Mandatory immigrant detentions are at an all-time high, increasing the need for habeas corpus filings
Habeas corpus & immigration law at a glance
- In United States law, habeas corpus is a legal procedure that allows a person – including an illegal immigrant – detained by the government to challenge their detention in federal court.
- A detainee can file a petition of habeas corpus (Latin for you should have the body) in federal court.
- The government must then prove to the federal court that the detainee is legally in custody, or the court will order the detainee to be released or granted some other remedy.
- Habeas corpus is often used in immigration cases to challenge prolonged/indefinite confinement, denial of bond hearings, and illegal detention after a court ordered release.
- Habeas corpus has become more important since 2025 due to aggressive actions under President Donald Trump’s second administration to detain more immigrants.
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What is habeas corpus?
Enshrined in the U.S. Constitution (Article I, Section 9), habeas corpus is a legal procedure that enables a person detained by the government to challenge their detention in federal court. Habeas corpus is a Latin term translated as you should have the body, meaning the government must produce the accused in court. It is a powerful legal tool for immigrants held by authorities for long periods without providing proper legal justification.
For many U.S. immigrants, habeas corpus is the only means to challenge detention. In the first 13 months of the second Trump administration, immigrants had filed more habeas cases than in the past three administrations combined.
Twenty months into the second Trump term, total cases exceeded more than 70,000. In previous years, total cases filed rarely reached 1,000 per year.
Habeas corpus is a legal means to make sure the government is following the primary federal laws related to immigrants:
- Constitutional protections of due process in respecting a person’s legal rights under the U.S. Constitution.
- The Immigration and Nationality Act (INA), which governs all aspects of the federal immigration system. Congress first passed the INA in 1952 and last updated it in 1996.
- The Administrative Procedure Act, which ensures the Executive branch follows proper procedures in enforcing laws.
Habeas corpus background and U.S. immigration law
Habeas corpus goes back to the English Magna Carta of 1215 and is a protected legal recourse under the Suspension Clause of the United States Constitution. This clause states: “The Privileges of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.” Only Congress can suspend habeas corpus.
Immigrants have used habeas corpus in the U.S. since the War of 1812, when they contested their removal or detention under the Alien Immigration Act of 1798. That act allows for wholesale deportations and detentions of immigrants at times of war.
Why a habeas corpus petition is filed in federal court
An immigration attorney will file a petition for a writ of habeas corpus for a client in a federal court district that is home to the detention facility where the immigrant is detained. The petition requests a judge to determine whether the detention is legal.
The filing is an important safeguard for immigrants because it puts a key decision in the hands of a federal court, not a government agency such as Department of Homeland Security (DHS) or the Department of Justice (DOJ). The Justice department administers immigration courts within the Executive Office for Immigration Review.
Upholding separation of powers
A grant of habeas corpus petition allows a federal judge, who is a member of the U.S. Judicial branch, to review the legality of detention. Because federal judges are appointed for their lifetime, they work relatively independently of outside influence. In contrast, immigration judges are employees of the Executive branch. Immigration judges are subject to the policies of the U.S. president and can be hired and fired at any time.
Federal oversight of immigration cases helps ensure a fundamental right to liberty for all people in the U.S., whether citizens or illegal immigrants, by adhering to the principle of separation of powers.
Immigration law authorities can arrest & detain U.S. immigrants
Habeas corpus is most often used in the U.S. in criminal law cases. But it is also a very important aspect of immigration law, which is not criminal law but civil law. The difference is important.
Immigration law is generally a type of civil law because its focus is on the entry, stay, and removal (deportation) of non-citizens through certain administrative processes. Criminal law, on the other hand, falls under criminal court jurisdiction and criminal statutes passed by state and Congressional legislation. However, some immigration acts can be prosecuted as criminal offenses that can result in jail time and monetary penalties.
In criminal law, defendants have the constitutional right to a court-appointed lawyer paid by the government. Unless an immigrant is charged for both immigration and criminal offenses, they can hire an attorney at their own expense.
Immigration in the U.S. is primarily governed by federal laws. Immigration policy is enforced by the DHS. The primary federal agencies with the authority to arrest and detain immigrants are under the DHS: Immigration and Customs Enforcement (ICE) and Customs and Border Protection. As of new legislation in 2025, that authority has been extended to:
- Drug Enforcement Agency.
- U.S. military.
- Local and state law enforcement.
- Private contractors.
When can a U.S. immigrant use habeas corpus?
Before filing for this relief, the detainee frequently, but not always, must show that they have exhausted other administrative remedies. These include requesting a bond hearing and appealing or waiting for a bond hearing ruling.
Situations when habeas corpus are appropriate
- No substantive review of the detention has been made in reasonable time, considered to be six months by a 2001 Supreme Court ruling.
- The immigrant is held even though they are eligible for bond (release pending results of a deportation case).
- The detaining authority does not have the legal right to hold the individual.
- The case involves a denial of a constitutional protection.
- The detainee has a valid immigration status, such as Temporary Protected Status.
