Why ICE Says You Don’t Get a Bond Hearing in 2026, and When That’s Actually Wrong
Shawn Sedaghat
Immigration Attorney, Cal Bar No. 188763 | AILA member since 1996
Last reviewed: April 2026 by Shawn Sedaghat
If you have a family member in ICE custody right now, the question that decides almost everything about the next six months of their life is no longer the one most people ask. The question is not “how much will the bond be?” or even “will the judge grant release?” The question is whether they will be allowed to ask a judge for release at all. Throughout 2026, immigration officers in detention facilities from Adelanto to Mesa Verde to Otay Mesa have been telling detained people, and the lawyers visiting them, that no bond hearing will be available. The reason given, when one is given, is a single statutory designation: that the person is being held under INA § 235(b) rather than INA § 236(a). The two sound similar. They are not. The first removes the immigration judge from the release equation entirely. The second is the bond system every immigration lawyer in California has spent the last 25 years working inside. The change is not legislative. Congress did not amend either statute. The change is in how DHS is now classifying people who entered without inspection, in how a small number of recent federal court decisions have ratified that classification, and in how one 2026 case began pushing back. The rest of this piece walks through the architecture in the order that determines whether your relative comes home next week or stays detained for months.
Why the Statute You Are Held Under Decides Whether You Get a Hearing
There are two parallel detention systems in immigration law. They look adjacent on a flowchart. They produce completely different outcomes for the person in custody.
The § 1226(a) path keeps the immigration judge in the room
Under INA § 236(a), 8 U.S.C. § 1226(a), a noncitizen taken into custody pending removal proceedings is generally eligible to request a custody redetermination hearing before an immigration judge. The judge can release on bond, on conditional parole, or set conditions of supervision. This is the framework I have litigated under in front of the Adelanto and Los Angeles Immigration Courts since the 1990s. It is, when available, the system every detained client wants to be in.
The § 1225(b) path takes the judge out
Under INA § 235(b), 8 U.S.C. § 1225(b), an “applicant for admission” is subject to mandatory detention. There is no custody redetermination hearing. An immigration judge has no authority to set bond. The Supreme Court confirmed this statutory architecture in Jennings v. Rodriguez, 583 U.S. 281 (2018), holding that § 1225(b) does not provide for periodic bond hearings even after prolonged detention. The Court left open constitutional challenges; it shut the statutory door.
What ICE has been doing in 2026, with increasing aggressiveness, is classifying people who entered without inspection, including people who have lived in the United States for years, as “applicants for admission” under § 1225(b) rather than as respondents under § 1226(a). That classification is the entire ballgame.
How Maldonado Bautista Cracked Open the Argument Against Mandatory Detention for Long-Term Residents
In early 2026, Maldonado Bautista directly challenged DHS’s expansion of § 1225(b) to long-term U.S. residents who were apprehended in the interior of the country rather than at the border. The court questioned whether the statute, written for people seeking admission at a port of entry, can lawfully be used as the detention basis for someone who has built a documented life inside the country.
What the court addressed
The substantive holding mattered less than the argument it legitimized: that “applicant for admission” is not an infinitely elastic label, and that DHS bears the burden to justify pulling someone out of the bond system entirely. Maldonado Bautista gives defense counsel a clean structural attack on the classification itself, rather than litigating release on the back end.
Why this is not yet a nationwide rule
A single district court ruling, or even a single circuit ruling, does not bind ICE nationwide. Maldonado Bautista opens a door. It does not redecorate the house. The next two sections explain why the door is wide open in some jurisdictions and bolted shut in others.
The Geographic Lottery, 5th and 8th Circuit Versus Everywhere Else
In a recent matter I handled in the first quarter of 2026, two clients with nearly identical facts (long-term California residents, no criminal history, entry without inspection more than a decade ago) received completely different outcomes because one was detained at a facility in California and the other was transferred within 72 hours to a facility in Texas. That difference is not anecdotal. It is the structure of how detention law now operates.
