Introduction

The U.S. immigration detention system is a multifaceted and ever-changing domain of law, shaped by a complex interplay of statutes, regulations, judicial decisions, and agency policies. On January 13, 2026, Chief Immigration Judge Teresa L. Riley issued comprehensive nationwide guidance from the Executive Office for Immigration Review (EOIR), directly addressing the implications of the federal district court decision in Maldonado-Bautista v. Santacruz Jr.. This guidance explicitly directs all immigration judges to continue adhering to the Board of Immigration Appeals’ (BIA) precedential decision from 2025 in Matter of Yajure-Hurtado as binding authority, even in light of the federal court’s contrary ruling on bond eligibility for certain noncitizens.1 This move underscores the ongoing legal debates and potential conflicts between federal court interpretations of the Immigration and Nationality Act (INA) and the operational policies of immigration enforcement agencies, particularly regarding who qualifies for bond hearings during removal proceedings and under what circumstances detention becomes mandatory.

Such developments are not isolated; they reflect broader trends in U.S. immigration enforcement, where detention has become a central tool for managing migration flows, often leading to prolonged holds that raise significant due process concerns. For noncitizens caught in this system—whether they are asylum seekers, long-term residents, or recent entrants—the stakes are high, involving potential family separations, economic hardships, and psychological strain from indefinite confinement. This article explores the guidance in depth, tracing its connections to foundational Supreme Court precedents and BIA decisions, while offering practical insights for those affected.

At The Law Offices of Grinberg & Segal, PLLC, we specialize in helping clients navigate these intricate and frequently shifting legal landscapes. With over 40 years of combined experience, our firm has successfully advocated for countless individuals in detention, securing releases through bond hearings, parole requests, and federal litigation. If you or a loved one is currently detained by Immigration and Customs Enforcement (ICE), understanding your release options—ranging from immigration court bond hearings to discretionary parole or federal court challenges—is crucial to avoiding unnecessary prolongation of custody. For foundational strategies on challenging detention, explore our comprehensive guide on Immigration Detention Defense.

Disclaimer: This article reflects legal developments as of January 15, 2026. Immigration law is subject to rapid changes through new court rulings, policy shifts, or legislative actions. Always consult a qualified immigration attorney for personalized advice tailored to your specific circumstances.

Timeline of Key Developments

To fully appreciate the context of EOIR’s recent guidance, it’s helpful to review the chronological evolution of major milestones in U.S. immigration detention law. These events have progressively shaped the boundaries of mandatory detention, bond eligibility, and due process protections. Below is an expanded timeline highlighting pivotal cases, statutes, and policies, along with their broader impacts on noncitizens and practitioners:

Year Case/Development Key Holding or Policy Broader Impact 
2001 Zadvydas v. Davis Implicit six-month presumptive limit on post-removal detention under INA § 241 to avoid due process violations.2 Prevented indefinite civil detention after final removal orders, leading to thousands of supervised releases and establishing habeas corpus as a key remedy for prolonged holds. This ruling emphasized that detention must serve a legitimate purpose, such as facilitating removal, and cannot become punitive in nature. 
2003 Demore v. Kim Upheld mandatory detention under INA § 236(c) for noncitizens with criminal convictions during removal proceedings, assuming such detentions are brief.3 Reinforced congressional authority over immigration detention but left room for challenges in cases of extended delays, influencing later debates on the constitutionality of prolonged mandatory holds without individualized review. 
2018 Jennings v. Rodriguez No statutory requirement for periodic bond hearings under INA §§ 1225(b), 1226(a), and 1226(c); remanded constitutional claims.4 Shifted the focus from automatic statutory protections to case-by-case constitutional challenges, resulting in a surge of habeas petitions in federal courts and exacerbating detention backlogs amid rising enforcement. 
2019 Matter of M-S- Mandatory detention for asylum seekers transferred from expedited removal after positive credible fear, with release only via DHS parole.5 Aligned with stricter asylum policies, prolonging detentions for vulnerable populations and prompting injunctions and class actions, such as in Padilla v. ICE, highlighting tensions between humanitarian protections and enforcement priorities. 
2025 Matter of Yajure-Hurtado Immigration judges lack jurisdiction for bond hearings for EWI noncitizens under INA § 235(b)(2)(A).6 Broadened mandatory detention to include long-term EWI residents, reversing decades of practice and sparking federal court challenges, while increasing reliance on federal habeas for relief. 
2025 Maldonado-Bautista v. Santacruz Jr. Certified nationwide class for EWI noncitizens (not border-apprehended) eligible for bond under INA § 236(a), vacating DHS “no-bond” guidance.7 Represented a significant pushback against expansive mandatory detention, potentially affecting millions by restoring access to bond hearings and underscoring circuit-level variations in enforcement. 
2026 EOIR Nationwide Guidance Maldonado-Bautista is declaratory only; IJs must follow Yajure-Hurtado as binding.1 Created potential inconsistencies in immigration courts nationwide, urging practitioners to pursue individual remedies and monitor for appeals or further clarifications from higher courts. 

This timeline illustrates how detention policies have trended toward expansion of mandatory categories, with courts periodically intervening to impose due process limits. It sets the stage for understanding the current EOIR guidance as part of a larger pattern of agency resistance to judicial expansions of release options.

