Who Qualifies for Immigration Bond? Mandatory vs. Discretionary Detention

When someone is arrested by ICE, the first question families ask is: can they get out? The answer depends almost entirely on whether that person qualifies for an immigration bond — and that is not a simple yes or no. Congress has built two distinct tracks into the detention system, and which track a person lands on determines whether they can even ask a judge to set bond.

Understanding this upfront saves families from wasted days chasing the wrong strategy. This article explains who qualifies for bond, who is locked out by mandatory detention rules, how to challenge a wrong mandatory detention classification, what judges actually look at when setting bond, and how to build the strongest possible case.

The Two-Track System: § 236(a) vs. § 236(c)

The Immigration and Nationality Act (INA) contains two separate detention provisions that operate very differently:

INA § 236(a) — Discretionary Detention applies to most people arrested by ICE. Under this provision, the government can detain someone pending their immigration case, but the person is entitled to a bond hearing before an immigration judge. The judge evaluates whether the person is a danger to the community or a flight risk, then sets bond accordingly — or releases the person on their own recognizance.

INA § 236(c) — Mandatory Detention applies to people with certain criminal convictions or grounds of deportability. Under this provision, bond is not available. There is no bond amount the person can pay to get out. The law requires detention for the duration of the immigration proceedings, period.

This is the most important distinction in immigration detention law. Getting it wrong — either failing to request bond when it's available, or requesting bond when mandatory detention applies — wastes critical time and resources.

Who Is Subject to Mandatory Detention? (INA § 236(c))

Congress defined the mandatory detention categories specifically. If a person falls into any of these categories, an immigration judge has no authority to set bond — regardless of how long the person has lived in the U.S., how strong their family ties are, or how low their actual risk of flight may be.

Aggravated Felony Convictions

The "aggravated felony" definition in immigration law is broader than most people expect. It includes murder, rape, sexual abuse of a minor, drug trafficking, firearms trafficking, money laundering above $10,000, crimes of violence with a 1-year sentence imposed, theft or burglary with a 1-year sentence imposed, and dozens of other offenses. Even misdemeanor convictions can qualify as aggravated felonies under immigration law if they fit within these statutory categories.

Controlled Substance Offenses

Any conviction for a controlled substance offense (except a single offense of simple possession of 30 grams or less of marijuana) triggers mandatory detention. This includes drug trafficking convictions and many simple possession convictions that are classified as felonies under state law.

Firearms Offenses

Convictions related to the purchase, sale, carrying, or use of illegal firearms — including certain state law convictions — trigger mandatory detention.

Crimes of Domestic Violence, Stalking, and Child Abuse

Convictions for crimes of domestic violence, stalking, child abuse, child neglect, and violations of protective orders make a person subject to mandatory detention after release from criminal custody.

Crimes of Moral Turpitude (Two Convictions)

A person with two or more convictions for crimes of moral turpitude (CMT) — regardless of the length of sentence — may be subject to mandatory detention.

Certain Grounds of Inadmissibility

Noncitizens arriving at the border who are found inadmissible on criminal grounds or security grounds are subject to mandatory detention during credible fear proceedings.

Recent Unlawful Entry (EWI)

People who entered the country without inspection (EWI) within the two years before their apprehension are often subject to expedited removal under INA § 235(b). Expedited removal operates outside the normal immigration court system and carries its own detention rules — including mandatory detention during credible fear screening.

Reinstatement of Prior Removal Orders

If a person was previously ordered removed from the U.S. and re-entered without authorization, DHS can reinstate the prior removal order under INA § 241(a)(5). People in reinstatement proceedings are generally not entitled to a bond hearing.

Terrorism and National Security Grounds

Any person deportable on terrorism, espionage, or national security grounds is subject to mandatory detention.

Joseph Hearings: Challenging the Mandatory Detention Classification

Being placed in mandatory detention does not always mean the classification is correct. ICE sometimes errs — misidentifying a conviction, misapplying a statutory category, or applying mandatory detention to someone who does not legally fall within § 236(c). This is where a Joseph hearing becomes critical.

The Joseph hearing process comes from Matter of Joseph, 22 I&N Dec. 799 (BIA 1999). Under this precedent, a noncitizen who believes mandatory detention is being applied in error can request a bond redetermination hearing. The person must demonstrate that the government is "substantially unlikely" to establish that the mandatory detention statute applies to their conviction.

When Joseph Hearings Work

• The conviction does not actually qualify as an "aggravated felony" under current BIA and circuit court case law
• The person's specific offense is categorically not within the mandatory detention definition (requires careful analysis of the statute of conviction)
• The conviction was expunged, vacated, or otherwise legally nullified
• There is a legal argument that the offense is a "purely political" offense exempt from the mandatory detention statutes
• The "after release" trigger was not properly met — for example, ICE detained the person years after release, not "immediately" after criminal custody ended (the courts are split on this timing question)

How to Request a Joseph Hearing

A noncitizen in mandatory detention should request a Joseph hearing in writing before the immigration court. The request must explain the legal basis for why mandatory detention should not apply. This is a legal argument — it requires knowledge of the categorical approach, modified categorical approach, and current case law in the relevant circuit. Self-representation at this stage is extremely risky.

Who Qualifies for a Discretionary Bond Hearing?

If a person is not subject to mandatory detention — that is, they do not have a qualifying conviction or other mandatory detention ground — they are entitled to a bond hearing under INA § 236(a). This means they get to go before an immigration judge and make the case for release.

Having the right to a bond hearing does not guarantee release. It guarantees the opportunity to ask for release. The judge decides whether to grant bond and at what amount based on the evidence presented.

