Detention and Bond in Immigration:
How the Legal Landscape Has Changed
BY MAX A. O’GRADY, ESQ., AND ROBERTO N. ALLEN, ESQ.
Detention and Bond in Immigration:
How the Legal Landscape Has Changed
BY MAX A. O’GRADY, ESQ., AND ROBERTO N. ALLEN, ESQ.
In 2025, there were more people in immigration detention than ever before, hitting a high of 68,400 detainees as of December 14, 2025.1 It is no secret that an aggressive detention and deportation policy is at the forefront of the current administration’s immigration agenda.2 Navigating and understanding these complex, fast-changing policies has become the day-to-day job of immigration lawyers, who must follow the bouncing ball to do the best they can for their clients in an intense, adversarial political climate.
RECENT CHANGES IN THE LAW OF IMMIGRATION DETENTION AND BOND
Shifting Legal Interpretations at the Board of Immigration Appeals
Until May 15, 2025, virtually all noncitizens who entered the United States without inspection and who were later detained by immigration officials elsewhere within the United States were subject to discretionary detention under Section 236 of the Immigration and Nationality Act (INA).3 This meant they could apply to be released on bond or conditional parole (i.e., release on one’s own recognizance).4 The Board of Immigration Appeals (BIA)5 has held for decades that noncitizens detained by immigration officials inside the United States are eligible to seek release on bond.6 Applying for release on bond has been a long-standing, regular practice of immigration attorneys for decades. In an immigration bond hearing, the Immigration Judge (IJ) is responsible for reviewing the equities of the noncitizen’s situation in exercising their discretion to decide whether the noncitizen should be released and the amount of the bond, if any.7
This paradigm shifted radically in May 2025, starting with the BIA case Matter of Q. Li 8 In that case, a Chinese national entered the United States by crossing the southern border without inspection or admission.9 Immigration officials briefly detained her at the border before releasing her on humanitarian parole.10 Two years later, now inside the United States, she was detained
again by immigration officials.11 While detained, she moved for release on an immigration bond.12
At the noncitizen’s bond hearing, the IJ crafted the novel legal interpretation that she was not eligible for release on bond under Section 236 of the INA because she had never been admitted to the United States.13 On appeal, the BIA agreed, holding that because the noncitizen had not been admitted, she remained an “alien seeking admission” and was therefore detained under Section 235 of the INA14 rather than Section 236.15 Under Section 235, there is no provision for release on bond.16 This quickly became the official policy of United States Immigration and Customs Enforcement (ICE), which released an internal memo on July 8, 2025, explicitly adopting this legal interpretation.17 On September 5, 2025, the BIA decided Matter of Yajure-Hurtado, 18 holding conclusively that under the INA, “Immigration Judges lack authority to hear bond requests or to grant bond to aliens . . . who are present in the United States without admission.”
As the BIA itself recognized in Matter of Yajure-Hurtado, this incredibly broad, sweeping decision toppled decades of precedent and long-standing practice.19 IJ’s began refusing to hold bond hearings for noncitizens without admission due to a lack of jurisdiction, citing Matter of Yajure-Hurtado in their determination that the noncitizen was detained under Section 235 rather than Section 236 of the INA, and was therefore ineligible for release on bond.20
1 Number of People in ICE Detention Hits Record High, Data Shows, Guardian (Dec. 22, 2025), www.theguardian.com/us-news/2025/dec/22/ice-detentions-record immigration#:~:text=The%20 number%20of%20people%20in,held%20more%20than%2068%2C400%20people.
2 Id.
3 8 U.S.C. § 1226. There are criminal restrictions on a noncitizen’s eligibility to apply for release on bond, id. § 1226(c), which are beyond the scope of this Article.
4 See Jennings v. Rodriguez, 583 U.S. 281, 281 (2018) (referring to the “default rule” that aliens who are “already in the country” when they get detained may apply for release on bond); Nw. Immigrant Rts. Project, et al., Practice Advisory: Seeking Bond Hearings for Maldonado Bautista Class Members—Those Who Entered Without Inspection and Are Subject to Yajure-Hurtado 1–2 (Dec. 3, 2025), www.nwirp.org/uploads/2025/Maldonado%20Bautista%20Practice%20Advisory_12%203%202025.pdf.
