Immigration Bond

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The information below is for education and marketing purposes only. In no way it is intended to provide legal advice or create a client-attorney relationship. Should you have a question regarding the content or your situation, please contact a lawyer.

ICE Detention

The U.S. Immigration and Customs Enforcement (also known as ICE) has the authority under federal laws to detain certain immigrants and non-immigrants who are being charged, under investigation, or have been convicted of certain crimes in the U.S. A non-U.S. citizen individual could be attending a court hearing for a drug offense or domestic violence charge, upon the completion of that hearing, ICE officers could detain that individual at a public place. Once an individual is detained, he or she will be transported to a local ICE facility or prison.

Intro

When ICE detains someone, the first question is usually: “Can we get bond?”

The next question is just as important: “Who is allowed to decide bond?”

That question is called jurisdiction. It means: does an Immigration Judge have the power to hold a bond hearing, or is ICE using a rule that blocks a bond hearing in immigration court?

What is an immigration bond hearing?

A bond hearing is a hearing where an Immigration Judge (IJ) decides whether a detained person can be released while their immigration case is still going on.

At most bond hearings, the judge focuses on two main questions:

Danger: Is the person a danger to the community?
Flight risk: Will the person return to court if released?

If the judge thinks the person is not a danger and will return to court, the judge may set a bond amount or order release with conditions.

What does “jurisdiction” mean in bond cases?

Jurisdiction is a legal word that means: Does the judge have the power to decide this issue?

So when an Immigration Judge says “I don’t have jurisdiction to set bond,” the judge is saying:

Even if I wanted to, the law (or DHS’s position about the law) does not allow me to hold a bond hearing for this person.

This is why families feel stuck: they may have strong facts, but the court says it cannot even hear bond.

The two big detention laws that control most bond cases

Most bond “jurisdiction” fights come down to which detention law ICE says applies:

1. INA § 236 (8 U.S.C. § 1226) — bond hearing is often available

Many people arrested inside the U.S. are detained under § 1226(a). Under this law, bond hearings are usually possible, and an Immigration Judge can often decide bond.

2. INA § 235 (8 U.S.C. § 1225) — bond hearing is often blocked

ICE may argue the person is an “applicant for admission” and is detained under § 1225(b)(2)(A). When ICE uses this law, the government often argues detention is mandatory and the Immigration Judge cannot hold a bond hearing.

This is the most common reason people hear: “No jurisdiction.”

Why this became a national issue in 2025

In 2025, DHS changed its position and instructed officers to treat many people arrested inside the U.S. and charged as inadmissible as “applicants for admission” under § 1225(b)(2)(A). As a result, many Immigration Judges began denying bond hearings because they believed they lacked jurisdiction. (See References 1 and 4.)

This created a big legal fight across the country, including federal court litigation.

Key decision #1: Matter of Yajure Hurtado (BIA 2025)

What is it?

Matter of Yajure Hurtado is a precedent decision from the Board of Immigration Appeals (BIA). Immigration Judges generally must follow BIA precedent unless a higher authority changes the rule. (See Reference 3.)

In simple terms, the BIA said that if someone is present in the United States without admission and DHS treats them under § 1225(b)(2)(A), then Immigration Judges do not have authority to hear bond requests or grant bond in those cases.

The decision also states (in the BIA’s view) that this mandatory detention rule applies even if someone has lived in the U.S. for years without lawful status. (See References 3 and 5.)

Key decision #2: Maldonado Bautista v. Santacruz (C.D. Cal.)

What is it?

Maldonado Bautista v. Santacruz is a federal court case in the Central District of California that challenged the government’s 2025 “no-bond” policy for certain people who entered without inspection and were later arrested. (See References 1, 2, and 4.)

In orders dated December 18, 2025, the court ruled against the DHS policy at issue and explained that the policy was unlawful under the Administrative Procedure Act (APA). The court also certified a nationwide class called the “Bond Eligible Class.” (See References 2 and 4.)

Bond Eligible Class (plain-language checklist)

The class definition (simplified) includes people who:

entered (or will enter) the U.S. without inspection, and
were not (or will not be) caught at the time of arrival, and
were not (or will not be) in certain other detention categories at the time DHS made the initial custody decision (for example, not in mandatory detention categories and not in post-order detention).

Important: Class membership is still fact-specific. Even if someone seems to fit, ICE may dispute it. A lawyer usually needs to review the person’s detention paperwork and timeline.

What if the Immigration Judge still says “no jurisdiction”?

Even after major court decisions, people sometimes still receive “no jurisdiction” bond denials. If that happens, it is important to:

Get the bond order in writing (or a written record of the denial).
Make a clear record of the person’s facts and why bond jurisdiction should apply.
Discuss next legal steps quickly with counsel (deadlines and detention situations can move fast).

What we do in a bond jurisdiction case

When someone is detained and the issue is “bond jurisdiction,” we focus on fast answers:

Which detention law is ICE using? (§ 1226 vs. § 1225 vs. others)
Can an Immigration Judge legally hold a bond hearing?
If the judge says “no jurisdiction,” what is the best strategy to challenge that position?
If bond is available, we build a strong bond package (address/sponsor proof, letters, work history, medical evidence if relevant, relief options, and any criminal or court records if applicable).

Frequently Asked Questions.

