Studying the Hazy Line between Procedure and Substance in Immigrant Habeas Petitions

Abstract

This article examines the phenomenon of converging procedural rules and substantive law in immigrant habeas litigation, whereby legal procedure is so deeply intertwined with substantive law that procedural rules become determinative of substantive rights. While certainly present in other areas of litigation, this phenomenon is particularly acute in the context of habeas petitions challenging immigration detention, where the core legal question for the past few decades has been how long immigrants may be detained without a hearing before a neutral arbiter on the reasonableness of continued detention. The fate of the quarter to half million immigrants detained in the United States in a typical year is at stake in this legal question, which remains unanswered even after perennial Supreme Court consideration. With the law uncertain and prolonged detention common, many detained immigrants seek release through filing a petition for habeas corpus in federal district court. In these habeas cases, every stage of adjudication—the deadline for government response, the time frame for any exchange of evidence, and the date of an evidentiary hearing—risks continuing prolonged detention with the imprimatur of a federal judge’s order, even though the petitioner is seeking the court’s intervention to release them from unlawfully prolonged detention. This phenomenon should be studied through comprehensive empirical research of full district court dockets and filings to understand the interplay between each judicial order, the evidence and facts of each case, and the underlying legal claim. This novel research approach contributes to the growing field of empirical analysis of litigation and also suggests that scholars seeking to contribute to the doctrinal development of constitutional law, including within immigrants’ rights, should engage in more empirical research.

Keywords: immigration, detention, habeas, legal empirical studies, docketology, legal procedure