When someone is arrested by Immigration and Customs Enforcement (ICE) and placed in immigration detention, the first question families ask is whether their loved one can request bond and come home while the immigration case proceeds. A bond hearing allows an immigration judge to decide whether a person held in ICE custody can be released from detention while removal proceedings move forward. In many cases the judge evaluates whether the person poses a danger or a flight risk and then sets a monetary bond amount for release. If you are in need of assistance after an immigration arrest, contact our Arlington, VA immigration lawyer today.
For many years individuals arrested inside the United States after entering without inspection (no visa) were generally eligible to request bond under the immigration detention statute found at INA §236(a), codified at 8 U.S.C. §1226(a). Under that framework immigration judges had authority to conduct custody redetermination hearings and determine whether someone in ICE detention could be released while their case continued.
That framework changed after the Board of Immigration Appeals issued Matter of Yajure-Hurtado, a precedential decision concluding that certain individuals who entered the United States without inspection should instead be treated as “applicants for admission” detained under INA §235, codified at 8 U.S.C. §1225. Detention under §235 generally does not allow immigration judges to set bond. The decision therefore led many immigration courts to deny bond hearings for people who had entered without inspection but were later arrested by ICE inside the country.
Federal litigation soon followed. In a nationwide class action known as Maldonado Bautista, a federal district court rejected the government’s attempt to categorically deny bond hearings to many individuals labeled as EWI and held that members of the certified class must be treated as detained under INA §236(a). Because detention under §236(a) allows bond hearings, the decision restored the possibility of release for many detainees who had previously been told that no bond hearing was available.
However, the legal landscape remains complicated. Immigration courts still operate under Board of Immigration Appeals precedent, and Matter of Yajure-Hurtado continues to influence how some judges analyze detention authority. As a result, individuals arrested by ICE may still find themselves held in immigration custody without a bond hearing. In those situations, a federal habeas corpus petition may become necessary to challenge unlawful detention and force judicial review of the government’s custody decision.
The Two Immigration Detention Statutes That Control Bond
Immigration detention authority generally comes from two different provisions of the Immigration and Nationality Act, and understanding the difference between them is critical.
The first is INA §235 (8 U.S.C. §1225). This statute governs individuals considered applicants for admission to the United States. In practice this usually includes people encountered at or near the border when attempting to enter the country. Detention under §235 is typically mandatory, and immigration judges do not have authority to set bond.
The second statute is INA §236(a) (8 U.S.C. §1226(a)). This provision governs individuals who are already present inside the United States and are placed into removal proceedings. Under this statute an immigration judge can conduct a custody redetermination hearing and determine whether the individual should remain in ICE custody or be released on bond while the immigration case proceeds.
For many years immigration courts generally treated individuals who were arrested inside the United States after entering without inspection as detained under §236(a). That meant they could request bond and ask a judge for release from detention while they fought their immigration case.
For example, someone who entered the United States years earlier and was later arrested by ICE during a workplace enforcement operation or traffic stop would normally be eligible to request a bond hearing before an immigration judge.
What Matter of Yajure-Hurtado Attempted to Change
The Board of Immigration Appeals changed that long-standing framework in Matter of Yajure-Hurtado.
In that decision the Board concluded that someone who entered without inspection should still be considered an “applicant for admission,” even if ICE arrests the person years later inside the United States. Under that reasoning the government may treat the individual as detained under INA §235 rather than §236(a).
If detention falls under §235, immigration judges generally lack authority to conduct bond hearings.
The practical consequences were significant. Immigration judges across the country began denying bond hearings to individuals who had entered without inspection. People who had lived in the United States for many years suddenly found themselves in ICE detention without the opportunity to even ask a judge for release.
For families this created a devastating situation. Someone could remain in immigration custody for months while removal proceedings moved forward, even if they had strong ties to the United States and no serious criminal history.
The Federal Court Response in Maldonado Bautista
The Hurtado decision quickly led to federal court challenges. One of the most significant cases to emerge from that litigation is Maldonado Bautista.
In that case a federal district court rejected the government’s attempt to deny bond hearings to broad
categories of individuals labeled as EWI. The court certified a nationwide class and concluded that individuals within that class must be detained under INA §236(a) rather than §235.
This distinction is critical because detention under §236(a) allows immigration judges to conduct bond hearings.
The class generally includes noncitizens who entered the United States without inspection, were not apprehended at the border when they entered, and were later arrested by ICE inside the country. For those individuals the court concluded that immigration judges retain jurisdiction to conduct custody redetermination hearings and consider bond.
For immigration lawyers representing detained clients, the decision provides an important legal tool to challenge detention decisions that attempt to deny bond solely because of an alleged entry without inspection.
Why Habeas Corpus Litigation May Still Be Necessary
Despite the federal ruling, the conflict between these legal interpretations has not completely disappeared.
Immigration courts operate within the Executive Office for Immigration Review and remain bound by precedential decisions issued by the Board of Immigration Appeals. Because Matter of Yajure-Hurtado remains binding precedent within that system, some immigration judges continue to rely on it when determining whether they have authority to conduct bond hearings.
Government attorneys may also argue that a particular detainee falls outside the Maldonado Bautista class or that the federal decision does not apply in a specific procedural posture.
In those situations, simply requesting bond may not be enough. A federal habeas corpus petition can ask a federal judge to review whether the government is using the correct detention statute and whether the individual is being held in immigration custody unlawfully.
Habeas petitions also become important when immigration detention becomes prolonged. Individuals sometimes remain in ICE custody for many months while their removal case proceeds. In those situations a federal court may review whether continued detention violates statutory limits or constitutional due process principles.
The Strategic Questions After an ICE Arrest
For families dealing with immigration detention, the key issue is not simply whether bond exists or does not exist. The real question is whether the government is using the correct legal authority to hold someone in custody.
At the Law Offices of Ricky Malik, P.C., we analyze detention cases by reviewing the Notice to Appear, ICE custody documents, and the circumstances surrounding the arrest. We determine whether detention properly falls under INA §235 or INA §236(a), whether the individual falls within the Maldonado Bautista class, and whether litigation in federal court may be necessary.
ICE detention can separate families and place enormous pressure on individuals fighting their immigration cases. When the government attempts to deny bond hearings based on an incorrect interpretation of immigration law, habeas corpus may be the tool that forces the issue into federal court and ensures that detention receives meaningful judicial review.
