While the justices affirmed that the detainees could seek judicial review, the court held 5-4 that they must contest their deportations individually by filing habeas petitions in the jurisdiction where they are held, not through a nationwide injunction at a D.C. federal court.
But legal experts warn that the path toward exercising their legal rights is by no means an easy one: Migrants caught up in these deportation dragnets will need to overcome a series of hurdles to file a habeas petition, potentially putting the ability to challenge their deportations out of reach.
Essentially, a habeas petition allows an individual to contest their detention as illegal in federal court, and then have a judge determine whether or not that challenge is legitimate. But detained migrants are not automatically guaranteed the right to attorneys, meaning that they may need to file a petition on their own behalf; a complex procedure for anyone, but particularly someone for whom English may be a second language.
Many detention centers are in remote locations, where there may not be an abundance of immigration attorneys who are experienced with filing such petitions. Then there are the conditions within a detention center to consider: For example, in the Northwest ICE Processing Center in Washington state, Cortes Romero said, phone calls are limited to seven minutes, which means that detainees would only be able to communicate with attorneys in brief increments.
“What is notable about these habeas petitions is that there is no real mechanism to hold an evidentiary hearing,” said Cortes Romero. “So what is difficult in these cases is that the government is alleging that these are gang members—or Tren De Aragua affiliated somehow or in some way, shape or form—and now it’s up to the non-citizen, the detainee, to prove a negative.”
In the days since the Supreme Court’s ruling, district judges have acted quickly to respond to habeas petitions. This week, judges in Texas and New York blocked the deportations of Venezuelan men alleged by the Trump administration to be connected to the Tren de Aragua gang. In Manhattan, a district judge temporarily blocked the deportation of two Venezuelan men currently held in Orange County, New York. The case in Texas had been brought on behalf of the men who had initially challenged their deportation in district court in Washington, D.C., who had been ordered to re-file their habeas petitions in the jurisdiction where they were being held.
Doris Meissner, a senior fellow at the Migration Policy Institute, said that filing a habeas petition embodies the “ultimate core right” to due process. “The fact that the court rulings now from the Supreme Court and working their way up through the system are allowing for, or let’s say reaffirming and validating, that basic right, is certainly important, because some of the actions the Trump administration have been taking have been done in a way that doesn’t take that into account,” said Meissner.
The Justice Department on Friday defied the order by a district court judge to explain how it planned to bring back Abrego Garcia by that morning, arguing that “defendants are unable to provide the information requested by the court on the impracticable deadline set by the court hours after the Supreme Court issued its order.”
“If, ultimately, they’re not considered in U.S. custody and they’re outside of the U.S.’s control, and that’s how the courts rule … then there might not be recourse,” said Cortes Romero.
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