The question has arisen whether a Writ of Habeas Corpus would be an appropriate remedy to the Draconian use of GPS ankle cuffs by the Customs and Immigration Service tracking the whereabouts of Tri-Valley University (TVU) students.
Historically, the Writ of Habeas Corpus was used to produce an in-custody prisoner before the courts for a judicial determination as to the legality of the confinement. This common law writ originating in England survives to this day in the United States by Constitutional and statutory force. Habeas is used as a safeguard of individual freedom against arbitrary state action resulting in confinement. It is the guarantee against any deprivation of liberty forbidden by law.
Two issues addressing the threshold question above present themselves for discussion. First, does Habeas available in removal proceedings? The answer is yes, a Writ of Habeas Corpus may be used in certain cases of egregious abuse by the USICE. It should be quickly added that proof of abuse of the detention process pending the outcome of the removal proceedings is a condition precedent to the granting of the Writ.
The more difficult question is whether the forced use of a GPS tracking cuff on a person who has been noticed with an impending removal hearing is actually “deprived of his or her liberty,” an indispensable condition precedent to the issuance of the Writ. Here the issue of what constitutes a “deprivation of liberty” becomes debatable. There have been cases wherein the petitioner for the Writ was merely on probation, but otherwise free to go about his or her dally routine, subject only to the restrictions imposed by the terms of probation. These might include distance, time of day, or specific location restrictions, as well as affirmative duties such as random drug or alcohol testing. In such cases, the courts have utilized a balancing test, whereby the the impositions made are weighed against the needs of society for the restrictions.
This analysis inevitably leads to the question of the GPS cuffs on TVU students. The answer is that each case would have to be litigated individually, but if the federal courts issued a Habeas Writ, it might open the flood gates and result in the discontinuation of such tactics by the USICE. It should be quickly added that such an inquiry could be a double-edged sword, by which actual custody may be sought by the government.
A Petition for a Writ of Habeas Corpus is a very expensive and risky endeavor. It may be more prudent to weigh each case at removal proceedings on its individual merits, than to squander resources on a temporary imposition on one’s liberty. That personal choice lies with each TVU student, based on his or her circumstances and resources available.
Michael Ross is a criminal defense attorney in San Francisco with over twenty-five years experience. He has handled a death penalty case, numerous “Three Strikes” cases, and nearly five thousand felony and misdemeanor cases all over California. Further biographical and professional information is available at: www.mikerosslaw.com