Buenrostro-Mendez (5th Cir.) and Herrera Avila (8th Cir.)
The 5th Circuit’s Buenrostro-Mendez (Feb. 6, 2026) and the 8th Circuit’s Herrera Avila (Mar. 26, 2026) both ratified broader DHS use of § 1225(b) mandatory detention. In Texas, Louisiana, Mississippi, and the Midwestern states covered by the 8th Circuit, ICE now has clean appellate cover to refuse bond hearings to a wide swath of detainees who would have received hearings two years ago.
What the 9th Circuit posture means for California detainees
The 9th Circuit, which covers California, has not yet issued a comparable decision in 2026. Detainees held in California facilities therefore retain stronger arguments under existing 9th Circuit precedent on prolonged detention and due process. The catch is that ICE can transfer a detainee out of the 9th Circuit, and the law that applies to their case is the law of the circuit where they are physically held. I have seen transfers happen within days of arrest, sometimes within hours.
What the Numbers Show About How Fast This Has Moved
National bond hearing volume reportedly fell from 4,479 in January 2026 to 1,337 in February 2026, a decline of approximately 70 percent in a single month. That figure should be confirmed against the EOIR FOIA data and the TRAC Immigration tracker before being treated as final. Even with confirmation pending, the magnitude of the drop is consistent with what defense counsel are seeing on the ground in custody dockets across the country.
Who Is Most Likely to Be Denied a Bond Hearing Today
The risk is unevenly distributed. The next two subsections only make sense read together, because the same fact pattern can land in either category depending on what surrounds it.
The pattern I am seeing in LA-area custody
Higher-exposure detainees in 2026 typically share at least one of the following: entry without inspection with detention occurring relatively close in time to entry, no qualifying immediate-relative or employer petition pending, sparse or undocumented record of long-term U.S. presence, transfer to a facility in the 5th or 8th Circuit, or any prior removal order including in absentia orders. Any one of these elevates the risk of being classified under § 1225(b). Two together compound it.
Where the argument is still winnable
Long-term California residence with strong documentary evidence, U.S. citizen spouse or children with established ties, a documented advance parole reentry, or strong equities (long employment, no criminal history, community ties) all support the argument that the person belongs in the § 1226(a) bond system. They do not guarantee the result. After Maldonado Bautista, they make the result available to fight for.
How Lawyers Are Getting People Out When Bond Is Refused
The path to release in 2026 is not one motion. It is a sequence, and the order matters.
Challenging the classification at master calendar
The first move is structural: dispute the § 1225(b) designation on the record at the earliest hearing, force the government to articulate its basis, and create a clean appellate record. Most cases I have seen escalate further were ones where the classification went unchallenged in the first two hearings.
Habeas corpus in federal district court
Where the immigration court refuses to hear a bond motion at all, a habeas corpus petition in federal district court under 28 U.S.C. § 2241 is often the only remaining avenue. Habeas asks a federal judge outside the immigration system to order release because the detention itself is unlawful. After Maldonado Bautista, habeas has become the primary tool for detained long-term residents who are shut out of the bond system entirely.
Building the long-term-presence record before it is needed
Most of the leverage in a bond classification fight is documentary. Leases, tax returns, school enrollment records, medical records, and family declarations spanning multiple years are the affirmative case that the person is not an “arriving” applicant. Families who assemble this record in the first 72 hours of detention have a materially different posture than families who try to assemble it weeks in.
The Mistakes That Are Now More Expensive Than They Used to Be
Three patterns are surfacing in consultations I have taken in 2026. First, families wait several days before calling counsel, by which point ICE has already entered the § 1225(b) classification on the record and the case has been transferred. Second, families try to use commercial bail bondsmen, which do not operate in the immigration detention system at all. Third, families assume that long U.S. residence by itself protects against mandatory detention. It does not, unless someone affirmatively documents and litigates it.
