ICE Mandatory Detention & the Circuit Split: Do You Still Get a Bond Hearing in 2026?

Why the Same Detention Case Ends Differently in Different States

For most of the last two decades, one rule governed the question of whether a detained immigrant could ask a judge for release: if you were already living inside the United States and were placed in removal proceedings, an immigration judge could hold a bond hearing, weigh whether you were a flight risk or a danger, and set a bond you could pay to get out and fight your case from home. That framework lived in INA § 236, the general detention statute for noncitizens arrested inside the country.

In 2026, that settled expectation has fractured. Two people with nearly identical histories — each entered years ago without inspection, each has a family and a job, each is now in ICE custody — can face opposite outcomes for a single reason: the state where the detention facility sits. One is granted a bond hearing and walks out on a bond. The other is told the immigration judge has no power to hold a hearing at all, and stays locked up while the case grinds on. Same facts. Same statute. Different answer, because a different federal appeals court controls the ground each facility stands on.

This article explains exactly how that happened, which courts have ruled which way, what it means for you or your loved one right now, and what an experienced immigration attorney can still do even in the states where mandatory detention is being enforced. If someone you love is detained, the geography of their custody is not a detail — under the current split, it is close to everything.

What the July 2025 DHS Memo Did to INA § 235(b)

The change began with a policy memo. In July 2025, the Department of Homeland Security issued guidance that reinterpreted INA § 235(b) — the section of the Immigration and Nationality Act that governs the inspection and detention of people arriving at the border and seeking admission.

Historically, § 235(b) was understood to apply to arriving noncitizens: someone who shows up at a port of entry, or who is caught at or very near the border shortly after crossing, and who is therefore treated as "seeking admission" to the country. People in that posture are subject to a mandatory-detention framework — the statute says they "shall be detained" — with limited avenues for release, primarily discretionary parole granted by DHS rather than a bond set by a judge. By contrast, a person who had already entered the country, settled, and lived here was generally treated as detained under INA § 236, which preserves the immigration judge's authority to hold a bond hearing.

The July 2025 memo collapsed that distinction. It took the position that any noncitizen who entered the United States without inspection — that is, crossed the border without being formally admitted or paroled by an officer — is legally an "applicant for admission" under § 235(b), no matter how long ago the entry occurred. Under this reading, a person who crossed the border a decade ago, built a life, and was arrested by ICE far from any border is nonetheless treated as though they just arrived and are still standing at the threshold "seeking admission." The consequence is dramatic: they are funneled into the mandatory-detention track of § 235(b), and ICE argues that an immigration judge simply has no jurisdiction to hold a bond hearing for them.

The BIA Locked It In: Matter of Q. Li and Matter of Yajure-Hurtado

A policy memo alone does not bind immigration judges. What gave the DHS position real teeth inside the immigration courts were two precedential decisions from the Board of Immigration Appeals (BIA) — the appellate body within the Executive Office for Immigration Review (EOIR) whose published decisions bind immigration judges nationwide.

In Matter of Q. Li, decided in May 2025, the Board held that a noncitizen who entered without inspection is an applicant for admission subject to detention under § 235(b), and therefore is not entitled to a bond hearing under § 236. A few months later, in Matter of Yajure-Hurtado, decided in September 2025, the Board reinforced and extended that reasoning, confirming that the mandatory-detention framework applies to this population as a matter of the Board's binding precedent.

The importance of these two cases is procedural but enormous. Because they are precedential BIA decisions, every immigration judge in the country is bound to follow them — unless the federal court of appeals with authority over that judge's location has ruled otherwise. In other words, the BIA set a default rule of "no bond hearing," and the only thing that can override it in a given place is a contrary ruling from the controlling U.S. Court of Appeals. That is precisely the mechanism that produced the split.

"The Board set the floor: no bond hearing for anyone who entered without inspection. After that, the only question in any given case became whether a federal appeals court had raised the ceiling back up. The answer changes the moment you cross a circuit line."

How the Federal Courts Split

Detained immigrants and their lawyers did not accept the new rule. They filed habeas corpus petitions in federal district courts, arguing that stripping long-time residents of any bond hearing violates the statute and raises serious due-process problems under the Fifth Amendment. Those cases climbed to the federal courts of appeals, and the appeals courts disagreed with one another. That is what lawyers call a "circuit split," and it is the single most important fact for anyone detained right now.

The Circuits That Rejected Mandatory Detention (Bond Hearings Allowed)

Three federal appeals courts have rejected the administration's reading of § 235(b) and held that detainees in this situation are entitled to bond hearings:

• Second Circuit — ruled against the policy on April 28–29, 2026. Its authority covers New York, Connecticut, and Vermont.
• Third Circuit — ruled against the policy in early May 2026. Its authority covers Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands.
• Sixth Circuit — the Ohio-based court ruled against the policy around May 11, 2026. Its authority covers Ohio, Michigan, Kentucky, and Tennessee.

