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When I spoke last December to Dan Gividen, an immigration attorney in the Dallas-Fort Worth area, he tried to sum up how his law practice has been transformed over the past year with some back-of-the-napkin math. Prior to 2025, he said, half of his caseload was comprised of removal defense in immigration court; a fourth had to do with visas and legal benefits applications with the US Citizenship and Immigration Services agency; and another fourth was federal litigation, which included criminal cases.
Now? Most of Gividen’s work has shifted to the federal courts.
For lawyers like Gividen, who are on the front line representing immigrants in US Immigration and Customs Enforcement detention, that realignment has been seismic. Instead of negotiating immigration law with government attorneys in the immigration courts overseen by the Department of Justice, they are pleading for federal judges to step in and uphold the basic constitutional rights of thousands of immigrants held in government custody. Seemingly overnight, lawyers trained in immigration law have found themselves doubling as federal litigators as district courts became the de facto battleground in detention defense during the second Trump administration.
“It’s just been insane,” Gividen, who served as deputy chief counsel for ICE between 2016 and 2019 before starting his own private practice, explained. “I’m going into federal court to get a federal judge to tell ICE and the immigration judge that they have to play by the rules.”
“It’s just been insane. I’m going into federal court to get a federal judge to tell ICE and the immigration judge that they have to play by the rules.”
This sea change in the legal landscape isn’t by accident. In its aggressive pursuit of more arrests in the interior of the United States and push for record deportations, the Trump White House is detaining more people than ever, while closing off the regular avenues for due process and release. (The current detained population stands at about 68,000.) Over the summer, the Department of Homeland Security and the DOJ adopted a mandatory detention stance that reinterpreted decades of federal immigration statute. That radical policy change made most detained immigrants who entered the country without permission—including those who had lived in the United States for years and had no criminal history—ineligible for a bond hearing before an immigration judge as they awaited the conclusion of their cases, a process that could take months or even years.
To find an alternative pathway to get immigrants out of ICE detention, lawyers have turned to a centuries-old legal mechanism that dates back to English common law: habeas corpus, which translates from Latin to “you shall have the body.” Also known as the “Great Writ,” this fundamental right enshrined in the US Constitution prevents the government from arbitrarily detaining someone without a reason. Once an emergency legal remedy against unlawful imprisonment, habeas is now an everyday tool.
“The only way that the overwhelming majority of people that ICE is detaining right now is going to get out,” Gividen said, “is through the habeas system.”
Gividen didn’t have his mind set on immigration law after graduating from Gonzaga University School of Law in Washington state in the early Obama years. He moved to Texas and clerked for the late US DistrictJudge Jorge A. Solis, whom he described as “the greatest man I’ve ever known.” After a stint at a criminal defense firm, he joined the ranks of ICE attorneys during Trump’s first term. “The headache of every day trying to tell ICE officers and everybody else to act within the law and the Constitution was not worth it,” Gividen said.
Now, he’s back in that position, only on the other side.
Gividen isn’t alone. Since January 2025, lawyers across the country have flooded the courts’ dockets with more than 24,400 federal lawsuits challenging the detention of immigrants as unlawful and seeking their release. That’s more than during the three previous administrations combined, according to a ProPublica analysis of immigration-related habeas cases.
“We’re suing the federal government weekly,” said Jeremy McKinney, former president of the American Immigration Lawyers Association. With virtually every door closed for immigrants to be freed from detention, he added, “We have to kick the door down.”
The demands on Gividen illustrate the nonstop work involved in “kicking the door down.” On Halloween, Gividen filed a habeas petition in the Western District of Texas, fighting the detention of an immigrant client who came to the United States from Peru as a minor. On November 18, he submitted a legal filing seeking the release of a pregnant Salvadoran woman picked up at a routine ICE check-in. That same day, he entered a case on behalf of a client who was eligible for temporary protection from deportation and work authorization but was detained during a traffic stop in June.
By February, Gividen estimated he had sued the federal government some 6o times in the past five months, charging against the detainment of immigrants.
When the internal ICE memo eliminating bond for most undocumented immigrants became public in July, McKinney chuckled. The administration “revisited its legal position on detention and release authorities” so that all immigrants who entered the country unlawfully should be treated as recent border crossers and denied access to bond. That meant even people who had been here for decades could be subject to mandatory detention. “It’s laughable that you would change how things have been done, just normal practice, 30 years later,” he said.
