Unlawful Arrests: How Immigration Habeas Petitions Have Changed
Written By Anna Dichter
Until recently, immigration habeas practice came down to a single statutory question: was our client being held under 8 U.S.C. § 1225(b)(2)(A), or under § 1226(a)?
That question mattered because of Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), where the Board adopted the government’s position that anyone who entered without inspection or a visa is an “applicant for admission” subject to mandatory detention, with no bond hearing, no matter how long they have lived here. District courts across the country rejected that reading, and in June the Tenth Circuit joined several other circuits in doing the same. In Santillan Quiroz v. Mullin, 180 F.4th 1226, 1248-49 (10th Cir. 2026), the court held that § 1225(b)(2)(A) governs at the border, not in the interior. People arrested inside the country are detained, if at all, under § 1226(a), and they are entitled to a bond hearing.
That fight is largely won. The main exceptions are places like Minnesota, Texas, and Louisiana, where detention remains mandatory, and the Supreme Court will likely have the final word. But even though most circuits have found the policy unlawful, detentions have not stopped. They have simply changed shape, and our petitions have changed with them.
What we’re seeing now
Arrests at ISAP check-ins. People who have complied with Alternatives to Detention for years arrive for a routine appointment and are taken into custody by ICE officers they have never met. They are told they have a list of “violations,” with no dates, no documents, and no chance to respond.
Warrantless arrests in public. People are stopped while driving to work or traveling through an airport. No warrant is shown, no reason is given, and no paperwork is served.
Re-detention with nothing new. People the government released years ago, after finding they were neither a danger nor a flight risk, are picked up again with no change in their circumstances.
Bond hearings in name only. Now that immigration judges must hold bond hearings, too many are a formality: one-line denials citing “flight risk,” or reliance on factors that have nothing to do with danger or flight.
In these cases, the question is no longer which statute authorizes detention. It is how the person ended up in custody, and whether anyone made the individualized decision the law requires.
Why the arrest is now the critical issue
A right to a bond hearing is not the same as release. More and more immigration judges are denying bond, and people remain detained. But in many of these cases, the arrest that put the person in custody was unlawful to begin with, and a federal court can order release on that basis alone. That is why our petitions now lead with the arrest and the process around it.
The warrant requirement. Away from the border, ICE may arrest someone without a warrant only if it has reason to believe, before the arrest, that the person is likely to escape before a warrant can be obtained. 8 U.S.C. § 1357(a)(2). In Colorado, Ramirez Ovando v. Noem, 810 F. Supp. 3d 1209 (D. Colo. 2025), enforces that rule. A person who is wearing an ICE ankle monitor and reporting to ICE as scheduled is the opposite of a flight risk.
A real change in circumstances. When the government has released someone, it cannot simply take that release back. Courts require an individualized finding that something has materially changed bearing on danger or flight risk. Years of compliance do not qualify, and neither does a vague list of unproven “violations.”
Notice and a chance to be heard. Due process means the government must tell a person why it is detaining them and give them a chance to respond. In Ekenge v. Baltazar, 2026 WL 617341 (D. Colo. Mar. 5, 2026), the court ordered release where ICE revoked supervision based on unspecified missed check-ins.
Bond hearings that meet due process. Where a client has already had a hearing, we challenge denials that rest on irrelevant factors or no reasoning at all.
This approach asks courts a narrower question than the statutory fight did: show us the warrant, show us the flight-risk finding, show us what changed. When the government cannot answer, courts have been willing to order release outright. At Ariela Lake, we have successfully challenged ISAP re-detentions and warrantless arrests in federal court, securing our clients’ release and their return home to their families.
For colleagues handling these cases
These petitions are won or lost on the facts, and most of those facts have to be gathered in the first day or two, before memories fade and before the client is moved. The speed of the filing matters almost as much as the arguments in it.
If you have a client detained after an ISAP check-in or a warrantless arrest and want to talk through the case, or would like to co-counsel or refer it, we’re glad to hear from you.
If you or someone you love is on ISAP
Being arrested at a check-in does not mean the arrest was legal. ICE has rules it must follow before it takes someone back into custody, and when it skips them, a federal court can order release.
If a family member has been detained, here is what helps most:
Write down what happened as soon as you can: the date, time, and place, what officers said, and whether they showed any paperwork.
Gather any ISAP records you have, such as appointment confirmations, app screenshots, or letters.
Find out where they are being held using the ICE Online Detainee Locator.
Contact an attorney right away. These cases move in days, not months.
If you would like to discuss your case, please schedule a consultation or fill out our interest form.
Ariela Lake Law & Consulting represents clients in federal district court on immigration matters, including habeas corpus petitions challenging unlawful arrest and detention.