Fewer Immigrants Challenging Their Detention in Court

When an immigrant wishes to challenge their detention in court, that person will file what’s called a writ of habeas corpus in federal court. In theory, this requires the government agency holding that person (in this case, Immigration and Customs Enforcement) to provide the court with a justification for why they are holding that person. If the agency cannot provide a lawful reason, the judge may order them to release the detainee.

The Legal Information Institute at Cornell University explains it this way: “A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody.”

What we found in our recent report at TRAC was that the number of habeas corpus petitions for immigrant detainees filed in federal court has declined significantly and is now at the lowest levels in at least five years.

The number of habeas corpus petitions spiked early in the pandemic as immigration attorneys and other advocates grew concerned about exposure to the COVID-19 virus inside detention facilities as well as the lack of adequate medical care.

However, habeas corpus petitions have declined from a high of 439 in April 2020 to just 32 in September 2021. This could be due in part to the fact that Immigration and Customs Enforcement’s most recent data (as of October 7, 2021) show that the average number of days spent in detention dropped significantly from 86.5 days in October 2020 to 20.3 days in September 2021.

With shorter stays may come less need and opportunity to file petitions in court to release detained persons. Altogether 980 habeas corpus petitions were filed in FY 2021, with many filings concentrated in districts with detention centers.

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Austin Kocher, PhD

I study America’s immigration enforcement system. Assistant Professor at TRAC. Graduate of OSU Geography. Online at austinkocher.com.