A writ of habeas corpus orders the official who holds a person in custody to bring that person, figuratively today, before a judge and show a lawful basis for the detention. In immigration it is the main way to challenge detention itself, and since 2025 it has become one of the busiest kinds of case in the federal district courts.

Quick Facts

  • Statute: 28 U.S.C. § 2241
  • Where: the district of confinement, naming the immediate custodian
  • Reaches: the lawfulness of detention
  • Does not reach: review of a removal order, which goes to a court of appeals

Where and against whom

Federal courts may grant the writ to a person held “in custody in violation of the Constitution or laws or treaties of the United States” (28 U.S.C. § 2241(c)(3)). For a challenge to present physical confinement, the petition is generally filed in the district where the person is held and names the immediate custodian, usually the warden of the facility (Rumsfeld v. Padilla, 542 U.S. 426 (2004)). The Supreme Court applied the same rule to people detained under the Alien Enemies Act: their challenges must be brought in habeas in the district of confinement, and they are entitled to notice and an opportunity to seek habeas relief before removal (Trump v. J.G.G., No. 24A931 (Apr. 7, 2025) (per curiam)). The court orders the respondent to show cause why the writ should not be granted (28 U.S.C. § 2243).

The detention statutes

  • § 1226(a), discretionary detention. People arrested on a warrant while removal proceedings are pending may be released on bond, and an immigration judge can review custody.
  • § 1226(c), mandatory detention. People with certain criminal histories are detained without bond during proceedings (Demore v. Kim, 538 U.S. 510 (2003)). The statute does not itself require periodic bond hearings (Jennings v. Rodriguez, 583 U.S. 281 (2018)).
  • § 1225(b), applicants for admission. People at the border and others treated as seeking admission are detained under this provision, which does not provide for bond.
  • § 1231(a), after a final order. Detention during the 90-day removal period and beyond it, limited by Zadvydas v. Davis, 533 U.S. 678 (2001).

The 2025–26 bond-hearing split

For decades, people arrested in the interior after entering without inspection were detained under § 1226(a) and could seek bond. In 2025 the Board of Immigration Appeals held that people present without admission are “applicants for admission” detained under § 1225(b)(2)(A), and that immigration judges lack authority to hold bond hearings for them (Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025)). Thousands of habeas petitions followed, and the courts of appeals have divided:

  • Accepting DHS’s reading: Buenrostro-Mendez v. Bondi, No. 25-20496 (5th Cir. Feb. 6, 2026); Herrera Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026).
  • Rejecting it, so § 1226(a) and a bond hearing apply: Cunha v. Freden, No. 25-3141 (2d Cir. Apr. 28, 2026); Hernandez Alvarez v. Warden, Nos. 25-14065 & 25-14075 (11th Cir. May 6, 2026).

The Solicitor General has asked the Supreme Court to resolve the question (petition for certiorari in Raycraft v. Lopez-Campos, from the Sixth Circuit, filed in 2026). Until the Court rules, the answer depends on the circuit where the person is detained.

What habeas cannot do

Habeas is not a substitute for a petition for review. The statute makes a petition for review in the court of appeals the exclusive way to challenge a removal order (8 U.S.C. § 1252(a)(5)), and it channels questions arising from removal proceedings to that route (§ 1252(b)(9)). For people in expedited removal, habeas review is narrowly limited (8 U.S.C. § 1252(e)(2); DHS v. Thuraissigiam, 591 U.S. 103 (2020)). Habeas also does not compel a decision on a pending application; that is the job of mandamus. See how habeas and mandamus divide the work in immigration cases.

Sources

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