Immigration Article of the Day: The Immigration Habeas Deluge: Adjudicating Mass Government Torts by Mary D. Fan

The Immigration Habeas Deluge: Adjudicating Mass Government Torts by Mary D. Fan, Forthcoming, 102 Ind. L.J. __ (2026).

Abstract

Federal courts are awash in a flood of immigration habeas petitions because of executive-branch policy ruptures from longstanding practice, such as mandating detention for people formerly eligible for release. While district courts have overwhelmingly ruled in favor of petitioners, the victories are spurring more petitions in part because immigration judges are not following the rulings of Article III judges. This article is the first to draw lessons for the present immigration habeas crisis from another era of immigration habeas petitions flooding federal courts—the Chinese exclusion period—to caution about the danger of federal courts and Congress constricting rights to stem the habeas flood. The article frames the concept of habeas deterrence, adapted from remedial deterrence theory, to capture the risk that courts will curtail individual rights to deter the barrage of habeas petitions. Indeed, the first appellate court to decide the issue recently rejected the rulings of the overwhelming majority of district courts and instead bolstered executive power to mandate detention.