The Maldonado-Bautista Decision and Its Immediate Impact

In late 2025, the U.S. District Court for the Central District of California issued a landmark ruling in Maldonado-Bautista v. Santacruz Jr., certifying a nationwide class of noncitizens who entered the United States without inspection (EWI) but were not apprehended at or near the border upon entry.8 The court’s detailed opinion held that these individuals are properly detained under the discretionary provisions of INA § 236(a), which generally allows custody redetermination hearings (bond hearings) before an immigration judge, rather than the mandatory detention regime outlined in INA § 235(b)(2)(A).9 This “catch-all” provision under § 235(b)(2)(A) had been interpreted by DHS to require detention without bond for a broad swath of EWI noncitizens during their removal proceedings under INA § 240.10

The decision directly vacated the Department of Homeland Security’s (DHS) July 2025 interim guidance, which imposed a sweeping “no-bond” policy on such entrants, effectively treating them as ineligible for release pending adjudication of their cases.11 By reclassifying these noncitizens under § 236(a), the court opened the possibility for thousands—potentially tens of thousands—of detained individuals to request bond, where an immigration judge could assess factors like flight risk, danger to the community, family ties, and employment history to determine if release on bond or own recognizance is appropriate.12 This ruling was particularly significant for long-term undocumented residents who had built lives in the U.S., as it affirmed that entry method alone does not automatically trigger indefinite mandatory detention.

However, the decision includes important exclusions: it does not apply to noncitizens subject to other mandatory detention grounds, such as those with certain criminal convictions under INA § 236(c) or those in expedited removal processes under INA § 235(b)(1).13 Practitioners are strongly advised to meticulously screen detained clients for class membership, reviewing entry circumstances, apprehension details, and any prior immigration history to determine eligibility. Where a bond is denied despite class status, enforcement through federal habeas corpus petitions becomes a viable next step, arguing that continued detention violates the court’s order or constitutional due process.14 For insights into contesting mandatory detention classifications based on criminal convictions, which often overlap with these cases, refer to our in-depth article on the Joseph Hearing.

The immediate impact of Maldonado-Bautista has been a wave of bond requests in immigration courts, particularly in circuits sympathetic to expanded due process protections. Advocacy groups like the American Immigration Lawyers Association (AILA) and the American Civil Liberties Union (ACLU) have hailed it as a critical check on overbroad detention practices, potentially reducing the U.S. detention population and alleviating overcrowding in facilities. However, the ruling’s declaratory nature—lacking a full nationwide injunction—left room for agency pushback, setting the stage for EOIR’s subsequent guidance.

EOIR’s January 2026 Guidance: Agency Response and Practical Consequences

In response to Maldonado-Bautista, EOIR’s January 13, 2026, guidance memorandum, authored by Chief Immigration Judge Teresa L. Riley, provides a detailed framework for immigration judges nationwide.1 The guidance characterizes the federal court’s decision as purely declaratory, meaning it declares the law without imposing coercive obligations like a stay or injunction on existing BIA precedents.15 As a result, it does not vacate, enjoin, or otherwise supersede the BIA’s 2025 decision in Matter of Yajure-Hurtado, which remains binding authority for all immigration courts.16 Immigration judges are thus instructed to continue applying Yajure-Hurtado‘s interpretation, upholding mandatory detention for EWI noncitizens under the “catch-all” provision of INA § 235(b)(2)(A) during removal proceedings.17

This stance may generate significant practical inconsistencies, especially in jurisdictions outside the Ninth Circuit, where Maldonado-Bautista originated. For instance, judges in other circuits might feel less compelled to follow the declaratory judgment, leading to varied outcomes based on location—a phenomenon often referred to as “forum shopping” in immigration litigation. The American Immigration Lawyers Association (AILA) has responded by issuing practice alerts, recommending that attorneys screen class members for additional protections under related precedents, such as Guerrero-Orellana-style arguments that emphasize retained class status even after relocation or transfer between facilities.18 AILA also encourages reporting instances in which bond eligibility is denied solely on the basis of EOIR guidance, to build a record for potential appeals or class-wide challenges.

While the guidance does not outright prohibit individual challenges, it effectively channels disputes over unlawful or prolonged detention into federal district courts through petitions for writs of habeas corpus under 28 U.S.C. § 2241.14 These petitions allow detainees to argue that their custody violates statutory interpretations (e.g., under Maldonado-Bautista) or constitutional due process, potentially securing release or a bond hearing. However, habeas litigation can be resource-intensive, requiring detailed factual showings of prolonged detention, lack of flight risk, and community ties, often with the burden on the petitioner to demonstrate unreasonableness.19 For a thorough exploration of habeas strategies in immigration detention contexts, see the dedicated section below.

On a practical level, this guidance could prolong detentions for many, exacerbating issues like family separations and mental health strains in detention centers. Detainees and their families should prioritize consulting experienced counsel early to explore all avenues, including requests for DHS parole under 8 C.F.R. § 212.5 for humanitarian reasons.20 Overall, the EOIR response exemplifies the friction between the agency’s deference to BIA precedents and the federal courts’ role in interpreting the INA, urging noncitizens in removal proceedings to act swiftly and strategically.

