Federal Habeas Corpus in Immigration Detention: Frequently Asked Questions

If someone you love is being held in immigration custody, the first thing you are probably trying to understand is: whether your loved one will be able to come home? How? When? How soon? In today's immigration climate, under the current Administration's immigration policies, the options available to many noncitizens, like your detained loved one, have become increasingly limited. A petition for a writ ofhabeas corpus is one of the most powerful tools we can use to try to obtain their release.

The questions below explain what a habeas corpus petition can and cannot do, when it makes sense, and how the process works in federal court.

This page is general legal information, not legal advice, and reading it does not create an attorney-client relationship. Every detention case turns on its own facts and on the law of the jurisdiction where the person is held.

What is writ of habeas corpus, and how does it apply to immigration detention?

The Writ of Habeas Corpus is a centuries-old protection that gives your loved one who is detained, the right to ask a federal district court to determine whether the government is lawfully holding them in custody.

In the immigration context, a petition under 28 U.S.C. § 2241 asks a federal district court to decide whether ICE is detaining someone lawfully. It does not ask the federal district court judge to review or change the immigration judge’s decision in your loved one’s immigration case.
We ask a single, focused question - is this detention legal, and if not, what should happen — release, a bond hearing, or some other order.

Can a habeas corpus petition stop my family member's deportation?

Generally, no. A habeas corpus petition does not ask the federal court judge to question the immigration judge’s decision whether someone your loved one should be deported or not. Instead, it asks whether Immigration and Customs Enforcement (ICE) is detaining your loved one lawfully. Once the federal court judge reviews the habeas corpus petition, the judge can order ICE to schedule a bond hearing in immigration court, in which the immigration judge will make the decision whether your loved one should be released by posting a bond or whether they must remain detained. In some cases, the federal court judge finds that the detention is unlawful and orders ICE to release your loved one.

Once your loved one is released through a successful habeas corpus petition, they can return home, work more closely with their immigration attorney, gather evidence, and better prepare their immigration case.

Does your loved one who is detained have to file the habeas corpus petition themselves?

No. Once hired, an experienced attorney like Nita Kundanmal, she will draft and file the habeas corpus petition very quickly when it is an emergency situation to file the petition.

Often, a family member is the first one to contact our office and ask for legal representation for their loved one and provides the facts and documents needed to evaluate the case. Sometimes, your detained loved one calls from the detention facility and asks us to contact their family and arrange for legal representation. Your detained loved one does not have to face this difficult situation alone.

Where is a habeas corpus petition filed, and against whom?

A habeas corpus petitionis authorized by statute, 8 U.S.C.§ 2241. We file the habeas corpus petition in the federal court where your loved one is being detained. The petition is filed against the official responsible for your loved one's custody, usually the warden or detention facility director. That is why the detention facility where your loved one is held matters so much: it usually determines which federal district court hears the case. Because ICE can and does transfer people between detention facilities and states, the location of detention is one of the first things to confirm and it is essential to file the petition as an emergency case before ICE is about to transfer your loved one. If filed in time, we try to keep your loved one in New Jersey.

If you are in another state and your loved one may be moved from your home state, we try to keep your loved one in your home state.

My loved one has a final order of removal but is still detained and not being deported. Can a habeas corpus petition help?

It depends. After a final order of removal, ICE cannot always detain your loved one indefinitely. If your loved one has been detained for about nine months after the final order, and there is no realistic chance they will be deported in the near future, continued detention may be unlawful.
During this initial nine-month period, detainees are generally subject to mandatory detention for the first three months. During the following six months, ICE attempts to carry out the detainee’s removal from the United States.

When removal cannot be carried out or not reasonably foreseeable because a country refuses to issue travel documents or other circumstances, a habeas corpus petition may be used to ask a federal district court judge to order your loved one’s release.

How fast does a habeas case move?

It depends on the circumstances. Because a habeas corpus petition challenges a person's detention, federal district courts often recognize that these cases require prompt attention. If there is an emergency—such as an imminent transfer to another detention facility or another urgent issue— the federal district may act quickly. Other cases may take weeks or longer, depending on the facts, the court's schedule, and the government's response.

What can a habeas petition actually accomplish?

Depending on the circumstances, a habeas corpus petition may seek release from detention, a bond hearing, or other relief related to unlawful detention. The specific request depends on the facts of the case. The goal is to obtain relief that allows your loved one to return home or requires the government to justify the detention before a federal district court judge.

ICE transferred my relative to another state. Does that affect the case?

Yes, it can. If ICE transfers your loved one to another detention facility or another state before a habeas corpus petition is filed, it may affect which federal court has jurisdiction over the case. That is why it is important to act quickly. In some situations, improper transfers can also be challenged in federal district court.

Do we have to try everything else before filing a petition for habeas corpus?

Not always. In some cases, a federal district court judge may expect a person to first pursue other available remedies, such as requesting a bond hearing before an immigration judge. In other cases, filing a habeas corpus petition immediately may be appropriate. Whether other steps are required depends on the specific facts of the case, so it is important to evaluate the situation before filing.

What information do you need to evaluate whether habeas is the right tool?

To evaluate whether a habeas corpus petition is the right option, we typically need your loved one's:

• A-number
• The detention facility where they are being held
• The status of their immigration case
• Whether they have had a bond hearing and the outcome
• Any relevant criminal history.

This information helps us determine whether a habeas petition may be available and whether it is the right strategy for the case.

Will filing a habeas petition hurt the underlying immigration case?