5 The Department of Justice controls the immigration court system through its component branch, Executive Office for Immigration Review (EOIR). See 8 C.F.R. § 1003.0. The BIA is the appellate administrative tribunal, see 8 C.F.R. § 1003.1, while the Immigration Courts serve as trial-level courts. See 8 C.F.R. § 1003.9.
6 See, e.g., Matter of Patel, 15 I. & N. Dec. 666, 667 (BIA 1976), superseded by statute on other grounds, IIRIRA of 1996, Pub. L. No. 104-208, 100 Stat. 3009-585, as recognized in Matter of Valdez-Valdez, 21 I. & N. Dec. 703, 706–07 (BIA 1997); Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) (citations omitted) (establishing a nine-factor test for eligibility for release on bond), abrogated on other grounds by Hernandez-Lara v. Lyons, 10 F.4th 19, 38–39 (1st Cir. 2021); Matter of Cabrera-Fernandez, 28 I. & N. Dec. 747, 747 (BIA 2023).
7 See 8 C.F.R. § 1003.19.
8 29 I. & N. Dec. 66 (BIA 2025).
9 Id. at 67.
10 See id. Humanitarian parole is one mechanism that immigration officers may use to permit a foreign national to enter the United States, but it is not an admission. 8 U.S.C. § 1182(d)(5)(A).
11 Id.
12 Id.
13 Id. at 70–71.
14 8 U.S.C. § 1225.
15 Matter of Q. Li, 29 I. & N. Dec. at 70.
16 8 U.S.C. § 1225.
17 ICE Memo: Interim Guidance Regarding Detention Authority for Applications for Admission, Am. Immigr. Lawyers Ass’n (July 8, 2025), https://www.aila.org/ice-memo-interim-guidanceregarding-detention-authority-for-applications-for-admission.
18 29 I. & N. Dec. 216, 225 (BIA 2025), vacated by, Maldonado-Bautista v. Santacruz, Jr., No. 25-cv-01873, Dkt. No. 116 (C.D. Cal. Dec. 18, 2025), appeal filed, No. 25-7958 (9th Cir. Dec. 18, 2025).
19 See id. at 226.
20 See Nw. Immigrant Rts. Project, et al., supra note 4, at 1–2.
Since Matter of Yajure-Hurtado remains good law, practitioners in Maryland must continue relying on federal habeas orders to force EOIR to give their clients a bond hearing.
The Removal Defense Bar’s Response: Writ of Habeas Corpus
With no other option for freeing their clients from detention, the removal defense bar began petitioning the federal courts for writs of habeas corpus, a procedural mechanism usually associated with criminal detainees.21 Due to the prior availability of a bond hearing for virtually all immigration detainees, up until now, the writ of habeas corpus has had a smaller role in immigration practice.22
Now that IJ’s had shut the door on bond hearings, denying across the board that they had any jurisdiction to conduct the hearing under Matter of Yajure-Hurtado, immigration lawyers were frequently petitioning for writs of habeas corpus as soon as their clients got detained.23 In Maryland, United States District Court judges have largely granted these writs and ordering the government to give the noncitizen a fair bond hearing.24 In all of these decisions, the district court judges held that, consistent with long-standing precedent and practice, noncitizens who had not yet been admitted to the United States but who were detained while “already present in the United States” were subject to the “default rule” 25 of detention under Section 236 of the INA,26 and were therefore eligible to request release on bond. The federal judges were following the common sense principle that because these individuals were detained once inside the United States, they were no longer actively “seeking admission,” i.e., a lawful entry into the United States.27 As such, they were not subject to mandatory detention under Section 235 of the INA,28 but rather discretionary detention under Section 236, and therefore must be given a bond hearing.29
21 See 28 U.S.C. §§ 2241–2255; see also Nw. Immigrant Rts. Project, et al., supra note 4.
The “Bond Eligible Class”: Maldonado-Bautista v. Santacruz, Jr.
