A person can sit in ICE custody even after the government admits the obvious: deportation is not happening soon. Travel documents may not be available. The receiving country may not cooperate. Conditions abroad may make removal impossible. Still, the cell door remains locked.
Hillary Walsh, founder and CEO of New Frontier Immigration Law, has taken these cases into federal court through habeas litigation. Her background includes immigration matters before federal appellate courts, the Board of Immigration Appeals, and immigration courts nationwide. Her current work includes detention challenges that test the legal limits of government custody.
The Problem of Detention Without Deportation
ICE detention is often justified as a temporary step toward removal. The government holds someone while it tries to carry out a deportation order. But when removal is not reasonably foreseeable, prolonged detention raises serious legal questions.
The Supreme Court has recognized limits on indefinite immigration detention, though each case depends on its facts and later legal developments. The basic principle remains important. If detention is meant to make deportation possible, the government must eventually show that deportation is realistic.
Walsh has described a current case involving an Afghan client who has been held in ICE custody for six months. According to Walsh, ICE has admitted it cannot deport him, yet continues to hold him. That kind of case is not only an immigration problem. It becomes a constitutional problem.
“When ICE admits it cannot deport someone yet refuses to release them, this becomes a serious constitutional issue. Habeas corpus litigation–not Washington press briefings–is often the only thing standing between indefinite detention and constitutional due process.” Walsh has said.
Her point is that detention policy is not measured in press statements. It is measured in months of confinement, missed work, separated families, and the government’s ability or inability to justify custody.
Why Release Does Not Always Follow
Many detained immigrants and their families assume that if deportation cannot happen, release should be automatic. The system does not always work that way. ICE may argue that travel documents could arrive later, that removal remains possible, or that custody is justified for other reasons.
That creates a difficult burden for the detained person. They may have limited access to records, counsel, medical care, and family support. They may not know what the government has done to obtain travel documents. They may not know whether ICE’s claims are backed by evidence.
Walsh’s role in these cases is to force the issue into a forum where the government must respond. A habeas petition asks a federal judge to examine whether custody has become unlawful. The record may include the length of detention, removal efforts, diplomatic barriers, custody reviews, health issues, family ties, and the likelihood of removal.
Public immigration court data has shown more than 3 million pending cases in recent years. That backlog adds pressure to detention cases because delay can become part of the harm. A person held for months may lose housing, work, and contact with children long before a final legal answer arrives.
How Habeas Changes the Fight
Habeas corpus changes the posture of the case. Instead of asking ICE to reconsider internally, the detained person asks a federal court to review whether the government still has lawful authority to hold them.
That matters because immigration custody can feel invisible. Detention happens away from public view. Families receive limited information. Agency decisions may be brief. Habeas brings the question into court, where the government must explain what it is doing.
Walsh’s litigation profile is central to this work. These cases require more than form preparation. They require federal court filings, evidence, deadlines, and arguments about constitutional limits. For clients held after deportation becomes unlikely, that distinction can determine whether the case remains trapped inside the agency or reaches a judge.
The answer is not always immediate release. A court may order a hearing, demand more explanation, or grant another remedy depending on the case. But habeas gives detained immigrants a way to challenge the contradiction directly: if ICE cannot deport someone, how long can it keep holding them?
That question is where Walsh’s work now sits, at the line between immigration enforcement and unlawful custody.