Can a detained person ask for a bond hearing?

This is information, not legal advice.

This guide explains the general rules. What they mean for your family member depends on their circumstances. Answer a few questions to check their situation.

The one question that decides it

Almost everything about bond turns on a single fork: is your relative held under section 236(a) of the Immigration and Nationality Act, or section 236(c)?

• Section 236(a) — 8 U.S.C. § 1226(a) — is the ordinary rule. ICE may detain someone while their removal case is decided, and may release them on bond. If ICE refuses or sets an amount the family cannot pay, an immigration judge can look at that decision again.
• Section 236(c) — 8 U.S.C. § 1226(c) — is mandatory detention. For people it covers, there is no bond. An immigration judge cannot set one. Community ties, a job, children who are citizens, a clean record since — none of it gives the judge power the statute withholds.

The Supreme Court held in Nielsen v. Preap, 139 S. Ct. 954 (2019), that mandatory detention applies even when years passed between the criminal custody and the ICE arrest. A long gap does not move someone out of section 236(c).

Two other buckets, briefly

Section 236 is not the only detention authority, and the others change the answer completely.

• Applicants for admission — 8 U.S.C. § 1225(b). Immigration judges have no bond jurisdiction over arriving noncitizens (8 C.F.R. § 1003.19(h)(2)(i)(B)). Release, if it happens, comes through DHS parole rather than a judge.
• After a final removal order — 8 U.S.C. § 1231(a). There is a 90-day removal period, and a different body of law applies. Zadvydas v. Davis, 533 U.S. 678 (2001), read a reasonableness limit into continued detention and treated six months as presumptively reasonable. Six months is not a release date. After it, the detained person has to give good reason to believe removal is not significantly likely in the reasonably foreseeable future; if they do, the government must answer that or release them on conditions.

People in withholding-only proceedings on a reinstated order sit under the post-order rules, not section 236 — Johnson v. Guzman Chavez, 594 U.S. 523 (2021). There is no bond hearing from an immigration judge in that posture. An immigration judge cannot set bond in asylum-only proceedings either: the cases that begin with Form I-863 instead of a Notice to Appear.

Whether bond may be an option depends on their entry, immigration history, detention location, and other facts. Check what those rules could mean for your family member.

What the Laken Riley Act changed

The Laken Riley Act, Public Law 119–1, took effect at the end of January 2025. It added a new mandatory detention category at section 236(c)(1)(E).

The new category needs two things at once. First, the person is inadmissible on particular grounds — roughly, they entered without being admitted, got status or entry by fraud or misrepresentation, or lack valid entry documents. Second, they have been charged with, arrested for, convicted of, or admit to acts constituting burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or any offence causing death or serious bodily injury.

Read that list again: arrested for and charged with are in it. A conviction is not required. It is easy to miss, and it catches families off guard.

Whether that is constitutional is being litigated. At least one district court has questioned detention based on an arrest alone. Nothing has invalidated the statute, and the outcome differs by court.

We cannot tell you which bucket applies

For most conviction-based grounds, lawyers use what is called the categorical approach: comparing the exact statute someone was convicted under against a federal definition, element by element. Two offences with the same name in two states can come out differently. Some grounds use a different test, and the Laken Riley grounds turn on what someone was arrested for, charged with or admitted — not only on a conviction. It is technical, it is contested, and it is the place where a confident wrong answer causes the most harm.

Be wary of anyone who gives a definite answer without reading the record. What helps a lawyer is not a summary. It is:

• The exact statute and subsection of any conviction or charge — the number, not the name of the crime.
• The date, and the sentence actually imposed.
• Whether it was a conviction, a dismissal, or a charge still pending — and any arrest that never led to a charge.
• Every piece of paper ICE has handed over, photographed front and back.

If ICE says mandatory detention applies, that is not the last word

When DHS classifies someone as subject to mandatory detention, an immigration judge cannot set bond — but the judge can decide whether DHS put them in that category correctly. That proceeding is called a Joseph hearing, after Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). It asks one question: is this person properly included in a mandatory category?

The bar is high. The detained person generally has to show that DHS is substantially unlikely to prove the charge that puts them in mandatory detention. And winning does not mean release: it moves them under section 236(a), where the judge can then consider bond. For someone wrongly classified, it is still the door.

How a bond hearing is actually requested

When ICE takes custody, an officer makes an initial custody determination and records it on Form I-286, Notice of Custody Determination. That form has checkboxes on it for requesting review by an immigration judge.

Ticking that box and returning the form is the simplest way to ask for a bond redetermination, and it can be done at intake. If it was not done then, the request can still be made to the immigration court later. A short written request is enough; see a sample motion for a bond hearing. Regulations at 8 C.F.R. § 1236.1 and 8 C.F.R. § 1003.19 govern who may set bond and how review works.

