Section 2254: state court convictions
A person in custody under a state court judgment who claims the conviction or sentence violates federal law files under 28 U.S.C. § 2254. Before coming to federal court, the petitioner generally must exhaust state remedies, presenting the federal claims to the state courts first.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year limitation period, with specific rules for when it begins, and a highly deferential standard: a federal court may grant relief on a claim the state court decided on the merits only if that decision was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, or rested on an unreasonable determination of the facts. AEDPA also sharply restricts second or successive petitions.
Section 2255: federal sentences
A person serving a federal sentence ordinarily challenges the conviction or sentence through a motion under 28 U.S.C. § 2255, filed in the same district court that imposed the sentence. It carries its own one-year limitation period and its own restrictions on successive motions. Because § 2255 is the designated route for these challenges, federal prisoners generally cannot bypass it by filing under § 2241.
Section 2241: everything else, including immigration detention
Section 2241 is the general habeas statute. It is used for custody that is not a state judgment or a federal sentence being attacked on its merits — most notably, civil immigration detention. It is also used by federal prisoners to challenge how a sentence is being carried out, such as the computation of sentence credits.
For immigration detainees, § 2241 has practical advantages: it is filed in the district of confinement, it is not subject to AEDPA’s one-year limitation period in the way §§ 2254 and 2255 are, and it does not carry AEDPA’s deference to a prior state court ruling, because there is none. Its limits come instead from the immigration statutes, which channel challenges to removal orders to the courts of appeals and restrict review of certain discretionary decisions.
Choosing correctly
Filing under the wrong statute can mean the wrong court, a missed deadline, or a dismissed petition. A person who is both serving a criminal sentence and facing immigration consequences may need more than one proceeding: a § 2254 or § 2255 challenge to the conviction and, separately, a § 2241 challenge to immigration custody once ICE takes them into detention.
Frequently asked questions
Which habeas statute applies to ICE detention?
Immigration detention is challenged under 28 U.S.C. § 2241, the general federal habeas statute. Sections 2254 and 2255 are for people challenging state convictions and federal sentences respectively.
Is there a deadline to file a habeas petition?
Petitions under § 2254 and motions under § 2255 are subject to a one-year limitation period under AEDPA, with specific rules for when the year begins. Immigration habeas petitions under § 2241 are not ordinarily subject to that one-year deadline, but because each day of unlawful detention matters, they should be filed promptly.
This guide provides general information, not legal advice. Every detention case turns on its own facts and the law changes; consult an attorney about your specific situation.
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