Mary D. Fan (University of Washington School of Law), The Immigration Habeas Deluge: Adjudicating Mass Government Torts, 102 Indiana Law Journal ___ (forthcoming 2026) on SSRN. Here is the 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.
The article also is the first to propose a mass tort adjudication frame to address the deluge of immigration habeas petitions and provide timely relief for petitioners and overburdened courts. The mass tort framework draws on aggregation via class actions, artificial intelligence (AI)-powered case sorting, and special masters to manage proceedings. The innovations would relieve the pressures of habeas deterrence that create perverse incentives to narrow rights and enlarge executive power.
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