In the states covered by these three circuits, the appeals-court rulings override the BIA precedent. An immigration judge in New York or Ohio is now required to hold a bond hearing for a person who entered without inspection, rather than treating them as categorically ineligible. That does not guarantee release — the judge still decides flight risk and danger, and can deny bond or set an amount the person cannot pay — but the door to a hearing is open.

The Circuits That Upheld Mandatory Detention (No Bond)

Two federal appeals courts went the other way and upheld mandatory detention, agreeing with DHS and the BIA that no bond hearing is required:

• Fifth Circuit — upheld the policy. Its authority covers Texas, Louisiana, and Mississippi — some of the busiest detention states in the country.
• Eighth Circuit — on March 25, 2026, it reversed a lower court that had granted relief and aligned itself with the Fifth Circuit, upholding mandatory detention. Its authority covers Minnesota, Missouri, Arkansas, Iowa, Nebraska, North Dakota, and South Dakota.

In these states, the BIA precedent stands unchallenged by any contrary appeals-court ruling, so immigration judges are denying bond hearings to people the government classifies as applicants for admission under § 235(b). For a family with a loved one detained in a Texas facility, this is the hardest version of the current landscape.

The Rest of the Country

The remaining federal circuits — including the First, Fourth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits — have not yet issued binding appellate rulings squarely resolving this question as of this writing. In those areas, the outcome depends on how individual federal district judges have ruled and on local ICE and immigration-court practice, which can vary from courthouse to courthouse. If you are detained in one of those regions, the answer is genuinely fact-specific, and it is exactly the kind of situation where prompt legal analysis matters most.

The Circuit Split at a Glance

The table below summarizes where things stand. Because ICE can transfer detainees and because appellate law can change quickly, treat this as a starting map, not a guarantee — always confirm the current posture of the specific facility and circuit with counsel.

The District Judges Are Overwhelmingly Against the Policy

One striking fact cuts through the appellate back-and-forth. At the trial-court level — the federal district judges who hear the habeas petitions first — the response to the administration's reading has been lopsided. According to a Politico tally reported in early May 2026, roughly 420 federal district judges had rejected the government's mandatory-detention position, while only about 47 had sided with the government. Notably, the judges rejecting the policy included dozens appointed by President Trump — a sign that the disagreement is not a simple partisan divide but a genuine dispute about what the statute allows.

That number does not, by itself, free anyone. Binding law is made circuit by circuit and, ultimately, by the Supreme Court; a district judge's ruling generally governs only the case in front of them. But the sheer imbalance — nearly nine to one against the government among the judges who have examined the statute closely — tells you something important about the strength of the legal arguments. It also means that in circuits without a binding appellate ruling yet, a detained person has a realistic chance of finding a district judge willing to order a bond hearing.

June 26, 2026: The Case Goes to the Supreme Court

A split this deep, on a question this consequential, was always headed to the top. On June 26, 2026, the Trump administration asked the Supreme Court to uphold the mandatory-detention policy, appealing the Sixth Circuit's ruling that had gone against it. As of this writing, Supreme Court review is pending — the Court has been asked to take the case and resolve the conflict once and for all.

If the Court agrees to hear it and issues a decision, that ruling will set one nationwide rule. There are two broad possibilities:

• The Court sides with the detainees — restoring bond hearings across the entire country, including in Texas and the other Fifth and Eighth Circuit states where they are currently unavailable.
• The Court sides with the government — permitting mandatory detention everywhere, closing the bond-hearing door even in the Second, Third, and Sixth Circuits where it is currently open.

No one can promise which way it will go, or exactly when a decision will come. What is certain is that the current geographic split is temporary and unstable. That instability has a practical implication: anyone detained now should have counsel preserve every argument on the record and monitor the docket closely, so that the moment the law shifts in their favor, they can move immediately. A person whose lawyer kept the issue alive can act on a favorable Supreme Court ruling within days; a person who let the issue drop may miss the window.

What We See in Detention Cases Right Now

In our practice, the circuit split has changed the very first question we ask when a family calls about a detained relative. It used to be "What are the facts of the case?" Now, before anything else, it is: "Where, physically, is the person being held right now?" Because in mid-2026, that single answer reshapes the entire strategy.

We are seeing families in genuine anguish over what feels like a lottery. A mother detained after a workplace enforcement action in New York is told she can have a bond hearing; her cousin, picked up the same week and held in a Texas facility, is told no judge can even consider releasing her. Their stories are nearly identical. The law that applies to them is not, and the reason is a line on a map.

We are also seeing the transfer problem play out in real time. ICE has wide latitude to move detainees between facilities, and we have watched people arrested in bond-friendly regions end up transferred to detention centers deep inside the Fifth Circuit, where their newly available options narrow sharply. This is one reason we move fast: filing promptly, documenting the person's location, and, where appropriate, challenging a transfer can matter as much as the underlying immigration case.