Frequently Asked Questions
How fast do I need to act if my family member was just taken into ICE custody?
Within 24 to 72 hours if at all possible. ICE’s classification of your family member as either a regular respondent under INA § 1226(a) or an “applicant for admission” under § 1225(b) often gets locked in by the paperwork filed in those first days. Once the classification is on the record and the case is docketed in immigration court, challenging it becomes a much heavier lift than preventing it from happening in the first place.
Does it matter which detention facility ICE sends my relative to?
Yes, significantly. The detention facility location effectively determines which immigration court hears the case and which federal circuit’s law applies to any habeas petition. A relative held at the Adelanto ICE Processing Center is in the 9th Circuit. A relative transferred to a facility in Texas or Louisiana is in the 5th Circuit, where Buenrostro-Mendez has tightened the government’s hand. Transfers happen quickly, sometimes within days of arrest, so move fast.
My husband has lived in California for 18 years. Can ICE really hold him under the “arriving alien” statute?
Often no, but the answer depends on the record. The whole point of Maldonado Bautista is that the “applicant for admission” framework was not designed to capture people who have lived in the country for years and built lives here. Documenting long-term U.S. presence with leases, tax returns, school enrollments, medical records, and affidavits is the affirmative argument that pushes the case back into the bond system under § 1226(a).
What is a habeas corpus petition and why does it matter for ICE detention now?
A habeas corpus petition filed in federal district court under 28 U.S.C. § 2241 asks a federal judge outside the immigration system to order release because the underlying detention is unlawful. After Maldonado Bautista, habeas has become the primary tool for detainees who are denied an immigration court bond hearing entirely. It is procedurally distinct from anything that happens in immigration court, and it is one of the few avenues left for prolonged detention without a release valve.
If we are in California, does the 5th Circuit Buenrostro-Mendez decision affect us?
Not directly, but it matters indirectly. The 9th Circuit, which covers California, has its own line of cases on prolonged immigration detention that historically tilts more favorably toward detainees than the 5th Circuit. However, ICE can and does transfer detainees across circuits, and a relative arrested in Los Angeles can be moved to a facility in another circuit within days. Once that happens, the law that applies to their case changes.
Can paying a private bail bondsman help if no bond hearing is available?
No. Private bail bondsmen do not operate in the immigration detention system, and their products do not apply here. Immigration bonds are posted directly with ICE through specific procedures, and only after either an immigration judge sets a bond at a hearing or ICE itself sets a bond at booking. If no bond is available, no third party can post one. The remedy in that situation is legal, not financial.
What documents should I gather before talking to an immigration attorney?
Bring or send the I-862 Notice to Appear if one was issued, the I-200 or I-205 detainer or warrant of arrest if available, the A-number, the detention facility name and address, and any prior immigration paperwork including past DACA approvals, work permits, or NTAs. Also gather proof of long-term U.S. presence: leases, tax returns, school records, medical records, and identity documents for any U.S. citizen or LPR family members.
About the Author
Shawn Sedaghat is the founding attorney of Sedaghat Law Group in Los Angeles. He has practiced immigration law continuously since 1997, with more than 28 years of experience before USCIS, the Executive Office for Immigration Review, and the federal courts. Cal Bar No. 188763. AILA member since 1996. Admitted to practice before the U.S. Court of Appeals for the 9th, 5th, and 3rd Circuits. J.D., University of La Verne College of Law. Languages: English and Farsi. Office located in Los Angeles, California.
Legal Disclaimer
This article provides general information about ICE detention, mandatory detention under INA § 235(b), bond hearings under INA § 236(a), and recent federal court decisions affecting both. It is not legal advice for any individual’s specific situation, and reading it does not create an attorney-client relationship with Sedaghat Law Group. To evaluate the facts of a specific detention case, schedule a confidential consultation with Sedaghat Law Group.