Holding to watch: “Individualized risk,” not a label, drives detention decisions
A useful legal lens for Alabama House Bill 348 is the Board of Immigration Appeals’ bond framework in Matter of Guerra, 24 I&N Dec. 37 (BIA 2006). There, the BIA held that custody and bond decisions turn on an individualized assessment of danger to the community and risk of flight, based on the record evidence. Immigration adjudicators may consider many kinds of information, but the ultimate decision must be anchored to risk, not a categorical assumption.
Practical impact for Alabama HB 348 debates: supporters frame the bill as a risk-management tool for violent-offense defendants who are allegedly undocumented. Opponents argue it functionally turns immigration status into a detention trigger on a compressed timeline, inviting error and constitutional challenge. Either way, Guerra’s core lesson is that accelerated hearings and status-based arguments often collide with due process concerns when time is short and evidence is imperfect.
Deadline Warning (HB 348 proposal): HB 348 would require a detention hearing within 72 hours of arrest for covered defendants. That timeline is central to both supporter claims and opponent objections.
1) Overview of HB 348 (proposal vs. current law)
Alabama House Bill 348 (HB 348) is a proposed change to Alabama’s bail process for a narrow set of criminal cases. As described in committee, HB 348 would allow—and in practice may pressure—state judges to treat immigration status as a factor when deciding pretrial release for certain defendants charged with violent offenses.
Separate what HB 348 proposes from current Alabama bail practice. Alabama already has a constitutional mechanism associated with Aniah’s Law, which expanded the ability to deny bail for certain violent crimes through a pretrial detention hearing process. HB 348 would build on that framework by adding a specific focus on whether a person is “unlawfully present” in the United States, without a new constitutional amendment.
That is why the bill is drawing attention beyond Alabama. Supporters frame it as a public-safety measure that closes a gap for a subset of violent cases. Opponents frame it as a due process problem that uses a federal-status question inside a fast-moving state bail setting, where records and verification are often not readily available.
2) Key provisions: who it applies to, what hearing occurs, and what judges weigh
HB 348 is not described as applying to all immigrants, or even all noncitizens. Its scope, as presented, is aimed at defendants alleged to be undocumented who are charged with violent crimes. That framing matters, because public discussion often drifts into broader claims that are not what the bill says.
The required detention hearing
Under HB 348, courts would be required to hold an accelerated pretrial detention hearing within 72 hours of arrest for covered defendants. In many jurisdictions, a detention hearing is a focused proceeding. The judge hears arguments and reviews evidence relevant to release conditions.
- the charged conduct and alleged violence,
- the person’s prior record and court appearance history,
- ties to the community,
- and any facts suggesting danger or flight risk.
HB 348 would add immigration status to that conversation. The bill’s supporters argue this sharpens the flight-risk analysis. Opponents argue it may substitute a status allegation for individualized proof.
What a judge may consider, and what the decision is not
HB 348 is about pretrial release, not guilt or innocence. The hearing would not be a trial. It would also not be an immigration court proceeding.
Like immigration bond doctrine under Matter of Guerra, 24 I&N Dec. 37 (BIA 2006), the stated decision points track two classic custody considerations:
- public safety, and
- risk of flight,
with the added requirement that the court consider the person’s alleged immigration status in evaluating those risks.
Evidence Warning: In fast hearings, the fight is often about what counts as reliable proof. Allegations about identity and immigration status can be contested, and the record may be incomplete within 72 hours.
3) Legislative process and status (what happened, and what comes next)
HB 348 was introduced by Rep. Chad Robertson (R-Heflin). The bill is being handled through the ordinary Alabama legislative pathway, starting with the Alabama House Judiciary Committee.
The committee held a public hearing on February 12, 2026. A committee public hearing typically signals that leadership is testing the bill’s viability, taking stakeholder input, and gauging whether amendments are needed to secure votes. A hearing does not guarantee passage.
As of February 12, 2026, the measure was reported as remaining under consideration. No committee vote outcome was reported.
What to watch next, procedurally:
- A committee vote to advance, amend, or table the bill.
- Placement on the House floor calendar and a floor vote.
- If passed, Senate committee review and a Senate vote.
- If approved by both chambers, governor’s action (signature or veto).
- If enacted, implementation guidance for courts, sheriffs, and local jail operations.
Process Warning: Bills frequently change in committee. The final text, if enacted, may differ from the hearing version in key details.
4) Supporters’ arguments: why backers say immigration status matters at bail
Supporters of HB 348 present it as a public safety and victim accountability measure. They emphasize that the bill is targeted to violent offenses, not minor crimes.
