How to Get Someone Out of ICE Custody

The First Question: Mandatory Detention or Discretionary Detention

Immigration detention splits into two categories. Under INA § 236(c), certain criminal grounds, including aggravated felonies, many drug offenses, some crimes involving moral turpitude, firearms offenses, and domestic violence or stalking convictions, trigger mandatory detention. When mandatory detention applies, an immigration judge has no statutory authority to set bond at all. Under INA § 236(a), detention is discretionary, and the person can ask an immigration judge to review DHS's custody decision and set a bond.

Historically, that distinction turned on the underlying criminal record. In 2026, it's turned into something bigger.

The Fight Over Who Counts as "Mandatory Detention" Right Now

DHS has taken the position that anyone who entered the United States without inspection is subject to mandatory detention with no bond hearing, regardless of how long they've lived here or whether they have any criminal history at all, treating them as though they are perpetually "seeking admission" rather than someone already living in the interior. Several federal appeals courts have rejected that reading. The Second Circuit, in Barbosa da Cunha v. Freden in April 2026, held that a person who entered without inspection but is living in the interior of the country is not "seeking admission," is detained under the discretionary standard, and is entitled to a bond hearing. The Sixth, Seventh, and Eleventh Circuits reached similar conclusions by May 2026.

The Fifth Circuit has gone the other way. A February 2026 panel decision sided with DHS's broader reading, and on July 14, 2026, the full Fifth Circuit sitting en banc vacated an earlier ruling that had guaranteed bond hearings within 90 days, putting mandatory no-bond detention back into effect across Texas, Louisiana, and Mississippi while a rehearing scheduled for September plays out. The Board of Immigration Appeals has also moved in this direction, narrowing when bond hearings are available in its own recent decisions. In June 2026, the government asked the Supreme Court to resolve the split and adopt its reading nationwide.

The practical result is that whether someone gets a bond hearing right now depends heavily on geography, and that answer could look different by the time you're reading this. Anyone assessing a detained family member's options needs to check the current status in that specific jurisdiction before assuming either way.

If You Do Get a Bond Hearing, Here's How It Works

Where a bond hearing is available, the process starts with a written motion for bond redetermination filed with the immigration court, stating the amount believed reasonable and the factual basis for it. Hearings are typically scheduled within one to two weeks. The burden falls on the detained person, not the government, to show they are neither a danger to the community nor a flight risk, a standard set out in Matter of Guerra. Immigration judges evaluate danger first and only move to flight risk once they're satisfied the person isn't dangerous. The flight risk analysis looks at a fixed U.S. address, length of residence, family ties, employment history, a record of appearing for prior court dates, criminal history, any history of immigration violations, and how the person entered the country.

When Bond Isn't Available: Habeas Corpus

For people caught on the wrong side of the current circuit split, or anyone held well beyond what due process should allow, a federal habeas corpus petition under 28 U.S.C. § 2241 remains a real option. A habeas petition asks a federal district judge, not an immigration judge, to rule that continued detention violates the Constitution, typically by arguing that prolonged detention without any individualized review of danger or flight risk isn't something the law permits, drawing on the same due process reasoning that has run through this area of law for decades. District judges have kept the authority to order that kind of individualized review even where the government is pressing its broadest detention theories, and many have used it. In one closely watched set of cases before a single judge in the Southern District of New York, noncitizens won 350 of 362 habeas petitions, a success rate above 96 percent. That number reflects one court's docket, not a guarantee anywhere else, but it shows that habeas relief has been genuinely available on a significant scale this year, not just theoretical.

The Other Way Out: Giving the Case Somewhere to Go

Bond and habeas both address how someone gets out while the case is still pending. There's a separate path worth understanding: resolving the underlying case removes the basis for detention altogether. A viable, well-documented route to lawful status, most commonly a marriage to a U.S. citizen with an approvable adjustment of status application, does double duty. It's a strong positive factor in a bond argument, since it gives someone a lawful reason to stay and appear in court rather than disappear. And in the right procedural posture, it can give the immigration judge a basis to grant relief directly, ending the removal case and the detention along with it.

A Case That Shows How This Comes Together

One case that illustrates this well involved a client who was in ICE custody while his case was pending. During that time, he married his U.S. citizen fiancée. We filed an immigrant petition on his behalf along with an application for adjustment of status, built around that marriage. The filing gave us two things at once: a concrete, well-documented reason to argue he wasn't a flight risk, since he now had a U.S. citizen spouse and a lawful path forward, and a path for the immigration judge to grant relief directly rather than simply setting a bond and leaving the underlying case unresolved. The adjustment of status was ultimately granted, which ended the basis for continued detention, and he was released.

This account describes a case pattern from my own practice, with identifying details altered and generalized so that no individual client is identifiable. It is not a description of any specific matter beyond what is stated here.

What to Do If Someone You Know Is in ICE Custody

Locate the person using the ICE Online Detainee Locator and get their A-number, then find out quickly whether their situation falls under mandatory or discretionary detention, since that determines the entire strategy. If a bond hearing is available, move fast and bring strong, specific documentation on family ties, employment, and any criminal history rather than general statements. If no bond hearing is available under the current rules in that jurisdiction, a federal habeas petition may still be worth pursuing given how often courts have ruled against the government's broadest detention theories this year. And look honestly at whether there's an underlying path to status, through marriage or otherwise, that could resolve the case entirely rather than just securing release while the case drags on. Detention creates real time pressure, and some of these options move quickly while others don't, so getting the right strategy identified early matters more than almost anything else here.

If someone you care about is in ICE custody, contact Law Offices of Shawn S. Sedaghat at (818) 382-3333.

This article discusses general legal principles and does not describe any specific client or matter beyond what is stated. Nothing here constitutes legal advice or creates an attorney-client relationship. The law governing immigration detention and bond eligibility is changing rapidly and varies significantly by jurisdiction; confirm the current status in the relevant circuit before relying on this article.

Shawn S. Sedaghat is an immigration attorney at Law Offices of Shawn S. Sedaghat focused on deportation defense, immigration appeals, asylum, family-based immigration, and employment-based immigration. He is the firm’s founder and principal attorney and has more than 30 years of experience handling U.S. immigration matters.