Mandatory Detention in Immigration Cases

Mandatory detention means that for certain noncitizens, the law does not allow an immigration judge to set bond at all — the person must stay in custody while removal (deportation) proceedings go forward. This applies mainly to people with certain criminal histories under INA § 236(c). If you believe you were wrongly placed in this category, you can ask an immigration judge for a "Joseph hearing" to argue that you don't actually belong there. This is a fast-moving, heavily litigated area of law, so treat the framework below as a starting point and confirm your situation with EOIR (the immigration court) or an immigration attorney.

What "mandatory detention" means

Most people in removal proceedings can ask an immigration judge for a bond hearing — a chance to argue that they are not a flight risk or danger to the community and should be released while their case is pending. Under INA § 236(c), however, Congress made bond unavailable for certain categories of noncitizens. If you fall into one of these categories, U.S. Immigration and Customs Enforcement (ICE) is required to take you into custody, and an immigration judge generally has no authority to release you on bond, no matter how strong your ties to the community are or how sympathetic your case is.

This is different from "discretionary" detention, where ICE or a judge decides whether to detain you and can set a bond amount. Mandatory detention removes that discretion for the categories Congress specified.

Who is subject to mandatory detention under INA § 236(c)

Congress has periodically expanded and adjusted the list of grounds that trigger mandatory detention, so the exact categories can change. As a general framework, INA § 236(c) has covered noncitizens who are inadmissible or deportable based on certain criminal convictions, including many:

• Controlled substance offenses
• Crimes involving moral turpitude meeting certain criteria
• Aggravated felonies (a defined immigration-law term that is broader than the everyday meaning of "felony")
• Firearms offenses
• Certain terrorism-related grounds

Congress has also amended this list over time to add other categories tied to specific offenses. Most recently, a 2025 law added a category covering certain theft-, burglary-, larceny-, shoplifting-, and assault-related offenses; for that newer category, the statute reaches people who have been charged with or arrested for such an offense, not only those with a conviction. The definitions of terms like "burglary," "theft," or "assault on a law enforcement officer" for these purposes can depend on the law of the state or jurisdiction where the underlying conduct occurred. Because the list of covered offenses has been amended in recent years and continues to be interpreted and litigated in the courts, do not assume you know whether a specific conviction — or, under the more recently added category, even an arrest or charge — triggers mandatory detention. Confirm the current statutory text at govinfo.gov (search "INA 236") or ask an immigration attorney to review your specific record.

The Supreme Court has held that mandatory detention can apply even if ICE does not take a person into custody immediately upon their release from criminal custody — detention under this provision is not limited to people picked up the moment they walk out of jail.

The Joseph hearing: challenging whether you belong in this category

Being charged by DHS with a mandatory-detention ground does not automatically make it true. Under a long-standing Board of Immigration Appeals decision, Matter of Joseph, an immigration judge has authority to hold a hearing — commonly called a "Joseph hearing" — to decide whether the government has properly classified you as subject to mandatory detention in the first place.

At a Joseph hearing, the immigration judge is not deciding your whole removal case. The narrow question is whether DHS is substantially unlikely to prevail on the charge that triggers mandatory detention. If the judge agrees you were misclassified — for example, because the underlying conviction does not actually match the legal definition of the ground DHS cited, or because the conviction was vacated, expunged, or is on appeal in a way that matters under immigration law — the judge can order a regular bond hearing where release becomes possible.

Courts have not applied one single, uniform rule for how a Joseph hearing works. Which side has to prove what, and by what standard of proof, has varied somewhat by federal circuit and is an area where the law continues to develop. Because the outcome can depend on exactly where your case is being heard and the current state of the law in that circuit, this is not something to navigate without qualified legal help.

