Habeas Corpus and Release from Custody 

Known as “The Great Writ,” habeas corpus is one of the most powerful legal protections available to people detained by the government. Understanding this right makes a critical difference for immigrants facing detention. At Smith Knudson, our attorneys help immigrants across Colorado understand their legal protections and fight for their freedom when the government oversteps its authority.

We help immigrants understand how the law protects them when detained:

• Habeas corpus applies to both citizens and noncitizens in the United States
• It allows detained individuals to challenge the legal basis of their detention in court
• DHS, ICE, and CBP have detention powers, but those powers have legal limits
• Immigrants have specific rights when detained, including the right to challenge custody

What Is the Legal Definition of Habeas Corpus?

The Latin phrase habeas corpus translates to “you should have the body.” In practice, it requires the government to physically bring a detained person before a judge and prove that the detention is lawful. If the government cannot justify the detention, the person must be released. The framers of the U.S. Constitution considered habeas corpus so vital to liberty and justice that they included it in Article I: “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.” This protection applies to everyone on U.S. soil, citizens and noncitizens alike.

Can the Government Detain Noncitizens Without a Warrant?

Through its agencies, U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), the Department of Homeland Security (DHS) possesses broad authority to arrest and detain noncitizens. 

DHS officers typically arrest and detain individuals in the following situations:

• During any stage of the criminal justice process, from pre-trial court appearances to post-release supervision.
• During targeted or broad-based home or worksite enforcement operations
• At routine immigration appointments with U.S. Citizenship and Immigration Services (USCIS)
• Following contact with CBP at a port of entry or apprehension near the border

After ICE arrests someone without an administrative warrant, the agency must make a custody determination within 48 hours, unless there is an emergency or other extraordinary circumstance. During this window, ICE decides whether to place the individual in removal proceedings, release them, or continue detention.

How Does a Habeas Petition Help With Release From Custody?

A habeas corpus petition asks a federal court to review whether the government has a lawful basis to continue detaining someone. In immigration cases, detained individuals can file a habeas petition to argue that they are:

• Being held without a legal basis
• Detained for an unreasonably long period
• Subject to impermissible detention conditions

Once a petition is filed, the court orders the government to appear and justify the detention. If the judge finds the government’s justification lacking, the individual must be released. Habeas is most commonly used when someone believes their continued imprisonment violates federal law or their constitutional rights. 

It’s worth noting that habeas corpus is not a guaranteed path to immediate release. Winning a petition is challenging, and even a successful claim may lead to a new hearing rather than outright freedom. That’s why having experienced legal counsel is essential.

What Should Immigrants Know When They Are Detained?

Detention can be frightening and disorienting, but immigrants have rights. Knowing those rights is the first step toward challenging an unlawful detention.

Here’s what detained immigrants should understand:

• You have the right to remain silent. You do not have to answer questions from ICE or CBP officers beyond providing your name.
• You have the right to an attorney. While the government is not required to provide one in immigration cases, you can contact a private immigration attorney.
• You may request a bond hearing. An immigration judge can review whether your detention is warranted and set or reduce a bond amount, allowing for release while your case proceeds.
• You can appeal a custody decision. If an immigration judge issues a negative custody decision, either party may appeal to the Board of Immigration Appeals (BIA) within 30 days.
• You may file a habeas petition. If standard avenues for release have been exhausted or are unavailable, such as when mandatory detention policies block bond hearings, a habeas petition to a federal district court may be an effective option.

Additionally, under the Supreme Court’s ruling in Zadvydas v. Davis (2001), the government generally cannot detain someone with a final removal order for more than six months unless it can demonstrate a likelihood of deportation in the near future. If that threshold is passed, a habeas petition can be a powerful tool for seeking release.

Your Rights Matter, and So Does Your Future

Due process is the foundation of a fair legal system. Habeas corpus exists so that no government agency can hold someone indefinitely without accountability. For immigrants navigating detention, this protection can be the difference between freedom and prolonged confinement.

At Smith Knudson, our team of compassionate and experienced immigration attorneys understands how high the stakes are. We provide clear guidance and strong legal advocacy for those facing detention and deportation proceedings. If you or a loved one has been detained and you have questions about your legal options, we encourage you to reach out to our team today for a consultation.