Generally, no. A habeas corpus petition challenges the legality of your loved one's detention, not whether they should be deported. The habeas case and the immigration case are separate legal proceedings. In many situations, a federal district court judge can order ICE to release your loved one from detention or order a bond hearing that was previously unavailable. Being released from detention allows a person to better prepare their immigration case, gather evidence, and work more closely with their attorney. Because every case is different, the overall legal strategy should be carefully coordinated.

How do I know if my loved one has a habeas corpus case?

The best way to find out is to have the case evaluated by an attorney like Nita Kundanmal who is experienced in immigration habeas corpus litigation. A habeas corpus petition may be appropriate if your loved one has been detained for a prolonged period, was denied a bond hearing, is being held under the wrong detention law, remains detained after a final order of removal when deportation is not likely, or if there are other legal problems with the detention. Every case is different, so the facts must be carefully reviewed before deciding whether a habeas corpus petition is the right option.

When should a habeas corpus petition be filed?

It depends on the circumstances. In some cases, a habeas corpus petition should be filed as soon as possible, especially if your loved one is at risk of being transferred to another detention facility or another state. In other cases, it may be appropriate to first pursue other available remedies. Because timing can affect your legal options, it is important to have the case evaluated promptly by an attorney like Nita Kundanmal who is experienced in immigration habeas corpus litigation.

Can someone file a habeas corpus petition after a bond hearing is denied?

Yes, in some cases. A bond denial does not necessarily mean there are no other legal options. If the bond hearing was legally flawed, your loved one was denied due process, or the continued detention has become unlawful, a habeas corpus petition may be available. Whether habeas is the right option depends on the specific facts of the case and should be carefully evaluated.

Can we file a habeas corpus petition if ICE says detention is mandatory?

Yes, in some cases. Even if ICE says your loved one is subject to mandatory detention, a habeas corpus petition may still be available. Whether a federal court can grant relief depends on the specific facts of the case, the reason for the detention, and the law that applies. Mandatory detention does not automatically mean there are no legal options.

What happens after a habeas corpus petition is filed?

After the petition is filed, the federal court will usually require the government to respond. The judge will review the habeas corpus petition and the government’s answers and may schedule a hearing if necessary. Depending on the case, the court may order your loved one's release, require a bond hearing, deny the petition, or grant other appropriate relief.

Can ICE transfer my loved one after a habeas corpus petition is filed?

It depends. Filing a habeas corpus petition does not automatically prevent ICE from transferring your loved one to another detention facility or another state. However, in some cases, the federal district court judge may issue an order preventing a transfer while the case is pending. If you believe a transfer is imminent, it is important to seek legal advice as soon as possible.

Will the federal judge order my loved one released immediately?

Not necessarily. Every case is different. Depending on the circumstances, the federal judge may order your loved one's release, require a bond hearing, or grant other appropriate relief. Some cases are resolved quickly, while others take longer. The outcome depends on the facts of the case and the applicable law. It also depends on the federal district court judge.

What if ICE ignores a court order?

ICE is required to comply with court orders. If it does not, the federal district court judge has the authority to enforce its orders and require the government to explain or correct its actions. If you believe ICE has violated a court order, you should notify your attorney immediately so that appropriate action can be taken.

Do I need an immigration lawyer or a federal court lawyer for a habeas corpus petition?

A habeas corpus petition is filed in federal district court, but it often involves complex immigration law as well. Ideally, your attorney should have experience handling both immigration proceedings and federal habeas corpus litigation. This helps ensure that the federal court case and the underlying immigration case are coordinated to achieve the best possible outcome.

Unlike attorneys who focus only on immigration court, the Law Office of Nita Kundanmal handles both. She understands how to coordinate a habeas corpus petition with the underlying immigration case and is able to develop a coordinated strategy that addresses both your loved one's detention and their fight to remain in the United States.

Nita Kundanmal is also skilled at coordinating your loved one’s criminal or municipal court charges and bond case with the habeas corpus petition and removal case.

The Law Behind This

The answers above rest on the following principal authorities. This is a general reference, not a substitute for advice on a specific case.

• 28 U.S.C. § 2241 — the federal habeas statute used to challenge the lawfulness of immigration detention.
• Rumsfeld v. Padilla, 542 U.S. 426 (2004) — a habeas petition generally names the person's immediate custodian and is filed in the federal district where they are held.
• REAL ID Act, 8 U.S.C. § 1252(a)(5), (b)(9) — challenges to a removal order itself go to the federal courts of appeals by petition for review, while habeas remains available to challenge detention.
• Zadvydas v. Davis, 533 U.S. 678 (2001) — detention after a final order under 8 U.S.C. § 1231(a)(6) is not indefinite; release may be required where removal is not significantly likely in the reasonably foreseeable future (the Court used roughly six months as a benchmark).
• Demore v. Kim, 538 U.S. 510 (2003) and Jennings v. Rodriguez, 583 U.S. 281 (2018) — addressing mandatory detention under 8 U.S.C. § 1226(c) and clarifying that the detention statutes do not themselves require periodic bond hearings, leaving constitutional challenges to be raised separately.
• 8 U.S.C. §§ 1225(b), 1226(a), 1226(c), 1231 — the statutes that set the authority for, and the limits on, immigration detention.
• In the Third Circuit, which includes New Jersey, Guerrero-Sanchez v. Warden, 905 F.3d 208 (3d Cir. 2018) and German Santos v. Warden, 965 F.3d 203 (3d Cir. 2020) recognize that prolonged detention can entitle a person to an individualized bond hearing on due process grounds.

The information on this page is provided for general educational purposes and does not constitute legal advice or a guarantee of any particular outcome. Immigration detention law is complex and varies by jurisdiction. To discuss the specifics of a detained individual's situation, please contact the office for a consultation.