Possible results of a habeas corpus petition
The federal judge deciding on the habeas corpus petition can:
- Deny the petition.
- Order the person be released.
- Order the detaining authority to re-evaluate the detention.
- Order a bond hearing for the detainee in immigration court with the potential to be released on bond.
- Take some other form of action to correct the unlawful detention.
Winning a habeas corpus petition does not end the person’s immigration case. But it does bestow these benefits:
- Removes the person from detention.
- Allows them to fight their case while living freely in their community.
- Gives the immigrant better access to legal help and the evidence and documentation needed to build a strong case.
Which U.S. immigrants can’t use habeas corpus?
Not every immigrant in detention can utilize this law. Immigrants who can’t file for habeas corpus are those under mandatory detention, meaning the immigration court can’t hold a bond hearing for a detainee’s release. Three groups of immigrants are held in mandatory detention under the INA:
INA law sections applying to immigrants allowed to petition for habeas corpus
| Immigration and Naturalization Act section | Immigrant status |
|---|---|
| INA 236(c) | Has certain criminal convictions or certain criminal charges against them. Generally requires detention. |
| INA 235(b) | Is an applicant for entry and has arrived in the U.S. at a border. With some exceptions (e.g., asylum applicants), non-citizens attempting to cross the border without visas or U.S. passports can be subjected to expedited removal (deportation) without seeing a judge. (See below for how this has been expanded by the Trump administration.) |
| INA 241(a) | – Has final orders of removal because they did not appeal an immigration judge’s ruling or their appeal was denied. – Immigrants with prior removal orders. – Those granted protection from removal because they can’t be deported to their home country by ICE but may be sent to a third country, with certain restrictions. |
Trump administration dramatically expands mandatory detentions
The second Trump administration has taken steps both to detain many more U.S. immigrants than ever before and to deny them bond hearings that may permit release. This occurred through a broad reinterpretation of the INA, which traditionally applied to immigrants arriving at official ports of entry.
The administration’s reinterpretation now classifies any immigrant in the U.S. who “entered without inspection” (or EWI, meaning outside of an immigration checkpoint) and was detained under the INA as not eligible for a bond hearing by an immigration judge.
New interpretation balloons immigration detentions
The new interpretation considers all EWI immigrants who entered the U.S. at any time living anywhere in the country an “applicant for admission” under the INA. Specifically, any immigrant arrested years after entering without inspection is treated the same as if they were apprehended at the border on first entering the U.S. The classification applies even to immigrants who have lived and worked in the country for decades and raised families here.
With this dramatic increase in detentions comes an increase in immigrant petitions for habeas corpus.
Maldonado Bautista judgement restricts expanded mandatory detentions
A December 2025 federal court ruling on the class action lawsuit Maldonado Bautista et al. v. Santacruz Jr et al. successfully challenged DHS’ shift to expand the application of no-bond status to applicants for admission. The ruling held that these detainees should be held under Title 8 of the U.S. Code section 1226(a) rather than Title 8 of the U.S.C. section 1225(b).
Immigrants held under U.S.C. section 1226(a) are allowed a bond hearing before an immigration judge, whereas U.S.C. section 1225(b) does not. This affects thousands of U.S. immigrants in detention by restoring their right to bond hearings. It also reinforces the use of habeas corpus to challenge ICE detentions.
While good news for many immigrants, the Maldonado Bautista decision is not a final determination but a temporary injunction halting some aspects of the practice of expanded mandatory detention. Six federal district courts have also struck down or rejected DHS’ position, and two have upheld it. The court split suggests the U.S. Supreme Court may take up the issue.
Filing a habeas corpus petition
Filing the petition requires following the guidelines of the particular federal district court being petitioned. This is a detailed and complex action, often challenging experienced immigration lawyers. An immigrant who represents himself must file what’s called a pro se petition – Latin meaning for oneself. Pro se petitioners are often successful, although the odds are better with competent legal counsel.
Be advised that the whole process from beginning to judgement can take up to six months or more. Sometimes a court will order the detaining authority to move quickly. In any petition, after the detaining governmental authority responds to the petition, the immigrant or their lawyer can address problems in what the government presented.
It takes time for the federal court to evaluate the particulars of the case and the responses of the two sides. Complex issues will extend the time of the case, as can government requests for extension.
Steps in filing the petition in federal court
A habeas petition filed by a lawyer requires close communication with the client and a thorough understanding of their situation, as well as the government’s actions regarding arrest and detention. Steps in addition to the above include:
- Gathering documents related to the detention, existing court decisions, and evidence supporting the client’s case for habeas.
- Drafting the petition and addressing the infringement on the client’s legal rights.
- Filing the petition in the federal court with jurisdiction over the specific detention center.
- Formally notifying DHS, ICE, and the Attorney General if applicable of the petition’s filing.
- Evaluating the government’s response to the petition, providing more information requested by the judge, and attending a possible hearing the judge may order.
If the petition is denied, the immigrant’s lawyer can file an appeal to the U.S. Circuit Court of Appeals for the federal district court that denied the petition.