What to do if you think you were wrongly placed in mandatory detention

• Ask your immigration judge for a Joseph hearing. You or your attorney can request this hearing to challenge the classification. There is no need to wait — raise it as early as possible, since every day in mandatory detention matters.
• Get your certified conviction records. Whether a conviction actually matches a mandatory-detention ground often turns on the precise legal elements of the offense, not just its name. A copy of the judgment, plea agreement, and statute you were convicted under is essential.
• Find out if your conviction was modified. A vacated conviction, a successful post-conviction motion, or a change to the sentence can sometimes affect whether a ground still applies — but the rules for when this matters are technical and case-specific.
• Talk to a qualified immigration attorney or a Department of Justice–accredited representative as soon as possible. Given how much this area turns on which court is hearing your case and how recently the underlying statute or case law has changed, self-representation carries real risk here.
• Watch for filing deadlines in your case. Motions, appeals to the Board of Immigration Appeals, and habeas corpus petitions in federal court all carry their own strict deadlines. Missing one can permanently forfeit an argument, so confirm every deadline that applies to your specific filings with the court or your attorney the moment you receive a decision.

Why this area of law is actively contested right now

Mandatory detention is one of the most litigated corners of immigration law, and the landscape can shift with new legislation, new agency guidance, and new court rulings. In recent years, Congress has expanded the categories of offenses that trigger mandatory detention, and federal courts — including different U.S. Courts of Appeals — have split over important questions, such as how broadly certain detention provisions reach and what process is due before someone can be held for an extended period without a bond hearing. Some of this litigation has reached the Supreme Court. What is accurate in one federal circuit today may not describe the rule in another circuit, and either could change.

Because of this, do not rely on this article — or any general explainer — for the current, binding rule in your location. Verify the current statutory language at govinfo.gov, check current EOIR guidance and precedent decisions at justice.gov/eoir, and have an immigration attorney confirm how the law currently applies in the federal circuit where your case is pending.

Can ICE hold you without a bond hearing if you were arrested inside the country?

Starting in 2025, U.S. Immigration and Customs Enforcement began applying a different detention rule to some people who had already been living in the United States for years after entering without inspection. Instead of processing them under 8 U.S.C. § 1226(a), which allows a bond hearing, the agency began treating them as "applicants for admission" under 8 U.S.C. § 1225(b)(2)(A), a provision written for people at the border who are seeking to enter the country. The Board of Immigration Appeals endorsed this approach in a 2025 decision, Matter of Yajure Hurtado, and under it, people arrested by ICE inside the country, sometimes decades after they first arrived, were held with no possibility of bond at all while their removal case was pending.

On August 28, 2026, the U.S. Court of Appeals for the Third Circuit rejected that approach in a published decision, Buele Morocho v. Warden Philadelphia FDC. The court held, in a 2-1 decision, that section 1225(b)(2)(A) reaches only someone who is actually "seeking admission," which the court read as a present, ongoing act to gain lawful entry into the country. A person who entered years earlier and is living in the interior is not "seeking admission" just because ICE later finds and arrests them. The court also pointed out that asking for asylum is not the same thing as seeking admission, because asylum is a request for relief from removal and not a request for lawful entry.

The court separately held that holding these two men with no bond hearing at all violated the Fifth Amendment's Due Process Clause. That part of the ruling is written more narrowly than the statutory part, and the difference matters. The court framed the constitutional question as whether detaining people who have lived in the United States for long periods and who have no criminal records, without any bond hearing, violates due process. It answered by weighing three things: the person's interest in not being physically confined, the risk of a wrong outcome when no neutral decision-maker ever considers flight risk or danger, and the government's interests. The court emphasized that these two men had no criminal history, were detained with no evidence that either was dangerous or likely to flee, and that the government never argued bond hearings would be too burdensome. Someone whose record looks different does not automatically fall inside that constitutional holding. The statutory holding, though, does not depend on having a clean record: the court's reading of who counts as "seeking admission" applies the same way regardless of criminal history.

This decision is binding precedent in the Third Circuit, which covers Pennsylvania, New Jersey, Delaware, and the U.S. Virgin Islands. Federal courts there are bound by it, and immigration judges and the Board of Immigration Appeals generally apply the law of the circuit where a case arises. It does not by itself change the rule anywhere else. Seven other circuits, the First, Second, Sixth, Seventh, Ninth, Tenth, and Eleventh, have reached the same conclusion in their own cases, though several of those decisions drew dissents. Two circuits, the Fifth and the Eighth, have gone the other way and currently allow this kind of no-bond detention for people arrested in the interior. Before the Third Circuit even ruled, petitions asking the Supreme Court to take up the question were already pending in cases out of the Fifth, Sixth, and Second Circuits, not in this case. As of late August 2026 the Supreme Court had not agreed to hear any of them. If it does, it could settle the question for the whole country, and the rule described here could change.