On November 25, 2025, from what started as a habeas corpus case, the U.S. District Court for the Central District of California certified a “nationwide class of noncitizens who are in immigration detention and being denied access to a bond hearing based on the government’s allegation that they entered the United States without admission or inspection”30 in Maldonado-Bautista v. Santacruz, Jr.31 The “Bond Eligible Class” is defined as follows: All noncitizens in the United States without lawful status who (1) have entered or will enter the United States without inspection; (2) were not or will not be apprehended upon arrival; and (3) are not or will not be subject to detention under 8 U.S.C. § 1226(c), § 1225(b) (1), or § 1231 at the time the Department of Homeland Security makes an initial custody determination.32
The court granted declaratory relief to the entire class, holding that class members are detained under Section 236 of the INA33 and are therefore eligible to apply for release on bond.34 On December 18, 2025, the court entered an Amended Order and Final Judgment in the case, declaring again that the Bond Eligible Class members must be given bond hearings, as well as vacating the July 2025 ICE policy35 that all noncitizens who have not been admitted are subject to mandatory detention.36 The court held that because the conclusion in Matter of Yajure-Hurtado is irreconcilable with the statutory language, that case is “no longer controlling.”37 Despite these clear federal court orders, the government instructed IJ’s not to honor
22 Habeas petitions in the immigration context have long been used only for noncitizens who are detained post-removal order, a subject which is beyond the scope of this Article. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
23 See George Tzamaras & Belle Woods, Am. Immigr. Lawyer’s Ass’n, AILA: BIA’s Decision Ignores Decades of Precedent, Stripping Immigration Judges of Bond Authority (Sept. 8, 2025), www. aila.org/bia-s-decision-ignores-decades-of-precedent-stripping-immigration-judges-of-bond-authority.
24 See, e.g., Ulloa-Orellana v. Bondi, No. 26-cv-00592 (D. Md. Feb. 18, 2026); Lopez-Lopez v. Noem, No. 26-00008 (D. Md. Jan. 30, 2026); Villanueva-Funes v. Noem, No. 25-cv-03860 (D. Md. Jan. 13, 2026); Alarcon v. Bondi, No. 25-cv-03605 (D. Md. Dec. 18, 2025); Hernandez-Lugo v. Bondi, No. 25-cv-03434, Dkt. No. 15 at *1 (D. Md. Nov. 25, 2025); Velasquez v. Noem, No. 25-cv-3215 (D. Md. Oct. 27, 2025); Leal-Hernandez v. Noem, No. 25-cv-02428 (D. Md. Aug. 24, 2025). But see Buenrostro-Mendez v. Bondi, No. 25-20496, Dkt. No. 213-1 at *3 (5th Cir. Feb. 6, 2026) (holding that any noncitizen who has not been admitted to the United States is detained under Section 235 of the INA and is therefore ineligible for release on bond).
25 Jennings v. Rodriguez, 583 U.S. 281, 303 (2018).
26 8 U.S.C. § 1226.
27 See 8 U.S.C. § 1101(a)(13)(A).
28 Id. § 1225.
29 Id. § 1226; see Nw. Immigrant Rts. Project, et al., supra note 4, at 2.
30 Nw. Immigrant Rts. Project, et al., supra note 4, at 1.
31 No. 25-cv-01873 (C.D. Cal. Dec. 18, 2025), appeal filed, No. 25-7958 (9th Cir. Dec. 18, 2025), Dkt. No. 82.
32 Id. at Dkt. No. 93, *4. The requirement in section (2) speaks only to the instant detention, from which the noncitizen is seeking release. Therefore, a noncitizen who was detained upon first arrival to the United States, subsequently released, then detained again once already inside the United States, so long as they meet the other requirements, would be a member of the Bond Eligible Class. See Nw. Immigrant Rts. Project, et al., supra note 4, at 4.
33 8 U.S.C. § 1226.
34 Maldonado-Bautista, No. 25-cv-01873, Dkt. No. 93 at *46.
35 See supra note 17.
36 Maldonado-Bautista, No. 25-cv-01873, Dkt. No. 94 at *2.
37 Id. at Dkt. No. 93, *20.
the judgment in Maldonado-Bautista, and that Matter of YajureHurtado still controlled.38 The government appealed to the Ninth Circuit on December 18, 2025, at which time the order was not stayed.
