Migrant children stranded alone in prolonged Trump administration custody and targeted by whole-of-government efforts to deport them are starting to win release while they fight their cases – with a fresh legal strategy, the Guardian has found.
A growing army of attorneys across the US is racing around the clock like legal first responders to file petitions of habeas corpus in federal courts demanding freedom for their young clients.
Organizers of the new movement as well as pro-immigration advocates accuse the government of unconstitutional conduct and plain cruelty, keeping families apart and rushing small children into court without lawyers – to feed Donald Trump’s “deportation machine”.
Now they are hitting back with a rare habeas tactic and it is proving surprisingly successful amid the US president’s harsh crackdown that has swept up thousands of minors, according to leaders of the advocacy movement the Guardian first revealed in September.
A growing army of attorneys across the US is racing to file petitions of habeas corpus. Photograph: The Door
Researchers estimate nearly all these cases end with a child’s release from federal custody. Some don’t even get as far as a court hearing before the administration backs down and lets the child go, likely in order to avoid having to explain their policy decisions to a judge.
Since Trump retook the White House, officials have taken to keeping children who crossed the US-Mexico border unaccompanied in prolonged custody instead of allowing them to be with relatives or other vetted sponsors stateside while their legal case plays out.
Immigration enforcement activity is also “creating” new unaccompanied children, after sweeping up migrant kids in the country’s interior and separating them from their caregivers.
As of September, more than 1,800 unaccompanied children have spent six months on average in federal custody, compared with an average of 44 days between 2015 and 2024.
“The government is violating the law, and the regulations, and their own policy sometimes in this area,” said Marie Silver, supervising attorney at the Immigration and Human Rights Clinic at Loyola University Chicago School of Law, which is co-managing the new initiative, called the Children’s Due Process Project.
But, Silver continued, “I think the core of what the judges are picking up on and really sort of incensed about is just the true, underlying constitutional problems here when we keep children from their family members for no reason.”
Leading advocates are countering by rallying an expanding band of lawyers, drawn from around a hundred legal organizations, law firms and solo practitioners across the US, who are representing children free of charge. They are swiftly filing habeas petitions to get as many children as possible released to loved ones before it’s too late and the administration bundles them onto deportation flights.
Habeas corpus petitions challenging unlawful imprisonment have become a staple for the many thousands of adults held within the US immigration detention system, the world’s largest. More than 91,000 such petitions have been filed since January 2025, according to a tracker run by ProPublica. Yet until recently, they were far less common for lone migrant children, who historically have been released to family members quickly after arriving in the US and entering federal custody.
In a report published this fall, the Washington DC-based Acacia Center for Justice identified just 33 total habeas petitions filed on behalf of these children before last year, most of them during Trump’s first term. They then tracked “a 3,500% increase in habeas filings” since January 2025, compared with the four years of the Biden administration.
Researchers found at least 72 habeas petitions involving unaccompanied children in government custody across 16 federal district court jurisdictions since the start of the second Trump administration. And, in cases where the outcome was clear, 98% ended with the child released.
“This is the most immediate way to help the kids who are currently being harmed,” said Becky Wolozin, senior attorney at the California-based National Center for Youth Law (NCYL), a co-manager of the Children’s Due Process Project.
Other co-managers include Acacia and The Door, a New York-based comprehensive youth development organization. Through the effort, these organizations are training attorneys and connecting them with young clients who desperately need help with the habeas process.
“Part of what we’re hoping with this project is essentially to build a bench of people who are ready, able and excited to bring these cases, so that more kids have access to this type of vital representation,” Wolozin said.
Organizations such as The Door are training and connecting attorneys with young clients who need help with the habeas process. Photograph: The Door
Children arriving in the US unaccompanied by a parent or legal guardian fall under the care of the office of refugee resettlement (ORR), an agency that is part of the Department of Health and Human Services (HHS) and that has typically filled a child welfare role.
US statute and regulations explicitly require that these kids be “promptly placed in the least restrictive setting that is in the best interest of the child”. And so authorities – until recently – put them in congregate shelters, foster care or secure facilities for as little time as possible while vetting prospective “sponsors” – oftentimes parents already in the US – who applied to take care of them after release.
Many of these children have survived abuse, neglect, trafficking, abandonment or other serious harms in their countries of origin or on the way to the US – tragedies that in turn may open the door for them to seek legal immigration pathways stateside.
But now, officials across executive agencies are coordinating efforts to make it much harder for children to receive legal protections before they are ordered deported, including by ending a federal contract that had funded attorneys for over 20,000 of them and plotting to have HHS attorneys represent them instead.