Some immigration judges started adopting the government’s novel legal theory. Then, in September, the Board of Immigration Appeals, which reviews decisions by immigration judges, sealed the deal with a precedent-setting ruling that sided with the administration. In Matter of Yajure Hurtado, the BIA determined that immigration judges lack the authority to hear or grant bond requests to immigrants who crossed the border without inspection. (The panel that handed the decision down was made up of two judges appointed to the bench during Trump’s first presidency and a temporary judge assigned by Attorney General Pamela Bondi in June.)
“The timing is really unfortunate because after decades of practice allowing people to have bond hearings, ICE changed their position and then the board changed their position,” said Andrea Sáenz, a one-time removal defense attorney who served as a BIA judge for three and a half years before being terminated in March. “The board just adopted DHS’s position, and it’s created these incredibly harsh effects.”
As the number of habeas corpus petitions challenging mandatory detention soared, so did the wins for detained immigrants. Since the BIA decision in September, federal judge after federal judge has rejected the Trump administration’s reading of the Immigration and Nationality Act. The repudiation has been nearly unanimous. As many as 400 judges—including Trump appointees—in some 4,400 cases have arrived at that consensus, according to a Reuters review of court records.
In their decisions, federal judges have often expressed frustration with the volume of similar petitions coming before them. Some are even consolidating cases and issuing bulk orders for the immediate release of detainees or granting them bond hearings.
“We’ve never seen something like this,” said My Khanh Ngo, a senior staff attorney with the ACLU Immigrants’ Rights Project, “where you have judges appointed by all sorts of different administrations in various states across the country agreeing that the government is reading the law incorrectly and also that this violates people’s due process rights.” Gracie Willis with the National Immigration Project noted this is the most unity she has ever encountered in the federal court system.
“We’ve never seen something like this, where you have judges appointed by all sorts of different administrations in various states across the country agreeing that the government is reading the law incorrectly and also that this violates people’s due process rights.”
As successful and critical as habeas litigation has proved to be, practitioners argue it’s not an adequate substitute for a functioning immigration court system. “You’re having to go to one court to ask permission to go to another court,” said Mike Kagan, director of the immigration clinic at the University of Nevada, Las Vegas. His habeas work has more than doubled since May and is now a main part of his legal practice. “That’s a crazy system and inherently inefficient. If someone is detained illegally, it means they sit in detention waiting, sometimes for weeks, when they shouldn’t be there at all. That’s not a good result in a democracy based on the rule of law.”
The deluge of lawsuits has not only overwhelmed the federal courts but also prosecutors. Amid the immigration enforcement crackdown in Minnesota, more than 427 habeas cases were filed in that district just in the month of January, leading the US attorney’s office to divert resources away from other priorities, such as criminal matters. In early February, an ICE lawyer detailed with the office half-joked in court when questioned by a judge about delays in complying with orders of release that she wished to be held in contempt so she could finally get some sleep. “The system sucks,” she said. “This job sucks.” She was removed from her DOJ post shortly after.
Some of the strain on the system is explained by the Trump administration’s targeting of immigrants who previously simply wouldn’t have been a priority. That’s the case of Pastor Steven Tendo, a Ugandan asylum seeker and licensed nursing assistant who fled torture and political persecution in his home country. On February 4, ICE arrested him without a warrant in the parking lot of the assisted living facility where he works in Shelburne, Vermont.
For years, Tendo had been under an order of supervision that required him to check in with the agency regularly, which he complied with. ICE had also previously granted him a so-called stay of removal, putting his deportation proceedings on hold while he continued to fight his case. His current stay expired on February 3, but his lawyers had informed the agency that they were in the process of requesting a renewal. Still, a couple of days before his next scheduled appointment, ICE took him and transferred him to a detention center in New Hampshire.
“ICE is not following those procedures. They’re simply arresting and detaining someone and worrying about due process later.”
A habeas petition submitted on the day of his arrest claimed the government had failed to provide notice and a reason for revoking Tendo’s longstanding order of supervision and had not given him an opportunity to respond. “ICE is not following those procedures,” his lawyer Christopher Worth said. “They’re simply arresting and detaining someone and worrying about due process later.”