What can you do if you or a family member was arrested this way?

If you or a family member was arrested by ICE somewhere inside the United States, not at the border, after living here for some time, and is being held with no bond hearing offered at all, the first thing to find out is which statute the government is using. Ask whether the detention is under 8 U.S.C. § 1225(b)(2)(A) or under 8 U.S.C. § 1226(a). One numbering note matters here: 8 U.S.C. § 1226 is the same statute this article calls INA § 236, so section 1226(c) is the criminal-grounds mandatory detention track described earlier on this page. The Third Circuit's decision is about section 1225(b)(2)(A) only. It does not disturb section 1226(c), and the court said so directly.

In Pennsylvania, New Jersey, Delaware, or the U.S. Virgin Islands, Buele Morocho means a section 1225(b)(2)(A) classification should no longer hold up for someone arrested in the interior. You or your attorney can ask the immigration judge for a bond hearing under section 1226(a), or file a habeas corpus petition in federal district court under 28 U.S.C. § 2241 if ICE or the immigration court will not provide one. That does not guarantee release. Moving out of section 1225 puts the case under section 1226, and if one of the criminal grounds in section 1226(c) applies, bond can still be unavailable; in that situation the Joseph hearing described earlier on this page, not an ordinary bond hearing, is the way to challenge the classification. Even where bond is available under section 1226(a), the immigration judge still decides whether you are a flight risk or a danger, and can deny release or set an amount you cannot pay.

Outside those four jurisdictions, you are not out of options. Seven other circuits have ruled the same way on the section 1225(b)(2)(A) question, so if your case is in the First, Second, Sixth, Seventh, Ninth, Tenth, or Eleventh Circuit, your attorney can make the same argument under your own circuit's precedent. In the Fifth and Eighth Circuits the current precedent goes the other way, which makes this particular argument much harder, though attorneys there continue to litigate the issue and the Supreme Court may still take it up. Wherever your case is, this issue is moving quickly, with several circuits, the Board of Immigration Appeals, and possibly the Supreme Court all weighing in within the same year, so do not assume your case follows the rule described above. Confirm the current status of the law in your circuit with an immigration attorney or a Department of Justice-accredited representative, and check current statutory text at govinfo.gov (search "8 U.S.C. 1225" or "8 U.S.C. 1226") and current EOIR guidance at justice.gov/eoir.

How this differs from an ordinary bond hearing

If you are not subject to mandatory detention, you are generally entitled to request a bond hearing, where the immigration judge weighs whether you are a flight risk or danger to the community and can set a bond amount for release. For a fuller explanation of that process — including how bond amounts are set and how to request a hearing — see our companion article on immigration bond and getting out of detention.

Key takeaways

• Mandatory detention under INA § 236(c) removes an immigration judge's discretion to set bond for certain noncitizens, mainly based on specified criminal grounds.
• A Joseph hearing lets you challenge whether you were correctly classified as subject to mandatory detention — it does not decide your full removal case.
• The exact grounds that trigger mandatory detention, and the rules for Joseph hearings, have changed through recent legislation and continue to be shaped by ongoing federal court litigation.
• Deadlines for motions, appeals, and habeas petitions in detention cases are strict — confirm every deadline with the court or an attorney immediately.
• Because the current rule can depend on which federal circuit your case is in, get case-specific advice from a qualified immigration attorney or DOJ-accredited representative rather than relying on general information.

This article is general legal information, not legal advice, and does not create an attorney-client relationship. Beware of "notarios" or unauthorized immigration consultants who promise guaranteed release or offer to handle your detention case — only a licensed attorney or a representative accredited by the Department of Justice may lawfully represent you in immigration proceedings. Verify current information directly with USCIS (uscis.gov), the immigration court/EOIR (justice.gov/eoir), or a qualified immigration attorney.