The Ins and Outs of Immigration Bonds

Considering the current administration’s increased focus and shifting policies on detaining immigrants over the last few months, it is important to understand who is eligible to be released on bond, what the courts consider when releasing an individual on bond, and how to post a bond if an individual is granted release. 

Whether the Department of Homeland Security (DHS) detains an individual arriving to the United States at a port of entry, between ports, in territorial waters, or detains someone in the interior of the United States, it is DHS that has the initial authority to decide whether to keep that individual detained or to release that individual. Immigration and Customs Enforcement (ICE) is the branch of DHS that generally handles detention matters. ICE may decide whether to release someone on their own recognizance (without bond), with a bond, or on parole.  In some, but not all cases, an individual who is not released by DHS can request bond from an immigration judge. 

It is worth noting that minors under the age of 18, especially minors who arrive in the U.S. without a guardian (unaccompanied minors), generally have different rules that apply to their detention. In fact, DHS must transfer custody of unaccompanied minors to a separate agency known as the Office of Refugee Resettlement (ORR) who must then find the least restrictive setting for the child. Usually, unaccompanied minors are released to a vetted adult while those minors undergo the immigration court process. 

If ICE releases an individual on bond or otherwise, ICE will often have certain conditions that apply to that individual’s release. This may include placing an ankle monitor on the person, requiring telephonic check-ins, or asking that person to check in personally with a local ICE office. A violation of any of these conditions can result in the individual being detained. It is important to understand that the release of an individual from detention generally does not mean the case is concluded, but rather that the individual will not remain in detention while they present their case in front of an immigration judge. 

There are some individuals who are not eligible to be released on bond by an immigration judge. Most notably, individuals considered “arriving aliens” are not eligible for bond. Historically, this applied to individuals who presented themselves at a port of entry, such as an airport or other designated port of entry, whether or not the individual presented a valid visa. DHS may still release these individuals on parole, but if DHS decides not to exercise its parole authority, an immigration judge does not have the authority to release that individual on bond. Individuals in this scenario will remain detained, often for several months, while they undergo Credible Fear Interviews and/or removal proceedings in front of an immigration judge.   

Over the last few months, DHS has attempted to expand the understanding of who qualifies as an “arriving alien” to reduce the number of individuals eligible to have bond hearings in front of an immigration judge. As of summer 2025, DHS is arguing that individuals who enter without inspection are considered to be “applicants for admission” who are ineligible to request bond from an immigration judge. Effectively, this makes most Individuals detained by ICE ineligible for bond, except for individuals who have been allowed entry to the United States but overstayed their status. This area of the law is changing rapidly, so we encourage individuals to consult with a trusted immigration lawyer for the latest developments. 

Other individuals who are not eligible for bond, and are thus subject to mandatory detention, include individuals with certain criminal convictions and terrorism concerns. In January 2025, the President signed the Laken Riley Act, expanding even further the kinds of criminal activity that make individuals subject to mandatory detention. In addition to other criminal activity that already made individuals subject to mandatory detention, individuals who are simply accused of theft, shoplifting, or similar crimes may now also be ineligible for bond. It is quite possible that someone who was given no jail time at all for a criminal charge would be completely ineligible for bond in the immigration context. 

If an individual is eligible for bond, but ICE denies their release, that individual can ask a judge to make a redetermination of ICE’s custody decision and ask an immigration judge to consider releasing that person on bond. A bond hearing is a hearing that is separate from the removal hearing that determines whether or not an individual is eligible to remain in the U.S. During a bond hearing, the judge will consider two primary factors: 1) whether the individual would pose a danger to the community if released, and 2) whether, if released, the person is a flight risk. 

In deciding whether the individual is a danger to the community, the immigration judge will consider any criminal history, including past or pending charges. If an individual has a criminal history, including a history of DUIs, it is important to offset those negative factors with evidence of accountability and rehabilitation.  For example, evidence of mental health, addictions, or substance abuse-related treatment may be helpful mitigating factors. Even if an individual hasn’t yet begun such treatment, evidence of a concrete plan, including future scheduled treatment, may help show that an individual will not be a danger to the community if released. Other helpful evidence can include proof that the individual is contributing in different ways to their community, such as through employment and volunteer activities. Detailed letters of support from members of the community can be helpful to show that an individual is a valued and trusted member of that community. 

To show that an individual is not a flight risk, judges will consider a variety of factors, including family ties, whether the individual has a fixed address, gainful employment, eligibility for defense against removal, and a history of complying with government appointments. Gathering letters of support, evidence that the individual has documented family, evidence of employment, and proof of a fixed residential address, such as a lease, mortgage or utility bill, can help convince a judge that an individual is not a flight risk. Some judges may focus on options for immigration related relief as a factor that weighs heavily in the flight risk analysis. For this reason, it is important to provide evidence of eligibility for immigration relief as part of the bond motion. 

During a bond hearing, the immigration judge will consider documentary evidence and arguments from both ICE and the individual or the individual’s lawyer as to whether that individual is bond eligible in the first place and if so, whether they pose a danger to the community or are a flight risk. Even if an individual has a lawyer, the judge may take testimony from the individual or witnesses as part of the bond hearing. 

If a judge grants bond, the minimum amount permitted by law is $1,500, but the judge may set the bond higher than the minimum. Unlike in criminal custody cases, an individual granted bond must post the entire amount ordered by the judge to be released, not just a fraction. To post a bond, an individual must have an obligor, or in other words, an individual who will post the bond on that noncitizen’s behalf. The obligor must create an account at https://cebonds.ice.gov/, and in so doing, must show that they are over the age of 18 and have lawful status in the United States. Once the obligor pays the bond, it may take up to a couple of days for the detention center to verify the bond and release the individual. 

If the judge denies the bond, the individual may appeal the judge’s decision to the Board of Immigration Appeals (BIA), either as to the amount or as to the decision, but the individual will have to remain detained while the appeal is pending. This may take several months. While the appeal is pending, the underlying removal case will proceed. It is possible that the removal case may be decided in favor or against the individual even before the BIA decides whether the judge made an error of law or fact in the bond hearing. 

DHS can also file an appeal of a bond decision with the BIA. DHS can also file an automatic stay of the judge’s order within 24 hours of the decision to prevent the release of the individual while DHS appeals the decision. This has historically been done only in situations where there were serious public safety or national security concerns, but DHS is increasingly filing these stays in an increasing number of cases, even absent these concerns. 

Being detained or having a loved one detained is a difficult situation to manage. Our immigration attorneys are ready to help you evaluate your options. Please call our office for a consultation to discuss this or any other immigration inquiries.