8 USC 1226: Bond, Mandatory Detention, and the Laken Riley Act

8 U.S.C. § 1226 is the federal statute that controls whether the government can arrest, detain, or release a noncitizen while removal proceedings are pending. It sets a floor bond of $1,500, lists categories of people who must be held without any chance of release, and limits how much federal courts can second-guess those decisions. The Laken Riley Act, signed on January 29, 2025, expanded the statute by adding new mandatory detention categories tied to certain property and violent crime charges.

Who Can Be Arrested and Held Under the Statute

Section 1226(a) gives the Attorney General the power to issue warrants for the arrest and detention of noncitizens while the government decides whether to remove them. Immigration and Customs Enforcement (ICE) officers carry out these arrests using administrative warrants rather than warrants signed by a judge. Once someone is in custody, ICE makes the initial call on whether to hold them or release them under conditions.¹

The authority covers the window between initial arrest and a final order of removal. Once a removal order becomes final, a different statute, 8 U.S.C. § 1231, takes over and controls what happens next.² That transition matters because the rules on how long someone can be held, and what they can challenge, differ on either side of the line.

Release on Bond or Conditional Parole

If you are not subject to mandatory detention, the government has two options besides continued custody. It can release you on a bond of at least $1,500, or it can grant conditional parole.¹ The statute recognizes no third path.

A bond works like a deposit. You pay the amount to the government, and it is returned if you attend every hearing and comply with the final order. Miss a hearing and the entire bond is forfeited. The $1,500 figure is the statutory minimum; actual bond amounts set by ICE or an immigration judge are almost always higher. Conditional parole requires no cash deposit but comes with supervision, which can include regular check-ins with ICE, electronic ankle monitoring, or other restrictions on your movement and activities.

How Bond Amounts Are Set

ICE makes the initial bond decision, but you can ask an immigration judge to review it through a bond redetermination hearing. The request can be made orally, in writing, or by phone, and the hearing takes place in the immigration court with jurisdiction over the detention facility.³

Immigration judges have wide discretion. The Board of Immigration Appeals, in Matter of Guerra, identified factors judges commonly weigh:⁴

Whether you have a fixed address in the United States
How long you have lived in the country
Family ties, especially any that could support a future path to legal status
Employment history and whether you have a job to return to
Your record of appearing at prior court hearings
The seriousness, extent, and recency of any criminal history
Any history of immigration violations, such as overstays or illegal entries
Prior attempts to evade authorities
Manner of entry into the United States

The core question is whether you are a danger to the community, a flight risk, or a threat to national security. You carry the burden of showing you are none of those things. Judges can consider pending criminal charges even without a conviction, so long as there is a reasonable foundation for believing you pose a danger.⁴

After an initial redetermination, you can request another hearing only if your circumstances have materially changed since the last one. A new job, a resolved criminal case, or a family member who has gained legal status can qualify.³ Either side can appeal a bond decision to the Board of Immigration Appeals.

Posting the Bond

Someone must physically post the bond using ICE Form I-352. Payment must be by cashier’s check, certified check, or money order; ICE does not accept personal checks or cash. The person posting the bond, called the obligor, must certify that the funds are not proceeds of illegal activity.⁵

A private surety company listed on the Treasury Department’s approved list (Circular 570) can post the bond instead. The company charges a non-refundable premium, typically a percentage of the bond amount, that you do not get back regardless of the case outcome. The obligor agrees to deliver the bonded person to ICE whenever asked. If they fail to surrender the person after a proper demand, the full bond amount becomes due.⁵

Mandatory Detention Under Section 1226(c)

Some noncitizens get no chance at bond. Section 1226(c) requires the government to take certain people into custody and hold them for the duration of their removal proceedings, with essentially one narrow exception.

The Original Four Categories

The statute has long required mandatory detention for noncitizens who fall into any of these groups:¹

Inadmissible on criminal grounds, including a conviction (or admission) of a crime involving moral turpitude, a controlled substance violation, or multiple convictions with aggregate sentences of five years or more.⁶
Deportable for serious criminal offenses, including multiple crimes of moral turpitude, an aggravated felony, a controlled substance offense (other than a single instance of possessing 30 grams or less of marijuana for personal use), a firearms offense, or certain espionage and sabotage crimes.⁷
Deportable for a single crime of moral turpitude committed within five years of admission, where a sentence of a year or more was possible.⁷
Anyone inadmissible or deportable on national security or terrorism grounds.

The only statutory exception is a narrow witness-protection provision. The Attorney General can release someone if it is necessary to protect a witness or someone cooperating with a major criminal investigation, and the person demonstrates they will not be dangerous or flee.⁸ In practice, this exception is almost never used.

The Laken Riley Act Expansion

The Laken Riley Act added a fifth mandatory detention category under new section 1226(c)(1)(E). A noncitizen falls into it when two conditions are met at the same time:⁹

The person is inadmissible as someone present without admission, who made a fraudulent misrepresentation to gain entry, or who lacks valid documentation. Those categories together cover most undocumented noncitizens.
The person is charged with, arrested for, convicted of, or admits to committing burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or any crime resulting in death or serious bodily injury.