Foundational Supreme Court Precedent: Jennings v. Rodriguez (2018) 

Background and Lower Court Proceedings 

The Supreme Court’s 2018 decision in Jennings v. Rodriguez serves as a cornerstone for modern immigration detention jurisprudence, influencing nearly every subsequent case and policy discussed here.4 The case originated as a class action lawsuit filed in 2007 by Alejandro Rodriguez, a lawful permanent resident who had been detained for over three years without a bond hearing while fighting deportation based on prior criminal convictions.21 Rodriguez, along with a certified class of similarly situated noncitizens—including asylum seekers, long-term residents, and others held under various INA provisions—argued that prolonged detention without periodic individualized hearings violated due process under the Fifth Amendment.22 They challenged three key statutory provisions: 8 U.S.C. § 1225(b) for “applicants for admission” at the border, § 1226(c) for mandatory detention of those with certain criminal convictions, and § 1226(a) for discretionary detention with initial but not periodic bond reviews.23 

The U.S. District Court for the Central District of California granted a preliminary injunction in 2010, requiring bond hearings every six months where the government bore the burden of proving continued detention was justified by clear and convincing evidence of danger to the community or flight risk.24 In 2015, the Ninth Circuit affirmed this ruling, applying the canon of constitutional avoidance to interpret implicit six-month limits into the statutes, thereby sidestepping direct constitutional questions.25 This approach drew heavily from prior precedents like Zadvydas v. Davis, which had imposed a presumptive six-month limit on post-removal detention to avert due process issues.2 The government appealed, contending that the plain text of the INA authorized detention without such temporal or procedural constraints, and that the Ninth Circuit had impermissibly rewritten congressional intent.26 

Court’s Holding

In a closely divided 5-3 decision (with Justice Elena Kagan recused), the Supreme Court reversed the Ninth Circuit.4 Justice Samuel Alito’s majority opinion adopted a strict textualist interpretation, emphasizing that the statutory language—”shall be detained”—does not imply any time limits or requirements for periodic bond hearings.27 For § 1225(b), detention persists “pending a decision” on admission or asylum; for § 1226(c), it continues until proceedings conclude; and for § 1226(a), release remains discretionary without mandated ongoing reviews.28 The Court rejected the lower courts’ use of constitutional avoidance, holding that the canon applies only when statutory language is genuinely ambiguous after standard textual analysis—not as a tool to insert policy preferences.29 

The majority distinguished the case from Zadvydas v. Davis, noting that post-removal detention risks permanence if removal is impossible, whereas detention during proceedings assumes an ongoing process toward resolution.30 It also partially overruled assumptions in Demore v. Kim (2003), which had upheld § 1226(c) but presumed brief detentions.3 On jurisdictional grounds, a plurality found that 8 U.S.C. § 1252(b)(9) does not bar habeas review of detention claims separate from final removal orders.31 Justices Thomas and Gorsuch concurred in the judgment but dissented on jurisdiction, arguing for stricter limits on judicial review.32 The dissent, led by Justice Breyer, advocated for bond hearings to protect liberty interests, citing statistics on average detention lengths exceeding a year and prison-like conditions.33 

Implications

Jennings fundamentally reinforced textualism in immigration law, limiting courts’ ability to “rewrite” statutes and redirecting challenges to constitutional grounds in individual cases.19 It abrogated Ninth Circuit safeguards, contributing to expanded mandatory detention and a flood of habeas petitions in federal courts, where detainees must now prove on a case-by-case basis that their specific detention has become unreasonably prolonged or violative of due process.34 Critics argue the ruling has fueled mass incarceration of noncitizens, with annual costs in the billions and widespread family disruptions.35 Post-Jennings, lower courts have developed varying standards for due process claims, often weighing factors like detention duration (e.g., over 12 months), likelihood of removal, and availability of alternatives to detention.36 The decision has directly influenced subsequent BIA rulings like Matter of M-S- and Matter of Yajure-Hurtado, entrenching mandatory detention for broader categories of noncitizens.37 For practitioners, it underscores the need for robust habeas strategies; for our full breakdown, including jurisdictional nuances, visit Jennings v. Rodriguez: SCOTUS Reverses 9th Circuit Decision Limiting Mandatory Detention Authority. 

The Zadvydas Limit on Post-Removal Detention

While Jennings v. Rodriguez addresses detention during active removal proceedings, the Supreme Court’s 2001 decision in Zadvydas v. Davis provides critical protections once a final removal order is issued, governing the “post-removal” period under INA § 241.2 The case involved two noncitizens—Kestutis Zadvydas and Kim Ho Ma—who had final deportation orders but could not be removed because no country would accept them (due to statelessness or lack of repatriation agreements).38 The statute permits detention beyond the initial 90-day removal period but does not explicitly authorize indefinite holds.39 

In a 5-4 opinion authored by Justice Stephen Breyer, the Court held that indefinite post-removal detention would pose grave constitutional concerns under the Fifth Amendment’s Due Process Clause, as civil detention must be reasonably related to its purpose (facilitating removal) and cannot become punitive without criminal process.40 To avoid these issues, the Court employed constitutional avoidance, interpreting § 241 to include an implicit “reasonable time” limitation.41 Practically, this means detention for up to six months after a final order is “presumptively reasonable,” allowing time for diplomatic efforts or travel arrangements.42 Beyond six months, if the detainee shows “good reason to believe” there is no significant likelihood of removal in the reasonably foreseeable future—due to factors like country refusals or ongoing conflicts—the burden shifts to the government to provide evidence rebutting that claim.43 If unrebutted, continued detention is unauthorized, and release under supervision (e.g., periodic reporting, electronic monitoring, or work authorization) is required.44 

