No Bond, No Release? Challenging Mandatory Detention in Removal Cases
For decades, immigrants placed in removal proceedings had the opportunity to ask an immigration judge for release on bond while their cases moved through the courts. Bond hearings served an important function: they allowed judges to consider whether a person posed a danger to the community or a flight risk before requiring continued detention.
That longstanding practice has changed dramatically under the current administration. In recent years, Immigration and Customs Enforcement (ICE) has adopted increasingly aggressive detention policies, and recent enforcement memos have significantly expanded the category of immigrants whom the government claims are ineligible for bond hearings. For many families, the result is a frightening reality: a loved one is detained by ICE and told there is no possibility of release.
At Gladstein & Messinger, P.C., deportation and removal defense are at the heart of our practice. We have seen firsthand how quickly detention can turn lives upside down. But even when detention appears mandatory, legal options may still exist. Understanding how these policies work—and how they are being challenged in court—is essential for anyone facing removal proceedings.
How Bond Hearings Traditionally Worked
Historically, many immigrants detained by ICE could request a bond hearing before an immigration judge. At such hearings, the judge would determine whether release was appropriate while removal proceedings remained pending. The government typically argued that the detainee was a flight risk or a danger to the community, while the detained person presented evidence of family ties, employment history, community involvement, and other factors supporting release. Bond hearings recognized an important principle: detention during civil immigration proceedings should not automatically be indefinite or mandatory in every case.
ICE’s New Approach: Treating Immigrants as “Applicants for Admission”
Recent ICE policies have dramatically altered this landscape. In a July 2025 memo, ICE adopted an expansive interpretation of the Immigration and Nationality Act (INA), arguing that many immigrants who entered the country without inspection—even if they have lived in the United States for years or decades—should be classified as “applicants for admission” under INA § 235.
Why does this matter? Under the government’s interpretation, immigrants categorized as applicants for admission are subject to mandatory detention under INA § 235(b) and generally cannot seek release on bond from an immigration judge. Instead, release may occur only through the Department of Homeland Security’s (DHS) discretionary parole authority.
In practical terms, ICE is actively blocking bond hearings across the country by arguing that immigration judges simply lack the authority to grant bond in these cases. This interpretation has dramatically expanded detention and potentially affects millions of immigrants with deep ties to the United States. Meanwhile, increased funding has allowed DHS to increase the size and number of detention facilities, adding to the government’s capacity to keep immigrants in detention.
This ICE policy has not gone unchallenged. Critics argue that this policy erases the distinction between recent border arrivals and longtime residents who have built lives, families, and careers in the United States.
The Constitutional Debate: Can the Government Detain People Without Bond?
The government maintains that it is merely enforcing immigration laws “as written.” According to the administration, Congress authorized mandatory detention for applicants for admission, and individuals who entered without inspection fall into that category regardless of how long they have lived in the country.
Immigrants and advocacy organizations strongly disagree. They argue that treating longtime residents as perpetual applicants for admission stretches the statute beyond its intended meaning and raises serious constitutional concerns. Critics contend that prolonged civil detention without an opportunity to seek release violates the Fifth Amendment’s Due Process Clause.
Federal courts have increasingly grappled with these questions, producing conflicting decisions across the country.
The Second Circuit Pushes Back
For immigrants in New York, there is some encouraging news. The U.S. Court of Appeals for the Second Circuit—which covers New York, Connecticut, and Vermont—recently rejected the government’s broad interpretation of mandatory detention and ruled that many detainees are entitled to bond hearings. The court expressed concern that the administration’s reading of the statute raises “serious constitutional concerns” and departs from decades of immigration practice.
The Second Circuit’s decision means that many immigrants detained in New York may still have the opportunity to seek release before an immigration judge despite the government’s efforts to classify them as applicants for admission. The court emphasized that due process protections do not disappear simply because someone is in immigration proceedings. The First Circuit Court of Appeals has reached a similar conclusion.
Other Courts Have Reached Different Conclusions
Not every court agrees. The Fifth and Eighth Circuits have issued rulings more favorable to the government’s interpretation, allowing broader use of mandatory detention without bond hearings in several states in the South and Midwest from Texas to Minnesota.
This disagreement among federal appeals courts—known as a circuit split—often signals that the issue may ultimately be resolved by the U.S. Supreme Court. Indeed, the Supreme Court has already agreed to hear cases involving prolonged immigration detention and bond hearings, suggesting that a definitive ruling may be on the horizon. Until then, whether a detained immigrant receives a bond hearing may depend heavily on where the case arises.
Habeas Corpus: A Powerful Tool for Challenging Detention
Even when ICE insists that bond is unavailable, detainees are not necessarily without recourse. One important legal remedy is a petition for a writ of habeas corpus. Habeas petitions allow federal courts to review whether detention is lawful or unconstitutional. Across the country, many detained immigrants have successfully used habeas proceedings to challenge prolonged detention without bond hearings. Numerous federal judges have ordered the government to provide hearings or release detainees where continued detention raised due process concerns.
In some jurisdictions, courts have found that detention lasting many months without individualized review violates constitutional protections. These cases demonstrate that “mandatory” detention is not always the final word. The New York Times recently reported that the Trump Administration considered suspending the writ of habeas corpus for certain immigrants in detention, although such a legally questionable and politically risky move would most certainly be challenged and wind up in the Supreme Court.
Why Deportation Defense Lawyers Matter More Than Ever
When ICE tells a detained person that there is no bond and no possibility of release, it can feel like the case is over before it has even begun. But immigration law is rarely that simple. An experienced deportation defense attorney can evaluate whether ICE correctly classified a detainee as an applicant for admission, seek bond hearings where available, file habeas petitions in federal court, and challenge prolonged or unlawful detention. Counsel can also pursue defenses to removal itself, including asylum, cancellation of removal, adjustment of status, or other forms of relief.
The current detention landscape is evolving rapidly, and the law differs depending on where a person is detained. What appears impossible in one jurisdiction may be available in another. At Gladstein & Messinger, P.C., we understand the urgency of detention cases and the devastating impact they have on families. If you or a loved one has been detained by ICE, do not assume that detention is automatic or permanent. Legal challenges remain available, and early intervention can make a critical difference in protecting your rights and preserving your future. Contact us for practical advice or immediate assistance with your case.