Writ of Habeas Corpus
New Jersey Immigration Attorney
A Writ of Habeas Corpus is used to bring a detainee before a Federal court to determine if the person's imprisonment or detention is lawful. A
habeas petition proceeds as a civil action against the State or Federal agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, amount of bail, and the jurisdiction of the court.
What is Habeas Corpus?
A habeas corpus is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences.
The writ of habeas corpus serves as an important check on the manner in which States or the Federal Government pay respect to constitutional rights.
Who is Eligible for a Writ of Habeas Corpus?
Federal statutes (28 U.S.C. §§ 2241–2256) outline the procedural aspects of federal habeas proceedings.
There are two prerequisites for habeas review:
- The petitioner must be in custody when the petition is filed
- A prisoner who is held in state government custody must have exhausted all state remedies, including state appellate review
Any federal court may grant a writ of habeas corpus to a petitioner who is within its jurisdiction. The habeas petition must be in writing and signed and verified either by the petitioner seeking relief or by someone acting on his or her behalf. The petition must name the custodian as the respondent and state the facts concerning the applicant's custody and include the legal basis for application.
The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden then shifts to the warden to justify the imprisonment.
Get the Representation You Need From a Top-Rated Lawyer
The current use of habeas corpus includes cases involving extended detention of illegal immigrant or lawful permanent residents
convicted of a crime. As a
New Jersey Immigration Lawyer, I have experience filing petitions for Habeas Corpus in Federal Court on behalf of detained clients. Please take a look at a
sample Habeas Corpus petition filed on behalf of a client of my firm.
I also have experience defending Federal Immigration Crimes and with
Board of Immigration Appeals cases.
If a loved one is detained by the immigration authorities, please contact my firm to see whether a petition for Habeas Corpus can be filed.