The Great Writ Under Siege: Habeas Corpus in the Age of Mass Detention

The battle over immigration detention has reached every federal courthouse in America

In the past six months, something remarkable has happened in federal courthouses across America. Immigration detainees filed over 15,694 habeas corpus petitions—an increase of 1,480% over the previous period. The Eastern District of California saw a 3,419% surge. The Southern District of Texas experienced a 2,088% increase, with more cases filed in January 2026 alone than in all of 2025.

Federal judges are scrambling.

The writ of habeas corpus has become the last line of defense against a massive expansion of immigration enforcement.

The Central Question: Which Detention Statute Applies?

The threshold question in virtually every immigration habeas case for persons not subject to a final removal order is whether the detained individual is held under 8 U.S.C. § 1225(b) (mandatory detention for “applicants for admission”) or 8 U.S.C. § 1226(a) (discretionary detention with eligibility for bond).

The government has adopted an aggressive interpretation: anyone who entered without inspection remains perpetually an “applicant for admission,” regardless of how many years they have lived in the United States. Under this theory, even someone who arrived as a child and has resided here for decades is treated as if they are still standing at the border, seeking entry for the first time.

California federal courts have overwhelmingly rejected this interpretation.

The Majority View in California

In Velasquez v. Warden, No. 1:25-cv-1818 CSK P, slip op. at 6 (E.D. Cal. Feb. 23, 2026), the court held: “The Court agrees with and joins the majority of courts nationwide, including the Eastern District of California, in rejecting respondent’s new interpretation of Sections 1225 and 1226.” Similarly, in J.S. v. Wofford, No. 1:25-cv-02016 DC SCR, slip op. at 6 (E.D. Cal. Jan. 16, 2026), the court found: “The undersigned follows Labrador-Prado and the majority view in finding that the applicable statute governing Petitioner’s detention is § 1226(a), not § 1225(b)(2).”

The Central District of California reached the same conclusion in Maldonado Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM, 2025 WL 3288403, at *9 (C.D. Cal. Nov. 25, 2025), certifying a nationwide class and holding that noncitizens who entered without inspection and were not apprehended at the border are detained under § 1226(a).

Why the Government’s Interpretation Fails

As the Eastern District of Virginia explained in a decision cited favorably by California courts, the government’s interpretation:

“(1) disregards the plain meaning of section 1225(b)(2)(A); (2) disregards the relationship between sections 1225 and 1226; (3) would render a recent amendment to section 1226(c) superfluous; and (4) is inconsistent with decades of prior statutory interpretation and practice.”

Campos-Flores v. Bondi, No. 3:25-cv-797, slip op. at 8 (E.D. Va. Dec. 2, 2025), quoted in Lepe v. Andrews, No. 1:25-cv-01163, slip op. at 4 (E.D. Cal. Sept. 23, 2025).

Section 1225(b)(2)(A) applies to noncitizens “seeking admission”—those actively presenting themselves at the border or recently apprehended just after entry. Once an individual has been released into the interior and formed “enduring attachments of normal life,” they are no longer “seeking admission.” See Hernandez Lazo v. Noem, No. 2:25-cv-6639 (NJC), slip op. at 22 (E.D.N.Y. Feb. 4, 2026) (“Mr. Hernandez Lazo cannot be ‘seeking admission’ because he clearly is not presenting himself at the border and was not recently apprehended just after entering this country.”).

II. Protected Liberty Interests and the Requirement of Changed Circumstances

Once the government releases a noncitizen—whether through parole, an Order of Recognizance (OREC), Temporary Protected Status (TPS), deferred action, or simply by permitting years of uninterrupted residence—that individual acquires a constitutionally protected liberty interest in remaining free.

The Morrissey Principle

In Morrissey v. Brewer, 408 U.S. 471, 482 (1972), the Supreme Court held that conditional liberty “includes many of the core values of unqualified liberty” and that termination of that liberty “inflicts a ‘grievous loss'” entitled to due process protection. The parolee “has relied on at least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions.”