Two features stand out. A conviction is not required; an arrest or a charge is enough. And the offense terms take their meaning from the jurisdiction where the conduct occurred, so definitions vary by state and locality. The Act also directs ICE to issue a detainer for anyone falling under this new category and to take them into custody promptly if they are not already held by other authorities.⁹

Challenging a Mandatory Detention Classification

If you think you were wrongly classified, you can request what practitioners call a “Joseph hearing,” from the Board of Immigration Appeals’ decision in Matter of Joseph. To win release, you must show that the government is “substantially unlikely” to prove the charge of removability that put you in the mandatory category.¹⁰ That is a high bar. If the immigration judge agrees the underlying charge is weak enough, the judge can reclassify you outside mandatory detention and set bond under the normal framework. If the government has reasonable evidence supporting the charge, the mandatory detention stands.

Revocation of Bond or Parole

Release is never permanent. Section 1226(b) lets the Attorney General revoke bond or parole at any time, re-arrest the person under the original warrant, and put them back in detention.¹ The statute does not require a new crime or a specific violation; the authority is broad. In practice, revocation most often follows a missed check-in, an unreported change of address, a parole violation, or new criminal charges. The decision is administrative and does not go through a court. If revocation leads to re-detention, you can request a new bond hearing before an immigration judge under the same framework used the first time.

Limits on Judicial Review

Section 1226(e) restricts how much federal courts can interfere with the government’s detention decisions. The Attorney General’s discretionary custody judgment is not subject to judicial review, and no court can set aside a decision to revoke or deny bond or parole.¹ You generally cannot go to federal district court and ask a judge to lower your bond because you disagree with ICE’s assessment.

The Laken Riley Act modified this provision by removing the words “or release” and “grant” from the judicial review bar. It also added a new subsection 1226(f) that gives state attorneys general standing to sue the federal government in federal court if a release or bond decision harms their state or its residents. The threshold for harm is low: financial harm exceeding $100 is enough, and courts must fast-track these cases.⁹ Before the Act, states had no explicit statutory mechanism to challenge federal decisions to release noncitizens on bond.

One safety valve remains for individuals. Noncitizens can file habeas corpus petitions in federal court to challenge the constitutional basis of their detention, arguing, for example, that due process is being violated by indefinite confinement. Courts have consistently recognized this right even though the statute bars review of discretionary bond decisions. The distinction is between challenging the exercise of discretion, which is blocked, and challenging whether the detention itself is lawful, which is permitted.

Supreme Court Decisions That Shape the Statute

Three cases have set the ground rules for how section 1226 operates.

Demore v. Kim (2003)

The Court upheld mandatory detention under section 1226(c) as constitutional. Congress had evidence that deportable noncitizens with criminal records frequently committed new crimes and failed to appear for hearings, and the Court held that mandatory detention for the “brief period” of removal proceedings was a reasonable response.¹¹ Holding someone without an individualized bond hearing does not automatically violate the Fifth Amendment’s due process guarantee.

Nielsen v. Preap (2019)

This decision resolved whether mandatory detention applies only when ICE arrests someone immediately after they leave criminal custody. The Ninth Circuit had said yes; the Supreme Court reversed. Section 1226(c) applies to anyone who fits the statutory description regardless of how long the government waited to make the arrest.¹² The “when released” language tells ICE to act quickly, but a delay does not strip the government of its authority to impose mandatory detention later.

Jennings v. Rodriguez (2018)

The Ninth Circuit had required automatic bond hearings every six months for anyone detained under sections 1225(b), 1226(a), or 1226(c). The Supreme Court rejected that reading. The statute does not require periodic bond hearings at any interval.¹³ The practical result: someone in mandatory detention can be held for the entire length of their removal proceedings without any statutory right to a bond hearing, even if proceedings drag on for months. Constitutional challenges through habeas corpus remain possible, but the statute alone imposes no time limit.

When Section 1226 Stops Applying

Section 1226 governs detention only while removal proceedings are still going. Once a removal order becomes administratively final, meaning all appeals within the immigration court system have been exhausted or waived, the case shifts to 8 U.S.C. § 1231, which controls post-order detention and actual removal.² If a federal court has stayed removal while reviewing the order, the transition does not happen until the court issues its final decision. Under section 1231, the government has a 90-day removal period to physically deport the person, and different rules on release and supervision apply. The rights available to a detained person are different on either side of that line.

1
Office of the Law Revision Counsel. 8 U.S. Code 1226 – Apprehension and Detention of Aliens
2
Office of the Law Revision Counsel. 8 U.S. Code 1231 – Detention and Removal of Aliens Ordered Removed
3
eCFR. 8 CFR 1003.19 – Custody/Bond
4
U.S. Department of Justice. Interim Decision 3544 – In re Juan Francisco Guerra
5
U.S. Immigration and Customs Enforcement. Immigration Bond (Form I-352)
6
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
7
Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
8
Office of the Law Revision Counsel. 8 USC 1226 – Apprehension and Detention of Aliens
9
U.S. Congress. Text – S.5 – 119th Congress (2025-2026): Laken Riley Act
10
U.S. Department of Justice. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999)
11
Justia U.S. Supreme Court Center. Demore v. Kim, 538 U.S. 510 (2003)
12
Justia U.S. Supreme Court Center. Nielsen v. Preap, 586 U.S. ___ (2019)
13
Justia U.S. Supreme Court Center. Jennings v. Rodriguez, 583 U.S. ___ (2018)