Immigration Mandatory Detention: Crimes, No Bond, and Habeas

Immigration mandatory detention is the federal rule that forces certain noncitizens to be held in government custody, with no option for release on bond, while their removal cases move through the courts. It applies to people with specific criminal convictions, those flagged on terrorism-related grounds, individuals arriving at the border without valid documents, and, after a 2025 Board of Immigration Appeals decision, many who entered the country without inspection. If you fall into one of these categories, an immigration judge has no authority to set bond. Release generally requires winning the underlying removal case, convincing a judge that the mandatory classification doesn’t actually fit, or filing a habeas corpus petition in federal district court.

Criminal Convictions That Trigger Mandatory Custody

Federal law requires the government to detain any noncitizen who is removable or inadmissible on certain criminal grounds.¹ The list is broader than most people expect.

Aggravated Felonies

“Aggravated felony” in immigration law covers far more than the words suggest. The statutory definition includes over 20 categories of offenses.² The categories most people encounter are:

Murder, rape, or sexual abuse of a minor
Drug trafficking, including any drug offense classified as trafficking under federal law
Theft or burglary where the sentence imposed was at least one year, even if no time was actually served
Crimes of violence with a sentence of at least one year³
Fraud or deceit causing losses over $10,000
Tax evasion
Money laundering involving more than $10,000
Firearms and explosives offenses
Espionage, sabotage, or treason

The one-year sentence threshold trips up a lot of people. It refers to the sentence a judge imposed, not time actually served. A one-year suspended sentence with no jail time still counts.

Crimes Involving Moral Turpitude

Two or more convictions for crimes involving moral turpitude, not arising from a single scheme, trigger mandatory detention.¹ The statute doesn’t define moral turpitude, but immigration courts apply it to offenses involving dishonesty, fraud, or an intent to cause serious harm. Larceny, forgery, assault with intent to injure, and some sex offenses are typical examples. A single conviction can also trigger mandatory detention if it renders the person inadmissible and no narrow exception for petty or youthful offenses applies.⁴

Controlled Substance Offenses

Almost any drug conviction triggers mandatory detention. Federal law makes a noncitizen deportable for any violation of a controlled substance law, whether state, federal, or foreign.⁵ One carve-out exists: a single offense of personal possession of 30 grams or less of marijuana. Every other drug conviction, no matter how minor, sends the person into mandatory custody. A misdemeanor possession case carries the same custody consequence as a major trafficking conviction.

Arrests and Charges Under the Laken Riley Act

In early 2025, the Laken Riley Act added a new mandatory detention category that significantly broadened the statute’s reach. A noncitizen who is inadmissible on certain grounds and who has been charged with, arrested for, or convicted of specified offenses must be detained.¹ The covered offenses are burglary, theft or larceny, shoplifting, assault of a law enforcement officer, and any crime causing death or serious bodily injury.

Two features matter here. First, no conviction is required. An arrest or criminal charge is enough, so long as the person is inadmissible, which covers most undocumented noncitizens. Second, DHS must issue a detainer and take custody expeditiously, even if the person is not otherwise in federal, state, or local custody. The law uses each state’s own definitions of the listed offenses, so scope varies by jurisdiction.

Terrorism-Related Grounds

Noncitizens who are inadmissible or deportable on terrorism-related grounds face mandatory detention under a separate provision.¹ The terrorism-related inadmissibility grounds are extremely broad, covering not just people who have committed or planned attacks but also those who have provided material support to designated organizations, gathered information on potential targets, solicited funds, or endorsed terrorist activity.⁴

No criminal conviction is required. Immigration authorities can rely on intelligence reports or investigative findings. The standard is that a consular officer, the Attorney General, or the Secretary of Homeland Security has “reasonable ground to believe” the person is involved in terrorism-related conduct. That bar sits well below the proof-beyond-a-reasonable-doubt threshold of a criminal case, so these detentions can rest on evidence that would never sustain a prosecution.

Arriving Aliens and Expedited Removal

A separate custody framework applies to people who present themselves at a port of entry without valid documents or with fraudulent papers. Under expedited removal, an immigration officer can order these individuals removed without a hearing before an immigration judge.⁶ They remain in custody while admissibility is determined.

If someone subject to expedited removal expresses a fear of returning home, the process pauses. An asylum officer conducts a credible fear screening. The person stays in custody throughout. A positive credible fear finding leads to continued detention while the asylum claim moves forward; a negative finding leaves the expedited removal order in place and the person can be deported without a court hearing.

Entry Without Inspection After Yajure-Hurtado

A 2025 Board of Immigration Appeals decision dramatically expanded the mandatory-detention population. In Matter of Yajure-Hurtado, the BIA held that any noncitizen present in the United States who entered without being inspected and admitted at a port of entry falls under the arriving-alien detention framework rather than the general detention statute. Immigration judges lost the authority to hold bond hearings for these individuals, regardless of how long they have lived in the country or where they were apprehended.

Before this decision, a noncitizen arrested in the interior, even one who originally entered without inspection, could usually request a bond hearing. After Yajure-Hurtado, the only route to release is a habeas corpus petition in federal district court, which is far more complex than a bond hearing. Because many people in removal proceedings originally entered between ports of entry, the ruling reshapes custody for a large share of the detained population.

