Do Immigration Judges Have Authority to Set Bond in Every Case for Someone Detained by ICE?

What Bond Actually Is

An immigration bond is money paid to secure someone's release from ICE custody while their removal case is pending, on the condition that they appear for all future hearings and comply with any final order. It is not a fine and it is not related to guilt or innocence of any charge. Under INA § 236(a)(2)(A), the statutory minimum is $1,500, though bonds routinely run much higher depending on the judge's assessment of the individual case. If the person appears as required throughout the case, the bond is refunded once the case concludes, regardless of the outcome.

The Threshold Question: Which Detention Category Applies

Before anyone gets to argue about a specific dollar amount, there is a threshold legal question that determines whether an immigration judge has any authority to hear the request at all. Detention in removal proceedings falls into essentially two tracks.

Discretionary detention under INA § 236(a) is the track where bond is possible. DHS makes an initial custody decision, but the detained person can ask an immigration judge to review it and set, lower, or reconsider a bond amount.

Mandatory detention is the track where an immigration judge has no statutory authority to set bond, no matter how sympathetic the individual circumstances. This applies under two different statutory provisions, and understanding which one applies, and to whom, is where this area of law has become genuinely unsettled.

Who Is Eligible for Bond

If someone falls under INA § 236(a), meaning they are not subject to one of the mandatory detention categories described below, they can request a custody redetermination hearing before an immigration judge. The governing standard comes from Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), which places the burden squarely on the detained person, not the government, to show they are not a danger to persons or property, not a threat to national security, and not a flight risk. Judges evaluate danger first and only proceed to the flight risk analysis once satisfied the person is not dangerous.

Matter of Guerra laid out the factors judges weigh: a fixed U.S. address, length of residence, family ties, employment history, a record of appearing for prior court dates, criminal history, and manner of entry into the country. In Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020), the Board added a tenth consideration, the likelihood that the person will actually be granted relief in the underlying case, reasoning that someone with a strong, viable path to lawful status has less incentive to abscond. More recently, in Matter of Dobrotvorskii, 29 I&N Dec. 211 (BIA 2025), the Board added sponsorship, meaning whether a reliable third party is willing to support and help ensure the person's compliance, as an additional factor judges may weigh alongside the Guerra and R-A-V-P- considerations.

Who Is Not Eligible for Bond

Certain criminal grounds under INA § 236(c). Congress made detention mandatory, with no bond authority for an immigration judge, for people who fall within specific criminal categories: most aggravated felonies, many controlled substance offenses, certain crimes involving moral turpitude, firearms offenses, and offenses related to domestic violence, stalking, or violation of a protective order. If DHS has correctly classified someone within one of these categories, an immigration judge simply has no power to set bond, regardless of how strong the equities otherwise look.

That said, being charged with falling into a mandatory detention category is not the same as actually belonging in it. Under Matter of Joseph, 22 I&N Dec. 799 (BIA 1999), a detained person can request a hearing to argue that DHS has misclassified them, and if the immigration judge finds it is substantially unlikely that DHS will ultimately prevail on the charge that triggers mandatory detention, the person can be released on bond after all. This is a narrower and more technical argument than a standard bond hearing, but it remains an important avenue where the underlying criminal charge is genuinely disputable.

People treated as "applicants for admission" under INA § 235(b). This category was originally understood to cover people stopped at the border or a port of entry who had not yet been formally admitted into the country. Historically, that was a relatively contained group. It no longer is.

Matter of Yajure Hurtado: The Decision That Changed Who Falls Into This Category

In Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025), decided September 5, 2025, the Board addressed the case of a Venezuelan national who entered the United States without inspection in November 2022, was later granted Temporary Protected Status, and was detained by ICE shortly after that status expired in 2025, years after his actual entry. The question was whether someone in his position, who entered without inspection but had been living in the interior of the country, not stopped at the border, should be treated as an "applicant for admission" under INA § 235(b)(2)(A), or under the discretionary framework of INA § 236(a).

