Eastern Kentucky’s federal court logged zero immigration-detention habeas cases in 2024, but has seen 147 in the first five months of 2026—nearly all from one Covington jail. Two changes to federal immigration policy explain the dramatic surge, and the constitutional stakes trace back to the Fifth Amendment’s promise of due process.
What changed
Since September, the only tool left for lawyers to fight for immigrants’ release is by filing habeas corpus petitions. Last September, the federal Board of Immigration Appeals told its employees—which includes immigration judges—they can’t release people in immigration detention.
This comes at the same time as a change to classify all undocumented immigrants as “arriving aliens.” This definition used to refer to someone asking for permission to enter the country at a port of entry. Under 8 U.S.C. § 1225(b), applicants for admission are subject to mandatory detention without a bond hearing—a stark contrast to § 1226(a) discretionary detention, which permits individualized bond determinations.
The combined effect: immigrants detained inland by ICE can no longer request a bond hearing from an immigration judge. Their only recourse is to file a petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2241, challenging the legality of their detention.
Why it matters
Northern Kentucky has seen a significant rise in immigrants legally challenging their detention—a trend lawyers say is due to both increased immigration enforcement and a change to federal policies that leave these cases, known as “habeas corpus,” as the only option for people seeking release.
For your clients in federal detention, this creates both opportunity and complexity:
- Mandatory federal litigation: If your client is detained as an “arriving alien,” you cannot request bond relief from an immigration judge. You must file in federal district court instead.
- Indefinite detention risk: Detained immigrants will stay in detention throughout their immigration proceedings, and then stay in detention throughout Board of Immigration Appeals proceedings if they appeal, and stay in detention even longer if they appeal while ICE cannot deport them due to issues with travel documents—basically becoming indefinite detention.
- Judicial scrutiny: Habeas corpus is a legal right that forces the government to bring a detained person to court and prove it has a lawful reason to hold them. Federal courts in Kentucky and nationwide have granted relief in many cases, requiring DHS to justify detention or release the detainee.
- Narrow window: Even if an immigrant is granted habeas corpus, this still does not mean that they’re guaranteed to be released on bond. The writ challenges detention legality, not bond eligibility alone.
Way forward
If you represent a detained immigrant in the Eastern District of Kentucky (or any federal district):
- File habeas immediately if bond hearings are denied. Do not wait for removal proceedings to conclude; statutory review timelines and exhaustion rules may limit later federal jurisdiction.
- Challenge the “arriving alien” classification. Brief the statutory and constitutional defects in applying § 1225(b) to people apprehended inland years after entry. Courts in California, Texas, and other circuits have found this reclassification unlawful.
- Build a Mathews v. Eldridge balancing record. Document your client’s ties to the community, family relationships, lack of flight risk, and lack of dangerousness. Federal judges are applying heightened due process scrutiny to prolonged immigration detention.
- Track judicial decisions in your circuit. The Eastern District of Kentucky has granted habeas relief in multiple 2026 cases; cite favorable precedent and distinguish government arguments.
Disclaimer
This article is for informational purposes only and does not constitute legal advice. You are not an immigration law client by reading this; consult a licensed immigration attorney about your specific situation. USCIS, the Board of Immigration Appeals, and federal courts may change policy and procedure without notice. Verify all claims against primary sources: the BIA website (justice.gov), the U.S. Courts website (uscourts.gov), and the Federal Register (federalregister.gov).