Can a Lawyer Get Someone Released From ICE Detention Through Habeas Corpus?

Yes. And in 2025 and 2026, habeas corpus has become the single most effective legal tool for getting people out of ICE custody. Over 300 federal judges have ordered the government to provide bond hearings or release individuals after finding that their custody violated the Constitution.

If a loved one is being held by ICE and has been denied a bond hearing, here is how a lawyer can use habeas corpus to fight for their release.

What Is a Habeas Corpus Petition?

A habeas corpus petition is a legal filing that asks a federal judge to review whether the government has lawful authority to hold someone. The name comes from Latin and means “you have the body.” It is one of the oldest legal protections in the English-speaking world and is guaranteed by Article I, Section 9 of the U.S. Constitution.

In the immigration context, a habeas petition challenges ICE’s authority to keep a person locked up. It is filed in federal district court, not immigration court, which is a critical distinction. Federal judges are independent. They are not part of the executive branch, and they are not bound by BIA decisions that immigration judges must follow.

Why Has Habeas Corpus Become So Important for Immigration Cases?

The explosion in habeas filings is a direct response to the government’s elimination of bond hearings. In September 2025, the BIA issued Matter of Yajure Hurtado, which held that immigration judges lack authority to conduct bond hearings for people who entered the United States without inspection. Overnight, this cut off the primary release mechanism for a huge population.

The numbers tell the story:

• In 2024, roughly 222 immigration habeas petitions were filed nationwide
• In 2025, approximately 8,000 were filed
• Over 300 federal judges have ruled in favor of release; fewer than 15 have sided with the government
• In Washington state, the average time to resolution dropped from 100 days to about 33 days over the course of 2025

Federal judges across the political spectrum have found that holding people indefinitely without individualized custody review violates due process.

How Does the Habeas Process Work?

Here is the typical sequence when a lawyer files a habeas petition for someone in ICE custody:

1. Identify the legal basis. The attorney determines why the person’s custody is unlawful. Common grounds include being denied a bond hearing, prolonged custody without review, custody after case termination, or improper placement in expedited removal.

2. File in the correct court. The petition is filed in the federal district court with jurisdiction over the facility where the person is held. In California, this could be the Central District, Northern District, Eastern District, or Southern District depending on the facility location.

3. Request emergency relief if needed. In urgent cases (medical emergencies, imminent removal, or extreme conditions), the attorney can file an emergency motion or temporary restraining order asking the court to act immediately.

4. Government response. The court orders the government to respond, typically within a set deadline. The government must explain its legal basis for continued custody.

5. Court ruling. The federal judge reviews both sides and issues a decision. If the judge finds the custody is unlawful, the court can order release, order ICE to provide a bond hearing, or take other corrective action.

Who Qualifies for a Habeas Petition?

Any person in ICE custody can file a habeas petition. There is no requirement for legal status, citizenship, or any particular immigration classification. Situations where habeas is most commonly used include:

• Bond hearing denied under Matter of Yajure Hurtado. The person entered without inspection and has been told they are categorically ineligible for a bond hearing.
• Prolonged custody. The person has been held for months without a hearing or meaningful review.
• Custody after case termination. Removal proceedings were terminated but ICE has not released the person.
• Improper expedited removal. The person was placed in expedited removal when they should have been in regular proceedings.
• Government ignoring court orders. In a striking number of cases in 2025 and 2026, ICE has failed to comply with court orders requiring bond hearings. One federal judge compiled a list of at least 96 court orders in 74 cases that the government had violated since January 2026.

How Long Does It Take?

The timeline varies by jurisdiction, but habeas cases in immigration are moving faster than they historically have, driven by the sheer volume and the urgency of the situation.

• Some courts have ruled within days of filing, especially on emergency motions
• The average resolution time in Washington state dropped to about 33 days by late 2025
• In jurisdictions with heavy caseloads, it may take longer, but federal courts have generally prioritized these cases

What Does It Cost?

There is no government filing fee for a habeas petition. Attorney fees vary. Some legal aid organizations file habeas petitions for free, including the ACLU of Southern California, Northwest Immigrant Rights Project, National Immigrant Justice Center, and local law school clinics like USC Gould’s Immigration Clinic.

Can the Government Appeal?

Yes. If a federal judge orders release or a bond hearing, the government can appeal to the circuit court. In California, that means the Ninth Circuit Court of Appeals. The government can also request a stay (pause) of the district court’s order while the appeal is pending.

In the Maldonado Bautista case, the Ninth Circuit granted a partial administrative stay in March 2026, limiting the district court’s protections to the Central District of California while the appeal proceeds.

However, individual habeas petitions are decided on their own facts, and a favorable ruling in your specific case carries its own legal weight regardless of what happens in class-action litigation.

The Government’s Resistance to Habeas Corpus

The current administration has resisted habeas corpus at every turn. It has instructed immigration judges to ignore federal court rulings. It has failed to comply with court-ordered bond hearings. And in early 2026, reports surfaced that the administration considered suspending habeas corpus entirely, a step that has only been taken four times in American history, all during wartime.

Despite this resistance, habeas corpus continues to work. Federal judges have overwhelmingly sided with individuals challenging unlawful custody, and the courts have shown little patience for the government’s refusal to comply.

Getting Legal Help for a Habeas Petition

If someone you know is being held by ICE and has been denied a bond hearing or has been in custody for a prolonged period, contact the Law Office of Lina Baroudi. Habeas petitions require familiarity with federal court procedures, and not all immigration attorneys file them.

Act quickly. Every day in custody is a day without income, without family, and without the ability to effectively prepare a defense. Habeas corpus exists precisely for moments like this, and in 2026, it is working.