- Immigration judges are increasingly denying bond hearings to noncitizens who entered without inspection.
- A 2025 BIA ruling sharply expanded mandatory detention, creating significant barriers to legal counsel.
- Conflicting federal circuit rulings have split the legal landscape regarding detention without due process.
Immigration judges are increasingly denying bond to noncitizens classified as “applicants for admission,” including people who entered the United States without inspection. The shift follows July 2025 DHS guidance and a Board of Immigration Appeals ruling that many judges have read as removing their authority to hold bond hearings in those cases.
Lawyers describe the detention system as a “deportation machine.” People kept in custody while their removal cases proceed may have greater difficulty gathering evidence, meeting with counsel and fighting deportation from detention.
The governing framework often turns on two detention statutes. Under INA § 236(a), a judge may grant bond when the person is not dangerous and does not present a flight risk. Under INA § 235(b), bond is often denied, leaving the detainee to pursue habeas relief or another challenge in federal court.
The Board’s decision, Matter of Yajure-Hurtado, 29 I&N Dec. 216 (BIA 2025), held that immigration judges lack authority to grant bond to a noncitizen who entered without inspection and admission. Practitioners say the ruling has sharply expanded no-bond detention.
That interpretation now faces conflicting appellate rulings. A detainee’s access to a bond hearing may depend on the federal circuit where the detention occurs.
The Executive Office for Immigration Review’s volume of decisions includes the Board’s 2025 decision.
Appellate rulings are pulling detention policy in different directions
In the Tenth Circuit, a court rejected a policy requiring detention without bond and ordered a hearing for Rigoberto Santillan-Quiroz after eight months in custody. The ruling challenged the use of mandatory detention as an across-the-board barrier to release.
The Fifth Circuit issued another ruling on July 2, 2026. In a 2-1 decision, the court held that detention lasting more than 90 days without a bond hearing violates due process. Judge Leslie H. Southwick wrote the majority opinion.
Other appellate courts have taken different approaches. Published legal analysis describes the Fifth and Eighth circuits as continuing to uphold mandatory detention in some circumstances, while the Second, Third and Sixth circuits have rejected the no-bond approach.
The Supreme Court agreed on June 15, 2026, to review a related detention-and-bond question. Its eventual decision could resolve the conflict among the circuits.
| Detention issue | Legal consequence described in the research |
|---|---|
| INA § 236(a) | A judge may grant bond when the person is not a danger or flight risk |
| INA § 235(b) | Bond is often denied, with federal-court relief potentially required |
| 8 C.F.R. § 1003.19(c)(1) | Sets the venue rule for bond redetermination requests |
The July 2025 guidance changed how cases are classified
The July 2025 DHS and ICE guidance treated many people who entered without inspection as subject to mandatory detention under INA § 235(b), rather than detention potentially allowing a bond hearing under INA § 236(a).
That classification can determine the forum for the next legal fight. A person treated under the first statute may not receive a bond hearing from a judge. The person may instead need to seek habeas relief or another federal-court remedy.
A person treated under the second statute can ask a judge to consider release conditions. The judge typically examines danger and flight risk.
The venue rule adds another procedural constraint. Under 8 C.F.R. § 1003.19(c)(1), bond redetermination requests are tied to the designated venue for the proceeding, making the location of custody and the assigned court relevant to how the request moves forward.
The circuit where a person is detained may decide the next step
The split has created different practical paths for similarly situated detainees. In circuits that reject the no-bond policy, a person may have a stronger basis to seek a hearing. In jurisdictions that continue to apply mandatory detention in some cases, the same argument may lead instead to federal litigation.
The Tenth Circuit case involved a longtime detainee who had spent eight months in custody before receiving the ordered hearing. The Fifth Circuit ruling supplied a separate time-based limit, holding that more than 90 days without a hearing violated due process.
Those decisions do not create one nationwide procedure. The published analysis describes continuing disagreement, and the Supreme Court’s review may alter the rules after it issues a decision.
The legal classification also does not decide the underlying removal case. It determines whether a judge can consider release while that case continues.
Attorneys handling detention cases may need to assess the entry history, the statute cited by the agency, the detention location and the controlling circuit before seeking bond. The applicable procedure can vary by jurisdiction, and individual facts may affect whether a federal court grants relief.
This article provides general information and is not legal advice. Consult a qualified immigration attorney about your specific case.