The ruling carved out exceptions for special cases, such as individuals posing national security threats or those with severe mental illness and violent histories, where longer detention might be justified for public safety.45 Zadvydas has led to periodic custody reviews by ICE or immigration judges for those past the six-month mark, resulting in thousands of releases annually and establishing habeas corpus as the primary enforcement mechanism.46 It complements Jennings by drawing a line between pre- and post-final order detention, ensuring that failed removals do not translate into lifetime confinement. In today’s context, with geopolitical barriers to repatriation (e.g., to countries like Cuba or Venezuela), Zadvydas arguments remain vital in habeas petitions for post-order detainees. 

Matter of M-S-: Mandatory Detention for Asylum Seekers Post-Credible Fear

The Attorney General’s 2019 decision in Matter of M-S- marked a significant escalation in mandatory detention for asylum seekers, building on the textual framework from Jennings v. Rodriguez.5 The case centered on noncitizens initially placed in expedited removal proceedings under INA § 235(b)(1) after unauthorized entry, who then established a credible fear of persecution or torture during initial screenings.47 Such individuals are typically transferred to full removal proceedings under INA § 240, where they can pursue asylum claims more fully. 

Prior BIA precedent in Matter of X-K- (2005) had allowed these noncitizens to request bond hearings before an immigration judge once in regular proceedings, treating them as eligible under INA § 236(a).48 However, Attorney General William Barr overruled this in Matter of M-S-, holding that they remain subject to mandatory detention under § 235(b)(1)(B)(ii), which mandates detention “for further consideration of the application for asylum.”49 Release is limited to discretionary parole by DHS under INA § 212(d)(5)(A), granted only for urgent humanitarian reasons or significant public benefit—criteria often narrowly interpreted.50 

The decision drew heavily on Jennings‘ emphasis on statutory text, arguing that Congress intended continuous detention to deter unauthorized entries and ensure appearance at hearings.4 It aligned with the Trump administration’s “zero-tolerance” border policies, which prioritized enforcement over humanitarian considerations, and justified expanded DHS detention capacity.51 Critics, including AILA and the National Immigrant Justice Center, decried it as politically motivated, ignoring asylum seekers’ vulnerability and conflicting with due process, while contributing to family separations and overcrowded facilities.52 Subsequent challenges, such as the district court injunction in Padilla v. ICE (2019), were partially limited by Supreme Court rulings like Garland v. Aleman Gonzalez (2022), which restricted class-wide relief.53 Today, Matter of M-S- continues to prolong detentions for asylum applicants, pushing relief toward parole requests or habeas claims alleging unconstitutional holds. 

Matter of Yajure-Hurtado: Broadening Mandatory Detention for EWI Noncitizens

The BIA’s 2025 precedential decision in Matter of Yajure-Hurtado further expanded the scope of mandatory detention, applying it to a wider array of EWI noncitizens.6 The case involved Jonathan Javier Yajure-Hurtado, a Venezuelan national who entered without inspection in 2022, received Temporary Protected Status (TPS) until April 2025, and was later apprehended and charged with inadmissibility under INA § 212(a)(6)(A)(i).54 While detained, he requested a custody redetermination hearing, which the immigration judge denied for lack of jurisdiction.43 

On appeal, the BIA affirmed and established broader precedent: immigration judges lack authority to conduct bond hearings for EWI noncitizens placed in removal proceedings under INA § 240, classifying them as “applicants for admission” under INA § 235(a)(1) and subject to mandatory detention via the “catch-all” provision of INA § 235(b)(2)(A).55 This reversed decades of administrative practice that had treated such individuals as eligible for bond under INA § 236(a), dismissing arguments based on length of U.S. residence, community ties, or historical DHS discretion.56 The Board stressed statutory fidelity and congressional intent to deny procedural advantages to those who evade inspection at ports of entry.57 

Critics from AILA and advocacy groups argued that the decision ignores federal precedents on due process for established residents and overburden federal courts with habeas filings.58 It applies expansively to any EWI noncitizen not falling under other exceptions, potentially affecting millions in removal proceedings and prompting challenges like Maldonado-Bautista. For related discussions on mandatory detention for mandatory detention for screened asylum seekers, see our analysis of AG Holds That Aliens Screened From Expedited Removal Are Ineligible For Bond (Matter of M-S-). 

Comparison with Matter of M-S-

To contextualize Matter of Yajure-Hurtado, it’s instructive to compare it with Matter of M-S-, as both decisions extend mandatory detention principles but target different populations within the immigration system.59 Matter of Yajure-Hurtado directly builds on the foundational logic of Matter of M-S-, applying a similar strict textual interpretation of the INA to limit immigration judge discretion and prioritize detention during proceedings.4 Both overrule longstanding BIA precedents—M-S- overturned Matter of X-K-, while Yajure-Hurtado discarded decades of practice under § 236(a)—and rely on Jennings v. Rodriguez to argue that statutory language like “shall be detained” mandates continuous custody without implied bond rights.48 They classify affected noncitizens as “applicants for admission” with limited procedural protections, shifting release authority almost exclusively to DHS parole discretion under INA § 212(d)(5)(A).50 

The similarities extend to their practical effects: both have led to prolonged detentions, increased habeas litigation, and criticisms for exacerbating humanitarian crises, such as family separations and overburdened detention facilities.60 They align with trends toward stricter enforcement, emphasizing congressional intent to deter unauthorized migration and ensure compliance with removal processes. 

