Texas Bar Journal • February 2026

Habeas Corpus

A critical tool in immigration detention litigation.

Written by Cynthia Milian and Stephanie Diaz

Recent developments in U.S. immigration law have greatly increased the importance of federal habeas corpus litigation for noncitizens detained by U.S. Immigration and Customs Enforcement (ICE). Historically, immigration attorneys have relied on bond hearings before immigration judges (IJs) to secure release for detained clients. However, certain regulatory and appellate decisions in 2025 have dramatically curtailed that avenue for many individuals—especially those who entered the U.S. without inspection (commonly known as “EWI entrants”). For attorneys outside the immigration field, understanding these developments and the role of federal courts is becoming ever more critical for protecting clients’ constitutional rights.

Under federal immigration law, certain categories of noncitizens may be subject to mandatory detention, meaning that neither IJs nor ICE have discretion to release them on bond. This category has included individuals who entered the U.S. without inspection (EWI) and noncitizens charged with certain criminal offenses. According to internal ICE data from June 2025, ICE was holding more than 59,000 people in custody—roughly 140% of the agency’s funded bed capacity at the time. Nearly half of those detainees had no criminal record or pending charges.¹

In September 2025, the Board of Immigration Appeals (BIA) issued a precedential ruling in Matter of Yajure Hurtado, in which it held that IJs lack jurisdiction to grant bond hearings for individuals present without admission. In its reasoning, the BIA interpreted the law to treat EWI entrants as “applicants for admission” under U.S. Immigration and Nationality Act § 235(b)(2)(A), rendering them categorically subject to mandatory detention without bond, regardless of how long they have resided in the U.S., whether they have family or community ties, or whether they have any criminal history.² The ruling upended decades of practice, stripping IJs of bond-hearing authority in many EWI cases and prompting widespread alarm among immigration practitioners.³

The combined effect of ICE’s internal policy changes and the BIA’s ruling has left countless noncitizens detained for extended periods without access to bond hearings. In response, many have turned to federal habeas corpus petitions under 28 U.S.C. § 2241 as the only viable path to challenge their detention. These petitions allow attorneys to raise claims that detention is unlawful, unconstitutional, or otherwise excessive. In essence, they shift the inquiry away from immigration relief to fundamental constitutional and statutory concerns.

Federal courts retain clear authority to hear constitutional challenges to immigration detention, including procedural due process claims, equal protection arguments, and challenges based on statutory interpretation. In recent months, dozens of district courts across multiple circuits have rejected the broad application of INA § 235(b)(2)(A) to long-term residents, holding that mandatory detention without individualized hearings runs contrary to due process and longstanding precedent.⁴ These courts have often recognized that habeas corpus is not merely a technical remedy but a critical check on prolonged and potentially arbitrary detention under civil immigration law.⁵

Habeas petitions provide a forum for individualized assessment. Unlike mandatory detention, which treats all EWI entrants the same regardless of circumstances, habeas litigation enables courts to consider each detainee’s unique situation.

Factors such as family relationships, length of residence in the U.S., prior lawful status, steady employment, and absence of criminal history may all weigh heavily in favor of release. Moreover, courts remain attentive to constitutional concerns about indefinite detention, including deprivation of liberty without meaningful judicial review. The U.S. Supreme Court’s precedent in Zadvydas v. Davis recognized that immigration detention must be limited to avoid constitutional violations.⁶

For attorneys who do not regularly practice immigration law, awareness of this federal avenue is increasingly important. Identifying clients who have been detained for extended periods without bond hearings; gathering thorough documentation of their community ties, stability, and equities; and coordinating with federal court or immigration law practitioners can make a decisive difference. Habeas litigation often requires specialized knowledge of federal procedure, constitutional law, and statutory interpretation; collaboration can strengthen the chances of success. In many cases, timely habeas filings are critical to preserve clients’ liberty while their removal proceedings continue.

The broader significance of this work cannot be overstated. As bond hearings before IJs become less available for large groups of detainees, federal courts offer an independent venue to challenge administrative overreach, scrutinize detention decisions, and assert constitutional protections that might be overlooked in removal proceedings. For many noncitizen clients, habeas corpus under § 2241 is no longer a fallback; it is the frontline means of securing their release and safeguarding their rights.

Federal courts have issued numerous decisions ordering release or bond hearings for detainees who would otherwise face indefinite detention under the new mandatory-detention regime.⁷ These rulings span multiple jurisdictions and reflect a growing judicial consensus that categorical detention without individualized review is inconsistent with fundamental due process principles.

A recent decision from the U.S. District Court for the Central District of California in Maldonado Bautista v. Santacruz, Jr. et al. (5:25-cv-01873) delivered a major win for many undocumented immigrants living inside the U.S. who entered without inspection and were never detained at the border. In its November 2025 rulings, the court first held that DHS’ new detention policy was unlawful because 8 U.S.C. §1225(b)(2) applies only to “applicants for admission” intercepted at or near the border—not to individuals who have long been inside the country and were never inspected by immigration officers. The court emphasized that the INA’s text is clear and cannot be stretched to treat such individuals as newly arriving applicants, granting the petitioners partial summary judgment. Days later, the court certified a bond eligible class, extending these protections to all noncitizens who (1) entered without inspection, (2) were not apprehended at entry, and (3) are not subject to mandatory detention under 8 U.S.C. §§1226(c), 1225(b)(1), or 1231 when DHS makes its first custody decision.⁸

In conclusion, the current legal environment underscores that federal habeas corpus litigation is essential for attorneys representing detained noncitizens. Practitioners must act promptly, compile comprehensive records, and, where appropriate, initiate § 2241 petitions to protect clients’ liberty. In a system where administrative detention has increasingly become the default, habeas corpus ensures that the judiciary remains a meaningful check on executive power and that noncitizens’ constitutional rights continue to receive the scrutiny they deserve.

CYNTHIA MILIAN is a senior associate of the Powers Law Group with extensive experience in family-based immigration, informed by her early practice at the firm and her service as an assistant public defender in Harris County’s Immigration Section. A graduate of South Texas College of Law Houston, she has held prominent leadership roles, including president of the Mexican American Bar Association of Houston, and regularly advises on the immigration consequences of criminal matters. Driven by her roots as the daughter of Guatemalan immigrants, Milian is a dedicated advocate for immigrant communities and an active leader in the Houston legal community.

STEPHANIE DIAZ is an immigration attorney with Quan Law Group who represents clients in removal defense, family, and employment-based immigration matters. She has worked on a wide range of complex immigration cases, including asylum, waivers, humanitarian visas, and appellate matters before the Board of Immigration Appeals. Diaz previously represented indigent clients through law school clinics and nonprofit organizations. A graduate of South Texas College of Law Houston, she is an active member of several local and national Hispanic and immigration legal organizations, including the Mexican American Bar Association of Houston.