Since January 2025, lawyers across the country have flooded federal courts with more than 24,400 lawsuits challenging the detention of immigrants as unlawful — more than during the three previous administrations combined. To understand why, you first need to understand the legal tool at the center of it all: habeas corpus.
What Is Habeas Corpus?
As Senior Associate Attorney Cynthia Milián and co-author Stephanie Diaz explain in the Texas Bar Journal (February 2026), habeas corpus — Latin for “you shall have the body” — is a centuries-old legal mechanism rooted in English common law and enshrined in the U.S. Constitution. It prevents the government from arbitrarily detaining someone without justification. In the immigration context, federal habeas petitions are filed under 28 U.S.C. § 2241, and they allow attorneys to argue that a client’s detention is unlawful, unconstitutional, or excessive — shifting the legal inquiry away from immigration relief and toward fundamental constitutional protections.
Milián and Diaz note that federal courts retain clear authority to hear these challenges, including procedural due process claims, equal protection arguments, and statutory interpretation disputes. Unlike removal proceedings, habeas litigation enables courts to consider each detainee’s individual circumstances: family ties, length of residence, employment history, prior lawful status, and absence of criminal record. The U.S. Supreme Court’s precedent in Zadvydas v. Davis already recognized that immigration detention must have limits to avoid constitutional violations — and habeas corpus is the mechanism that enforces those limits.
For many detained noncitizens today, write Milián and Diaz, habeas corpus “is no longer a fallback; it is the frontline means of securing their release and safeguarding their rights.”
How We Got Here
To understand why habeas has become so central, it’s necessary to trace the policy changes that shut down the traditional avenues for release.
Historically, immigration attorneys secured release for detained clients through bond hearings before immigration judges. That changed dramatically in 2025. As investigative journalist Isabela Dias reported in Mother Jones (March 3, 2026), over the summer the Department of Homeland Security and the DOJ adopted a mandatory detention stance that reinterpreted decades of federal immigration statute. The new policy treated all immigrants who entered the country without inspection — including people who had lived in the United States for years with no criminal history — as ineligible for bond hearings while their cases were pending, a process that can take months or years.
Then, in September 2025, the Board of Immigration Appeals cemented the policy with a precedent-setting ruling: Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025). As Milián and Diaz explain, the BIA held that immigration judges lack jurisdiction to grant bond hearings for individuals present without admission, interpreting the law to categorically subject so-called EWI (entered without inspection) entrants to mandatory detention — regardless of how long they had lived in the U.S., whether they had family ties, or whether they had any criminal history. The panel that issued the ruling included two judges appointed during Trump’s first presidency and a temporary judge assigned by Attorney General Pamela Bondi. The ruling, Dias reports, upended decades of standard practice.
By June 2025, ICE was holding more than 59,000 people in custody — roughly 140% of the agency’s funded bed capacity — and nearly half had no criminal record or pending charges. The current detained population now stands at approximately 68,000.
The Legal Response: Kicking the Door Down
With bond hearings effectively eliminated for a vast swath of the detained population, immigration lawyers turned en masse to habeas corpus.
“The only way that the overwhelming majority of people that ICE is detaining right now is going to get out is through the habeas system,” Dallas-Fort Worth immigration attorney Dan Gividen told Dias. Gividen, who served as deputy chief counsel for ICE between 2016 and 2019, estimated he had sued the federal government roughly 60 times in five months on behalf of detained immigrants. His tracker counted at least 35 resolved cases in which judges either granted release or ordered a bond hearing.
“We’re suing the federal government weekly,” Jeremy McKinney, former president of the American Immigration Lawyers Association, told Dias. “We have to kick the door down.”
The results have been striking. As Dias reports, as many as 400 federal judges — including Trump appointees — across some 4,400 cases have rejected the Trump administration’s reading of the Immigration and Nationality Act, finding that categorical detention without individualized review violates due process. The repudiation has been nearly unanimous, spanning multiple jurisdictions and administrations.
A landmark ruling came from the U.S. District Court for the Central District of California in Maldonado Bautista v. Santacruz, Jr. et al., No. 5:25-cv-01873 (C.D. Cal. Nov. 25, 2025). As Milián and Diaz detail, the court held that DHS’s detention policy was unlawful because the relevant statutory provision applies only to applicants intercepted at or near the border — not to individuals long present inside the country who were never inspected at entry. The court then certified a class extending bond eligibility to all noncitizens who entered without inspection, were not apprehended at entry, and are not otherwise subject to mandatory detention under separate statutory provisions.