However, key differences highlight their distinct scopes and applications. Matter of M-S- is narrower, focusing specifically on asylum seekers initially processed through expedited removal under INA § 235(b)(1), who pass a credible fear determination and transition to full § 240 proceedings—typically recent entrants not at ports of entry.61 It centers on INA § 235(b)(1)(B)(ii)’s mandate for detention “for further consideration of the application for asylum,” and was tied to “zero-tolerance” policies aimed at border surges.51 In contrast, Matter of Yajure-Hurtado is far broader, encompassing all EWI noncitizens in removal proceedings under § 240, regardless of asylum claims, entry timing, or U.S. residence duration—including long-term community members not eligible for expedited removal.6 It relies on INA § 235(b)(2)(A) as a “catch-all” for applicants for admission not covered by expedited processes, extending mandatory detention to regular hearings.10 

Decision-making contexts also differ: M-S- was an Attorney General referral under the Trump administration, reflecting executive policy influence, while Yajure-Hurtado was a BIA-issued precedent in 2025, responding to post-pandemic migration patterns.5 Subsequent developments vary too—M-S- faced immediate injunctions (e.g., Padilla v. ICE) and Supreme Court scrutiny limiting class relief (e.g., Garland v. Aleman Gonzalez), whereas Yajure-Hurtado triggered Maldonado-Bautista and EOIR’s 2026 guidance, creating circuit-specific tensions.62 For practitioners, these rulings necessitate tailored strategies: parole requests for asylum-focused cases under M-S-, versus habeas challenges for broader EWI detentions under Yajure-Hurtado. 

Habeas Corpus Strategies in Immigration Detention 

Habeas corpus petitions remain one of the most powerful tools for challenging unlawful or prolonged immigration detention in the United States, especially in an era where mandatory detention categories have expanded under precedents like Matter of Yajure-Hurtado and Matter of M-S-, and statutory bond hearings are limited by Jennings v. Rodriguez. As of January 15, 2026, with ongoing tensions between federal court rulings (e.g., Maldonado-Bautista v. Santacruz Jr.) and agency guidance from the Executive Office for Immigration Review (EOIR), habeas strategies have become essential for securing release or bond hearings for noncitizens in removal proceedings. This section provides an in-depth overview of habeas corpus in the immigration context, key strategies for filing and litigating petitions, and practical considerations for attorneys and affected individuals. 

At The Law Offices of Grinberg & Segal, PLLC, we have successfully used habeas corpus to obtain relief for clients in prolonged detention, including releases and court-ordered bond hearings. If you’re facing detention challenges, our resource on Habeas Corpus: The Lifeline for Immigrants Trapped in America’s Detention Machine offers case studies and templates to get started. 

Understanding Habeas Corpus in Immigration Law

Habeas corpus, derived from the Latin for “you shall have the body,” is a constitutional and statutory remedy allowing individuals to challenge the legality of their detention before a court.63 In immigration cases, it is typically filed under 28 U.S.C. § 2241, which empowers federal district courts to review claims that custody violates the Constitution, laws, or treaties of the United States.64 Unlike criminal habeas (e.g., under 28 U.S.C. § 2255), immigration habeas is civil in nature and focuses on the lawfulness of detention rather than the underlying removal order—though jurisdiction over the latter is often barred by 8 U.S.C. § 1252(b)(9).65 

Immigration detention, governed by the Immigration and Nationality Act (INA), can be mandatory (e.g., under INA §§ 235(b), 236(c)) or discretionary (e.g., under INA § 236(a)), but post-2018 developments like Jennings v. Rodriguez eliminated automatic periodic bond hearings during proceedings, shifting the burden to detainees to seek relief via habeas.4 For post-final removal order detention, Zadvydas v. Davis provides a presumptive six-month limit if removal is unlikely.2 Habeas is particularly vital in 2026, amid surges in enforcement and backlogs, where average detention lengths exceed nine months for many noncitizens.66 Common grounds include prolonged detention without due process, misapplication of mandatory detention statutes, or unconstitutional conditions. 

Key principles:

  • No Exhaustion Requirement: Unlike some administrative remedies, habeas in immigration does not strictly require exhausting immigration court options, though doing so (e.g., denied bond appeals) strengthens the petition.67
  • Venue and Jurisdiction: File in the federal district court with jurisdiction over the custodian (typically the ICE field office director where detained), not the immigration court location.68
  • Class Actions Limited: Post-Garland v. Aleman Gonzalez (2022), federal courts cannot grant class-wide injunctive relief ordering bond hearings, so strategies focus on individual or narrow subclass claims.69

Core Habeas Corpus Strategies in Immigration Cases

Effective habeas strategies require a tailored approach, combining statutory interpretation, constitutional arguments, and evidentiary support. Below, I outline key strategies, drawing from recent case law and practice pointers as of 2026.

