The Writ of Habeas Corpus is used by detainees that want to contest the legal basis of their detention. In New Jersey, Habeas Corpus procedures have been interpreted by the Court of Appeals for the Third Circuit.

In Debeato v. Attorney General of the United States, 505 F.3d 231 (3d Cir. Oct. 9, 2007), the petitioner filed a 28 U.S.C. 2241 habeas petition in the United States District Court for the Eastern District of Pennsylvania challenging her incarceration in connection with an 8 U.S.C. 1326 illegal reentry crime. Pursuant to the REAL ID Act, Pub. L. No. 109-13, div. B, tit. I, 106(c) (2005), the petition was transferred to the court and treated as a petition for review challenging a Board. In 1993, an IJ found that the alien was ineligible for a waiver under former section 212(c) of the INA, and ordered her to be removed after she was convicted of drug-related crimes.

Immigrants that are charged with a serious offense, such as a drug offense, must retain only the best criminal immigration lawyers to represent them in immigration court.

In her habeas petition, the alien argued that the BIA erred, during her original removal proceedings, in upholding the IJ’s finding that she was ineligible for a waiver. Pursuant to 8 U.S.C. 1231(a)(5), the original deportation order was reinstated while the alien’s habeas petition was pending. The court held that it could exercise jurisdiction over the petition for review because the exception to the jurisdictional bar, set out in 8 U.S.C. 1252(a)(2)(D), applied to constitutional and legal claims raised in connection with both original and reinstated removal orders. Although the BIA’s conclusion, that the alien was ineligible for a waiver under former 212(c) of the INA, was legally erroneous, no gross miscarriage of justice resulted.

That decision was correct at the time it was issued. At that time, 404(d) of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, was applied retroactively to all aliens.