Habeas corpus petitions for detained immigrants

Habeas Corpus Matters More Than Ever for Immigrants in Detention

With the recent shift in U.S. immigration enforcement, habeas corpus petitions are becoming a critical lifeline for many immigrants held in custody. Recent policy and legal changes have drastically narrowed bond access for detained immigrants who would previously have been eligible to get bond, placing detained individuals in a more precarious position than ever before.

What is Habeas Corpus?

Habeas corpus, a Latin phrase for “you shall have the body,” is a centuries-old legal principle that protects individuals from unlawful or arbitrary detention. It allows a person held in custody to petition a court to review whether their detention is lawful. In the immigration context, a habeas corpus petition is filed in federal court to challenge the government’s authority to detain someone, the length or conditions of that detention, or the denial of a bond hearing. It serves as a crucial safeguard of personal liberty and due process, ensuring that no one is deprived of freedom without judicial oversight.

The New Landscape: Tightening Bond Access & Expanded Mandatory Detention

Over the past few months, ICE and DHS have moved to curtail the ability of noncitizens to seek bond before an immigration judge. In a July 2025 memo, ICE’s acting director directed that immigrants who entered without inspection should generally be detained and rendered ineligible for bond hearings, unless DHS grants an exception.

In tandem, the Board of Immigration Appeals’ recent decision in Matter of Yajure Hurtado reinterprets the statute underpinning detention (INA § 235(b)) to make detention mandatory for those who entered without inspection, stripping immigration judges of custody-redetermination authority in such cases.

Where once many individuals could seek bond under INA § 236(a), now those pathways may be foreclosed. Taken together, these developments place unprecedented limits on the conventional bond process and raise the risk that individuals will remain detained—even for prolonged periods—without meaningful judicial review. Many people will choose to leave rather than face months or even years in detention. Getting out of detention is harder than ever at a time when it’s more important than ever for growing numbers of people.

Habeas Corpus: A Constitutional Check When Statutory Routes Fail

Habeas corpus is the “great writ” that allows detainees to challenge the legality of their detention directly in federal district court. In immigration contexts, a habeas petition may ask a judge to:

• Order release from custody,
• Impose a bond hearing before an immigration judge, or
• Scrutinize the lawfulness of detention conditions or statutory authority.

Why is this now so urgent?

1. Statutory routes may no longer suffice. Because Yajure Hurtado eliminates many detentions from the realm of § 236(b) bond hearings, the only remaining plausible route to relief for some detainees is through habeas.
2. Habeas offers flexibility and speed. Unlike appeals through the administrative system, habeas relief can sometimes be resolved more quickly and can bring judicial oversight when immigration courts lack power or refuse to act. Some federal courts have recently blocked ICE’s re-detention practices via habeas, underscoring its potency as a tool against executive overreach.
3. Due process is on the line. Even though the Supreme Court has held that prolonged detention does not automatically guarantee bond hearings, habeas petitions still allow courts to test the constitutionality of detention in individual cases.

Key Tips for Immigrants, Their Families, and Practitioners

• File early. Habeas petitions can be filed at any point during detention, but earlier action often leads to swifter review and better chances of release. It may take time for a judge to get to your case, and immigration cases are expedited for detained individuals.
• Challenge statutory interpretations. Many current petitions argue that the BIA’s interpretation in Yajure Hurtado exceeds its authority and conflicts with prior court precedent. Look for recent examples online.
• Document procedural violations. If ICE or DHS ignores parole eligibility or fails to justify detention, these issues can strengthen the habeas claim.

Get Legal Representation

Petitions for habeas corpus weren’t always common services for immigration attorneys. However, this has changed as detention numbers have soared. Our office and many other immigration law offices are prepared to help file a petition and advocate for your release in court. While it is possible to file your own petition, federal litigation is complicated and time is of the essence when someone is detained.