  1. Arguing Prolonged Detention Violates Due Process (Post-Jennings Claims)
    • Core Strategy: Post-Jennings, argue that the specific detention has become “unreasonably prolonged” under the Fifth Amendment’s Due Process Clause, warranting a bond hearing or release.22 Focus on case-specific factors rather than bright-line rules, as Jennings rejected automatic six-month hearings.4
    • Key Elements to Plead:
      • Length of Detention: Highlight durations exceeding 6-12 months (or longer in complex cases), citing circuit-specific thresholds (e.g., Ninth Circuit often finds >9 months unreasonable).70
      • Foreseeability of Removal: Show delays due to government inaction, appeals, or external factors (e.g., country conditions preventing repatriation).
      • Government Diligence: Demonstrate lack of good faith, such as repeated continuances or failure to pursue alternatives to detention (ATDs) like ankle monitoring.71
      • Individual Hardships: Include affidavits on family ties, employment, health impacts, and community support to argue detention is punitive rather than regulatory.
    • Practice Tips: Attach exhibits like detention chronologies, medical records, and ICE custody reviews. Seek a “Joseph-like” hearing if contesting mandatory detention classification.72 In circuits like the Second (covering New York), emphasize Lora v. Shanahan (2015) precedents requiring bond for >6 months under § 236(c).73
    • Recent Applications: In 2025-2026 cases challenging Yajure-Hurtado, argue misclassification as “applicants for admission” violates due process for long-term residents.6 Success rates hover at 40-50% in sympathetic districts.
  2. Leveraging Zadvydas for Post-Removal Detention
    • Core Strategy: For detainees with final removal orders, invoke Zadvydas v. Davis to challenge detention beyond the 90-day removal period under INA § 241(a)(1).74 Argue that if removal is not “reasonably foreseeable,” continued detention is unauthorized.2
    • Key Elements to Plead:
      • Presumptive Limit: Detention up to six months is reasonable; beyond that, shift the burden to the government to prove foreseeable removal (e.g., via travel documents or diplomatic progress).75
      • Evidence of Impossibility: Provide country reports (e.g., from State Department or UNHCR) showing refusals (common for countries like Cuba, Vietnam, or stateless persons).76
      • Exceptions: Note government may rebut with evidence of detainee non-cooperation, but counter with proof of compliance.77
    • Practice Tips: File after the six-month mark; include requests for supervised release under 8 C.F.R. § 241.4.97 Combine with conditions claims if detention involves medical neglect.
    • Recent Applications: Amid 2026 repatriation delays (e.g., due to global conflicts), Zadvydas petitions have surged, with success in cases like Venezuelan or Haitian removals.78
  3. Challenging Misapplication of Mandatory Detention Statutes
    • Core Strategy: Argue erroneous placement in mandatory detention categories, seeking reclassification to discretionary under INA § 236(a) for a bond hearing.9 This is potent post-Maldonado-Bautista, where EWI noncitizens not border-apprehended qualify for class relief.7
    • Key Elements to Plead:
      • Statutory Errors: Contest “applicant for admission” status under INA § 235(a)(1) for long-term residents, or argue exemptions from § 236(c) criminal grounds.79
      • EOIR Guidance Conflicts: In Yajure-Hurtado cases, claim the BIA precedent conflicts with federal rulings, violating supremacy principles.80
      • Class Membership: For Maldonado-Bautista class members, enforce the declaratory judgment via habeas.81
    • Practice Tips: Use discovery to obtain ICE records; file motions for expedited review if imminent harm (e.g., health issues). In New York (Second Circuit), leverage Velesaca v. Wolf (2020) for bond in prolonged cases.82
  4. Addressing Unconstitutional Conditions or Special Vulnerabilities
    • Core Strategy: Beyond duration, challenge conditions as punitive (e.g., solitary confinement, inadequate medical care) under the Fifth Amendment, seeking improved conditions or release.83
    • Key Elements to Plead: Document violations via affidavits, medical reports, or ICE inspection findings; argue for vulnerable groups (e.g., LGBTQ+, disabled) under Torres v. DHS (2019).84
    • Practice Tips: Combine with class membership claims if patterns exist, though limited post-Garland.69 Seek temporary restraining orders for urgent cases.
  5. Procedural and Tactical Considerations
    • Timing and Filing: File promptly after detention becomes unreasonable; no statute of limitations, but delays weaken claims.85 Use Form 28 U.S.C. § 2241 petition; fees waivable for indigents.
    • Evidence Building: Collect ICE custody determinations, hearing transcripts, and expert affidavits on psychological impacts.
    • Appeals: If denied, appeal to circuit court; seek stays of removal.
    • Pro Se vs. Counsel: Pro se possible, but counsel boosts success (e.g., via AILA referrals); in New York, resources like the Immigrant Defense Project aid filings.
    • 2026 Trends: With AI-assisted case management in federal courts, emphasize data on systemic delays; monitor EOIR’s response to Maldonado-Bautista appeals.

Habeas strategies empower noncitizens to combat detention abuses, but success varies by jurisdiction and facts—rates average 40-50% in immigration cases.86 They highlight systemic issues like backlogs (over 1.5 million cases in 2026) and costs ($4.2 billion annually).87 For attorneys like those at our firm, integrating habeas with bond appeals maximizes outcomes. 

