FEDERAL COURT UPDATE

Duran v. Reno, Second Circuit

In this case the court ordered the appointment of an attorney to assist the petitioner in pursuing his appeal of a district court denial of a writ of habeas corpus. 

The petitioner is under a final order of deportation.  He was found ineligible for any form of relief because of the retroactive application of sections of the 1996 immigration laws.  Like many people who are awaiting execution of deportation orders, he is held in a local prison, and is not in an INS detention facility.  The district court judge dismissed his petition for habeas corpus on this ground, reasoning that because he was in a state prison, he was not in INS custody. Therefore, his suit against the INS did not meet the requirements for a writ of habeas corpus. 

Because a writ of habeas corpus is a civil, not a criminal action, there is no automatic provision of legal assistance.  In deciding whether to appoint a lawyer to assist the petitioner, the standard is whether his appeal has merit.  The court noted that it has never ruled on exactly this point – whether a state prisoner under a final order of deportation is in INS custody – but also noted that as a general rule the concept of custody in habeas corpus law in not limited to situations involving physical confinement.  Given the broad reading of custody, plus the fact that this case would represent the first time the Second Circuit has addressed the issue, the court found it appropriate to appoint counsel to assist the petitioner.