The mandatory detention statutes
Section 1226(c) of the immigration code requires the government to detain noncitizens who are removable on certain criminal or terrorism-related grounds, without a bond hearing, while their removal case proceeds. In Nielsen v. Preap (2019), the Supreme Court held that this mandate applies even when ICE does not take the person into custody immediately upon release from criminal custody.
Section 1225(b) governs many people who arrive at the border or are treated as applicants for admission, including those in expedited removal and those found to have a credible fear of persecution. Its detention rules also do not provide for bond hearings before an immigration judge, though release on parole by the government remains possible.
Challenge one: misclassification
A frequent and often overlooked argument is that the person does not actually fall within a mandatory provision. Criminal convictions do not always match the categories the statute lists, and whether a particular offense triggers mandatory detention can depend on technical analysis of the statute of conviction. If the person is properly detained only under the discretionary provision, § 1226(a), they are entitled to a bond hearing. An immigration judge can sometimes address this through a so-called Joseph hearing, and federal habeas offers another forum when that fails.
Challenge two: prolonged mandatory detention
The Supreme Court upheld § 1226(c) in Demore v. Kim (2003) on the understanding that mandatory detention would usually be brief. In Jennings v. Rodriguez (2018), the Court rejected reading a six-month bond hearing requirement into the statute but left the constitutional question open. Many federal courts have since held, in individual cases, that mandatory detention lasting well beyond what Demore anticipated violates due process unless the person receives an individualized hearing.
Limits on habeas for border cases
In Department of Homeland Security v. Thuraissigiam (2020), the Supreme Court held that a person apprehended shortly after crossing the border could not use habeas to obtain additional review of a negative credible-fear determination in expedited removal. That decision narrowed habeas for challenges to the expedited removal process itself, but it addressed a request for more asylum procedures rather than a request for release from unlawful custody. Challenges focused on the legality and length of detention remain a distinct question.
Frequently asked questions
Can someone under mandatory detention get a bond hearing?
Not from an immigration judge as a matter of course. But a person may challenge whether they truly fall within a mandatory detention provision, and federal courts in many cases have ordered individualized bond hearings through habeas when mandatory detention becomes unreasonably prolonged.
What is a Joseph hearing?
A Joseph hearing is a proceeding before an immigration judge in which a detainee argues that they are not properly included within a mandatory detention category. If the judge agrees, the person can be considered for bond under the discretionary detention provision.
This guide provides general information, not legal advice. Every detention case turns on its own facts and the law changes; consult an attorney about your specific situation.
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