Despite these wins, the conflict is far from resolved. Chief Immigration Judge Teresa Riley instructed immigration judges to continue following the BIA precedent regardless of contrary district court rulings. In February, the California district court vacated the BIA ruling and excoriated the government for carrying out what it called a “campaign of illegal action.” The issue is likely headed to the Supreme Court.
The Human Cost of the System
The stakes behind the legal battle are real and personal.
Dias profiles Pastor Steven Tendo, a Ugandan asylum seeker and licensed nursing assistant who had complied for years with an ICE order of supervision requiring regular check-ins. On February 4, 2025, ICE arrested him without a warrant in the parking lot of the assisted living facility where he works in Shelburne, Vermont — just days before his next scheduled appointment, while his lawyers were actively seeking renewal of his stay of removal. He spent 16 days detained before a federal judge ordered his release, finding the re-detention unlawful.
“I never believed I was being released until I was back in Vermont,” Tendo told Dias.
Cases like Tendo’s illustrate the broader pattern Milián and Diaz describe: ICE arresting individuals without individualized review, then placing the burden on detainees — many without legal representation — to fight their way out through the courts. Only a minority of immigrants in custody have access to lawyers, which means most never get a habeas petition filed at all.
An Overburdened System
The sheer volume of habeas filings has strained the entire federal judiciary. In Minnesota alone, more than 427 habeas cases were filed in January 2025 in a single district, forcing the U.S. attorney’s office to divert resources away from criminal matters. Some judges have begun consolidating cases and issuing bulk release orders. Others have publicly scolded the government for failing to comply with court orders in a timely manner.
“The Catch-22 created by arresting and detaining individuals without a warrant, then making them obtain court orders to vindicate their due process rights, only to deny them the due process they are owed based on a problem of the Government’s own making cannot be condoned,” Judge Michael J. Davis wrote, as reported by Dias.
Practitioners are clear-eyed about the system’s limits. “You’re having to go to one court to ask permission to go to another court,” Mike Kagan, director of the immigration clinic at the University of Nevada, Las Vegas, told Dias. “That’s a crazy system and inherently inefficient.”
To meet the demand, new training programs are emerging. The National Immigration Habeas Institute — an initiative by the National Immigration Litigation Alliance and Cardozo Law School — drew 75 lawyers to its inaugural in-person training in New York last October.
Conclusion
Habeas corpus was never designed to be an everyday tool. It was an emergency remedy, a last resort. But as Milián and Diaz conclude, in the current legal environment it has become essential: “habeas corpus ensures that the judiciary remains a meaningful check on executive power and that noncitizens’ constitutional rights continue to receive the scrutiny they deserve.”
For now, as Dias reports, lawyers are pressing forward — case by case, petition by petition. “The flip side of all this,” Gividen said, “is that we’re having success damn near everywhere.”
Sources
- Isabela Dias, 24,403 Lawsuits and Counting: How Habeas Corpus Became the Front Line of Immigration Defense, Mother Jones, March 3, 2026.
- Cynthia Milián and Stephanie Diaz, Habeas Corpus: A Critical Tool in Immigration Detention Litigation, Texas Bar Journal, February 2026.
- Immigration Appeals Court Expands Mandatory Detention for Millions, VisaVerge (Sept. 8, 2025), https://www.visaverge.com/news/immigration-appeals-court-expands-mandatory-detention-for-millions/
- Board of Immigration Appeals, Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), Federal Register Vol. 90, No. 181 (Sept. 22, 2025), https://www.govinfo.gov/content/pkg/FR-2025-09-22/pdf/2025-18255.pdf
- AILA: BIA’s Decision Ignores Decades of Precedent, Stripping Immigration Judges of Bond Authority (Sept. 8, 2025), https://www.aila.org/bia-s-decision-ignores-decades-of-precedent-stripping-immigration-judges-of-bond-authority
- Zadvydas v. Davis, 533 U.S. 678 (2001).
- Shia Kapos, Judge orders release of over 300 ‘Operation Midway Blitz’ detainees, Politico (Nov. 12, 2025), https://www.politico.com/news/2025/11/12/judge-operation-midway-blitz-chicago-ice-00649104
- Lazaro Maldonado Bautista v. Ernesto Santacruz Jr., No. 5:25-cv-01873-SSS-BFM, Class Action Compl. & Am. Pet. for Habeas Corpus, Dkt. 82 (C.D. Cal. Nov. 25, 2025).
