October Ashrei Insights Webinar Recap: What Habeas Can and Can't Do

Oct 28

By Sara Ruiz, Ashrei Foundation Executive Director

Immigration detention in Missouri has grown significantly over the past 18 months. Families, advocates, volunteers and communities are struggling to find solutions amid systems that are designed to separate, divide and remove our neighbors, loved ones and friends.

Everyone seems to be talking about habeas right now. Few of us fully understand it.

On October 28th, I sat down with my friend and colleague Ken Schmitt, founding principal attorney at US Legal Solutions and adjunct faculty at Saint Louis University School of Law. Ken spent the hour explaining habeas for those of us who aren't lawyers: what it is, why it matters now, and why it is so hard to use in Missouri.

Accurate information matters, even when it isn't the answer we hoped for.

Watch the full webinar here:

How We Got Here

We interact with the detention and deportation machine in Missouri every day through our work on the STL Rapid Response Hotline. While immigrant detention is not new, Ken described four key pieces that built how that machine specifically functions today:

A change in the interpretation of the law. In September 2025, the Board of Immigration Appeals decided a case called Matter of Yajure Hurtado (29 I & N Dec. 216). It reclassified people who entered without inspection as “arriving aliens.” That new categorization means they no longer have a right to a bond hearing before an immigration judge. Ken estimates this covers about half of all undocumented people in the US and a majority of immigrants detained in Missouri.
Money. The One Big Beautiful Bill Act added $45 billion for ICE detention through September 2029. That funds space to detain 100,000 to 116,000 people at any given time - incentivizing increased enforcement and detention practices nationwide.
A directive. ICE officers are under orders to detain every newly processed person, even someone who has lived in the US for 20+ years or someone with no criminal record. Rather than having priorities for enforcement or detention, the directives under this Administration is that everyone who gets arrested should be detained.
Speed. Detained cases generally move in 3 to 4 months, compared with 2 to 3 years (or more) for non-detained cases. Funneling people into detention moves their cases to this much faster detained docket in Immigration Court. The impact is that families have little time to find a lawyer or build a case - and must do all of it while in jail.

“Many detained immigrants just give up and take an order of deportation...That’s the machine that we’re trying to fight with habeas.”

— Ken Schmitt

What We Learned

Habeas is a narrow tool for supporting detained immigrants in Missouri. A habeas petition asks a federal trial judge to consider whether someone’s detention is lawful. Ken explained there are two types of arguments that immigration advocates are using in habeas cases. The first one asks a judge to review the Immigration Court’s interpretation that the individual does not have the right to a bond hearing because they’re considered an “arriving alien.” The second one moves away from this statutory argument and instead asks the judge to consider whether an immigrant who has been detained for more than 90 days without a bond hearing is being held in violation of their Constitutional rights of due process. In these cases, the best outcome is an order giving the person a bond hearing before an immigration judge.

“Habeas is what we call a collateral attack...All we’re asking is for the judge to look at what we think is an illegal interpretation and application of law that is creating a certain condition of their detention. That condition is that they’ve been deprived any opportunity to have a hearing before this administrative hearing officer (aka immigration judges) and make a case for why they’re not a threat to the community, demonstrate a commitment to show up for future hearings, and argue that they should be given a bond and released from jail for the duration of the case.”

— Ken Schmitt

Habeas does not grant legal status, win the immigration case, or set the bond. Even if a detained person successfully files a habeas petition, wins it, and gets a bond hearing in Immigration Court, the immigration judge can still deny release or set a bond of thousands of dollars, which may be financially out of reach. It may be helpful for volunteers and advocates to remember that an individual’s particular circumstances (like how they were arrested or how long they’ve been in the US) have no bearing on the habeas petition itself. However, these kinds of factors matter a great deal in an immigration bond hearing: family ties, years in the US, work and community life, and whether the person has a real path to relief, such as asylum or cancellation of removal. It is not uncommon to see immigration judges deny bond when there is no path to relief at first glance, which may mean that pursuing a habeas petition ultimately may not be worth it for some.

Missouri is in a particularly difficult position. Seven of the nine federal appeals courts that have reviewed Hurtado say it is wrong; unfortunately, the Eighth Circuit, which covers all of Missouri, has upheld it. For people detained in Ste. Genevieve, Greene, or Phelps County, a habeas petition is very unlikely to succeed. There may be some variations of success when you compare the Eastern and Western Districts of the Eighth Circuit, but even habeas wins in the Western District have been few and far between. Across the state line, Kansas follows the Tenth Circuit, where bond hearings happen regularly in Immigration Court, often without needing a habeas petition. Two of Ken's clients held there were recently released on $3,000 and $5,000 bonds. The Supreme Court has agreed to take up this case but a decision isn’t likely before June 2027.

“If they’re in the 8th or the 5th Circuit, I really have a hard time saying, ‘let’s do it,’ because we can’t do it for free, and I just don’t know that I’m going to get a [positive] decision for you.”

— Ken Schmitt

What Needs to Change

Habeas is a limited tool, at best. Ken spoke to two systemic changes that could make significant impacts in the lives of immigrant and mixed status families in Missouri: real congressional oversight of detention and its new funding, and an immigration court system that is independent from the Attorney General and the White House. Throughout the conversation, we heard frequent reminders and examples of the role of profit in immigrant detention as well as the tension between the ingrained notions about courts, judges and the judicial branch and what actually happens in Immigration Court. The separation of these courts outside of the judicial branch and under the hierarchy of political will radically reshape outcomes for thousands of people every day, while the profit-fueled detention machine consolidates wealth and power in the hands of a few at the expense of our neighbors and loved ones. Neither of these changes can happen unless people understand what is happening and decide that it is unacceptable.

As we head into midterm elections, we encourage everyone to study their ballots, learn the issues, discuss the experiences you have, and vote your values on November 3rd.

One of the effective ways we can resist injustice is by creating a community of care; often, care means walking alongside people who are living the injustice. This often means recognizing that we cannot change individual outcomes and we don’t yet have enough collective power to change the harmful systems that drive them. But we do have compassion and honesty, which are fundamental tools to honor the dignity of all people, including those detained by ICE in Missouri. Ken closed with a story about a client who was seeking asylum whose case was denied while he was in detention. Rather than wait in jail through an appeal, he chose to accept deportation and return to his country of origin. Ken respected that choice.