Habeas Petitions Free Migrant Children Held in US Custody

A federal judge's blunt question — "The Court does not understand why E.H.C.F. is being separated from his mother" — captures the legal engine now driving the release of unaccompanied migrant children from prolonged US government custody. Judge Vernon Oliver's decision freed one teenager, and it marks a pattern: habeas corpus petitions filed in federal courts are winning freedom for children at an extraordinary rate under the second Trump administration.

What do the numbers show?

Researchers have identified at least 72 habeas petitions involving unaccompanied children in government custody across 16 federal district court jurisdictions since the start of the second Trump administration, according to a report published this fall by the Washington DC-based Acacia Center for Justice. Where the outcome was clear, 98% ended with the child's release.

The filings represent a striking departure from historical practice. Acacia identified just 33 total habeas petitions filed on behalf of these children before last year, most during Trump's first term. The organization tracked a 3,500% increase in habeas filings since January 2025 compared with the four years of the Biden administration.

Some cases never reach a hearing. Advocates say the administration backs down and releases the child, likely to avoid explaining its policy decisions to a judge.

Why are children being held longer?

Since Trump retook the White House, officials have kept children who crossed the US-Mexico border alone in prolonged custody instead of releasing them to vetted sponsors while their cases proceed. As of September, more than 1,800 unaccompanied children had spent six months on average in federal custody, compared with an average of 44 days between 2015 and 2024.

US statute and regulations explicitly require that these children be "promptly placed in the least restrictive setting that is in the best interest of the child." Children arriving without a parent or legal guardian fall under the care of the Office of Refugee Resettlement (ORR), part of the Department of Health and Human Services.

Immigration enforcement is also "creating" new unaccompanied children, advocates say, by sweeping up migrant children in the country's interior and separating them from caregivers.

"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. The core issue for judges, she added, is "the true, underlying constitutional problems here when we keep children from their family members for no reason."

How does the Children's Due Process Project work?

The project, co-managed by Loyola's clinic, Acacia and The Door, trains attorneys and connects them with young clients. Roughly a hundred legal organizations, law firms and solo practitioners across the US now represent children free of charge.

"This is the most immediate way to help the kids who are currently being harmed," said Becky Wolozin, senior attorney at the California-based National Center for Youth Law. The project aims "to build a bench of people who are ready, able and excited to bring these cases," she said.

What happened in specific cases?

Two siblings seeking asylum, ages nine and 13, spent about six months in government custody roughly 200 miles from their mother. Officials knew within days that she lived in the US, ready to welcome them; she passed full federal security vetting within a month. Weeks of delays followed, including a technical glitch with a government portal and an official ghosting her. Hours before an August hearing where an official would have to defend the government's decision, the children received approval to reunite with their mother in Rhode Island.

"If this was a parking ticket, you would be really frustrated. If it's your children, it's inexcusable," said Matthew Johnson of Legal Services NYC, whose habeas petition challenged the siblings' prolonged foster care placement.

The teenager E.H.C.F., who had lived in Massachusetts for six years, was moved to ORR custody in Texas and held for months, developing generalized anxiety disorder, major depressive disorder, PTSD and attention deficit disorder — conditions a physician linked in part to his "abrupt and prolonged removal from his family at the age of 15."

What about due process concerns?

Advocates describe "a deportation assembly line depriving them of their rights," with one-year-olds defending themselves against government attorneys. A lawsuit filed in October alleges asylum interviews scheduled 24 hours in advance, sometimes remotely and without notice to attorneys. The government also ended a federal contract that funded attorneys for over 20,000 children.

US District Judge Brendan Hurson granted a temporary restraining order last week requiring at least three weeks' notice before asylum interviews and allowing rescheduling. That order expires 13 November.

"Left to its own devices, this agency will detain children indefinitely until they're able to remove them," Johnson said. "And so habeas petitions are necessary for that reason."