What is habeas corpus?
A person in government custody petitions a court. The court orders the government to show up and explain why this person is being held. If the government cannot provide a legal justification, the person is released.
Article I, Section 9 of the Constitution: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." It is in Article I (congressional powers), meaning only Congress can suspend it. Not the president.
The Supreme Court has called it the "Great Writ" and the most important safeguard of individual liberty.
- 4
- times suspended in U.S. history
- 31,357
- immigration habeas petitions (6 months)
- 96.7%
- win rate in immigration cases
- <1%
- win rate in criminal cases
The four times it was suspended
Every Habeas Suspension in U.S. History
| When | Who | Why | What happened |
|---|---|---|---|
| 1861 | Lincoln | Civil War: detained Confederate sympathizers in Maryland | Chief Justice Taney ruled Lincoln lacked authority. Congress retroactively authorized it in 1863. |
| 1871 | Congress | KKK violence in 11 South Carolina counties | Suspended to allow federal troops to arrest KKK members. |
| 1905 | Governor | Military rebellion in two Philippine provinces (U.S. territory) | Limited to the two affected provinces. |
| 1941 | Governor + military | Pearl Harbor attack in Hawaii | Military tribunals replaced civilian courts. Lasted until October 1944. |
After 9/11, Congress tried a different approach: instead of suspending habeas, the Military Commissions Act of 2006 stripped Guantanamo detainees of the right to file habeas petitions at all.
The Supreme Court struck that down in Boumediene v. Bush (2008), 5-4: Guantanamo detainees have a constitutional right to habeas corpus. The government cannot create a "law-free zone" by holding people outside U.S. borders.
The 2025-2026 explosion
Between October 2025 and March 2026, 31,357 immigrants filed habeas petitions in federal courts challenging ICE detention. To put that in context: El Paso averaged 26 habeas petitions per year from 2021 to 2024. In 2025, that number jumped to nearly 300.
| Program | Amount |
|---|---|
| 2021 | 1200 |
| 2022 | 1400 |
| 2023 | 1600 |
| 2024 | 2100 |
| Oct 2025 - Mar 2026 | 31357 |
The 2025-2026 surge followed the firing of 100+ immigration judges and elimination of bond hearings.
Western District of Texas: 3,448 cases in six months, the highest in the country. Michigan: 800+ petitions from people detained at North Lake Processing Center. Judges ruled hundreds were "unlawfully detained."
Of 362 immigration habeas cases decided in federal district courts, 350 were decided in favor of the detainee. That is a 96.7% success rate. When judges reviewed the detentions, the government lost nearly every time.
Who This Affects
Detained at North Lake, Baldwin, Michigan
ICE transferred detainees from across the country to a converted federal prison camp in rural Michigan, far from lawyers, family, and immigration courts. When local attorneys filed habeas petitions, federal judges found the detentions lacked legal basis. Hundreds were ordered released. The government could not explain why they were being held.
Based on documented cases and public data.
The Alien Enemies Act
March 2025: Trump invoked the 1798 Alien Enemies Act to deport alleged Venezuelan gang members to CECOT prison in El Salvador without hearings. First use since WWII.
Judge Boasberg ruled deportees were denied due process. The Supreme Court (5-4, April 2025) allowed deportations to continue, but Barrett joined the liberal dissent. By December 2025, a judge ruled the deportations violated due process.
Habeas corpus was the only tool that slowed it down.
Criminal versus immigration habeas
Two Different Success Rates
| Criminal habeas | Immigration habeas (2025-2026) | |
|---|---|---|
| Petitions filed/year | ~12,000 | 31,357 in 6 months |
| Success rate | Under 1% | 96.7% |
| Procedural dismissals | 63% | Most reached merits |
| Why the gap | AEDPA (1996) severely limited federal review of state convictions | No comparable restrictions; detention often lacked any legal basis |
AEDPA, the 1996 Antiterrorism and Effective Death Penalty Act, made criminal habeas nearly impossible. Federal courts cannot overturn state convictions unless the state court decision was "contrary to clearly established federal law." The bar is so high that fewer than 1% of criminal habeas petitions succeed.
Immigration habeas has no comparable restriction. When the government detains someone without a hearing, without a judge, and without a legal basis, habeas is straightforward: show me the authority. In 2025-2026, the government usually could not.
What you can do
- Know the right exists. Anyone in government custody, citizen or not, can file a habeas petition. If you or someone you know is detained by ICE, contact the ACLU or a local immigration attorney.
- Support organizations filing habeas petitions. The ACLU, Center for Constitutional Rights, and local legal aid organizations are filing thousands of petitions.
- Read the funding retaliation brief and the Rule of Law hub.
Primary Sources
- Brennan Center: Habeas Corpus Explained
- 31,357 Immigration Habeas Petitions Filed
- Habeas Success Rates in Immigration Detention
- Michigan: Hundreds Unlawfully Detained
- Constitution: Suspension Clause
Last updated May 29, 2026