Tendo, who has diabetes, spent 16 days detained until a federal judge ordered his release, finding his re-detention was unlawful. “I know it’s easy to enter, and getting out is very hard,” Tendo said of immigration detention. It took him back to the two years he had spent in ICE custody in Texas after arriving in the United States back in 2018. While Tendo was detained, an immigration judge rejected his asylum claim and ordered him removed. Tendo repeatedly appealed without success. He was released from detention in 2021 while his case was pending and has lived in Vermont since. Last year, he filed a motion to reopen his immigration proceedings.
“Is this going to be the second nightmare of staying in detention forever?” Tendo wondered. When the officers moved him on Friday, February 20, he thought he was about to be deported. “I never believed I was being released until I was back in Vermont,” he said. Tendo said he has an upcoming check-in with ICE in March.
Tendo is one of the lucky ones. Despite their volume, these habeas cases cover a mere drop in the bucket in a record-high detainee population. Only a minority of immigrants in custody have access to lawyers to contest their detention, much less have a shot at winning release. That’s why the ACLU and the Northwest Immigrant Rights Project filed a class action lawsuit last year asserting the right of detainees to a bond hearing.
A judge in the central district of California declared the government’s no-bond policy unlawful and certified a nationwide class. But that win didn’t lead to people having their access to bond restored across the board. As immigration lawyers kept filing individual habeas petitions, the ACLU returned to court to ask Judge Sunshine S. Syke to clarify her order and the government’s obligations. In legal filings, the civil rights group argued that immigration judges had been encouraged by the DOJ and DHS attorneys to ignore the court’s ruling and defer to the controversial BIA decision in Yajure-Hurtado. Judge Syke agreed and tossed the mandatory detention policy memo.
That still wasn’t the end of it. Chief Immigration Judge Teresa Riley has instructed immigration judges to continue to abide by the BIA precedent despite the California judge’s order and emphasized a recent Fifth Circuit Court of Appeals ruling upholding the Trump administration’s interpretation of the law for detainees in Texas, Mississippi, and Louisiana. The issue facing several appeals courts is likely to come before the Supreme Court. In a February order vacating the BIA ruling, Judge Syke excoriated the government for carrying out a “campaign of illegal action” and “taking positions that seek to bludgeon separation of powers into oblivion.”
“We’re just kind of in this whole new world where the government is not complying,” the ACLU’s Ngo said. “It really is part and parcel of this administration upending legal norms.” Several federal judges have scolded the government for failing to timely abide by court rulings ordering the release of ICE detainees. One judge in Minnesota criticized the administration for pushing the legal process to a breaking point. “The Catch-22 created by arresting and detaining individuals without a warrant, then making them obtain court orders to vindicate their due process rights, only to deny them the due process they are owed based on a problem of the Government’s own making cannot be condoned,” Judge Michael J. Davis wrote. Another judge in New Jersey accused the government of engaging in “manifest recklessness.” (In statements to the press, DHS has blamed “activist judges” for obstructing President Trump’s mass deportation agenda.)
Meanwhile, lawyers are continuing to fight for their clients’ rights in federal courts. The demand is so great that programs to mentor immigration attorneys to file habeas cases are emerging. The newly launched National Immigration Habeas Institute, an initiative by the National Immigration Litigation Alliance and Cardozo Law School, drew 75 lawyers to its inaugural in-person training last October in New York.
“I’m on all these listservs and groups where people are saying, who can help me in Arizona, who can help me in Mississippi, and people are stepping up and helping each other,” said Sáenz, the former BIA judge and the institute’s managing director. “It feels like that’s where people can make a difference.”
Gividen has kept a tally of the outcome of the habeas petitions his law firm has worked on. So far, his tracker counts at least 35 resolved cases in which judges either granted people release from detention or ordered a bond hearing. That doesn’t include two instances when ICE released clients before a judge issued a final decision. In February, Gividen took on a pro bono case for a Spokane asylum-seeking father and daughter from Guatemala. They had been detained for about a month at the Dilley family detention center in South Texas. Days after Gividen filed the lawsuit challenging their detention, ICE set them free.
“The flip side of all this,” he said, “is that we’re having success damn near everywhere.”