Does everyone in immigration detention get a bond hearing?

No. Many people can request bond, but some cases fall into categories where DHS argues bond is blocked—especially when DHS claims § 1225(b) applies.

What does “applicant for admission” mean if I’m already inside the U.S.?

It is a legal label DHS may apply. In 2025, DHS took the position that some people arrested in the U.S. and charged as inadmissible should be treated as “applicants for admission” under § 1225(b)(2)(A).

What is Matter of Yajure Hurtado?

It is a 2025 BIA precedent decision saying Immigration Judges lack bond authority for certain people DHS treats under § 1225(b)(2)(A).

What is Maldonado Bautista?

It is a federal court case in California that challenged the DHS no-bond policy and certified a “Bond Eligible Class.”

If I might be a class member, does that mean I automatically get released?

No. Class relief does not mean automatic release. It supports the argument that the person should get an individualized custody/bond hearing rather than automatic no-bond detention.

Can the law change again?

Yes. Immigration detention rules are heavily litigated and can change through court decisions, agency policies, or appeals. Always confirm the latest status with qualified counsel.

Disclaimer

This page is general educational information and is not legal advice. Reading this page does not create an attorney-client relationship. Immigration detention and bond rules depend on the person’s documents, timeline, and legal category.

References

Maldonado Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM (C.D. Cal.), Document 93 (Amended Consolidated Order re Summary Judgment and Class Certification), filed Dec. 18, 2025.
Maldonado Bautista v. Santacruz, No. 5:25-cv-01873-SSS-BFM (C.D. Cal.), Document 92 (Order Granting in Part and Denying in Part Petitioners’ Ex Parte Motion to Reconsider / Clarify), filed Dec. 18, 2025.
Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) (decided Sept. 5, 2025).
Practice Advisory: “Seeking Bond Hearings for Maldonado Bautista Class Members – Those Who Entered Without Inspection and Are Subject to Yajure-Hurtado,” updated Dec. 3, 2025.

Bond Determination

ICE has the authority to determine whether the individual is eligible to be released from prison on bond while his/her case is pending. The initial determination of the bond was at the sole discretion of ICE. In certain types of terrorist activities, criminal charges, convictions, or investigations, detention is mandatory, meaning ICE cannot let that individual go until the case is resolved. Once the detention occurs, the deportation or removal proceedings at an immigration court are likely to ensue.

Immigrants and non-immigrants have rights to challenge their bond determination made by ICE through an immigration judge. It can be advantageous for the immigrant to be free while their cases are pending. They can reach out to the witnesses in their criminal case, gather certain documents and evidence to fight the criminal charge, and speak with their attorneys freely, and see their family members. If they do not fight the ICE’s denial of bond, they will be continuously detained at an ICE facility until their deportation/removal case is over – either being deported, voluntary departure, or free to go. In some cases, individuals can be transferred to different ICE facilities across the U.S. due to many reasons. In those cases, it could be very difficult for the individual to see their family members, sign important documents, or speak with their local attorneys.

If they decide to fight the initial bond determination, they will need to communicate that with an immigration judge. Generally, an immigration judge will order a hearing for the immigrant to present his arguments that he should be released from custody and the appropriate amount of bond should be set. Immigration judges have broad discretions in determining what factors to consider and how much each factor weights. The detained may present witness testimonies, documents, pictures, publications, and other forms of evidence to persuade that he/she should be released. In the previous cases determined by the Board of Immigration Appeals, one court, Matter of Guerra, 24 I&N Dec. 37 (BIA 2006) looked at the following factors:

whether the individual has a fixed addressed in the United States;
length of resident in United States;
family ties in the United States;
employment history;
record of appearance in court;
criminal record;
history of immigration violations;
any attempts to flee prosecution; and
manners of entry of the United States.

Some courts in the past also consider whether the individual is a flight risk, and whether the individual poses a danger/harm/threat to the community, and whether the individual is likely to appear in the future court hearings. Some courts also consider the seriousness of current criminal charges or convictions. Immigration judges can consider different factors on a case-by-case basis.

Typically, in an immigration bond hearing, the lawyers for ICE will fight against the bond. The government lawyer will present evidence and arguments to the immigration judge as to why the individual should not be released and be held continuously in an ICE facility. They can present witnesses, documents, audio, video, and other forms of evidence showing why the individual should not be released. Because the hearing is for an immigration judge to determine whether ICE’s initial bond determination is correct and lawful, the burden of proof is on the shoulder of the detained individual. In the past, there have been cases where persons were being detained by ICE for a long period of time. In a recent case, Jennings V. Rodriguez, decided by the U.S. Supreme Court, the detained individual Alejandro Rodriguez, a Mexican citizen and a lawful permanent resident of the U.S. was detained since 2004. He was denied for temporary release on bond. After 3 years of detention, while still litigating his removal, he sued to be released and be given to periodic bond hearings during the course of his 3-year detention. The U.S. Supreme Court ruled that under §1225(b), 1226(a), and 1226(c) of the Title 8 of the U.S. Code, he is not entitled to periodic bond hearing and ICE can continue to detain him until his case is resolved in immigration court.

If you have a question about bond in an immigration court, contact the best immigration lawyer Omaha offers, Attorney Li of the Li Law Group, at 402-391-2486 and fill out an intake. Contact us at here.