Houston Habeas Corpus Lawyer
At the David A. Breston Law Office, we know that being detained unlawfully and indefinitely by the ICE holds you in limbo, deprives you of your rights, and keeps you away from your family. If you or a loved one has been detained by the ICE, contact our office today and learn about your options to filing a petition for habeas corpus. For more information, speak to a Houston immigration attorney today.
What is a Writ of Habeas Corpus?
The writ of ‘Habeas Corpus’ is the fundamental legal instrument designed to safeguard individual freedom against arbitrary and lawless government action. Literally meaning to “produce the body,” it requires that a person who is under arrest be brought before a judge or into court. The principle of habeas corpus ensures that a prisoner can be released from unlawful detention or detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner himself (or herself) or his attorney.
The writ itself is a summons with the force of a court order, demanding that a prisoner be taken before the court wherein the custodian present proof of authority so the court may decide whether the custodian has lawful authority to detain the prisoner. This ensures that that a prisoner is not held incommunicado. Habeas Corpus can be used to determine if:
- the basis for detention was adequate
- the case should be moved to another district court
- there should be a denial for bail or parole
- there was a failure to provide a timely hearing or trial
The REAL ID Act of 2005
Prior to the REAL ID Act of 2005, immigration habeas corpus petitions could be used for two reasons:
- challenging the legality of a removal order
- challenging the terms of detention
After the passage of the REAL Act, this first provision was removed, meaning that jurisdiction over orders of removal and deportation was given to the court of appeals. However, this did not affect the ability to challenge either the length or conditions of immigration detention.
One of the main situations that this applies to is known as indefinite detention (or Zadvydas habeas). This happens when a person is ordered to be removed from the country, but because of poor diplomatic relations with their home country, ICE cannot physically report them back to their country. To file this petition, the petitioner must wait six months from the date of the final order of removal, while also cooperating with ICE to get necessary travel documents from their home country embassy.
Habeas Corpus in a Child Custody Case
In a situation involving two co-parents who share joint custody of a child, one may find the need of a writ of Habeas Corpus in certain circumstances. If one parent fails to return the child at the correct time or does not plan on returning the child at all, the other parent has the right to pursue the Habeas Corpus solution. This option may be appropriate when regular communication with an ex-spouse does not convince him or her to end the court order violation.
A writ of Habeas Corpus during a child custody battle could ask the court to act to secure the child’s safe return. It is a lawsuit where the parent with court-ordered possession of the child asks a judge to confirm his or her superior right to possession. In other words, the court will establish that one parent or relator has the right to possession of a child and orders the other parent to respect that right by returning the child to the relator’s custody.
The parent with the child must deliver the child to court at a certain time and date, so the judge can decide who has the superior right to possession. Anyone in Texas with a court order giving him or her the right to possession of a child may file a writ of Habeas Corpus with the goal of forcing someone else to return the child. If the person filing does not have a court order assigning custody, the parent can request possession from a nonparent.
Application for Writ of Habeas Corpus
If you find yourself in need of a writ of Habeas Corpus, your first step should be to discuss your situation with a family law attorney. These legal processes can be complex, and you will most likely want your child back as soon as possible. Working with a lawyer can expedite the process and help you avoid common filing mistakes. Applying for a writ of Habeas Corpus takes a few steps and at least a basic understanding of the law.
- Make sure you have a valid order to the right of possession of the child. Check that you have this order; otherwise, you cannot file for a writ of Habeas Corpus.
- File a petition. File your petition in the same court where you received your order of child possession. Note that filing a writ in a Texas state court has no deadline. You do not need to give notice within a certain period of time.
- Check with the county clerk. It may be more convenient for you to file your petition in the county where your child is currently located, rather than the court that issued your previous orders. Check with the county clerk if any local laws prohibit you from doing so (as is the case with the Dallas County Family Law Court).
- Pay the fee. You will have to pay a fee to file a custodial writ of Habeas Corpus in Texas. These fees vary by county. Call the courthouse ahead of time to inquire about the price and arrive with your claim prepared to pay. You may qualify for a waived fee if you submit the proper paperwork.
- Wait for your co-parent to comply. The judge will order the other person to return the child, arranging a court date to do so. The other parent will not have the option to argue the order and must comply or face potential criminal consequences.
Judges will make an order to return a child as quickly as possible, knowing a child’s safety could be on the line. Your right to Habeas Corpus in a child custody case will depend on the terms in your original custody order, as well as the actions of the co-parent. Working with a lawyer can make the legal process much easier on you, and help you secure the efficient return of your child.