Discretionary bond hearings are available to:

• People in removal proceedings who do not have qualifying criminal convictions
• People charged with immigration violations only (overstay, unauthorized entry without recent EWI bars)
• People with minor criminal histories that do not trigger § 236(c)
• People whose mandatory detention classification has been successfully challenged through a Joseph hearing

What Immigration Judges Consider When Setting Bond

At a bond hearing, the immigration judge evaluates two core questions: Is this person a danger to the community? Is this person a flight risk? The burden falls on the noncitizen to demonstrate they are neither.

Strength of the Immigration Case

Some immigration judges also consider the merits of the underlying immigration case as part of the bond analysis — in other words, whether the person has a realistic path to relief. Someone with a strong asylum claim, an approved I-130 petition, or other pending relief may be viewed more favorably. This factor is not universally considered by all judges, but it can be persuasive where the case is particularly strong.

Bond Amounts: What to Expect

Federal law sets a minimum bond of $1,500. In practice, bond amounts vary enormously — from $1,500 for a person with no criminal history, strong family ties, and decades of U.S. residence, to $25,000 or more for someone with a more complicated history.

Bond can be paid in cash, by certified check, or through a licensed immigration bond company (surety bond). The person paying the bond is the "obligor" — if the detainee fails to appear at any immigration hearing, the bond is forfeited. Once the immigration case concludes (regardless of outcome), the bond is returned to the obligor if all hearings were attended.

How to Build a Strong Bond Case

Bond hearings are decided on evidence. A judge who sees nothing beyond the government's I-213 (record of arrest) will have little basis to set a low bond. A judge who sees a well-prepared package of supporting evidence has something concrete to work with. The difference often means thousands of dollars — or detention vs. freedom.

Gather Community Ties Evidence

• Letters from family members (U.S. citizens and LPRs especially) describing the relationship, the impact of detention, and the person's character
• Letters from employers, pastors, teachers, coaches, and community leaders
• Documentation of U.S.-citizen or LPR children — birth certificates, school records
• Proof of employment — pay stubs, tax returns, employer letters
• Lease agreements, utility bills, bank statements showing stable residence

Document Rehabilitation (If Criminal History Exists)

• Completion certificates for substance abuse treatment programs
• Anger management or domestic violence counseling records
• Evidence of time elapsed and clean record since last offense
• Court records showing sentences fully served and probation completed

Show Strength of the Immigration Case

• A copy of a pending or approved I-130 or I-485
• Documentation supporting an asylum claim
• Evidence of cancellation of removal eligibility (10 years, good moral character, hardship)
• Prior approved immigration benefits showing lawful immigration history

Address Any Red Flags Proactively

If there are concerns a judge might raise — a prior failure to appear, a prior removal order, a criminal history — address them proactively with evidence and explanation. Letting the government raise these issues without a response is a strategic mistake. An attorney can help you frame these issues in the most favorable light possible.

What If Bond Is Denied?

If an immigration judge denies bond or sets an unaffordable amount, there are options:

Appeal to the Board of Immigration Appeals (BIA)

The government and the noncitizen can both appeal bond decisions to the BIA. A BIA appeal must be filed within 30 days of the decision. The BIA reviews the record — it does not hold a new hearing — and can affirm, reverse, or remand the bond determination. BIA appeals typically take several months.

Request a Bond Redetermination

If circumstances change after a bond hearing — a new job offer, a key family member receiving legal status, a criminal charge being dismissed — the noncitizen can request a bond redetermination before the immigration judge. New or changed circumstances must be shown; a redetermination is not simply a second chance to re-argue the same facts.

Habeas Corpus in Federal Court

For people in mandatory detention who cannot get a bond hearing through the immigration court, or for people who have been detained for six months or more with no resolution in sight, a federal habeas corpus petition under 28 U.S.C. § 2241 may be available. Federal courts can review whether mandatory detention is being applied correctly and can order bond hearings that the immigration court would otherwise refuse to conduct.

See our detailed guide on bond hearings vs. habeas corpus for more on this path.

Special Situations

People With Pending Criminal Charges (Not Yet Convicted)

Having a pending criminal charge — rather than a conviction — generally does not trigger mandatory detention under § 236(c). Mandatory detention typically requires a conviction. However, pending serious charges will be weighed heavily by the immigration judge in the danger analysis. An attorney should monitor the criminal case closely and coordinate strategy between the immigration and criminal matters.

DACA Recipients and TPS Holders

People with Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS) who are arrested by ICE may still be subject to mandatory detention if they have qualifying criminal convictions. DACA and TPS do not immunize a person from mandatory detention. However, the existence of these statuses may be relevant to the merits of the immigration case, which can factor into the bond analysis.

Asylum Seekers

People who entered the country and affirmatively claimed asylum are generally not subject to expedited removal but may still be detained and face a bond hearing. A credible fear finding can significantly strengthen a bond case by showing that the person has a legitimate claim and is not simply fleeing immigration consequences.

How Modern Law Group Can Help

At Modern Law Group, we handle immigration bond cases every day. Our attorneys know:

• How to analyze whether a client is actually subject to mandatory detention — or whether a Joseph hearing can change that
• What evidence each immigration judge in your jurisdiction finds most persuasive
• How to build a bond package that addresses the specific concerns likely to come up
• When to pursue appeal to the BIA vs. seeking a bond redetermination
• When federal habeas corpus is the right next step after a bond denial

Related Resources

• Bond Hearing vs. Habeas Corpus: Which Path Is Right for You?
• ICE Warrant vs. Search Warrant: What's the Difference?
• Know Your Rights: What to Do If ICE Comes to Your Door
• Challenging Prolonged Immigration Detention
• Modern Law Group Immigration Bond Services