California federal courts have applied this principle to immigration release. As the Eastern District held in Mendoza v. Warden, No. 1:25-cv-2030 CSK, slip op. at 9-10 (E.D. Cal. Feb. 5, 2026), the duration of a noncitizen’s conditional release “elevates and underscores his interest in liberty” under Morrissey and Mathews. In Altin v. Chestnut, No. 1:26-cv-00792-DC-CSK, slip op. at 10-11 (E.D. Cal. Feb. 5, 2026), the court held that two years out of custody as an exclusive financial provider for family, with work authorization and community ties, created a “powerful interest” in continued liberty.

The Changed Circumstances Requirement

Where the government has made an affirmative, individualized finding that a noncitizen poses no danger and is not a flight risk—whether through an OREC, TPS grant, deferred action, or termination of proceedings—it cannot re-detain that individual without demonstrating materially changed circumstances.

In Prior v. Chestnut, No. 1:25-cv-01131-JLT-EPG-HC, 2026 WL __, at *15-16 (E.D. Cal. Feb. 5, 2026), the court emphasized: “Respondents have not argued nor identified a change in circumstance.” In Mendoza, slip op. at 2 n.3, 9, the court similarly emphasized the government’s failure to contend that the petitioner violated release conditions or that circumstances had changed.

The Central District has applied this principle to SIJS recipients with deferred action. In A.R. v. Noem, No. 5:25-cv-03565 (C.D. Cal. Jan. 26, 2026), the court held that an SIJS recipient with deferred action “could not have had his deferred action status revoked without due process.” The Eastern District reached the same conclusion in Forsah R-Z v. Noem, No. 1:26-cv-00828 (E.D. Cal. Feb. 5, 2026), holding that “deferred action . . . is sufficient on its own to grant the Petition.”

III. Procedural Due Process and the Mathews Factors

Where a noncitizen possesses a protected liberty interest, the court applies the three-factor test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (1) the private interest affected; (2) the risk of erroneous deprivation under existing procedures; and (3) the government’s interest.

The Private Interest

“Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). California courts have consistently held that this factor weighs heavily in favor of petitioners. See Mendoza, slip op. at 9-10; Altin, slip op. at 10-11.

The Risk of Erroneous Deprivation

The risk is “high” when a petitioner has not received a bond hearing. Mendoza, slip op. at 9. In cases involving revocation of deferred action or TPS, the risk is “extraordinarily high” where the government provides no pre-deprivation process. A.R., slip op. at 11-13. As the Eastern District noted in Forsah R-Z, slip op. at 3, “the risk of erroneous deprivation is high as there has been no evidence presented or determination made that Petitioner presents a risk of dangerousness or flight.”

The Government’s Interest

The government’s interest in detention without process is “low” where it previously deemed the petitioner safe and shows no changed circumstances. Mendoza, slip op. at 9; Prior, slip op. at 15-16. In SIJS cases, courts have found the government’s interest “further diminished” where the petitioner has no criminal convictions, complied with all conditions, and appeared for all required proceedings. A.R., slip op. at 14; Forsah R-Z, slip op. at 3.

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IV. The Burden of Proof: Clear and Convincing Evidence

When a petitioner has been previously released—whether through OREC, TPS, deferred action, or parole—the government bears the burden of justifying re-detention. California courts have uniformly required that the government meet this burden by clear and convincing evidence.

In Mendoza, slip op. at 10, the court ordered a hearing at which the government must prove flight risk or danger “by clear and convincing evidence.” Accord S.L. v. Wofford, No. 1:26-cv-00522-TLN-EFB, slip op. at 8 (E.D. Cal. Feb. 5, 2026); Prior, slip op. at 14 (collecting cases requiring clear and convincing evidence).

The immigration judge’s contrary requirement—that the petitioner bear the burden of proving they are not a danger or flight risk—is “constitutionally insufficient.” Prior, slip op. at 14.

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V. Substantive Due Process: Detention Must Serve a Legitimate Purpose

Substantive due process requires that civil detention bear a “reasonable relation” to a nonpunitive purpose. Jackson v. Indiana, 406 U.S. 715, 738 (1972). The Supreme Court has recognized only two permissible purposes for immigration detention: ensuring appearance at proceedings and preventing danger to the community. Zadvydas, 533 U.S. at 690-92; Demore v. Kim, 538 U.S. 510, 519-20, 527-28 (2003).

