How to File a Habeas Petition for Someone in ICE Custody

To file a habeas petition for someone in ICE custody, you need three things before a lawyer can draft a page: the person’s A-number, the facility where they are physically held right now, and the paper trail of their detention, starting with the Notice to Appear and the Form I-286 custody determination. Families often spend the first week after an arrest making calls that go nowhere. This guide puts the steps in order so the petition can be on file in a federal district court within days of the decision to proceed, which is the pace these cases require.

Step 1: Locate the person and confirm the facility

The A-number is a nine-digit number (older ones have eight) printed on almost every immigration document the person ever received: a green card, work permit, Notice to Appear, prior receipt notices. With the A-number and country of birth, or the full name and date of birth, the ICE Online Detainee Locator shows the current facility. Check it daily. ICE transfers detainees frequently, often across the country, and the petition must be filed in the federal district where the person is held on the day it is filed. A petition filed in Virginia on Monday for someone moved to Louisiana on Sunday starts over. Our habeas corpus petition practice checks the locator the morning of filing for exactly this reason.

Record the arrest date, every facility the person has been held in, and the dates of transfer. These details go into the petition and matter for prolonged-detention arguments.

Step 2: Gather the detention record

The petition is built on documents. Ask the detained person to request copies from the deportation officer, and gather what the family has at home:

• Form I-862, Notice to Appear, which states the charges and the statute DHS relies on.
• Form I-286, Notice of Custody Determination, which shows whether ICE set bond, denied it, or declared the person ineligible.
• Any immigration judge bond order, the hearing date and the stated reason for the decision.
• Certified dispositions for every arrest and conviction, from the criminal court clerk, because mandatory detention under INA 236(c) turns on the exact offense.
• Immigration history: entries, prior applications, prior orders, and any Board of Immigration Appeals decision.
• Proof of ties: lease or mortgage, family relationships, employment letter, medical records, and letters from community members.

If records are missing, our FOIA practice can request the immigration file, but FOIA timing is too slow for a detention case; file the petition with what you have and supplement.

Step 3: Decide whether a bond hearing must come first

A habeas court will ask whether the person tried the agency route. If the detainee is eligible for a bond hearing under INA 236(a) and has not requested one, requesting it is usually the first move: it is faster, and a grant moots the need for federal court. If the immigration judge has already declined jurisdiction, or Board precedent makes the request futile, the petition can explain why exhaustion should be excused. We make this call at the first consultation, and our detention and bond team handles the hearing when one is available. For what to do when the judge has already said no, see what to do when an immigration judge denies a bond hearing.

Step 4: Draft and file the habeas petition

The petition for a writ of habeas corpus under 28 U.S.C. 2241 is filed in the U.S. District Court for the district where the person is held, naming the immediate custodian (the warden or facility director) and typically the ICE field office director, the Secretary of Homeland Security and the Attorney General. It sets out the facts of custody, the statute ICE invokes, why detention under that statute is unlawful or unconstitutional, and the relief requested: release, a bond hearing with the burden on the government, or an order barring transfer and removal while the case is decided. A memorandum of law accompanies it with the relevant Supreme Court framework (Zadvydas, Jennings, Demore) and the district’s own decisions.

The court charges a modest filing fee for habeas petitions, and an application to proceed without paying it is available. The petition can be filed electronically by counsel. The detained person signs a verification where possible; where the person cannot be reached in time, a family member may sign as next friend, although courts prefer the detainee’s own signature when it can be obtained.

Step 5: Ask for emergency relief if transfer or removal is imminent

If ICE has scheduled removal or the person is about to be moved out of the district, a motion for a temporary restraining order is filed with the petition. It asks the court to order the government not to transfer or remove the petitioner while the court considers the case. Judges often rule on these motions within a day or two. Even without an imminent threat, many petitions request an order that the person not be transferred, because jurisdiction and access to counsel both depend on location.

Step 6: The government’s return, your reply and the decision

The court orders the government to respond. The response, called the return, attaches ICE’s version of the record and the government’s legal arguments. You file a reply, sometimes called a traverse, addressing those arguments and any factual disputes. Most petitions are decided on the papers; a hearing is scheduled when facts are contested. Decisions in detention cases generally come faster than in other federal litigation because liberty is at stake, but timing varies by district and judge.

If the court grants the petition, it enters an order with a deadline: release by a date, or a bond hearing within a set number of days. If ICE does not comply, a motion to enforce follows. If the court denies the petition, an appeal to the court of appeals is available, and a new petition may be filed later if continued detention raises new grounds. For the post-order version of these cases, see how long ICE can detain you after a final removal order.

Mistakes that cost weeks

Filing in the wrong district, naming only the Secretary of Homeland Security as respondent, filing a Zadvydas claim before six months have run, and failing to attach the custody record are the four errors we see most often in petitions prepared without counsel. Each is fixable, but each resets the clock for a person who is counting days.

If someone in your family is in ICE custody and the agency route has failed or is unavailable, Capitol Law Partners can prepare and file a habeas petition in the district where they are held. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

Need help with this topic? See our habeas corpus petitions page or schedule a consultation.