Legal authority for federal courts hearing habeas petitions for immigration detention

Yes. Federal courts have statutory authority to hear at least some habeas petitions challenging immigration detention, especially claims that the government lacks legal authority to continue detaining someone. The availability of review depends on the type of detention and the claim; a challenge to detention is not the same as a challenge to the underlying removal order.

Statutory authority

The general federal habeas statute authorizes relief for a person held in federal custody in violation of federal law:

“The writ of habeas corpus shall not extend to a prisoner unless— . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).[2]

Supreme Court authority

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court expressly held that § 2241 habeas proceedings remain available for statutory and constitutional challenges to post-removal-period detention. The Court explained that federal courts may determine whether detention exceeds the time reasonably necessary to secure removal, and that detention is no longer authorized under the statute if removal is not reasonably foreseeable.[1]

“Section 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention.”[1]

The Court also stated that the habeas court decides whether the detention is within the statute’s authority, rather than simply accepting the government’s view of that question.[1]

In Immigration & Naturalization Service v. St. Cyr, 533 U.S. 289 (2001), the Court held that the immigration-law changes at issue had not repealed § 2241 habeas jurisdiction. That case concerned review of a legal question related to removal, so it is useful for the continued availability of the habeas statute, but Zadvydas v. Davis, 533 U.S. 678 (2001) is the more direct authority for challenges to continued immigration detention.[3]

Important jurisdictional qualification

The authority is not unlimited. In Jennings v. Rodriguez, 583 U.S. 281 (2018), the Court distinguished detention challenges from challenges to removal orders and held that the particular statutory claims before it were not barred by the provisions the Court considered; it remanded the constitutional claims for consideration below.[4] Meanwhile, 8 U.S.C. § 1252 restricts judicial review of removal orders and certain immigration decisions.[5] Accordingly, the claim should be framed carefully as a challenge to the legality or duration of custody, rather than an attempt to obtain habeas review of the removal order itself. The precise route can depend on the detention statute, procedural posture, and circuit law.