Where the government cannot demonstrate that detention serves either purpose, the detention is arbitrary and violates substantive due process. As the Eastern District held in S.L., slip op. at 3-4, detention violates substantive due process where the petitioner “is neither a danger nor a flight risk, which is evidenced by Respondents previously releasing him from custody.”

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VI. Special Protections for Vulnerable Populations

SIJS Recipients and the TVPRA

The Trafficking Victims Protection Reauthorization Act (TVPRA) reflects Congress’s determination that unaccompanied children who have been abused, abandoned, or neglected warrant special protections, including placement in the “least restrictive setting” and consideration for relief from removal. 8 U.S.C. § 1232(c)(2)(A)-(B).

Federal courts have recognized that SIJS recipients with deferred action are entitled to heightened protections. In A.R., slip op. at 7-8, the Central District granted a TRO and ordered immediate release for an SIJS recipient with deferred action, holding that § 1225(b) did not apply. In F.S.S.M. v. Wofford, No. 1:25-cv-01518, slip op. at 5 (E.D. Cal. Dec. 9, 2025), the court held: “Petitioner is not subject to mandatory detention under § 1225(b)(2) for several reasons. As an initial matter, Petitioner cannot be simultaneously subject to both § 1225(b)(2) and the TVPRA because their detention schemes are facially incompatible.”

TPS Holders and Long-Term Residents

Temporary Protected Status likewise reflects an affirmative determination by the government that the individual is admissible and poses no danger or flight risk. Hernandez Lazo, slip op. at 3. As the District of Minnesota held in Bah v. Cangemi, 489 F. Supp. 2d 905, 917 (D. Minn. 2007), “[The government] had the opportunity to detain [the petitioner] when they granted him TPS . . . or at any point in the subsequent years. They chose not to.”

Federal courts have extended this reasoning to long-term residents generally. In Velasquez, slip op. at 9, the court held that “petitioner’s time out of custody, even after his TPS was denied a year before he was detained by ICE, gave rise to a constitutionally protected liberty interest.”

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VII. The Remedy: When Is Release Required?

Federal courts in California have ordered immediate release where detention is unlawful from its inception. In Hernandez Lazo, slip op. at 32, the court explained: “Mr. Hernandez Lazo’s detention was unlawful from its inception because ICE detained him under the wrong statute and without any notice or opportunity to be heard . . . ‘dispos[ing] of the matter as law and justice require,’ 28 U.S.C. § 2243, necessitates both release and narrow injunctive relief.”

In Gamarro Gamarro v. Noem, No. 26-cv-0650-GPC-DEB, slip op. at 7 (S.D. Cal. Feb. 10, 2026), the court held that “immediate release is the appropriate remedy in this case.” And in Vargas Sivira v. Noem, No. 1:25-cv-01987-KES-EPG-HC, slip op. at 8 (E.D. Cal. Jan. 28, 2026), the court ordered immediate release where “there is nothing before this Court demonstrating that Petitioner violated his conditions of release.”

In SIJS cases, the Central District ordered: “Respondents are ORDERED to release Petitioner from custody (and return to him his personal effects) within 48 hours.” A.R., slip op. at 16.

Where courts order bond hearings rather than release, they uniformly require that the government bear the burden by clear and convincing evidence. Oleksandr V.M. v. Warden of Golden State Annex, No. 1:25-cv-01431-JLT-EPG-HC, slip op. at 15 (E.D. Cal. Jan. 27, 2026) (“The undersigned recommends that the government must justify Petitioner’s continued confinement under § 1225(b) by clear and convincing evidence that Petitioner is a flight risk or a danger to the community.”).

Courts within the Fifth Circuit continue to grant habeas relief on procedural due process grounds using the familiar Mathews v. Eldridge balancing test. The three factors:

• The private interest: “The interest in being free from physical detention is the most elemental of liberty interests.”
• The risk of erroneous deprivation: The government’s refusal to provide bond hearings creates a high risk of error.
• The government’s interest: While the government has an interest in ensuring appearance at hearings, that interest “would be squarely addressed through a bond hearing.”

As one court stated in Hassen v. Noem, the Fifth Circuit’s decision “does not change the case’s outcome on procedural due process grounds.”

