On July 21, 2026, the U.S. Court of Appeals for the Second Circuit issued a significant decision in Mahdawi v. Trump. The court restricted when a person detained by ICE may use a federal habeas corpus petition to challenge detention connected to ongoing removal proceedings.
Jurelist spoke with Sage Roman, LL.M., of Martin Druyan & Associates Attorneys, about the decision’s practical consequences for immigration detainees in New York.
Question: What did the Second Circuit decide in Mahdawi v. Trump?
Sage Roman: The Second Circuit held that the federal district court lacked jurisdiction to consider Mohsen Mahdawi’s habeas corpus petition because his detention claims were inseparably connected to the government’s attempt to remove him.
Mahdawi alleged that the government targeted him for detention and removal because of his constitutionally protected speech. The district court ordered his release, but the Second Circuit vacated that order.
The appellate court did not decide whether the government violated Mahdawi’s First Amendment rights. Instead, it held that those claims must first proceed through Immigration Court, the Board of Immigration Appeals, and ultimately a petition for review before the appropriate federal court of appeals.
Question: Why is this decision especially important for ICE detainees in New York?
Sage Roman: The decision is binding throughout the Second Circuit, which includes New York, Connecticut, and Vermont.
Federal district courts in New York must now apply the distinction established in Mahdawi. A detainee cannot use a habeas petition to challenge the substance of the removal case merely by describing it as a challenge to detention.
The district court will examine what the petitioner is actually asking the court to decide. If release depends on finding that the removal charge is unlawful, the court will likely conclude that it lacks jurisdiction under 8 U.S.C. § 1252(b)(9).
Question: Does Mahdawi eliminate habeas corpus for people detained by ICE?
Sage Roman: No. That is an important point. The decision does not eliminate habeas corpus review of immigration detention.
It distinguishes between two different categories of claims.
The first category involves challenges to removal itself. For example, a petitioner may argue that the government commenced removal proceedings for an unconstitutional reason or that the removal charge is legally invalid. Under Mahdawi, those claims generally must be resolved through the immigration process and a petition for review.
The second category involves claims directed specifically at detention. These may include unreasonably prolonged detention, denial of a constitutionally adequate bond hearing, application of an incorrect burden of proof, detention under the wrong statutory authority, or certain unconstitutional conditions of confinement. Habeas review may remain available for those claims.
Question: What is the most significant practical change for habeas petitioners?
Sage Roman: The most significant change is that the substance and wording of the petition have become even more important.
A habeas petitioner must clearly separate the detention claim from the removal case. The petition should explain that the person is not asking the district court to decide whether they are removable, entitled to asylum, or eligible for another form of immigration relief.
Instead, the petition should identify a specific constitutional or statutory defect in the detention itself and request a detention-specific remedy, such as release or a new constitutionally adequate bond hearing.
Question: What kinds of claims are now most likely to be dismissed?
Sage Roman: A habeas petition is vulnerable to dismissal if it argues:
The removal charge is invalid and, therefore, the petitioner must be released.
ICE began removal proceedings in retaliation for protected speech.
The petitioner cannot legally be removed and therefore cannot be detained.
The Notice to Appear or the removal prosecution is unlawful.
The statute supporting the removal charge is unconstitutional.
The district court should terminate or interfere with the removal proceedings.
Those questions arise from the government’s action to remove the individual. Under Mahdawi, they generally must be presented to the Immigration Judge, the BIA, and then the Second Circuit through a petition for review.
Question: Which habeas claims may remain viable after Mahdawi?
Sage Roman: Several important categories remain potentially viable.
A detainee may still challenge unreasonably prolonged detention. The Second Circuit specifically recognized its precedent allowing a habeas petitioner to argue that detention has become constitutionally excessive.
A petitioner may also challenge the legal adequacy of a bond hearing. For example, the petition may allege that the Immigration Judge applied the wrong burden of proof, failed to provide individualized consideration, or did not comply with a federal court order governing the bond hearing.
Post-removal-order detention may also remain reviewable when removal is not reasonably foreseeable, including claims arising under Zadvydas v. Davis.
The critical issue is whether the court can decide the detention claim without deciding the merits of the removal case.
Question: Can a federal court review an Immigration Judge’s denial of bond?
Sage Roman: It depends on the nature of the challenge.