Children wait outside an immigration court at the Jacob K Javits federal building on 31 July 2026 in New York City. Photograph: Michael M Santiago/Getty Images
“The immigration judge works for the Trump administration. So does the prosecutor. Under your plan, so would the child’s lawyer. That is unacceptable,” Democratic senators recently wrote in a letter to Robert F Kennedy Jr, the HHS secretary.
In practice the lack of legal representation manifests in cases such as that of a 12-year-old girl from a shelter appearing without a lawyer in the Santa Ana, California immigration court and receiving just one week to find counsel. When children like her are forced to return to court the following week, the chances are that judges will declare them “removable” and order their deportation, said Lindsay Toczylowski, CEO and co-founder of the Immigrant Defenders Law Center.
“She will join so many other children who have no fighting chance in these immigration courts, because this is what a deportation machine looks like – children alone, sitting on the other side of a computer screen, given impossible deadlines, handed useless lists of organizations that have been defunded and rushed toward life-altering orders they cannot understand,” Toczylowski said.
Among such examples are two siblings seeking asylum, ages nine and 13, who spent about six months in government custody and endured significant mental and emotional harms because of their separation from family. Officials knew within days of their arrival that the children’s mother was living in the US, ready to welcome them. Within a month, she had already gone through full federal security vetting protocols without raising any flags, said Matthew Johnson, citywide deputy director of immigrant justice at Legal Services NYC, in New York.
She moved to a more spacious apartment, checked out local schools and built bunk beds for her kids. “Still, her second bedroom sits empty,” the habeas petition his organization filed said, months into the children’s arrival. Weeks of delays piled up, including a technical glitch with a government portal and a government employee ghosting the mother.
“If this was a parking ticket, you would be really frustrated. If it’s your children, it’s inexcusable,” Johnson said. The government even suggested the siblings might pose a safety threat if released, despite there being “no conceivable basis to conclude that these nine- and 13-year-old children were dangerous”, Johnson said. By filing a petition of habeas corpus in federal court, attorneys effectively challenged the administration to justify the siblings’ prolonged time in transitional foster care, roughly 200 miles from their mother.
Just hours before a hearing in August where an official would have had to defend the government’s decision, the children suddenly received the green light to reunite with their parent in Rhode Island.
For their mother, “this was just a painful, and traumatic, and incomprehensible, and inexplicable saga”, Johnson said. “I think she just felt relief that this was over.”
Protest held in Venezuela demanding release of children separated by US deportation process in Caracas, Venezuela in 2025. Photograph: Anadolu/Getty Images
And in another case, a teenager, identified by the initials EHCF in court filings, had lived in Massachusetts for six years before he was moved to ORR custody in Texas, where he was unable to speak to his mother on the phone for days to tell her what had happened.
After months being held against his will, first in San Antonio and then back in a different part of New England, in Connecticut, EHCF was diagnosed with generalized anxiety disorder, major depressive disorder, post traumatic stress disorder and attention deficit disorder, which the physician who evaluated him said was likely in part because of his “abrupt and prolonged removal from his family at the age of 15”.
Judge Vernon Oliver wrote in his decision granting the boy’s release: “The Court does not understand why E.H.C.F. is being separated from his mother.”
This is all part of what lawyers are describing as “a deportation assembly line depriving them [the children] of their rights”, where one-year-olds are defending themselves against government attorneys arguing for their removal from the US and some children are breaking down in tears during court, advocates said.
“The conclusion that I have and that other advocates have is that left to its own devices, this agency [ORR] will detain children indefinitely until they’re able to remove them. And so habeas petitions are necessary for that reason,” said Johnson His small team has accepted three referrals from the Children’s Due Process Project.
Meanwhile, Department of Justice and homeland security employees are expediting adjudications. Children’s asylum interviews have been scheduled just 24 hours in advance, sometimes to take place remotely and without notice to their attorneys, legal service organizations said in a lawsuit filed in October – also noting that immigration courts are rushing to complete children’s proceedings before the end of January at the latest. This is despite an enormous backlog of cases and widespread concerns that the fast-tracked decisions could hinder due process.
US district judge Brendan Hurson granted a temporary restraining order last week requiring the federal government to give unaccompanied children at least three weeks’ notice before an asylum interview and allow them to reschedule if needed. But that order only lasts until 13 November.
Amid these obstacles to family reunification and fair proceedings, habeas petitions have become a saving grace. And lawyers who hear about the Children’s Due Process Project are eager to sign up, advocates said.
“There’s just a huge need for the project,” said Beth Baltimore, interim managing director of The Door’s legal services center. “Kids were not getting out of custody. Family members are scared. Family members are targeted. It’s a really difficult process.”