3. Post-Final Order Detention Under Zadvydas

Under Zadvydas v. Davis (2001), detention beyond the 90-day removal period is unlawful if there is “no significant likelihood of removal in the reasonably foreseeable future.” But Gines Laguardia v. ICE (N.D. Iowa Feb. 2026) illustrates the limits: when a Cuban lawful permanent resident refused to cooperate with removal to Mexico, the court held that under 8 U.S.C. § 1231(a)(1)(C), the removal period is extended when an alien “conspires or acts to prevent the alien’s removal.” Because his extended detention resulted from his own failure to cooperate, his habeas petition was denied.

When the Government Disregards Court Orders

Perhaps most alarming: the government’s apparent disregard for judicial orders. In Chael v. Lyons (D. Colo. Mar. 2026), a federal judge acknowledged that the government violated his order by deporting Tesfami Chael to Germany while his habeas petition was pending. Senior Judge R. Brooke Jackson commended the government’s “candor about the mistake” but declined to order Chael’s return.

This was not isolated. The chief judge of Minnesota’s federal court chronicled at least 96 violations of judicial orders in January 2026 alone. Judges in Colorado have noted ICE’s “unjustifiable intransigence” in imposing unauthorized conditions on released detainees and confiscating identifying documents after court-ordered release.

Resources for Advocates

Several organizations have developed practical resources for habeas litigation:

• Centro Legal de la Raza provides habeas templates for individuals unlawfully re-detained following the Garro Pinchi v. Noem class action, which blocked the re-arrest of immigrants previously released after determinations that they were neither dangerous nor flight risks.
• Asian Law Caucus offers a toolkit for immigrants with unexecuted final orders of removal who have been re-detained after living in the community for many years—particularly critical for Southeast Asian refugees facing deportation to countries they fled as children.
• Texas Immigration Law Council (with RAICES and TCRP) published a comprehensive post-Buenrostro practice advisory, including a Mathews analysis template and lists of favorable cases within the Fifth Circuit.

As the Texas advisory reminds us: “All persons within the United States possess a cognizable, protectable liberty interest in freedom from physical restraint in the most basic constitutional sense, and habeas corpus remains the fundamental instrument for safeguarding that liberty.”

The Stakes

What we are witnessing is a high-stakes constitutional confrontation. The executive branch is detaining thousands without bond hearings, seeking to strip federal courts of jurisdiction, and in some cases, defying court orders when they issue.

The surge in habeas petitions, the judicial pushback against jurisdiction-stripping, and the troubling reports of government noncompliance all demonstrate that the writ remains—as it has been for centuries—the last line of defense against unlawful executive detention.

The question is whether the courts will continue to serve as that bulwark.

Our Work

Since the surge in immigration enforcement beginning in 2025, I have focused my practice on representing detained individuals in the Central and Eastern Districts of California, where I have litigated dozens of habeas corpus petitions challenging unconstitutional detention under 8 U.S.C. § 2241.

I am proud to have secured over 25 grants of habeas corpus relief, resulting in the immediate release of clients from detention facilities across California, including the California City Detention Center, Golden State Annex, Mesa Verde ICE Processing Center, and Adelanto ICE Processing Center. These victories have reunited families, restored individuals to their communities, and reaffirmed the fundamental principle that no person—citizen or noncitizen—may be deprived of liberty without due process of law.

My practice encompasses a wide range of habeas challenges:

• Statutory challenges to mandatory detention under 8 U.S.C. § 1225(b), securing bond hearings for clients detained under the correct statute, 8 U.S.C. § 1226(a)
• Procedural due process claims for individuals re-detained without notice or hearing after years of compliance with release conditions
• Substantive due process challenges to detention that serves no legitimate governmental purpose
• Special protections for vulnerable populations, including Special Immigrant Juvenile Status (SIJS) recipients, Temporary Protected Status (TPS) holders, and long-term lawful permanent residents
• Administrative Procedure Act claims challenging arbitrary agency action, including the summary termination of deferred action without explanation

I have also developed practical resources for advocates, including habeas templates and guidance for litigating these cases. You can access and adapt my habeas templates here:

• Habeas Corpus Petition (Immediate Release case)
• TRO Motion and TRO Brief

These resources reflect the arguments and strategies that have proven successful in California federal courts, and I share them in the hope of supporting other advocates fighting for their clients’ freedom.

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