8 CFR 1003.19: Bond Hearings, Automatic Stays, and Jurisdiction

If Immigration and Customs Enforcement has set a bond you cannot afford, denied bond entirely, or placed someone in detention pending removal, an immigration bond hearing before an immigration judge is the mechanism for asking a neutral decision-maker to change that custody decision. The authority comes from 8 CFR 1003.19, which lets an Immigration Judge review and modify the conditions ICE originally imposed, so long as the person is eligible and a final removal order has not yet been entered.¹

How to Request the Hearing

The request goes to the Immigration Court that has jurisdiction over the place of detention. If that court is unavailable, it goes to the court with administrative control over the case. The request can be made orally, in writing, or by telephone if the judge permits it.¹

The bond hearing is its own proceeding, separate from the removal case. The judge’s custody ruling forms no part of the removal hearing, and the judge may consider any information available, whether the non-citizen or DHS presents it.¹ Different timeline, different appeal track, different rules of evidence.

What the Judge Weighs

Two questions drive the decision: whether the non-citizen is a danger to the community, and whether the person is likely to appear for future hearings. The Board of Immigration Appeals has identified the factors judges evaluate:

Whether the non-citizen has a fixed address in the United States
Length of residence in the country
Family ties, particularly ties that might support a future claim to remain
Employment history and record of steady work
Record of appearance at prior court hearings
Seriousness, extent, and recency of any criminal record
Immigration violations, including overstays, illegal entry, or prior removal orders
Evidence of attempts to flee or evade law enforcement
Manner of entry into the United States

No single factor decides the outcome. Someone with a minor criminal record but deep family ties and a long work history may receive a lower bond than someone with a clean record and no ties anywhere. The burden generally falls on the non-citizen to show they are not a flight risk or a danger, though case law on the burden question has been evolving in different federal circuits.

Federal law sets a floor of $1,500, but in practice ICE and judges routinely set bonds well above that minimum.²

Who Cannot Get a Bond Hearing

Not everyone in removal proceedings is eligible. The regulation bars Immigration Judges from redetermining custody for several categories:

People subject to mandatory detention under federal law, which covers non-citizens removable for aggravated felonies, controlled substance offenses (other than a single possession charge), firearms trafficking, crimes carrying sentences of at least one year, and certain national security and terrorism-related grounds²
Arriving aliens, meaning people apprehended at a port of entry or paroled into the country after arrival¹
Non-citizens charged under the national security or terrorism-related deportation grounds¹

Challenging a Mandatory Detention Label

DHS’s mandatory detention classification is not the last word. In a proceeding known as a Joseph hearing, the non-citizen can ask an Immigration Judge to decide whether the classification is correct. The judge looks at whether DHS is substantially likely to prevail on the charge triggering mandatory detention. If DHS is substantially unlikely to prove the removability ground, the person is not “properly included” in the mandatory category and becomes eligible for a regular bond hearing.³ This matters most when a state criminal conviction does not cleanly map onto a federal immigration category.

The Automatic Stay That Can Freeze a Release Order

Winning a bond hearing does not always mean release. If DHS had determined the person should not be released, or had set a bond of $10,000 or more, and the Immigration Judge orders release or sets a lower bond, DHS can freeze the judge’s order. It does this by filing a notice of intent to appeal (Form EOIR-43) with the Immigration Court within one business day of the ruling.⁴

Once the EOIR-43 is filed, the judge’s release order is automatically stayed. The non-citizen stays detained. DHS then has 10 business days to file the actual appeal, and the stay holds until the Board rules or 90 days pass, whichever comes first.⁵ Families are often caught off guard by this. The judge sets an affordable bond one day, DHS files the form the next, and the bond order effectively disappears for weeks or months.

When the original bond was under $10,000 and the automatic stay does not apply, DHS can still ask the Board for a discretionary emergency stay. Those stays are not guaranteed.⁵

Either side can appeal a bond decision to the Board of Immigration Appeals on its own separate track, distinct from any appeal in the removal case.⁶ For Immigration Judge decisions issued on or after March 9, 2026, each side has 20 calendar days to file a brief with the Board, and reply briefs are not accepted unless the Board asks for one.⁷

Asking for a Second Bond Hearing

After the first redetermination, a second hearing is harder to get. The non-citizen must file a written request and show that circumstances have materially changed since the earlier decision.¹ Repeating the same arguments will not work.

A material change might be new evidence of community ties, a change in the criminal charges that led to detention, significant time already spent in custody, a favorable development in the removal case, or new medical circumstances. The judge decides whether the change is meaningful enough to warrant a new hearing.

Paying the Bond and Getting Released

Once a bond is set and no stay is in effect, payment goes to DHS, not to the Immigration Court. DHS is the beneficiary of all bonds it authorizes, and the deposit is executed before authorized DHS officers.⁸ Payments are made through Fedwire or Automated Clearing House transfers.⁹

The person posting the bond can pay cash for the full amount or use a licensed surety bond company. Surety companies charge a non-refundable premium. Once the bond clears and the I-352 bond contract is signed, the detained person is typically released by the end of the following day.⁹ While the case remains pending, DHS must notify the Immigration Court in writing of any change in custody location or status.¹

When the Judge Loses Jurisdiction

An Immigration Judge’s authority over bond ends when the removal order becomes administratively final, either because Board appeals are exhausted or the appeal deadline has passed. Custody then shifts entirely to DHS under a different set of regulations, and the judge cannot set or modify bond in that phase. If you are trying to get someone released, timing matters: a bond hearing has to happen before that line is crossed.

1
eCFR. 8 CFR 1003.19 – Custody/Bond
2
Office of the Law Revision Counsel. 8 USC 1226 – General Apprehension and Detention
3
U.S. Department of Justice. Matter of Joseph, 22 I&N Dec. 660 (BIA 1999)
4
eCFR. 8 CFR 1003.19 – Custody/Bond
5
Executive Office for Immigration Review. Board Practice Manual – 6.3 – Procedure
6
Executive Office for Immigration Review. EOIR Policy Manual – 6.2 – Jurisdiction
7
United States Department of Justice. 3.7 – Briefing Deadlines
8
U.S. Immigration and Customs Enforcement. ICE Form I-352 Instructions
9
U.S. Immigration and Customs Enforcement. Post a Bond