New habeas corpus strategy is freeing some immigrant detainees

As changes in the immigration court system create uncertainty for detainees, immigration attorneys are now turning to a 200-year-old American legal doctrine to get their clients released from detention facilities across the country.

That doctrine, known as a writ of habeas corpus, has typically been used as a last-ditch effort to give those behind bars a chance to present their case before a federal district judge and force the government to explain why a person’s detention is legal.

Now, attorneys are using it as a fast-pass ticket to seek a district court order that forces immigration judges to grant detainees a bond hearing or order their release.

“We have no choice. We have to file a habeas,” Constance Doyle, an Illinois-based attorney representing a recently released immigrant detainee, said in an interview with The Indiana Lawyer last week.

Without a habeas corpus filing, immigration courts now routinely deny bond hearings for detainees’ potential release.

“Things have changed a lot,” Doyle said.

How it works

The legal strategy worked for Doyle’s client, Jorge Garcia Ortiz.

After nearly two months in custody, he won a court order in late December releasing him from the Indiana Department of Correction’s Miami Correctional Facility, which has a contract with the federal government to house U.S. Immigration and Customs Enforcement detainees.

Ortiz was detained on Nov. 5 after the vehicle he was driving on I-90 near Rockford, Illinois, was struck by an ICE vehicle, according to his attorneys and court documents.

Once Ortiz’s vehicle was forced to the side of the road, ICE officers drew their weapons and broke Ortiz’s window to forcibly remove him from the vehicle.

Ortiz was detained and taken to Broadview, Illinois, to be processed. He was then transferred to Miami Correctional Facility near Peru, Indiana.

According to court documents, Ortiz, now 38 years old, came to the U.S. from Mexico in 2000. His attorneys say he has never left the U.S. since arriving here, and he now has five children—all U.S. citizens. Ortiz also has a minor criminal record, with a burglary conviction from more than 10 years ago.

In the past, most immigrants who entered the country without inspection and were later arrested by immigration authorities were typically eligible to request a bond hearing. The immigration judge had discretion to grant bond for release if the immigrant could show they were not a danger or a flight risk.

That practice changed last fall.

On Sep. 5, the Board of Immigration Appeals, or BIA, ruled in Matter of Yajure Hurtado that individuals who entered the U.S. without inspection are not eligible for a bond hearing before an immigration judge.

Much of the debate in that case, and in the pending federal cases, was based on the interpretation of the Immigration and Nationality Act, which details rules regarding the inspection, detention and removal of noncitizens.

Specifically, the discussion hinges on which noncitizens receive mandatory detention: those actively entering the country who have not been properly admitted or those who have been living in the country for a time who were not properly admitted.

In Hurtado, the BIA concluded that both categories of noncitizens warrant mandatory detention and are exempt from bond hearings.

In that case, Hurtado, who entered the U.S. without inspection, conceded that he is an “applicant for admission” under INA § 1225. Under that section, an applicant for admission is “an alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters).”

Hurtado also argued that because he lived inside the U.S. for almost three years, he cannot be considered as one “seeking admission,” a specific category of applicant for admission in § 1225 who “shall be detained.”

The BIA determined in its Sep. 5 ruling that Hurtado’s argument creates a “legal conundrum.”

“If he is not admitted to the United States (as he admits) but he is not ‘seeking admission’ (as he contends), then what is his legal status?” BIA stated. “The respondent provides no legal authority for the proposition that after some undefined period of time residing in the interior of the United States without lawful status, the INA provides that an applicant for admission is no longer ‘seeking admission,’ and has somehow converted to a status that renders him or her eligible for a bond hearing under section 236(a) of the INA, 8 U.S.C.A. § 1226(a).”

Because of the BIA’s conclusions in Hurtado, when noncitizen detainees come before an immigration judge to consider bond hearings, the judge must deny jurisdiction in the matter. This means the detainee must remain in custody while their removal case proceeds.

