A flood of habeas corpus petitions challenges Trump’s mass detention of immigrants

Ana’s husband had been detained for four months at the infamous Alligator Alcatraz immigration center when a federal judge ordered his release last week. His case is just one of an unprecedented wave of habeas corpus petitions filed by detained immigrants, a legal strategy that has become the primary avenue for challenging the Trump administration’s mass detention policies.

The 47-year-old man had spent some time behind bars when he was 18, but his wife says he had since become an “excellent” father, with a good job and “not a single fine.” When he was released from prison, his permanent residency was revoked, so he was required to report annually to Immigration and Citizenship and Customs Enforcement (ICE) in Miramar, north of Miami. It was there that he was detained in October, when he went for his annual check-in. His wife asked that they not be identified for fear of retaliation from the authorities.

Three weeks ago, Ana filed a writ of habeas corpus in Miami federal court, a legal recourse that allows people to challenge the legality of an arrest. “When the judge asked the government why they were holding him, since he hadn’t committed any crime, and wasn’t arrested on the street, but rather at his appointment, he determined that he could be released,” she adds.

Federal courts have received more than 24,000 habeas corpus petitions from people detained by immigration authorities since January of last year. That number surpasses the combined total of the three previous administrations, and in the last month alone, the number has increased by more than 35%, according to a ProPublica database.

The reason, lawyers and experts explain, is that the government changed the rules regarding detentions. U.S. Law distinguishes between immigrants detained at the border and those who have lived in the country for years. For decades, the latter have had the option of requesting bond from an immigration judge. But a Department of Homeland Security (DHS) policy change last summer stipulated that all immigrants must be treated as if they were seeking entry, even if they are already physically inside the country. Last September, the Board of Immigration Appeals (BIA) reinterpreted the law to mean that everyone must be detained while their deportation cases are being resolved.

“We haven’t seen anything like this in the past,” says Sam Lester, an immigrant rights attorney with the American Civil Liberties Union (ACLU) of Florida. The number of cases is “a direct result of this administration’s deportation efforts,” which “have led to the detention of thousands without due process.” “The government is pushing for the mass detention of people with no criminal record who have lived in the country for years. To do so, it has reinterpreted decades of immigration jurisprudence, arguing that the law requires the detention of all undocumented people who entered without inspection—around two million people, including some who arrived as children,” he adds.

It is estimated that there are approximately 68,000 people in U.S. Immigration detention centers, almost double the number at the start of Trump’s second term. More than 70% have no criminal record.

“Before, everyone detained here in the U.S. Had the right to bond. As long as they weren’t a danger to the community or a flight risk, the judge would grant it,” explains Ismael Labrador, an immigration lawyer in Miami. “But now it doesn’t make sense to go before an immigration judge, because they won’t grant bond. So you go to a federal judge.”

Hundreds of federal judges have ruled in more than 4,400 cases since October that the government is indeed detaining immigrants illegally, according to records cited by Reuters. But the government has defended its detention policies as part of Trump’s agenda to carry out the largest deportation operation in history. The Department of Homeland Security did not respond to a request for comment.

The issue has sparked a growing legal battle that could end up before the Supreme Court, experts say. In December, a federal judge in California, Sunshine Sykes, ruled that the DHS policy was illegal, but the chief immigration judge, Teresa Riley, said the ruling did not apply to immigration judges and instructed them to continue following the BIA. In response, Sykes overturned the BIA ruling last month. The government appealed to the Ninth Circuit, which covers the western part of the country, and the court stayed Sykes’s ruling while the appeal is litigated.

The courts where the appeals are being filed, also known as circuit courts, review decisions made by federal courts within their geographic region. The country is divided into 13 circuits. Last month, the Fifth Circuit ruled in favor of the administration in an appeal of two Texas decisions that two men who entered the U.S. Across the border years ago were entitled to bond. “If the courts now start splitting up, that will inevitably end up reaching the Supreme Court,” says Professor Muzaffar Chishti of the Migration Policy Institute.

Meanwhile, the avalanche of cases is putting pressure on federal courts and creating a bottleneck in the system, the professor explains. “Because of the high success rate, everyone is resorting to habeas corpus petitions. That is now causing a flood of petitions in federal courts, and these courts have to handle many other matters, because immigration is only a small part of their work,” he adds. “This is creating management problems for these district courts, and that, in itself, will become a separate public policy challenge. That could persuade some Supreme Court justices that if bond hearings are not allowed in the immigration system, the flow of cases will shift to the federal courts.”

Habeas corpus has existed since medieval times, described in the Magna Carta of 1215 in England as protection against arbitrary arrests by the state. The principle was incorporated into the U.S. Legal system. “Whatever decision the Supreme Court makes, habeas corpus cannot be eliminated. It is such a fundamental element of our due process system that it is an integral part of its guarantees,” adds Chisthi.

Chishti explains that, in the immigration context, people are detained not to punish them, as in criminal detention, but to ensure they appear for their hearings. However, the Trump Administration “is turning immigration detention into something punitive under the argument that, if conditions are harsher, people will stop entering the country illegally.”

With that understanding firmly in mind, Ana and her husband thought “that after all these years, nothing would happen, because he never had any more problems.” But his detention was indeed a punishment. He says he is “very affected” by what happened at Alligator Alcatraz—a center notorious for human rights violations—where he lost almost 44 pounds. “He tells me it’s nothing like when he was detained at 18, that that place is a torture center.”

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