There is a second, separate route: asking the ICE Field Office Director to reconsider the bond ICE itself set. Field offices differ a great deal in how they handle these, so this is worth asking a local legal-aid organisation about rather than assuming.

What the judge weighs

Bond decisions under section 236(a) run on the factors set out in Matter of Guerra, 24 I&N Dec. 37 (BIA 2006). The list is not exhaustive, and no single factor decides it:

• A fixed address in the United States.
• Length of residence here.
• Family ties, and whether any of them could lead to immigration status.
• Employment history.
• Record of showing up to criminal court.
• Criminal record — how much, how recent, how serious.
• Immigration violations, and any attempt to flee or avoid the authorities.
• Manner of entry.

In practice this is what evidence is for. Letters from employers, proof of an address, school records for children, medical records, a written offer of a place to live — these speak to the factors above far better than a description of them does. Many courts also hand out a bond worksheet that puts these facts on one page for the judge.

One thing families often do not expect: the judge can weigh evidence of arrests or charges that never led to a conviction, if that evidence is specific and reliable. A dropped or pending charge is not automatically irrelevant.

Who has to prove what is less settled than it sounds. Immigration judges have generally treated the detained person as carrying the burden of showing they are neither a danger nor a flight risk. Habeas decisions and settlements in some places have shifted that burden onto the government and required judges to consider ability to pay and less restrictive alternatives before setting an amount. Whether that applies where your relative is held is a question for a lawyer in that jurisdiction.

If bond is denied

• Appeal to the BIA. An immigration judge’s bond decision can be appealed. Note also that DHS can seek a stay of a bond grant, which can keep someone detained even after a judge orders release. See what comes after a bond hearing?
• Ask again, on changed circumstances. A further bond redetermination can be sought by showing something material has changed since the last decision — a new sponsor or stable housing, a worsening medical condition, charges dropped or a sentence completed, or newly available relief.
• Federal habeas corpus under 28 U.S.C. § 2241. Where an immigration judge has no jurisdiction to set bond at all, a petition in federal district court is often the only route. This is lawyer work.

Where your relative is held changes the answer

This is not a detail. Federal appeals courts disagree about whether someone who entered without inspection and was arrested in the interior can get a bond hearing from an immigration judge at all. The answer depends on the circuit the detention facility sits in. As of October 1, 2026:

• First, Second, Third, Sixth, Seventh, Ninth, Tenth and Eleventh Circuits — bond available; circuit precedent controls over the BIA.
• Fifth and Eighth Circuits — no bond hearing from an immigration judge.
• Fourth and D.C. Circuits — no circuit ruling yet, so BIA precedent governs in immigration court and a federal habeas petition is the route.

This is moving fast, so check with a lawyer before relying on it. The Seventh Circuit ruled in July 2026 and the First and Third Circuits in August — Cirrus Rojas v. Olson, No. 25–3127 (7th Cir. July 30, 2026), Guerrero Orellana v. Moniz, No. 25–2152 (1st Cir. Aug. 13, 2026), and Buele Morocho v. Warden Philadelphia FDC, Nos. 26–1150 & 26–1454 (3d Cir. Aug. 28, 2026). On October 1, 2026 the Supreme Court agreed to decide the question in Rhoney v. Barbosa da Cunha, No. 26–104, a case from the Second Circuit; a decision is expected by mid-2027. A petition from the Fifth Circuit, Buenrostro-Mendez v. Blanche, No. 26–43, raises the same question. See did ICE end bond hearings? The Ninth Circuit surveyed the split in Rodriguez Vazquez v. Bostock, No. 25–6842 (9th Cir. July 30, 2026).

One consequence families rarely expect: a transfer can change the answer. A bond request goes to the immigration court covering the place of detention (8 C.F.R. § 1003.19(c)), so moving someone to a facility in another circuit can change whether a bond hearing is available at all. Where a habeas petition is filed matters too, and a lawyer may want to file one before a move. If your relative is told they may be moved, tell their lawyer immediately — before the move, if there is any way to.

What to do next

• Find out where they are being held, and in which state — see how to find someone in ICE detention.
• Photograph every document ICE has given them, front and back.
• If a hearing is coming up, read what happens at a bond hearing and gather the evidence before it.
• Write down the exact statute, date and sentence for any criminal matter. Not the name of the offence — the number.
• Get a lawyer or an accredited representative involved. The national legal services directory lists free and low-cost providers by state.
• If a bond amount already exists, read how to pay an immigration bond before sending anyone money.

Find out if bond is open for them

Check your family member’s situation to see which release options may apply, what to do next, and which documents to gather.