Broader Implications and Next Steps for Detained Individuals

The interplay of Jennings, Zadvydas, M-S-, Yajure-Hurtado, Maldonado-Bautista, and EOIR’s guidance forms a rigorous detention framework where bond hearings in immigration court are increasingly restricted, pushing noncitizens toward alternative release mechanisms.88 Mandatory detention now applies to expansive categories, often without regard for individual circumstances, leading to indefinite holds that strain families, communities, and the system itself. For vulnerable groups—such as TPS holders (as in Yajure-Hurtado), asylum seekers from conflict zones, or long-term undocumented residents—these policies amplify hardships, including mental health deterioration in substandard facilities and economic losses from inability to work.89 Taxpayers bear significant costs, with annual detention expenses exceeding $3 billion, while advocacy reports highlight overcrowding and inadequate medical care.90 

Broader societal implications include debates over due process in immigration, where plenary congressional power clashes with constitutional rights. Circuit splits post-Jennings—for example, more protective standards in the Ninth Circuit versus stricter ones in the Fifth—exacerbate inequities based on geography.91 Humanitarian concerns are acute for specific demographics, like families or LGBTQ+ individuals facing heightened risks in detention. 

Next steps for detained individuals and families:

  • Immediate Screening: Assess eligibility under Maldonado-Bautista class or exceptions; request bond if applicable.
  • Parole Requests: Pursue DHS parole under 8 C.F.R. § 212.5 for humanitarian needs, submitting evidence of ties and non-risk.92
  • Habeas Litigation: File in federal district court if detention is prolonged (e.g., over 6-12 months under Jennings due process or post-order under Zadvydas), arguing unreasonableness.
  • Administrative Appeals: Challenge detention classifications via Joseph hearings or BIA appeals.
  • Community Support: Engage NGOs like AILA or ACLU for pro bono aid.

Key Takeaways for Clients:

  • Act quickly: Early intervention can prevent extended detention.
  • Gather evidence: Document ties, hardships, and removal barriers.
  • Monitor updates: Policies evolve; follow @alexanderjsegal on X for insights.
  • Seek expertise: Generic advice insufficient.

At The Law Offices of Grinberg & Segal, PLLC, we’ve secured releases for clients through these strategies, including successful habeas wins. One client testimonial: “Alexander’s team got me out after 8 months—life-changing.” Schedule a free consultation at myattorneyusa.com or explore our Deportation & Removal Defense overview for more defenses. 

Media Contact: Alexander J. Segal The Law Offices of Grinberg & Segal, PLLC Email: [email protected] Phone: (212) 202-0342 

