Habeas Corpus and Immigration Detention: Constitutional Concerns Beyond Legal Authority

U.S. Immigration and Customs Enforcement (ICE) is directing attorneys to no longer allow bond hearings for some kind of aliens including those in the U.S. illegally, forcing them to remain in detention while fighting their deportation.

However, a petition for Habeas Corpus remains one of the most powerful constitutional remedies available to noncitizens held in U.S. immigration custody. While often misunderstood as a tool to challenge the legality of detention per se, the true scope of habeas corpus extends well beyond the statutory authority to detain. In fact, federal courts may intervene even when immigration detention is legally authorized - if that detention gives rise to constitutional concerns.

Not About Lawfulness Alone

Under 28 U.S.C. § 2241, a habeas petition allows detained individuals to seek relief from custody that violates the U.S. Constitution, laws, or treaties. Importantly, the inquiry is not confined to whether the government has the statutory power to detain under the Immigration and Nationality Act (INA). Rather, courts may assess whether continued or prolonged detention, or the conditions of that detention, have crossed into unconstitutional territory.

For example, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that post-removal order detention beyond a “presumptively reasonable” six-month period could violate due process. Likewise, where detention becomes indefinite or punitive without individualized justification, it may raise serious Fifth Amendment concerns - even when the underlying removal proceedings remain pending. Simply writing it may be totally legal to detain an alien under the U.S. law but since the detention is civil - not criminal, the period of detention turning into indefinite - may become unconstitutional.

Prolonged Detention and Due Process

Prolonged detention without a bond hearing can trigger constitutional scrutiny under the Due Process Clause. Several courts, especially in the Ninth and Second Circuits, have recognized that noncitizens detained for extended periods (e.g., over six months to a year) without a meaningful opportunity for release may raise viable habeas claims - regardless of whether the detention was originally lawful.

This principle has been applied in cases involving mandatory detention under § 236(c) of the INA, where courts have ordered release or a bond hearing if the duration becomes excessive. Detention may start as lawful but become unconstitutional by virtue of its length and the absence of adequate procedural safeguards.

Conditions of Confinement

Another often-overlooked ground for habeas relief is the conditions of immigration detention. Although ICE facilities are civil in nature, some detainees endure environments comparable to punitive incarceration. Allegations of inadequate medical care, excessive use of solitary confinement, or exposure to dangerous conditions (e.g., during COVID-19 outbreaks) can support claims that detention violates the Fifth or Eighth Amendments. Courts have repeatedly acknowledged that civil detainees may not be held under conditions that amount to punishment.

In such cases, the petition does not seek release from detention based on illegality, but rather injunctive relief to remedy conditions so egregious they violate constitutional standards.

Excessive Bond Amounts and Equal Protection

Even when bond is granted, the amount set must pass constitutional scrutiny. Under the Due Process and Equal Protection Clauses, courts have emphasized that bond cannot be so high that it becomes de facto detention for the poor while enabling release for the wealthy. In Hernandez v. Sessions, 872 F.3d 976 (9th Cir. 2017), the court held that immigration judges must consider a detainee’s ability to pay and whether alternatives to detention could suffice. A bond order that disregards a person’s financial situation may violate the Constitution by institutionalizing unequal treatment based on wealth. Habeas petitions have been used to challenge such excessive bond practices as functionally punitive and discriminatory.

Exhaustion and Its Exceptions

While exhaustion of administrative remedies is generally encouraged before filing a habeas petition, it is not always required. Unlike other forms of review under the INA, habeas corpus is not categorically barred by failure to exhaust unless specifically mandated by statute - which § 2241 is not.

Courts recognize exceptions to exhaustion where:

• The administrative process is inadequate or futile;

• Irreparable harm would result from delay (e.g., medical emergency cases); or

• The constitutional claim is not within the agency’s authority to address.

In such scenarios, immediate resort to the federal court may be appropriate and justifiable.

Conclusion

Habeas corpus remains a vital remedy for noncitizens in ICE custody - not just as a challenge to unlawful detention, but, impotently(!!!) - exclusively - as a check against situations constituting constitutional concerns in how that detention is carried out. Even if the U.S. government has statutory authority to detain, due process, proportionality, and humane conditions remain constitutional prerequisites. Immigration custody is not immune from the Constitution, and habeas corpus ensures that this principle is enforceable in federal court.