relief directly under the Fifth Amendment and under the Administrative Procedure Act. By demonstrating that meaningful alternatives to habeas are often illusory for detained noncitizens, the Article argues that courts should err on the side of exercising habeas jurisdiction instead of making cursory conclusions that alternative remedies can be pursued.

First Page

973

Last Page

1016

Num Pages

44

Volume Number

12

Issue Number

3

Publisher

University of California, Irvine School of Law

Recommended Citation

Fatma Marouf, Immigration Detention and Illusory Alternatives to Habeas, 12 U.C. Irvine L. Rev. 973 (2022).
Available at: https://scholarship.law.tamu.edu/facscholar/1553

File Type

PDF