A federal district court ordinarily cannot reconsider the Immigration Judge’s discretionary weighing of danger or flight risk. In other words, habeas is generally not an opportunity to ask a federal judge to reweigh the same evidence and reach a different bond decision.
However, a federal court may be able to consider a legal or constitutional defect in the bond proceeding. For example, a petitioner might allege that the Immigration Judge placed the burden on the detainee when due process or an existing federal order required DHS to justify continued detention.
That is different from simply disagreeing with the result. It challenges the legality of the process used to reach the result.
Question: How does the decision affect cases where a federal court previously ordered a bond hearing?
Sage Roman: In such cases, the petition should focus on compliance with the federal court’s order.
Suppose a district court ordered a bond hearing at which DHS was required to prove that continued detention was necessary, but the Immigration Judge instead placed the burden on the detainee. The petitioner may argue that the government failed to provide the hearing the federal court ordered.
The petitioner should make clear that the district court is not being asked to decide the immigration case. The requested remedy should normally be release or a new bond hearing conducted under the correct constitutional standard.
Question: What role does administrative exhaustion play after Mahdawi?
Sage Roman: Administrative exhaustion is now even more important.
Before filing a habeas petition, the detainee should ordinarily seek all available relief before the Immigration Judge and the BIA. Depending on the statutory basis for detention, this may include requesting a bond hearing, a custody redetermination, or a hearing under Matter of Joseph to contest whether the person was properly placed in a mandatory-detention category.
The habeas petition should document every administrative request, decision, and appeal. If administrative remedies were not exhausted, the petitioner must explain why exhaustion should be excused—for example, because the remedy was unavailable, clearly inadequate, unreasonably delayed, or incapable of preventing irreparable injury.
Question: Can a detainee simply argue that Immigration Judges cannot consider constitutional issues?
Sage Roman: That argument has become much more difficult after Mahdawi.
The opinion states that Immigration Judges and the BIA may consider certain constitutional arguments as applied to immigration proceedings. Although they generally cannot strike down an Act of Congress, they may consider whether a statute or legal standard is being constitutionally applied in a particular case.
Therefore, constitutional arguments should be raised before the Immigration Judge and the BIA whenever possible. That also preserves the issues for a later petition for review before the Second Circuit.
Question: What should attorneys change when drafting habeas petitions in New York?
Sage Roman: Attorneys should create a clear boundary between the detention case and the removal case.
The petition should expressly state that the petitioner:
Does not ask the district court to determine removability.
Does not seek termination of the removal proceedings.
Does not ask the court to decide eligibility for asylum or other immigration relief.
Challenges only the legality or duration of continued detention.
Seeks only a detention-specific remedy.
The factual allegations should concentrate on the length of detention, prior bond proceedings, allocation of the burden of proof, procedural defects, administrative appeals, and the government’s justification for continued custody.
Question: What remedies should a habeas petitioner request?
Sage Roman: The requested relief should be narrowly tailored. Depending on the circumstances, the petitioner may request:
Immediate release if continued detention is no longer legally authorized.
A new constitutionally adequate bond hearing.
An order requiring DHS to prove dangerousness or flight risk.
Compliance with a prior federal bond-hearing order.
Periodic review of continued detention.
Other relief directed exclusively at custody rather than removability.
Requests to invalidate the removal charge, terminate Immigration Court proceedings, or prohibit removal based on the merits of the immigration case will likely trigger the jurisdictional problem identified in Mahdawi.
Question: What is your overall assessment of the decision?
Sage Roman: Mahdawi is a substantial restriction, but it is not the end of immigration habeas litigation.
The decision closes the district-court route for claims that effectively challenge the government’s basis for removal. At the same time, it preserves an important role for habeas corpus where a detainee independently challenges the duration, statutory authority, or constitutional procedures governing detention.
For New York detainees, the central question is no longer simply whether detention is unlawful. The petitioner must show why the detention claim can be resolved without requiring the district court to decide the removal case.
Question: What should a detained person or family member do now?
Sage Roman: They should obtain an individualized review of the detention history and removal proceedings as soon as possible. Counsel should determine the statutory basis for detention, whether bond is available, whether administrative remedies were exhausted, how long the detention has continued, and whether prior hearings complied with constitutional requirements.
After Mahdawi, filing a broadly worded habeas petition may result in dismissal even where a narrower detention-specific claim could have been considered. Careful legal analysis before filing is therefore essential.
This interview provides general information and does not constitute legal advice for any individual case.