Some federal district court judges in Indiana have consistently disagreed with the government’s stance and are overturning immigration judges’ rulings on denying bond hearings.

James Hanlon, a district court judge for the Southern District of Indiana, ruled in a recent habeas case that § 1225 applies to “arriving” noncitizens attempting to enter the country and not those undocumented immigrants who have lived in the interior of the U.S. for years.

He said the government’s interpretation of the statute “disregards” the plain meaning of § 1225 and is “inconsistent with decades of prior statutory interpretation and practice.”

A surge in filings

The BIA is an administrative body within the Department of Justice’s Executive Office for Immigration Review that reviews immigration judge decisions and determines precedent that is binding on all immigration judges—unless overruled by a federal court.

(The Executive Office for Immigration Review declined to comment on litigation-related matters for this story.)

The board shrank earlier this year from 28 to 15 members, following an April 2025 DOJ order. Nearly all of the board’s current members were appointed by conservative attorneys general. William Barr, President Donald Trump’s attorney general from his first administration, appointed five of the current members, and current Attorney General Pam Bondi appointed eight.

Since the BIA’s Hurtado ruling altered the course for many detainees, the country, and specifically Indiana, has seen a surge in habeas cases.

Although the U.S. District Court for the Southern District of Indiana declined to comment on the surge in habeas petitions, citing active and pending litigation, it did provide data detailing the number of petitions filed in the court over the last three years.

In 2023, no habeas corpus cases related to alien detainees were filed, and in 2024, only one. However, from Jan. 14, 2025, to Jan. 14, 2026, there were 93 cases filed.

An official with the U.S. District Court for the Northern District of Indiana did not respond to requests for comment.

Nationally, information clearinghouse Habeas Dockets LLC reports more than 9,500 immigration-related habeas corpus filings are pending in federal district courts.

To Doyle, there is a clear reason why habeas filings are racking up now.

“We never had to do this before,” she said. “We didn’t even do habeas cases until this (Trump) administration took over.”

What is habeas corpus

Habeas corpus is a Latin phrase meaning “you should have the body.” In short, it means a judge must have any person who has been detained brought into the courtroom so that the legality of his or her detention can be reviewed.

A writ of habeas corpus, or a judicial order instructing law enforcement to produce a detainee, has been embedded in U.S. legal doctrine for over 200 years and is protected under the U.S. Constitution.

“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” Article I, Section 9 of the U.S. Constitution states.

This spring, White House Deputy Chief of Staff Stephen Miller said President Donald Trump’s administration was “actively looking at” suspending habeas corpus for immigrant detainees, pointing to the “invasion” aspect of the clause.

Habeas corpus has been suspended four times in the country, all of which were related to wartime; it was most recently suspended in Hawaii in 1941 by President Franklin Roosevelt, following the attack on Pearl Harbor.

The current administration has made no formal attempts to suspend the statute—which can only be done through congressional approval—so federal courts are reviewing these petitions and sometimes ordering immigration judges to allow detainees bond hearings or be released from custody.

Ongoing challenges

“All parties must play by the rules. The same wisdom that requires immigrants and noncitizens to follow the law equally requires the government to follow the law,” U.S. District Judge Damon Leichty of Northern Indiana wrote, in a Dec. 30, 2025, order granting Ortiz’s writ of habeas corpus and ordering his release from ICE custody.

Nearly two months after he was detained, Ortiz was released from the Miami Correctional Facility. But not every case moves at the same pace as his.

Vincent Olson, a lawyer in Doyle’s law office, said they had one client who was detained in Illinois at 9 a.m. and had filed a habeas petition in an Illinois federal court by 3 p.m. that afternoon.

But by that time, the client was already in transit, going through Iowa to Texas—one example of how difficult it is to track the whereabouts of some detainees.

“It’s been a little bit over a month, and we’re not even in the court yet,” Olson said. “So we’ve been trying to expedite the process by trying to do things as soon as they happen.”•