Legal challenges to ICE detention soar to more than 20,000 during Trump’s term

With more than 70,000 people in ICE custody, federal courts are seeing a “flurry” of legal activity – including a skyrocketing number of habeas petitions from immigration attorneys who argue that immigrants’ indefinite detention is unlawful.

According to federal court data, more than 20,000 habeas petitions have been filed across the country since President Trump began his second term – a huge increase from just ten years ago, a NBC 5 Investigates’ analysis found.

During President Trump’s first term in the White House, there were 1,080 habeas petitions were filed in 2016 alone. There have been more than 30,000 habeas petitions filed in the decade that followed – with more than 20,000 since Trump began his second term last January.

(Source: Federal court data Courtesy: NBCU local stations)

In many of these recent cases, federal judges are agreeing with immigration attorneys – rejecting the federal government’s argument that it can detain immigrants without a bond hearing.

John Heiderscheidt, an immigration attorney in Chicago, told NBC 5 Investigates that the federal government has recently leaned on two rulings from last fall from the Board of Immigration Appeals in support of their position.

“What those cases purport to do is give the government more authority to arrest and detain immigrants even when they have applications for relief on file with USCIS or EOIR and we’re seeing an increase in detentions because of those cases,” he said.

In a recent habeas petition Heiderscheidt filed for his client – Kenverly La Cruz Bracamonte – who was detained by ICE in late January, the U.S. Attorney’s Officeargued the recent BIA ruling found that “foreign nationals who entered the United States without inspection were not eligible for bond hearings in immigration court because they were never actually admitted into the United States.”

But Federal Judge Virginia Kendall disagreed.

In her ruling that granted Heiderscheidt’s habeas petition, in part, she wrote:

“This case joins a flurry of … cases appearing around the country in which courts have nearly unanimously rejected the Government’s position… this court shares that view.”

And later that:

“In executing removal orders against people like Bracamonte, the Government cannot, by law, indefinitely detain noncitizens and deprive them of a bond hearing that would assess their present circumstances…”

Kendall also noted the BIA case cited by the U.S. Attorney’s Office “makes no sense when put into conversation with the longstanding legal process that Congress determined—and the Supreme Court recognized— should govern immigration proceedings for noncitizens living in the United States. That process could not be clearer.”

At the center of the dispute are two federal statutes – 1225(b)(2)(a) versus 1226(a); the federal government has argued the former statute allows them to detain immigrants without a bond hearing.  

While it’s true the largely visual immigration crackdown in Chicago and Minneapolis has subsided, immigration enforcement has not.

Kenverly La Cruz Bracamonte now has a visual reminder of her recent encounter with ICE – an ankle monitor she was given after being released from ICE custody following a 16-day stay in the Grayson County Detention Center in Kentucky.

In an interview with NBC 5 Investigates, Bracamonte said she was detained by immigration agents during an ICE check-in appointment on January 29.

“I think it is inhumane to carry this for a year on my legs,” she told NBC 5 Investigates in Spanish. “It was quite difficult and the first few days it was hard to sleep,” she added, referring to her time in ICE custody.

Kenverly entered the U.S. in September of 2023, her court records show, she was granted parole and still has a pending immigration case. She was released from ICE detention earlier this month. Her next in-person date in immigration court is set for 2028.

She told NBC 5 Investigates she is afraid now because she knows that ICE can monitor her every move.

“This is a person that came from Venezuela. We just went in there and plucked Nicolas Maduro out of his living room because he is defined by the United States government as a “narco terrorist” who has run his country into the ground. How on earth can you tell that woman she is not a refugee from Venezuela when she participated in none of that there,” Heiderscheidt said.

NBC 5 Investigates reached out to DHS and ICE Thursday asking about the number of people in ICE custody and pressure that immigration attorneys argue the increased habeas petitions has placed on the court system. We are still waiting to hear back.