THE RACK: the story behind one VOICWAR design, with sources. The newsletter, TEETH, arrives every other week. Subscribe.
Nobody repealed it. They built a track it does not run on.
Two Latin words: you shall have the body. Whoever is holding you has to produce you in front of a judge and say why. It sits in Article I of the original Constitution, written before the Bill of Rights existed. Everything else depends on it: a right you cannot get in front of a judge to assert is a right on paper.
Here is how it gets routed around.
Immigration court is not a court. It is run by the Executive Office for Immigration Review, inside the Department of Justice, under the Attorney General. The judge is an employee of the executive branch. Not a federal judge appointed for life. Not confirmed by the Senate. The same branch that picked you up employs the person reviewing it.
The proceedings are civil, not criminal. So there is no public defender. You may hire a lawyer. Nobody provides one. If you cannot pay, you face the government alone.
Fast-track deportation. The law calls it expedited removal (8 U.S.C. § 1225(b)(1)). It lets the government deport someone with, in the Congressional Research Service's own words, only the most basic chance to be heard and no review by a court.
2020. In DHS v. Thuraissigiam, a man's asylum claim was rejected by an officer, upheld by a supervisor, and upheld again by an immigration judge on a check-box form. He filed for habeas. The Supreme Court ruled that the constitutional protection did not reach him.
A rubber stamp instead of a hearing, and a ruling that the oldest protection in the Constitution does not reach the stamp.
The writ has to be served on somebody. If the people holding a person will not give a name, say where they took him, or name the judge, there is nobody to hand it to. The protection is still on the books. It just has nothing left to grab.
Learn the two words. They are the ones you shout, and they are the ones a government has to answer.
Sources: The Immigration Court System, Explained — Brennan Center for Justice · Fact Sheet: Immigration Courts — National Immigration Forum · Supreme Court Upholds Limited Review of Expedited Removal — Congressional Research Service · DHS v. Thuraissigiam — Oyez · The Supreme Court's Attack on Habeas Corpus in DHS v. Thuraissigiam — Just Security
