That change — which allows the administration to detain any unauthorized immigrant, no matter how long they've been in the country, without an opportunity to contest their detention in immigration court — has led the number of habeas cases involving immigrant detainees to skyrocket in federal courts that traditionally see just a handful.
There were 13,184 active habeas cases involving immigrant detainees moving through the federal courts as of Feb. 2, with more than 5,000 filed so far just this year, according to the habeas litigation tracker Habeas Dockets.
There were fewer than 500 such habeas cases in federal district courts in all of 2024, according to data from the Administrative Office of the U.S. Courts.
And while one U.S. Supreme Court precedent has made it more difficult for immigrants to challenge their detention, another is making it easier for them to win those challenges. It's likely the issue won't be resolved until the justices weigh in once again, according to attorneys.
"There certainly is a huge phenomenon of many, many habeas petitions being filed in federal courts," professor Denise Gilman, director of the Immigration Clinic at the University of Texas School of Law, told Law360 Pulse.
"There's been an expansion of detention authority that's been taking place for a number of years that hasn't received attention," Gilman said. "But this feels like an instance where we've hit a breaking point, and the violations of the law are so egregious that the federal courts are stepping in."
'Case Law Is Being Made on a Daily Basis'
Federal judges haven't been shy about lamenting the tidal wave of habeas petitions that have been filed in their courts by detained immigrants since the fall.
U.S. District Judge Sunshine S. Sykes ordered on Jan. 27 that detained immigrant Olga Sosa Inzuna be given a bond hearing or else be released from Immigration and Customs Enforcement custody after Inzuna filed what the California judge called "yet another in a slew of habeas petitions … that has unfortunately become routine in this court."
Southern District of Texas Judge Lee H. Rosenthal similarly ordered on Jan. 1 that Carlos Herlindo Quinteros Cano be given a bond hearing or released, writing, "The court has found no reason to depart from its prior decisions or the decisions of dozens of other courts."
Amid the flood of habeas cases, immigration attorneys have been filing petitions amounting to numbers they have never approached in their careers.
Marc Prokosch of Prokosch Law LLC in Minnesota said he and a colleague have filed about 20 petitions in the past six weeks, adding, "I think I filed less than 20 in the past 20 years of my federal litigation practice."
Texas' Dan Gividen of Gividen Law PPLC said he has filed about 60 such petitions since September. In his first six years in private practice, he'd filed about five.
Robert A. Alvarez of Avanti Law Group in Michigan said his firm has filed about four or five dozen petitions and has about another dozen he's getting ready to file.
"In the 20 years that I've been practicing before October of this year, I had only filed one or two maybe," Alvarez added. "It's crazy. Right now, habeas case law is being made on a daily basis."
Just about every district court in the country is handling at least some petitions, but many are concentrated in certain districts.
The Eastern District of California currently has 1,194 active petitions, while the Western and Southern districts of Texas have 1,167 and 956 petitions, respectively, according to Habeas Dockets data. There are 512 petitions active in the District of Minnesota.
Those petitions likely represent just a small portion of the immigrants who are being what attorneys have described as illegally detained, according to Alvarez.
"The ones that have been filed are just the ones that have been able to locate an attorney that knows how to do habeas and is admitted to federal court and is willing to file these cases," Alvarez said. "And if the family has money to hire an attorney."
Despite the volume, immigration attorneys say they're pleasantly surprised by how quickly the federal courts are resolving these cases. It's not the courts, but the U.S. attorney's offices that are having the most trouble keeping up with the glut of petitions, according to lawyers.
"Despite the funds appropriated for ICE operations, Congress did not provide any funds for [the U.S. Department of Justice] to defend those actions, and we are seeing the results of that daily," Prokosch said.
District of Minnesota Chief Judge Patrick J. Schiltz made a similar point when he ordered acting ICE Director Todd Lyons to appear in his courtroom for a contempt hearing after failing to release Tobay Robles or provide him with a bond hearing, which Judge Schiltz had ordered.
"This court has been extremely patient with respondents, even though respondents decided to send thousands of agents to Minnesota to detain aliens without making any provision for dealing with the hundreds of habeas petitions and other lawsuits that were sure to result," Judge Schiltz said, adding, "The court's patience is at an end."
'The Only Recourse Is to Federal Court'
The spike in habeas cases is the direct result of a recent change in how the U.S. Department of Homeland Security chooses to interpret immigration law, according to attorneys.
In July, ICE issued new guidance, codified by a Board of Immigration Appeals ruling in September, finding that all unauthorized immigrants, no matter how long they've been in the country, should be detained without bond and are ineligible for bond hearings under Section 1225 of the Immigration and Nationality Act.
"Where in the past a noncitizen in detention would have the ability to go into immigration court and seek a bond and say detention wasn't necessary, that has been stripped away in most cases," explained Gilman, of the University of Texas School of Law. "And so the only recourse is to federal court."
That reading of the law is a "complete shift in interpretation from what the agency itself had understood the law to mean for 30 years," Gilman said.
Traditionally, the detention of immigrants who are already in the country was governed by Section 1226 of the INA. Section 1226, which applies to "aliens already present in the United States," requires that those immigrants receive an individualized bond hearing.
Section 1225 doesn't provide for bond hearings, but it applies to "aliens seeking entry into the United States," which has traditionally been understood to mean those detained at the border.
At least until now.
"Aliens ... who surreptitiously cross into the United States remain applicants for admission until and unless they are lawfully inspected and admitted by an immigration officer. Remaining in the United States for a lengthy period of time following entry without inspection, by itself, does not constitute an 'admission,'" the Board of Immigration Appeals said in September.