And we are seeing that the fight is far from over even in the hardest circuits. In Texas and the Eighth Circuit states, we do not simply accept "no bond hearing" as the end. We examine whether the person actually fits the government's § 235(b) classification at all — many do not, and the classification can be contested. We evaluate a federal habeas corpus petition as an independent path to challenge the detention. We pursue parole requests to ICE. And we make sure every constitutional and statutory argument is preserved for the Supreme Court's pending review, so a favorable ruling can be deployed instantly. The door in a mandatory-detention circuit is heavier — but it is not always locked.

Understanding the Two Statutes at War

Because the entire dispute hinges on two provisions of the Immigration and Nationality Act, it helps to understand what each one actually does.

INA § 235(b) — The Mandatory-Detention Track

INA § 235(b) governs the inspection of people seeking admission to the United States. For "applicants for admission," it uses mandatory language — such persons "shall be detained" pending a decision on their case — and it does not provide for a bond hearing before an immigration judge. The only real release valve within § 235(b) is discretionary parole, which DHS grants or denies on a case-by-case basis; it is not a hearing before a neutral judge and it is not something a detainee can demand as of right. The July 2025 memo, and the BIA's decisions in Matter of Q. Li and Matter of Yajure-Hurtado, pushed a large population of interior detainees into this track.

INA § 236 — The Bond-Hearing Track

INA § 236 governs the detention of noncitizens arrested inside the country pending removal proceedings. Critically, § 236(a) authorizes release on bond, and it is the statutory basis on which immigration judges have long held bond hearings, weighed flight risk and danger, and set bond amounts. If a detained person falls under § 236 rather than § 235(b), an immigration judge has the power to hold a hearing and potentially order release. The whole fight, reduced to its core, is about which of these two statutes applies to a long-time resident who entered without inspection. The government says § 235(b); the detainees say § 236; and the circuits have divided over who is right.

Practical Checklist: What to Do If You or a Loved One Is Detained

The following steps turn the legal landscape above into concrete action. In detention cases, days matter — the sooner these are done, the more options remain open.

1. Get the A-number and full legal name. Every filing, locator search, and court motion depends on the nine-digit Alien Registration Number. Find it on any ICE or immigration-court paperwork.
2. Confirm the facility and circuit before assuming anything. The right to a bond hearing today is geographic. Never guess — verify the exact detention location.
3. Do not sign anything or accept "voluntary departure" without counsel. Detained people are sometimes pressured to give up rights quickly. A signature can foreclose options a lawyer would fight to keep.
4. Line up release logistics in advance. A sponsor, a stable address, and the ability to pay a bond let you act the instant a hearing is granted.
5. Preserve every argument for appeal and for the Supreme Court. Because the law may change nationwide, a well-preserved record lets you benefit from a favorable ruling immediately.
6. Talk to an immigration attorney now, not later. The strategy in a bond-hearing circuit and a mandatory-detention circuit are completely different, and both are time-sensitive.

Why This Is Ultimately About Due Process

Underneath the statutory arguments sits a constitutional one that the courts rejecting mandatory detention have leaned on: the Due Process Clause of the Fifth Amendment. The Supreme Court has long recognized that the Constitution's protection against being deprived of liberty without due process extends to noncitizens present in the United States. Detaining a person for months or years, with no opportunity to ever ask a neutral judge whether their confinement is justified, sits in serious tension with that principle — especially for people who have lived in the country for years, have families here, and pose no danger.

That is the deeper reason so many federal judges, across the ideological spectrum, have balked at the July 2025 reinterpretation. Reading § 235(b) to erase any bond hearing for long-time residents does not just raise a question of statutory text; it raises the specter of prolonged detention with no meaningful check. Whether the Supreme Court ultimately frames its decision in statutory or constitutional terms, the liberty stakes are what make this one of the most consequential immigration questions in years.

Frequently Asked Questions

Do I still have a right to a bond hearing if I was detained by ICE in 2026?

It depends on where you are detained. Under a July 2025 DHS memo, the government treats anyone who entered the United States without inspection as an "applicant for admission" subject to mandatory detention under INA § 235(b), with no bond eligibility, even if the person has lived here for years. Federal appeals courts have split on whether that reading is lawful. In the states covered by the Second, Third, and Sixth Circuits, courts have rejected the policy and detainees can demand a bond hearing before an immigration judge. In the states covered by the Fifth and Eighth Circuits, courts have upheld mandatory detention, so bond hearings are being denied. The Supreme Court is now being asked to set one nationwide rule, but until it does, geography controls the outcome.

What did the July 2025 DHS memo actually change about detention?