At the February 12 hearing, Wanda Miller, executive director of Victims of Crime and Leniency, testified in favor. She framed HB 348 around what victims often ask after an arrest: “When is this person going to get out of jail? How much is the bond going to be? Is he going to walk out quicker than he walked in?” Her theme was predictability and protection for victims in serious cases.
Supporters also connect immigration status to flight risk, arguing that a person who is unlawfully present may be harder to track, may lack stable documentation, or may be more likely to avoid court. They contend the bill provides a clearer tool for judges to detain defendants who present heightened risk.
This argument resembles how immigration adjudicators justify custody decisions when the record supports it. Under Matter of Guerra, danger and flight risk are legitimate considerations, and the record may include many types of evidence. The contested question for HB 348 is whether an “unlawful presence” allegation is a reliable risk proxy on a 72-hour clock.
5) Opponents’ concerns: constitutionality, due process, and real-world verification
Opponents focus on three buckets of objections.
A) Constitutional and state-law structure
Critics argue HB 348 expands bail denial beyond Aniah’s Law’s contours without another constitutional amendment. That argument is about state constitutional design and separation of powers, not immigration law. If enacted, it could become a central litigation theme.
B) Due process and evidentiary practicality
A detention hearing is only as fair as the information available. Opponents note that local Alabama courts and jails typically do not have direct access to federal immigration databases. Even when information exists, authentication may be difficult within 72 hours, especially in smaller jurisdictions.
The hearing record could become dominated by disputes over:
- identity,
- prior immigration encounters,
- whether a person is “unlawfully present,” and
- whether the evidence is reliable enough to justify detention.
C) Judicial discretion and equity
Some lawmakers and witnesses argued judges already evaluate flight risk using traditional indicators, including family ties and community history. They argue HB 348 restricts discretion for one group, potentially leading to categorical outcomes rather than individualized ones.
That concern mirrors debates in federal detention litigation, where courts examine whether procedures meaningfully test the government’s asserted risk.
6) Context: how this differs from federal immigration detention, and why federal disputes still matter
There is no direct federal equivalent to a state bail bill like HB 348. State bail is part of a criminal prosecution. Federal immigration detention is civil custody under the Immigration and Nationality Act.
Immigration detention authority often arises under INA § 236 (8 U.S.C. § 1226) for many cases, and INA § 235 (8 U.S.C. § 1225) for certain applicants for admission. Bond hearings in immigration court are governed by EOIR procedures and BIA precedent, including Matter of Guerra, 24 I&N Dec. 37 (BIA 2006).
Still, federal detention disputes provide context because they litigate similar themes: how quickly a hearing must occur, who bears what burden, and what process is due. It notes Fifth Circuit oral arguments on February 3, 2026, involving disputes over mandatory detention without bond hearings for certain noncitizens who entered without inspection. Those cases are not Alabama bail cases, but they show how contested “detention without a meaningful hearing” can become.
It also references H.R. 7359, introduced February 4, 2026, which concerns immigration relief bars rather than bail policy. That illustrates the broader political environment, but it does not supply a federal model for HB 348.
Operationally, if HB 348 advances, readers should monitor:
- amendments clarifying what proof of immigration status is sufficient,
- how courts will handle contested status claims inside 72 hours,
- and whether litigation seeks injunctions based on the Alabama Constitution or federal due process principles.
Practical takeaways for defendants, families, and practitioners
- HB 348 targets a defined category, not all noncitizens. Eligibility turns on the charged offense and an allegation of unlawful presence.
- The 72-hour hearing window is the pressure point. Evidence disputes will likely drive outcomes and appeals.
- Immigration status may become a bail factor, but risk findings still matter. Even in immigration bond law, individualized danger and flight assessments are central.
- Expect litigation if enacted. Challenges may focus on Alabama constitutional structure, due process, and evidentiary reliability.
- Get counsel early. These cases can trigger parallel exposure: criminal detention, ICE interest, and possible immigration custody under INA § 236.
If you or a family member faces a violent-offense charge and questions about immigration status, consult both criminal defense counsel and a qualified immigration attorney immediately. Timing, documents, and record-building in the first days can matter.
Legal resources (official):
- EOIR Immigration Court info: justice.gov/eoir
- USCIS general resources: uscis.gov
- U.S. Code (INA sections): law.cornell.edu/uscode/text
Attorney and nonprofit directories:
Legal Disclaimer: This article provides general information about immigration law and is not legal advice. Immigration cases are highly fact-specific, and laws vary by jurisdiction. Consult a qualified immigration attorney for advice about your specific situation.
