What If ICE Says You Are Not Eligible for Bond?

When ICE arrests and detains you, one of the first determinations they make is whether you are eligible for bond. If ICE tells you that you are subject to "mandatory detention" and cannot get bond, it feels like the end of the road. It is not.

ICE gets this determination wrong more often than you might think. And even when they are technically correct, there are legal avenues to challenge detention that many people do not know about.

Why ICE Says No Bond

There are several legal categories under which ICE can claim you are not eligible for bond:

Mandatory Detention Under INA § 236(c)

This is the most common reason ICE denies bond. Under this section, ICE must detain (without bond) any individual who:

• Has been convicted of an aggravated felony as defined under immigration law (INA § 101(a)(43)) — this includes many crimes that are not "aggravated" or "felonies" under state law
• Has been convicted of a controlled substance offense (other than a single offense involving 30 grams or less of marijuana)
• Has been convicted of certain firearms offenses
• Has been convicted of two or more crimes involving moral turpitude (not arising from a single scheme)
• Is inadmissible or deportable on terrorism-related grounds

Arriving Aliens Under INA § 235(b)

If you are classified as an "arriving alien" — someone who is seeking entry at a port of entry or who has not been admitted — you are generally not eligible for bond before an immigration judge. Instead, your custody is determined by DHS (ICE/CBP), and the standard is different.

Post-Order Detention Under INA § 241

If you have a final order of removal (the case is over and all appeals are exhausted), you are not eligible for bond. ICE has 90 days to effectuate your removal, with some extensions available.

When ICE Gets It Wrong

ICE officers are not judges, and they make mistakes. Common errors include:

Incorrect Criminal Classification

Immigration law's definition of crimes like "aggravated felony" and "crime involving moral turpitude" does not always match what state law calls them. For example:

• A state misdemeanor theft conviction can qualify as an "aggravated felony" if the sentence imposed was one year or more — even if the sentence was suspended
• Conversely, some convictions that sound serious may not trigger mandatory detention under a careful legal analysis of the categorical approach
• Drug paraphernalia convictions may not qualify as "controlled substance offenses" under federal immigration law

An experienced immigration attorney can analyze whether your specific conviction actually triggers mandatory detention under the Supreme Court's "categorical approach" — and often, it does not.

The "When Released" Requirement

Section 236(c) requires that ICE detain you "when released" from criminal custody. Courts have debated whether this means ICE must pick you up immediately upon release from jail. If ICE arrests you months or years after your release from criminal custody, some courts have held that you do not fall under mandatory detention and are entitled to a regular bond hearing.

The Supreme Court addressed this in Nielsen v. Preap (2019) and found that mandatory detention does not require immediate pickup. However, circuit courts continue to interpret this differently, and legal challenges remain viable in some jurisdictions.

How to Challenge a No-Bond Determination

1. Request a Joseph Hearing

Even if ICE says you are subject to mandatory detention, you can request a hearing before the immigration judge to challenge that classification. In this hearing (called a "Joseph hearing" after Matter of Joseph, 22 I&N Dec. 799 (BIA 1999)), the judge reviews whether ICE has correctly determined that you fall into a mandatory detention category.

At this hearing, ICE bears the initial burden of showing probable cause that you are properly included in a mandatory detention category. If you can show that you do not actually fall into that category — for example, by demonstrating that your conviction does not qualify as an aggravated felony — the judge can find that you are bond-eligible and proceed to a regular bond hearing.

2. Habeas Corpus in Federal Court

If you have been in mandatory detention for an extended period, you may be able to challenge your detention in federal district court through a habeas corpus petition. Courts have increasingly recognized that prolonged mandatory detention — particularly when removal proceedings drag on — raises due process concerns.

Several circuit courts have held that after approximately 6 months of detention, individuals in mandatory detention are entitled to a bond hearing before an immigration judge where the government must justify continued detention. This principle was strengthened by the Supreme Court's decision in Zadvydas v. Davis (2001) and subsequent lower court rulings.

3. Parole Request

Even individuals in mandatory detention can request that ICE exercise its parole authority under INA § 212(d)(5). ICE can grant parole for "urgent humanitarian reasons" or "significant public benefit." While parole is rarely granted in mandatory detention cases, it remains a legal option — particularly for individuals with serious medical conditions, pregnant women, or those who are the sole caretakers of minor children.

Prolonged Detention: When Enough Is Enough

The longer you are detained without resolution of your case, the stronger your legal arguments become. Courts across the country have grappled with the question of how long the government can hold someone without a bond hearing, and the trend favors detainees:

• The Ninth Circuit requires bond hearings after 6 months of detention under § 236(c), with the government bearing the burden of proving dangerousness and flight risk by clear and convincing evidence
• The Third Circuit has imposed similar requirements
• Federal courts in various districts have ordered release or bond hearings for individuals detained for prolonged periods

If you have been detained for 6 months or more without a bond hearing, contact an attorney about filing a habeas petition.

What to Do Right Now

If ICE has told you or your family member that bond is not available:

1. Get the specific reason. Ask ICE (or your attorney) to identify the exact statutory section they claim applies. This determines your challenge strategy.
2. Contact an immigration attorney. Do not accept ICE's determination at face value. An attorney can analyze whether the classification is correct.
3. Gather criminal records. Get certified copies of any criminal convictions, including the charging documents, plea agreements, and sentencing orders. These documents are critical for challenging criminal classifications.
4. Document your detention. Keep a record of how long you have been detained, conditions of detention, and any medical issues. This information supports habeas corpus petitions.

Frequently Asked Questions

Can mandatory detention be challenged?

Yes. If ICE has incorrectly classified your conviction or if you do not actually fall into a mandatory detention category, an attorney can challenge the classification before the immigration judge. Additionally, prolonged mandatory detention may be challengeable in federal court.

How long can ICE hold me without bond?

There is no fixed statutory limit, but courts have increasingly found that prolonged detention without a bond hearing violates due process. After approximately 6 months of detention, you may have grounds to challenge your detention through habeas corpus.

What is a Joseph hearing?

A Joseph hearing is a hearing before an immigration judge where ICE must demonstrate probable cause that you fall into a mandatory detention category. If the judge finds ICE's classification is incorrect, you become eligible for a regular bond hearing.

Can I get out of immigration detention without bond?

Yes, in some cases. Options include parole (ICE grants release on humanitarian or public interest grounds), order of supervision, or release through habeas corpus litigation. These options are discretionary or require court intervention.

If ICE has denied bond for you or a family member, contact Modern Law Group at (888) 902-9285. Our immigration bond attorneys challenge mandatory detention determinations and fight for release in federal court.