The Board held that anyone who entered without inspection remains an "applicant for admission" under the statute regardless of how long ago that entry occurred or how far into the interior of the country they have since lived. Because INA § 235(b)(2)(A) is a mandatory detention provision, the Board concluded that immigration judges lack any authority to conduct a bond hearing for someone in this category. In practical terms, this decision took a very large population, people who crossed without inspection at any point, even many years earlier, with no criminal history whatsoever, and moved them out of the group that can ask a judge for bond.

Matter of Yajure Hurtado did not arrive alone. Earlier that year, in Matter of Q. Li, 28 I&N Dec. 728 (BIA 2025), decided May 15, 2025, the Board held that people arrested relatively soon after an unauthorized entry, even those who had briefly been released on parole and later placed into full removal proceedings, are also subject to mandatory detention under § 235(b) rather than the discretionary framework. Together, these decisions substantially narrowed who can even ask an immigration judge for release, independent of any bond amount or individual equities.

The Pushback: A Real and Ongoing Circuit Split

Federal appellate courts have not agreed with the Board's reading, and the resulting split is significant. In Barbosa da Cunha v. Freden, decided by the Second Circuit in April 2026, the court held that someone who entered without inspection but is living in the interior of the country is not "seeking admission" within the meaning of § 235(b)(2)(A), is instead detained under the discretionary framework of § 236(a), and is entitled to a bond hearing. The Sixth Circuit reached a similar result in Lopez-Campos v. Raycraft, and the Seventh, Ninth, Tenth, and Eleventh Circuits have lined up the same way.

The Fifth Circuit has gone the other direction, siding with the government's broader reading of § 235(b) and, in a July 2026 en banc decision, reinstating mandatory no-bond detention across Texas, Louisiana, and Mississippi. The First, Third, and Fourth Circuits have heard argument on the issue but had not resolved it as of this writing. With a genuine, deep circuit split now in place, the government has petitioned the Supreme Court for review in more than one of these cases, including Rhoney v. Barbosa da Cunha and Raycraft v. Lopez-Campos, and a separate petition challenges the Fifth Circuit's ruling in Buenrostro-Mendez v. Blanche. None of these petitions had been granted as of this writing, meaning the underlying legal question remains genuinely unresolved at the national level, and the answer to "can this person get a bond hearing" still depends heavily on which circuit they are detained in.

The Constitutional Backdrop Courts Keep Returning To

This is not the first time the Supreme Court has weighed in on mandatory detention. In Demore v. Kim, 538 U.S. 510 (2003), the Court upheld the basic constitutionality of mandatory detention under § 236(c) for the ordinarily brief period a removal case is pending. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court held that detention after a final removal order becomes constitutionally doubtful once it extends significantly beyond six months without a realistic prospect of actual removal, opening the door to release through habeas corpus in that specific post-order context. And in Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the Court held that the mandatory detention statutes themselves do not implicitly require periodic bond hearings, rejecting a lower court's attempt to read that requirement into the text, but the Court left open the possibility of as-applied constitutional challenges to prolonged detention without any individualized review. That last point is exactly the avenue federal district courts have been using this year to grant relief through habeas corpus petitions even where the government's broadest reading of mandatory detention would otherwise apply.

What This Means If Someone You Know Is in ICE Custody

Determining which track applies is the first and most consequential step, before anything else about the case. Find out precisely how the person entered the country and when, whether they have any criminal history that could trigger § 236(c), and, if the entry was without inspection, be prepared for the strong possibility that ICE and the immigration court will treat them as falling under § 235(b) following Yajure Hurtado, regardless of how long they have lived here. Where a bond hearing is genuinely available, the Guerra, R-A-V-P-, and Dobrotvorskii factors control, and building a specific, well-documented record on those factors matters enormously. Where mandatory detention applies, a Matter of Joseph hearing may still be worth pursuing if the underlying criminal classification is disputable, and a federal habeas corpus petition under 28 U.S.C. § 2241 remains a real option, particularly given how many federal courts have already ruled against the government's broadest detention theories this year.

If someone you care about is in ICE custody and you are unsure whether they are entitled to a bond hearing, contact the 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. Nothing here constitutes legal advice or creates an attorney-client relationship. The law governing immigration detention and bond eligibility is unsettled and changing rapidly, including a live circuit split and pending Supreme Court petitions; confirm the current status in the relevant jurisdiction 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.