"The Executive Office for Immigration Review is restoring integrity to the immigration adjudication system, and Board of Immigration Appeals decisions reflect straightforward interpretations of clear statutory language. President Trump and the Department of Justice will continue to enforce the law as it is written to defend and protect the safety and security of the American people," a DOJ spokesperson told Law360 in a statement.
ICE and DHS did not respond to interview requests.
But the administration's interpretation runs counter to the text of the statute, according to attorneys.
"It's clear as day that this new authority that the administration is claiming to detain people without any individualized consideration of whether there's any need to detain them and without any review is not only a complete misinterpretation of the statute, but it's absolutely unconstitutional," said Gilman
In fact, Section 1226(c) of the INA outlines which immigrants are subject to mandatory detention. And the first bill President Donald Trump signed into law at the start of his second term was the Laken Riley Act, which mandates the detention of unauthorized immigrants who are accused of violent crimes, Gividen, of Gividen Law, pointed out.
Those provisions would be "completely meaningless" if every unauthorized immigrant were subject to mandatory detention as the government now argues, Gividen said.
So far, most federal judges, appointed by presidents of both parties, have sided with the detained immigrants and their attorneys.
U.S. District Judge Fred Biery of the Western District of Texas on Saturday ordered the release of a 5-year-old boy, wearing a Spider-Man backpack, who was arrested by immigration agents, after the boy filed what may be the highest-profile of those petitions.
"Civics lesson to the government: Administrative warrants issued by the executive branch to itself do not pass probable cause muster," Judge Biery said. "That is called the fox guarding the henhouse. The Constitution requires an independent judicial officer."
Florida federal Judge Roy B. Dalton Jr. also didn't mince words when he ruled on Jan. 26 that high-school student Javier Gimenez Rivero must be released from detention without bond, calling the Trump administration's arguments for keeping Gimenez Rivero locked up "inexplicable," "incoherent" and "ill-informed."
"There is no ambiguity here. The BIA is wrong, and the government is wrong, and plainly so," Judge Dalton said.
Out of 288 cases addressing this legal issue, the government had lost 282 as of Nov. 18, Minnesota federal Judge Laura M. Provinzino noted in a December ruling that also rejected the government's arguments.
That doesn't mean the government has abided by those rulings, however.
Multiple federal judges have accused the DHS of failing to provide bond hearings or else release individual immigrants despite being ordered to do so.
ICE did release the immigrant whose case led Judge Schiltz in Minnesota to order the agency's director to appear in court for contempt proceedings, leading the judge to cancel those proceedings.
"That does not end the court's concerns, however," a still-frustrated Judge Schiltz said when canceling the contempt hearing. "Attached to this order is an appendix that identifies 96 court orders that ICE has violated in 74 cases."
"ICE has likely violated more court orders in January 2026 than some federal agencies have violated in their entire existence," Judge Schiltz added.
A Pair of Supreme Court Rulings, and Maybe More to Come
The BIA's September ruling isn't the only decision fueling the flood of habeas petitions.
The U.S. Supreme Court's June decision in Trump v. CASA
limiting district court judges' ability to issue nationwide injunctions is also to blame, attorneys say.Because no federal district court judge can nationally enjoin ICE from detaining immigrants without bond hearings, each habeas petition has to be adjudicated individually, say attorneys.
CASA "is not one of the reasons, that is the reason" for why there are so many individual habeas cases working their way through the courts, Gividen said.
Attorneys, though, are beginning to overcome this hurdle by filing their habeas cases as class actions, according to Alvarez, whose firm is currently litigating one of those class actions in the Western District of Michigan.
In November, Judge Sykes, in a separate case in the Central District of California — Bautista v. Santacruz
— certified a nationwide class of unauthorized immigrants already in the country. She then found that all class members are entitled to bond hearings and vacated the DHS' guidance to the contrary.The DHS seems to have ignored that ruling as well, according to Judge Sykes, who said in January when ordering an individual migrant be granted a bond hearing or be released: "Despite the final judgment in Bautista, it appears that immigration judges continue to rely on legal interpretations that were expressly found unlawful."
While the Supreme Court's CASA ruling may be making habeas litigation more difficult for immigration attorneys and their clients, a separate ruling by the justices may wind up helping them.
In his Jan. 26 order, Judge Dalton pointed out that the justices' 2024 ruling in Loper Bright Enterprises v. Raimondo
, which did away with the longstanding Chevron deference, means that courts don't have to defer to the BIA's interpretation of the INA."Unfortunately for the government, the Supreme Court recently concluded that 'agencies have no special competence in resolving statutory ambiguities,'" Judge Dalton said. "'Courts do.'"
Judge Sykes also cited Loper Bright when granting a class of petitioners partial summary judgment in November.
"The BIA gets to interpret law, but the federal courts are not bound to defer to that in any way. And here, the federal courts have weighed in and have said that the law does not allow for this unfettered detention authority without review," Gilman said. "So, yeah, that is one of the consequences of Loper Bright."
But CASA and Loper Bright may not be the only Supreme Court decisions that impact the outcome of these habeas cases.
The Trump administration has already appealed several district court rulings, including the one granting relief to a nationwide class of immigrants. At least one immigrant whose habeas petition was denied is also appealing that denial.
"I think there's a very good chance that this will end up before the Supreme Court," Gilman said.
It's impossible to predict how the justices will rule if it does.
But Gilman says any ruling will probably be a narrow one addressing only the specific situation of immigrants who are detained in the interior of the country, leaving unanswered a lot of questions about what the professor sees as the recent expansion of immigrant detention.
"But I think on this specific question, of people inside the United States who are apprehended, I think the statutory interpretation is just too clear that this is not lawful," Gilman said.
--Editing by Lakshna Mehta.
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