Migrant Children Fight Prolonged Custody in US With Habeas Cases

Federal courts, already fielding a deluge of requests to free adults from immigration jails, are now hearing pleas from a more vulnerable population: migrant children detained by immigration authorities without their parents. 

Unaccompanied kids are experiencing ballooning timelines in Health and Human Services custody while the Trump administration tightens sponsor vetting. That’s prompted an uptick in these court challenges, known as habeas petitions. Previously rare for children, more than a dozen have been filed over the past year, lawyers said.

“They’re already so vulnerable, and now the government is subjecting them to prolonged detention,” Galveston-Houston Immigrant Representation Project managing attorney Alexa Sendukas said. “It’s really harming them from the agency that is supposed to be protecting their best interests.”

Migrant children spending months in federal facilities — more than six months on average lately, according to recent data — face mental strain and disconnection to their families and schools, attorneys said. The concerns echo those made by immigrants’ rights advocates during Trump’s first term, when his administration adopted a policy to intentionally separate children from their parents.

“When you have this many people having to turn to habeas, that alone is a strong indicator that something’s broken, something’s not working the way it should be,” said Scott Bassett of the Amica Center for Immigrant Rights.

The cases are filed on behalf of migrant children spending months in the custody of the HHS Office of Refugee Resettlement while they wait for the agency to approve them to be placed with relatives or other sponsors. They may include children who crossed the border alone, or in some cases, kids arrested inside the country.

Many cases have been successful so far, added Bassett, whose group has filed one habeas petition on behalf of a migrant child and is working on others. One of the children, a 4-year-old girl, has been in custody for six months—an eighth of her entire lifetime, he said.

Sendukas had never filed a habeas case before this administration and has now filed three, she said, on behalf of five children. They include minors aged 8 to 17 who crossed the border without their parents and spent more than a year in government custody.

“We have tried everything else possible to get these families reunified short of filing litigation, and unfortunately we’ve come to the point where that’s the only option left,” she said.

‘A Moral Imperative’

In March, the average child in ORR custody spent 194 days there before being discharged, up from 173 days in October. In fiscal 2024, during the Biden administration, that average was 30 days.

The Trump administration has defended the approach. Sponsor vetting is “not a bureaucratic obstacle, but a moral imperative,” HHS spokesperson Andrew Nixon said in a statement.

“While the time children spend in care has increased as the agency strengthens its sponsor vetting processes, we are confident that we are avoiding the many breaks in the vetting process that put children in harm’s way, as has been amply reported,” Nixon said. Children in ORR’s care receive healthcare, education, and “regular family contact,” he added.

Republicans denounced Joe Biden’s administration for loosening vetting policies to speed children’s release from custody. The shift, they argued, led to an increase in exploitation and labor trafficking of migrant kids. Republicans in Congress moved to scrap Biden-era policies that Trump ultimately eliminated.

Children affected by the stricter sponsor vetting have seen early success challenging their custody.

A federal judge who granted a habeas petition in April described the detention of a migrant child for more than four months as “indefensible” and ordered him released to his brother within 72 hours. The Guatemalan petitioner entered the US alone when he was 14 years old in January 2025.

“He is alone and needlessly suffering physically and mentally with no legal justification,” Judge Sharon Johnson Coleman, a Barack Obama appointee on the US District Court for the Northern District of Illinois, wrote.

Other migrant minors facing prolonged government custody, despite having family in the country willing to receive them, include a 17-year-old girl with an infant son, a 15-year-old boy, and a 13-year-old boy. The 13-year-old has been in ORR custody for a year, while the other two have been in government custody since September. Their cases were described in an April court filing in a broader case in Washington.

The uptick in habeas petitions for migrant children represents a small sliver compared to the thousands of petitions filed for adults held in US Immigration and Customs Enforcement detention facilities without bond hearings. The surge, due to a separate administration policy change broadening detention practices, has overwhelmed courts and US attorneys’ offices nationwide.

Court Cases

Advocates attribute the extended time for youth in custody to recent changes to vetting rules for potential sponsors, including requirements that they show specific documents to prove identity and income. People without legal status may not have those documents, making it harder for them to step forward to care for children.

The administration also rescinded provisions from a Biden-era rule that prohibited ORR from sharing sponsors’ immigration information with federal law enforcement and from denying potential sponsors based on their immigration status.

These policy changes are at issue in a pair of proposed class actions in Washington federal court.

National Center for Youth Law attorney Mishan Wroe, who represents migrant children in those cases, compared challenging ORR policies in court to “putting a Band-Aid on an open wound.”

“There have been so many changes made to how ORR functions that it feels more like an immigration enforcement agency than it ever has, and that is very hard to tackle in any one particular lawsuit,” she said.

Judge Dabney Friedrich of the US District Court for the District of Columbia, a Donald Trump appointee, temporarily blocked the administration from imposing the enhanced document rules for the sponsors of certain migrant children covered by the litigation.

Her June ruling applies only to children who were in HHS custody on or before April 22, 2025, with an identified sponsor, and doesn’t shield those who’ve been detained more recently.

Advocates also challenged the government’s practice of re-vetting sponsors, in cases where migrant teenagers are arrested by immigration agents after their release to approved sponsors. Those teenagers then spend months in ORR custody again, according to a federal lawsuit.

The lead plaintiff in that case, a 14-year-old referred to in court filings as Diego N., entered the US without a parent and was released to his father, who was vetted and approved by ORR. But last year, the teenager was re-detained by border agents after he was a passenger in a car that was pulled over. He then spent months in government custody while his father was re-vetted, according to the lawsuit.

Another plaintiff, Renesme R., said she’s worried she’ll have to retake 11th grade and won’t get her certificate for a three-year Junior ROTC program, according to the lawsuit. Her father was vetted by ORR as her sponsor, but now her aunt is applying, for fear that her father would be arrested by immigration authorities if he stepped forward.

Judge Carl Nichols, a Trump appointee on the Washington trial court, ruled April 30 to allow the re-vetting procedures, and described individual habeas petitions for children in prolonged custody as “the most appropriate relief” for these minors.

Blurred Lines

The federal government has argued that the heightened vetting requirements are necessary to close “gaps” in the process. Immigrants’ rights advocates and lawmakers on both sides of the aisle have previously raised concerns about vulnerabilities in the system after documented cases and investigations of child labor trafficking.

Democrats, including Rep. Lou Correa (Calif.) and Sen. Ron Wyden (Ore.), decried alleged labor trafficking of migrant teens in 2021 and called on HHS to account for the kids and do more follow-up calls and visits to ensure children’s safety after their placement with sponsors. Republicans focused on increasing the vetting requirements.

Advocates have argued the Trump administration’s changes don’t make kids safer.

At least five legal service providers and lawyers said they’ve seen more immigration enforcement actions against adults who come forward to sponsor children, blurring the line between the child welfare agency and immigration enforcement.

“That is a risky proposition that turns the possibility of seeing your child into the possibility of getting detained and sometimes deported,” said César Cuauhtémoc García Hernández, an immigration detention scholar and Ohio State University professor.

Migrant children caught in the months-long vetting process experience mental health challenges while living in federally contracted shelters separated from their families, attorneys said.

“Their ability to access basic services, basic facets of ordinary life, from parents and work to school, are severely constrained,” García Hernández said. “That’s what makes it feel like a detention center, even when it looks somewhat different than what most envision as a jail or prison.”