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.
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 a prisoner is not held incommunicado. Habeas Corpus can be used to determine if:
The Writ of Habeas Corpus allows the accused to request the trial by Jury and can help prevent the unlawful detention of citizens. In the United States, federal courts can use the writ of habeas corpus to determine whether or not the state’s detention of a prisoner is valid. If an individual is accused of any crime, he/she has the full right to defend themselves in the court of law.
Prior to the REAL ID Act of 2005, immigration habeas corpus petitions could be used for two reasons:
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.
In a situation involving two co-parents who share joint custody of a child, one may find the need for 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.
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.
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 skilled and local defense lawyer in Houston can make the legal process much easier on you, and help you secure the efficient return of your child.
I hired David after trying through another attorney to get my wife immigrated to the USA. He had her here in 4 months because he knows the latest rules and steps for immigration. Do not be fooled, this process must be done properly amongst a constantly changing system. David and his staff knows the business of immigration.
-Roland R.
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