Attorneys Use Habeas Corpus to Free Detained Migrant Children

A growing number of attorneys across the US are employing a new legal strategy to secure the release of migrant children held in prolonged federal custody under the Trump administration. These lawyers are filing habeas corpus petitions in federal courts, demanding freedom for their young clients.

A surge in habeas filings for migrant children

This approach, spearheaded by organizations like the Immigration and Human Rights Clinic at Loyola University Chicago School of Law and the National Center for Youth Law, has seen a 3,500% increase in habeas filings for unaccompanied children since January 2025, according to the Acacia center for Justice.

Research reveals that 98% of these cases result in the child’s release. Some children are freed even before a court hearing, as the administration likely seeks to avoid justifying its policies to a judge.

Trump Administration’s Prolonged Detention of Migrant Children

Since Trump retook the White House, officials have taken to keeping children who crossed the US-Mexico border unaccompanied in prolonged custody instead of allowing them to be with relatives or other vetted sponsors stateside while their legal case plays out. As of September, over 1,800 children had spent an average of six months in custody, compared to an average of 44 days between 2015 and 2024.

“The government is violating the law, and the regulations, and their own policy sometimes in this area,” said Marie Silver, supervising attorney at the Immigration and Human Rights Clinic at Loyola University Chicago School of Law, which is co-managing the new initiative, called the Children’s Due Process Project. They also criticize the government for rushing children into court without legal representation, making it difficult for them to receive legal protections before deportation orders are issued.

In practice the lack of legal representation manifests in cases such as that of a 12-year-old girl from a shelter appearing without a lawyer in the Santa Ana, California immigration court and receiving just one week to find counsel. When children like her are forced to return to court the following week, the chances are that judges will declare them “removable” and order their deportation, said Lindsay Toczylowski, CEO and co-founder of the Immigrant Defenders Law Center.

“She will join so many other children who have no fighting chance in these immigration courts, because this is what a deportation machine looks like – children alone, sitting on the other side of a computer screen, given impossible deadlines, handed useless lists of organizations that have been defunded and rushed toward life-altering orders they cannot understand,” Toczylowski said.

Researchers estimate nearly all these cases end with a child’s release from federal custody. Some don’t even get as far as a court hearing before the administration backs down and lets the child go, likely in order to avoid having to explain their policy decisions to a judge.

Legal Advocates Counter with Habeas Corpus Strategy

Leading advocates are countering by rallying an expanding band of lawyers, drawn from around a hundred legal organizations, law firms and solo practitioners across the US, who are representing children free of charge. They are swiftly filing habeas petitions to get as many children as possible released to loved ones before it’s too late and the administration bundles them onto deportation flights.

Acacia center for Justice and the National Center for Youth Law are co-managers of the new initiative, called the Children’s Due Process Project. Through the effort, these organizations are training attorneys and connecting them with young clients who desperately need help with the habeas process.

“Part of what we’re hoping with this project is essentially to build a bench of people who are ready, able and excited to bring these cases, so that more kids have access to this type of vital representation,” said Becky Wolozin, senior attorney at the National Center for Youth Law.

The Role of ORR and Child Welfare Policies

Children arriving in the US unaccompanied by a parent or legal guardian fall under the care of the office of refugee resettlement (ORR), an agency that is part of the Department of Health and Human Services (HHS) and that has typically filled a child welfare role.

US statute and regulations explicitly require that these kids be “promptly placed in the least restrictive setting that is in the best interest of the child”. And so authorities – until recently – put them in congregate shelters, support care or secure facilities for as little time as possible while vetting prospective “sponsors” – oftentimes parents already in the US – who applied to take care of them after release.

Many of these children have survived abuse, neglect, trafficking, abandonment or other serious harms in their countries of origin or on the way to the US – tragedies that in turn may open the door for them to seek legal immigration pathways stateside.

Government Efforts to Limit Legal Protections for Migrant Children

But now, officials across executive agencies are coordinating efforts to make it much harder for children to receive legal protections before they are ordered deported, including by ending a federal contract that had funded attorneys for over 20,000 of them and plotting to have HHS attorneys represent them instead.

“The immigration judge works for the Trump administration. So does the prosecutor. Under your plan, so would the child’s lawyer. That is unacceptable,” Democratic senators recently wrote in a letter to Robert F Kennedy Jr, the HHS secretary.

Immigration enforcement activity is also “creating” new unaccompanied children, after sweeping up migrant kids in the country’s interior and separating them from their caregivers.