How to file a habeas petition for someone in ICE detention

This is information, not legal advice.

This guide explains the general rules. What they mean for your family member depends on their circumstances. Answer a few questions to check their situation.

Before you start: is habeas the right tool?

Habeas challenges the detention, not the deportation case. It fits when an immigration judge has said they cannot set bond, when detention has dragged on for months without a real hearing, when someone with a final order has been held past six months with no removal in sight, or when ICE is holding someone despite a bond grant. The background is in habeas corpus for ICE detention.

Step by step

1. Pin down the facility and its district. Use the ICE locator, then find the federal district court for that city with the court locator. That is where it is filed.
2. Get the form. Use the federal form AO 242, or the district’s own immigration habeas packet if it has one. Western Washington, for example, publishes a packet with instructions. Check the district’s website under “pro se” or “self-represented.” DetentionHelp builds a petition from guided questions.
3. Gather the facts and papers. A-number, date and place of entry, date and place of the ICE arrest, the facility, Form I-286, the Notice to Appear, any immigration judge order (especially one saying there is no bond jurisdiction), any final removal order and its date, and the dates of every transfer.
4. Name the respondents. The person with day-to-day custody, usually the warden or facility administrator, by name and title. Petitions commonly also name the ICE field office director for the area, the ICE director, the Secretary of Homeland Security and the Attorney General.
5. State the claims. Say plainly why the detention is unlawful. Common claims are below.
6. Say what you want. Release, or an order that an immigration judge hold a bond hearing within a set number of days where the government bears the burden. Add an order that ICE not transfer the person out of the district while the case is pending.
7. Sign and verify. The detained person signs under penalty of perjury. If they truly cannot, a family member can sign as “next friend” and explain why.
8. Pay $5 or ask for a waiver. Include the $5 fee, or an application to proceed without paying it (in forma pauperis), with the detained person’s account statement if the court asks for one.
9. Ask for a lawyer if needed. A judge can appoint counsel for someone who cannot afford it (18 U.S.C. § 3006A(a)(2)(B)). Many district packets include the request form.
10. File it. Mail it or deliver it to the clerk’s office. Many districts have a pro se intake desk, and some accept self-represented filings by email. A detained person can send it through the facility’s legal mail. Keep a copy of everything.

Common claims in immigration habeas petitions

• Wrong statute. The person entered without inspection, was arrested in the interior, and is detained under § 236(a), which allows bond, not § 235(b)(2)(A). Cite the circuit’s ruling if it has one. See did ICE end bond hearings?
• Due process. Detention without an individualized hearing before a neutral decision-maker violates the Fifth Amendment, especially as it lengthens. This claim survives even where the circuit has read the statute the government’s way.
• Prolonged detention. Months in custody with no hearing, with the dates laid out.
• Post-order detention past six months with no significant likelihood of removal in the reasonably foreseeable future (Zadvydas v. Davis), with whatever shows removal is stalled: travel-document refusals, an embassy’s silence, months without progress.

Outline of a sample petition

Every immigration habeas petition, whatever the form, contains these parts:

1. Caption: the district court, the petitioner’s name and A-number, the respondents, and “Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241.”
2. Introduction: two or three sentences on who is detained, where, since when, and why it is unlawful.
3. Jurisdiction and venue: 28 U.S.C. § 2241; the person is held in this district.
4. Parties: the petitioner and each respondent with their role.
5. Facts: entry, years here, family, arrest, custody decision, any immigration judge ruling, transfers. Dates throughout.
6. Claims: one numbered count per legal claim.
7. Prayer for relief: release or a prompt bond hearing, an order against transfer, and any other relief the court finds just.
8. Verification and signature, then exhibits: the I-286, the Notice to Appear, the judge’s order.

What happens after filing

• The judge screens the petition and usually orders the government to show cause why it should not be granted, with a deadline.
• The government files its answer, called a return. The petitioner can file a reply, often called a traverse.
• The judge decides on the papers or holds a hearing. Many cases end within one to two months. Some settle because ICE releases the person or provides a bond hearing first.
• If ICE transfers the person, tell the court at once. The case generally stays where it was filed.

Do not wait for a perfect petition if a transfer is coming. A clear, signed petition filed today in the right district preserves more than a polished one filed after the person has been moved.

Questions people also ask

Where do I file a habeas petition for someone in ICE detention?

In the U.S. District Court for the district where the detention center is. The court locator on uscourts.gov finds it by city. Not in immigration court, and not where the family lives.

Is there a sample habeas corpus petition for immigration?

The federal courts’ form AO 242 is the standard starting point, and some districts publish their own immigration habeas form with instructions. DetentionHelp assembles a petition from a person’s answers. The outline below shows what every petition contains.

How long does a habeas petition take in an immigration case?

Often one to two months from filing to decision, sometimes faster when the court sets a quick schedule, sometimes much slower. The government usually has days to a few weeks to respond after the court orders it.

What if ICE transfers the person after the petition is filed?

The court where it was filed generally keeps the case. Tell the court about the transfer right away. If a transfer seems likely, ask the court in the petition to order ICE not to move the person while the case is pending.

Check whether habeas is their path

Check your family member’s situation to see which release options may apply, what to do next, and which documents to gather.