Why There Is No Bond

In an ordinary immigration custody case, the detained person can ask an immigration judge to set a bond. The statutory minimum is $1,500, though judges routinely set much higher amounts based on flight risk and danger to the community.¹ Mandatory detention eliminates that option. The judge has no discretion. Community ties, employment history, family responsibilities, and other equities carry no weight once the person falls into a listed category.⁷

Two Supreme Court rulings closed common workarounds. In Nielsen v. Preap (2019), the Court held that mandatory detention still applies even if ICE arrests the person months or years after release from criminal custody.⁸ Delay by the government doesn’t convert mandatory custody into discretionary custody. In Jennings v. Rodriguez (2018), the Court held that the mandatory detention statutes impose no time limit and do not require periodic bond hearings, even when a case drags on for years.⁹

The one statutory exception lets the Attorney General release a mandatory detainee who is cooperating as a witness in a major criminal investigation, and only if the person shows they won’t endanger public safety or fail to appear.¹ Outside that narrow situation, mandatory detainees stay in custody until they win their case or a final removal order is executed.

Challenging the Classification

Joseph Hearings

A person who believes ICE wrongly classified them as a mandatory detainee can request what practitioners call a Joseph hearing, named after a 1999 Board of Immigration Appeals decision. The judge doesn’t decide whether the person deserves bond. The only question is whether the government is “substantially unlikely” to prove the charge that triggers mandatory detention.¹⁰ If the government is likely to prove the charge, the person stays locked up without bond consideration. If the government is substantially unlikely to prove it, the person moves into the ordinary bond framework and can argue for release.

These hearings turn on the details of criminal records. Whether a particular state conviction qualifies as an aggravated felony or a crime involving moral turpitude under federal immigration law is often disputed. Showing that a seemingly qualifying conviction doesn’t match the federal definition is sometimes enough to pull a person out of mandatory custody.

Federal Habeas Corpus

When immigration court options are exhausted, a detained noncitizen can file a habeas corpus petition in federal district court challenging the legality of their detention. The filing fee is $5, and fee waivers are available. Someone wrongly classified as subject to mandatory detention can argue the detention is unlawful. Someone held for a prolonged period without any bond hearing can argue the detention has become constitutionally unreasonable. Winning a prolonged-detention habeas case typically produces a bond hearing before an immigration judge rather than outright release.

After Yajure-Hurtado, habeas became the primary release mechanism for a large segment of the detained population. Federal court procedure is significantly more demanding than requesting a bond hearing, and most detainees need counsel to navigate it.

Detention After a Final Removal Order

Once a removal order becomes final, a separate framework takes over. The government has 90 days to carry out deportation, and during that period the person must remain in custody.¹¹ For people who are inadmissible, deportable on criminal grounds, or deemed a flight risk or danger, the statute authorizes continued detention past that window.

The Supreme Court imposed a constitutional limit in Zadvydas v. Davis. Six months is a presumptively reasonable detention period after a final removal order. Once that passes, a detained person who can show no significant likelihood of deportation in the reasonably foreseeable future is entitled to release under supervised conditions, unless the government rebuts that showing.¹² This usually arises when the destination country refuses to accept deportees or has no functioning government. A habeas petition after six months is the vehicle.

How the Classification Gets Made

Immigration and Customs Enforcement makes the initial call. When a person is transferred into ICE custody, the agency reviews their records and classifies them as either bond-eligible or subject to mandatory detention based on the statutory criteria.¹³ That classification controls whether the person can ask a judge for release.

ICE officers are not immigration judges and hold no hearing before classifying. The decision is administrative, based on criminal history, immigration status, and the statutory categories. If ICE gets it wrong, the detainee’s recourse is a Joseph hearing or a federal habeas petition. Until one of those challenges succeeds, the person stays detained. That is where mandatory detention is at its most unforgiving: the initial classification holds unless the detainee affirmatively proves it wrong, and proving it wrong takes legal knowledge and resources that many detainees don’t have.

1
Office of the Law Revision Counsel. 8 USC 1226 – Apprehension and Detention of Aliens
2
Office of the Law Revision Counsel. 8 USC 1101 – Definitions
3
Office of the Law Revision Counsel. 18 USC 16 – Crime of Violence Defined
4
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
5
Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
6
Office of the Law Revision Counsel. 8 USC 1225 – Inspection by Immigration Officers; Expedited Removal of Inadmissible Arriving Aliens; Referral for Hearing
7
Congressional Research Service. Nielsen v Preap – High Court Clarifies Application of Immigration Detention Statute to Criminal Aliens
8
Justia US Supreme Court. Nielsen v Preap, 586 US (2019)
9
Justia US Supreme Court. Jennings v Rodriguez, 583 US (2018)
10
U.S. Department of Justice. Matter of Joseph, 22 I&N Dec 799 (BIA 1999)
11
Office of the Law Revision Counsel. 8 USC 1231 – Detention and Removal of Aliens Ordered Removed
12
Justia US Supreme Court. Zadvydas v Davis, 533 US 678 (2001)
13
U.S. Immigration and Customs Enforcement. Detention Management