A Short-Lived Win for the Removal Defense Bar: Judicial Vacatur of Matter of Yajure-Hurtado
By late January 2026, when it became clear that the government did not intend to follow the court’s order and continued to deny bond based on Matter of Yajure-Hurtado, the petitioners moved to enforce the judgment. On February 18, 2026, the judge granted that motion and vacated Matter of Yajure-Hurtado under the Administrative Procedure Act.39 In so doing, with citations to Marbury v. Madison40 and to the Federalist Papers on the point of separation of powers, U.S. District Judge Sykes emphatically scorned the government defendants for their recalcitrance towards the judiciary and for “choos[ing] to privilege an executive interpretation of law over the judiciary’s.”41
The victory for the removal defense bar was short-lived. On March 6, 2026, the Ninth Circuit ruled that the order vacating Matter of Yajure-Hurtado “is temporarily stayed pending a ruling on the government’s emergency motion for a stay pending appeal.”42 In addition, the Ninth Circuit stayed the order certifying the Bond Eligible Class for all federal districts other than the Central District of California.43 Therefore, Yajure-Hurtado is controlling law for the moment in Maryland. The pendulum appears to have swung back in favor of the government’s harsh detention policy for now. The battle is far from over. The removal defense bar continues to push for the rule of law and to ensure that detained immigrants are treated fairly and are afforded due process.
WHAT PRACTITIONERS SHOULD EXPECT MOVING FORWARD
As of March 16, 2026, the principal case in Maldonado-Bautista is still on appeal in the Ninth Circuit, as is the judicial vacatur. The reader is advised to update the research on this point or to contact the authors, as Maldonado-Bautista and similar cases are moving so quickly that some of the information may be outdated by the time this article goes to print.
38 See Nw. Immigrant Rts. Project, et al., supra note 4, at 4.
39 See 5 U.S.C. §§ 551–559.
40 5 U.S. 137, 176 (1803).
41 Maldonado-Bautista, No. 25-cv-01873, Dkt. No. 116 at *16.
42 Maldonado-Bautista, No. 26-1044, Dkt. No. 5.1 (9th Cir. Mar. 6, 2026).
43 Id.
44 See Mendez-Trigueros v. Guadian, No. 26-cv-00205, Dkt. No. 13 at *3 (E.D. Va. Feb. 18, 2026) (finding that the noncitizen was impermissibly denied bond based on a capricious determination that he was a flight risk and ordering that the government either immediately release the noncitizen or provide him a fair bond hearing).
It is a virtual certainty that the Supreme Court will grant certiorari to decide these monumental issues, regardless of the ultimate result in the Ninth Circuit appeal. Since Matter of Yajure-Hurtado remains good law, practitioners in Maryland must continue relying on federal habeas orders to force EOIR to give their clients a bond hearing. When their client then has their bond hearing, practitioners should be prepared for the government to push back particularly on the flight risk factor to deny them bond. If the Immigration Judge were then to deny bond on a baseless finding that the noncitizen is a flight risk, the practitioner should go back to the habeas court and file a motion for an order to show cause as to why the noncitizen should be found ineligible for release on bond.44
Until this issue of whether noncitizens detained inside the United States are eligible for bond is resolved, it is crucial for the practitioner to file a habeas case as soon as their client gets detained, before even filing for release on bond, to ensure that a federal judge is overseeing the detention and that a fair bond hearing is indeed held.
CONCLUSION
The law is constantly changing, and the whole legal system is constantly in flux. Right now, for immigrants and immigration lawyers alike, it feels very much like we are in an uphill battle that is becoming ever more difficult. Despite all this, it is crucial that practitioners maintain motivation and the will to fight for the rule of law and to zealously advocate for their detained immigrant clients.
The authors would like to acknowledge the helpful and insightful contributions of Daniel Smulow, Esq., Senior Counsel and Director of Federal Litigation at Griffith Immigration Law, Baltimore Immigration Judge 2023–2025.
Max A. O’Grady, Esq., graduated from Maryland Carey Law in May 2024, where he served as the executive articles editor for Volume 83 of the Maryland Law Review He is an associate attorney at Witherup Allen Law, LLC, in Burtonsville, where his practice areas include immigration law and bankruptcy.
Roberto N. Allen, Esq., is a 1997 graduate of the University of Maryland School of Law. He is the managing partner of Witherup Allen Law, LLC, where he practices immigration, bankruptcy, and employment law.