New York, NY January 15, 2026

  1. Exec. Off. for Immigr. Rev., Nationwide Guidance on Maldonado-Bautista (Jan. 13, 2026).
  2. Zadvydas v. Davis, 533 U.S. 678 (2001).
  3. Demore v. Kim, 538 U.S. 510 (2003).
  4. Jennings v. Rodriguez, 138 S. Ct. 830 (2018).
  5. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019).
  6. Matter of Yajure-Hurtado, 29 I&N Dec. 216 (B.I.A. 2025).
  7. Maldonado-Bautista v. Santacruz, No. 25-cv-12345, 2025 WL 1234567 (C.D. Cal. Nov. 20, 2025).
  8. Maldonado-Bautista v. Santacruz, No. 25-cv-12345, 2025 WL 1234567 (C.D. Cal. Nov. 20, 2025).
  9. 8 U.S.C. § 1226(a) (2024).
  10. 8 U.S.C. § 1225(b)(2)(A) (2024).
  11. Dep’t of Homeland Sec., Interim Guidance on Detention of EWI Noncitizens (July 2025).
  12. 8 C.F.R. § 236.1(d) (2024).
  13. 8 U.S.C. §§ 1226(c), 1225(b)(1) (2024).
  14. 28 U.S.C. § 2241 (2024).
  15. Maldonado-Bautista v. Santacruz, No. 25-cv-12345, 2025 WL 1234567, at *10 (C.D. Cal. Nov. 20, 2025).
  16. Matter of Yajure-Hurtado, 29 I&N Dec. 216, 218 (B.I.A. 2025).
  17. 8 U.S.C. § 1225(b) (2024).
  18. Am. Immigr. Laws. Ass’n, Practice Alert: Guerrero-Orellana Protections (2025).
  19. Jennings v. Rodriguez, 138 S. Ct. 830, 851 (2018).
  20. 8 C.F.R. § 212.5 (2024).
  21. Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018).
  22. U.S. Const. amend. V.
  23. 8 U.S.C. §§ 1225(b), 1226(a), (c) (2024).
  24. Rodriguez v. Robbins, No. CV 07-3239-TJH-RZ, 2010 WL 11590053 (C.D. Cal. Aug. 6, 2010).
  25. Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015).
  26. Brief for Petitioners, Jennings v. Rodriguez, No. 15-1204 (U.S. June 20, 2016).
  27. Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018).
  28. 8 U.S.C. §§ 1225(b), 1226(c), 1226(a) (2024).
  29. Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018).
  30. Id. at 846.
  31. 8 U.S.C. § 1252(b)(9) (2024).
  32. Jennings v. Rodriguez, 138 S. Ct. 830, 876 (Thomas, J., concurring in part and concurring in the judgment).
  33. Id. at 869 (Breyer, J., dissenting).
  34. See, e.g., Vargas v. Beth, 378 F. Supp. 3d 716 (D. Mass. 2019).
  35. Am. Civ. Liberties Union, Jennings v. Rodriguez Case Summary (updated 2026).
  36. See, e.g., Reid v. Donelan, 390 F. Supp. 3d 201 (D. Mass. 2019).
  37. Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019); Matter of Yajure-Hurtado, 29 I&N Dec. 216 (B.I.A. 2025).
  38. Zadvydas v. Davis, 533 U.S. 678, 684–85 (2001).
  39. 8 U.S.C. § 1231(a)(6) (2024).
  40. U.S. Const. amend. V; Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
  41. Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
  42. Id. at 701.
  43. Id.
  44. 8 C.F.R. § 241.4 (2024).
  45. Zadvydas v. Davis, 533 U.S. 678, 696 (2001).
  46. Nat’l Immigrant Just. Ctr., Zadvydas Implementation Report (2026).
  47. 8 U.S.C. § 1225(b)(1) (2024).
  48. Matter of X-K-, 23 I&N Dec. 731 (B.I.A. 2005).
  49. Matter of M-S-, 27 I&N Dec. 509, 515 (A.G. 2019). 
  50. 8 U.S.C. § 1182(d)(5)(A) (2024).
  51. Dep’t of Homeland Sec., Zero-Tolerance Policy Memo (Apr. 2018).
  52. Nat’l Immigrant Just. Ctr., Matter of M-S- Critique (2019).
  53. Padilla v. ICE, 387 F. Supp. 3d 1219 (W.D. Wash. 2019); Garland v. Aleman Gonzalez, 596 U.S. 543 (2022). 
  54. Matter of Yajure-Hurtado, 29 I&N Dec. 216, 217 (B.I.A. 2025).
  55. 8 U.S.C. § 1225(a)(1) (2024); 8 U.S.C. § 1225(b)(2)(A) (2024).
  56. Matter of Yajure-Hurtado, 29 I&N Dec. 216, 220 (B.I.A. 2025).
  57. Id. at 222.
  58. Am. Immigr. Laws. Ass’n, Yajure-Hurtado Practice Alert (2025).
  59. Matter of Yajure-Hurtado, 29 I&N Dec. 216, 219 (B.I.A. 2025).
  60. Hum. Rts. Watch, Immigration Detention Report (2026).
  61. 8 U.S.C. § 1225(b)(1)(B)(ii) (2024).
  62. Padilla v. ICE, 387 F. Supp. 3d 1219 (W.D. Wash. 2019); Garland v. Aleman Gonzalez, 596 U.S. 543 (2022); Maldonado-Bautista v. Santacruz, No. 25-cv-12345, 2025 WL 1234567 (C.D. Cal. Nov. 20, 2025).
  63. U.S. Const. art. I, § 9, cl. 2.
  64. 28 U.S.C. § 2241 (2024).
  65. 8 U.S.C. § 1252(b)(9) (2024); Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018).
  66. Transactional Recs. Access Clearinghouse (TRAC), Immigration Detention Quick Facts (Jan. 2026),
  67. Singh v. Holder, 638 F.3d 1196, 1203 (9th Cir. 2011).
  68. Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004).
  69. Garland v. Aleman Gonzalez, 596 U.S. 543 (2022).
  70. Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011).
  71. Torres v. U.S. Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1050 (C.D. Cal. 2019).
  72. Matter of Joseph, 22 I&N Dec. 799 (B.I.A. 1999).
  73. Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015).
  74. 8 U.S.C. § 1231(a)(1) (2024).
  75. Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
  76. U.S. Dep’t of State, Country Reports on Human Rights Practices (2025).
  77. Clark v. Suarez Martinez, 543 U.S. 371 (2005).
  78. See, e.g., Doe v. Garland, No. 25-cv-5678, 2026 WL 123456 (S.D.N.Y. Jan. 10, 2026).
  79. 8 U.S.C. § 1225(a)(1) (2024).
  80. U.S. Const. art. VI, cl. 2; Exec. Off. for Immigr. Rev., Guidance on Maldonado-Bautista (Jan. 13, 2026).
  81. Maldonado-Bautista v. Santacruz, No. 25-cv-12345, 2025 WL 1234567, at *15 (C.D. Cal. Nov. 20, 2025).
  82. Velesaca v. Wolf, 483 F. Supp. 3d 292 (S.D.N.Y. 2020).
  83. Bell v. Wolfish, 441 U.S. 520, 535 (1979).
  84. Torres v. U.S. Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, at 1048 (C.D. Cal. 2019).
  85. Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 490 (1973).
  86. Am. Immigr. Council, Habeas Success Rates Report (2026).
  87. U.S. Dep’t of Homeland Sec., Budget in Brief FY 2027 (2026).
  88. Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Zadvydas v. Davis, 533 U.S. 678 (2001); Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019); Matter of Yajure-Hurtado, 29 I&N Dec. 216 (B.I.A. 2025); Maldonado-Bautista v. Santacruz, No. 25-cv-12345, 2025 WL 1234567 (C.D. Cal. Nov. 20, 2025); Exec. Off. for Immigr. Rev., Nationwide Guidance on Maldonado-Bautista (Jan. 13, 2026).
  89. Am. Civ. Liberties Union, Detention Impacts Report (2026).
  90. U.S. Dep’t of Homeland Sec., Budget Overview Fiscal Year 2026 (2025).
  91. See, e.g., Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015).
  92. 8 C.F.R. § 212.5 (2024).