For decades, a noncitizen who was already living inside the United States and was placed in removal proceedings was generally detained under INA § 236, which allows an immigration judge to hold a bond hearing and set a bond. The July 2025 DHS memo reinterpreted INA § 235(b) to say that a person who entered without inspection is legally an "arriving" applicant for admission no matter how long ago they crossed, and is therefore subject to the mandatory-detention framework of § 235(b) rather than the discretionary bond framework of § 236. The practical effect is that ICE now argues an immigration judge has no authority to hold a bond hearing at all for a large group of people who previously could ask for one.

Which circuits reject mandatory detention and which uphold it?

As of mid-2026, three federal appeals courts have rejected the administration's reading and held that detainees are entitled to bond hearings: the Second Circuit (late April 2026), the Third Circuit (early May 2026), and the Sixth Circuit (mid-May 2026). Two federal appeals courts have upheld mandatory detention with no bond: the Fifth Circuit and the Eighth Circuit, which reversed a lower court in late March 2026 and aligned with the Fifth. The remaining circuits have not issued binding appellate rulings, so district-court decisions and local ICE practice govern there for now.

I'm detained in Texas or another Fifth or Eighth Circuit state. Can I get out on bond?

In the Fifth Circuit (Texas, Louisiana, Mississippi) and the Eighth Circuit (Minnesota, Missouri, Arkansas, Iowa, Nebraska, North Dakota, South Dakota), the appeals courts have upheld mandatory detention, so immigration judges in those states are generally denying bond hearings for people the government classifies as applicants for admission under INA § 235(b). That does not mean release is impossible. An attorney can challenge the classification itself, argue the person does not fall within the memo, pursue a habeas corpus petition in federal district court, seek parole from ICE, or preserve the issue for the Supreme Court's pending review. But the discretionary immigration-court bond that is available in other circuits is largely unavailable there right now.

What are Matter of Q. Li and Matter of Yajure-Hurtado?

They are two precedential Board of Immigration Appeals decisions that reinforced the DHS position. Matter of Q. Li, decided in May 2025, and Matter of Yajure-Hurtado, decided in September 2025, held that noncitizens who entered without inspection are applicants for admission subject to detention under INA § 235(b) rather than the bond provisions of INA § 236. Because these are precedential BIA decisions, immigration judges nationwide are bound to follow them unless a controlling federal appeals court in their circuit has ruled otherwise. That is exactly why the circuit split matters so much: in the Second, Third, and Sixth Circuits, the appeals-court rulings override the BIA precedent, but elsewhere the BIA decisions still control.

How do the district judges line up on this issue?

The trial-level judges have leaned heavily against the administration's reading. According to a Politico tally reported in early May 2026, roughly 420 federal district judges had rejected the government's mandatory-detention position, including dozens of judges appointed by President Trump, while only about 47 had sided with the government. That lopsided count does not by itself free anyone, because binding law is set circuit by circuit and ultimately by the Supreme Court. But it signals that a large majority of federal judges who have examined the statute believe INA § 235(b) cannot lawfully be stretched to eliminate bond hearings for long-time residents.

Is the Supreme Court going to decide this, and what happens until then?

On June 26, 2026, the Trump administration asked the Supreme Court to uphold the mandatory-detention policy, appealing the Sixth Circuit's ruling against it. Supreme Court review is pending. If the Court takes the case and rules, it can set one nationwide rule that either restores bond hearings everywhere or permits mandatory detention everywhere. Until that happens, the split stands: detainees in the Second, Third, and Sixth Circuits can demand bond hearings, while detainees in the Fifth and Eighth Circuits face mandatory detention. Because the outcome could change quickly, anyone detained now should have counsel preserve every argument and monitor the docket, so a favorable Supreme Court ruling can be used immediately. Schedule a Consultation with Modern Law Group.

Schedule a Consultation — Get a Detention Strategy Built for Your Circuit

The circuit split over ICE's mandatory-detention policy has turned a detained person's ZIP code into one of the most important facts in their case. That is a frightening reality for families, but it is also a map — and knowing how to read it is the difference between a bond hearing and prolonged detention.

At Modern Law Group, detention and bond work is core to what we do. We move quickly to locate detained clients, identify the controlling circuit, and build the right strategy for that jurisdiction — whether that means demanding a bond hearing in a circuit that allows one, challenging the § 235(b) classification, filing a federal habeas corpus petition, requesting parole, or preserving every argument for the Supreme Court's pending decision. We know how ICE moves detainees, how immigration judges are applying these rulings, and how to act fast when the law is shifting under everyone's feet.

If someone you love is in ICE custody, do not wait to see how the split resolves. Schedule a Consultation with our immigration attorneys today. Call us directly at (888) 902-9285 or text us at (619) 889-6476. Have the person's full legal name and A-number ready if you can — a fast, informed call now can open a path to release before the next hearing date.