❓WHAT HAPPENED: Immigration attorneys have increasingly turned to federal courts to challenge detention policies, flooding the system with 24,400 habeas claims.
👤WHO WAS INVOLVED: Attorneys such as Dan Gividen and Jeremy McKinney, federal judges, U.S. Immigration and Customs Enforcement (ICE), and illegal immigrants detained across the United States.
📍WHEN & WHERE: Ongoing since January 2025, with cases filed in federal courts across the country.
💬KEY QUOTE: “The only way that the overwhelming majority of people that ICE is detaining right now is going to get out is through the habeas system.” – Dan Gividen
🎯IMPACT: Some federal judges have issued rulings rejecting the government’s interpretation of immigration law and granting the habeas claims, with hundreds of detainees released or granted bond hearings.
Immigration attorneys are increasingly turning to federal courts to challenge the detention of illegal immigrants, using habeas claims in an effort to force the release of illegal immigrants en masse. The U.S. Constitution provides the writ of habeas as a means of preventing the federal government from detaining Americans without justification, but the mechanism has increasingly been used by immigration attorneys to force bond hearings for illegal immigrant detainees.
“The only way that the overwhelming majority of people that ICE is detaining right now is going to get out is through the habeas system,” Dan Gividen, a former deputy chief counsel for U.S. Immigration and Customs Enforcement (ICE) who now represents illegal immigrants in federal court, stated in a recent interview. The number of habeas filings has risen to more than 24,400 since January 2025. Notably, the mass habeas filings have jammed up both the deportation process and the federal judiciary’s ability to address other non-immigration cases.
“We’re suing the federal government weekly,” Jeremy McKinney, former president of the American Immigration Lawyers Association, said, adding, “We have to kick the door down.”
The National Pulse reported in May 2025 that the Trump White House was considering moves to suspend habeas corpus for illegal immigrants—effectively ending the writ of habeas mechanism currently being utilized by immigration attorneys. “The privilege of the writ of habeas corpus can be suspended in a time of invasion. That’s an option we’re actively looking at,” White House Deputy Chief of Staff for Policy Stephen Miller said at the time, adding, “A lot of it depends on whether the courts do the right thing or not.”
Still, the habeas filings have been complicated in some jurisdictions, especially in the United States Court of Appeals for the Fifth Circuit, where the appellate court ruled that “unadmitted aliens apprehended anywhere in the United States are ineligible for release on bond, regardless of how long they have resided inside the United States.” This ruling has not stopped lower court judges from attempting workarounds.
Two federal district court judges in Texas—so far—believe they have identified a loophole in the appellate court ruling that allows lower courts to continue issuing bond releases for illegal immigrants based on constitutional grounds. District Court Judges Kathleen Cardone—a Bush appointee—and David Briones—a Clinton appointee—both contend in rulings made earlier this week that the Fifth Circuit ruling “has no bearing on this Court’s determination of whether [the petitioner] is being detained in violation of his constitutional right to procedural due process.”
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