As the Trump administration moves to arrest and detain more illegal immigrants, their lawyers have figured out a way to fight back in regular federal courts by filing habeas corpus cases demanding judges order their release.
The cases are flooding into the courts in record numbers, with more than 3,000 alien habeas petitions filed in December alone. That’s up from just a couple of dozen cases a month in 2024.
Usually, the filing of the case is enough to slow down a deportation, and in nearly every case, migrants are doing better than that, winning an order that they be granted a bond hearing in immigration courts — and in some cases even winning an outright release.
Immigrant rights lawyers say they’ve been left with no choice after Homeland Security and the Justice Department issued new interpretations of the law earlier this year finding that a wide swath of migrants who snuck across the border are no longer eligible to ask for a bond hearing before an immigration judge.
Without recourse to the specialized immigration courts, the migrant have rushed to the regular federal district courts with their habeas corpus petitions.
“The surge in habeas filings isn’t about detainees bypassing immigration court; it’s about immigration courts no longer having the authority to conduct bond hearings. When bond is taken off the table, federal court becomes the only place left to argue for release,” said Adriana Coppola, supervising attorney of emerging issues at the Catholic Legal Immigration Network, Inc.
The numbers are staggering.
According to federal cases compiled at the Free Law Project’s CourtListener database, roughly 8,000 alien habeas petitions were filed last year, with 3,000 of those coming in December alone.
In all of 2024, just 222 such petitions were filed.
Some areas of the country have seen more action than others.
Eastern Texas, for example, recorded just a single alien habeas petition in 2025. But Massachusetts saw 591 cases in 2025, up from four cases the year before.
Some of those cases are the expected outcome of the massive increase in arrests in the interior of the country by U.S. Immigration and Customs Enforcement. ICE averaged more than 1,100 book-ins per day of its own arrestees in the final months of 2025, up from about 250 a day in the final days of the Biden administration.
More people arrested naturally means more cases to challenge.
But most of the surge appears to be fueled by the administration’s new interpretation of a 1996 law governing when migrants facing potential deportation can be detained.
The Trump administration argues that anyone who snuck across the border — known as entry without inspection — is still considered an applicant for admission to the U.S., no matter how many years ago their illegal entry was and what sort of tentative legal status they’ve since been granted.
As applicants for admission, the law allows them to be detained until they are either deported or win relief from an immigration court.
Beyond that, the administration argues that even if they aren’t applicants for admission, they can still be detained under another section of the law.
Those arguments have, so far, fared poorly in the courts, with a tsunami of judges siding with migrants.
The Washington Times sampled 40 alien habeas cases where substantive decisions have been rendered and found in 35 of them, the government was ordered to allow a bond hearing or outright release a person. The other five cases were trending the government’s way, though the issues in those cases were more about the timing of deportations than the authority to detain someone.
Administration officials are trying to figure out answers.
“What will fix it is when the Supreme Court weighs in, but it’s unclear when a case will get there,” one senior official told The Times.
The U.S. attorney’s offices, which end up fighting the habeas petitions, are overwhelmed by the cases and are looking to the solicitor general’s office and the Justice Department’s civil division for help, but they’ve been slow-walking appeals, the official said.
Some appeals are now pending but they are moving on a slow track.
“All of the U.S. attorneys are going to be in D.C. this week, and several want to raise the issue to DOJ leadership,” the official said.
Detention is at the heart of President Trump’s hopes of mass deportation.
Experts say that if the government can detain people, it can deport them. But if it’s forced to release them into the community, their cases get pushed back months or years, and they have a chance to abscond, disappearing into the shadows.
The number of people in ICE detention neared 70,000 as of the middle of last month. That’s up from about 37,000 at the same time in 2024. And a majority of those being held now were arrested in the interior by ICE, where a year ago most were apprehensions at the border.
The Justice Department, in a statement to The Times, said it is carrying out the law “as it is written.”
Immigration arrests and deportation are generally civil matters, not criminal, and the cases are usually heard by a separate immigration court system, which is part of the Justice Department.
The regular federal district courts are generally cut out of the process. But habeas corpus petitions — challenges to detention — are an exception, and district judges have leapt to assert their role.
“Immigration policies have long been subject to the changing tides of government. But those changing tides cannot usurp statutory authorization,” Judge Thomas L. Parker wrote in a case out of Tennessee ruling against the administration.
Andrew “Art” Arthur, a former immigration judge and longtime staff member on Capitol Hill who helped craft immigration law, said there are two questions involved.
The first is whether migrants who snuck across the border are considered applicants for entry. The second is which rules for bond apply if they are not considered entries without inspection.
On the first, he said, the administration is right, but judges are resisting.
“Congress did this thing in 1996 and nobody really listened to what they were doing. The Trump administration is now, as part of its mass detention program, attempting to use that language,” Mr. Arthur said. “Courts don’t like it because that’s not the way we’ve done it the last 29 years.”
On the second question, Mr. Arthur said he could argue the law both ways and it will take an appeals court ruling — or perhaps the Supreme Court — to settle the matter.
“This is literally an interpretation that could go either way,” he said.
For now, immigration lawyers have been emboldened by their successes.
The American Immigration Lawyers Association ran web training sessions in June and October instructing members on how to argue migrant detention habeas cases.
And in August, it published a series of boilerplate habeas petitions for migrants from various nationalities.
