Habeas corpus cases near 100,000 as ICE detainees seize on new way to fight detention

The number of immigrants arrested by U.S. Immigration and Customs Enforcement who are now seeking to have their cases dropped through habeas corpus is approaching 100,000, blowing away the hundreds of cases seen in a normal year.More immigrants than ever before are fighting their arrest and detention by ICE under President Donald Trump, creating new challenges and delays for the immigration courts and a White House focused on swiftly removing as many illegal immigrants as possible before 2029.New data revealed that 93,245 immigration-related habeas corpus cases have been filed in federal court between January 2025 and Nov. 3, 2026, according to a ProPublica tracker. In October alone, nearly 8,000 new habeas cases were filed nationwide. Most cases have been filed in California and Texas, followed by Florida and New Jersey.Filing a habeas petition from detention is a civil way to ask a federal district court judge to order one’s release or mandate a bond hearing. Graph titled “Rapid Rise in Civil Immigration Lawsuits.” (Source: Transactional Records Access Clearinghouse) Habeas petitions request a non-immigration judge to order an illegal immigrant in detention to be brought before that court, as opposed to an immigration court, and the government attorney at ICE must defend why the immigrant in question must be detained. In effect, habeas corpus defendants claim their detention through immigration court proceedings is illegal.Detainees have a constitutional right to file a habeas petition, and because some ICE arrests are based on administrative warrants, not judicial warrants, immigration attorneys have successfully challenged the grounds for detention in many cases.Although immigration courts are intended to decide immigration cases, habeas cases are being filed in federal court, where more sympathetic judges often rule that the federal government cannot detain people indefinitely without a judicial warrant.The Trump administration chose last year to reinterpret a 1990s immigration statute and begin detaining noncitizens apprehended inside the United States, a move that historically was applied only to people arrested at the border.The growing use of habeas cases as a way to protest detention has brought the mandatory detention policy to appeals courts 11 times. Two have sided with the Trump administration, and nine have ruled against it.The Supreme Court has taken up a case about a Brazilian national who entered the U.S. decades ago and is detained in ICE custody despite not having a criminal record. Legal observers believe the case could resolve the questions surrounding the constitutionality of Trump’s mandatory detention policy, given that appeals courts are split on the issue.Between March 2021 and Trump’s first few months back in office last year, the average number of cases filed in federal court fluctuated from 500 to 1,000 cases. Last September, immigration attorneys began increasingly filing suits as the number of illegal immigrants being arrested by federal immigration authorities surged to record highs.In March 2025, 105 of the total 945 immigration civil cases filed in federal court were habeas cases. In March this year, more than 9,000 of the 9,911 cases filed that month were habeas cases.Andrew Arthur, resident fellow in law and policy for the Center for Immigration Studies in Washington, predicted earlier this year that the legal stand-offs detainees are building between the immigration and federal courts over the government’s legal ability to detain illegal immigrants may be headed for the Supreme Court.CONSERVATIVES BALK AT TRUMP’S ‘AMNESTY’ PROPOSAL: ‘TOTAL BETRAYAL’“[In February, a] Fifth Circuit panel concluded that under section 235(b) of the Immigration and Nationality Act (INA), DHS can hold such aliens pending removal proceedings without releasing them on bond,” Arthur wrote in a blog post. “Ignore the countless district court habeas corpus decisions saying the opposite: This question is headed to the one tribunal that matters — the Supreme Court.”