Mandatory immigration detention is federal custody with no bond option: under 8 U.S.C. § 1226(c), if you fall into certain criminal or national security categories, ICE must hold you throughout your removal case, and an immigration judge has no authority to set bail or release you on conditions.1Office of the Law Revision Counsel. 8 USC 1226 – Apprehension and Detention of Aliens That can mean months or years locked up while your case moves through the system, and the paths out are narrow.
Who the Statute Reaches
The mandatory detention statute lists five groups. If you fit into any one, the government is legally required to take custody and keep you there until your case ends.
The first is anyone deemed inadmissible for a criminal conviction involving moral turpitude or a controlled substance violation.1Office of the Law Revision Counsel. 8 USC 1226 – Apprehension and Detention of Aliens The second covers people deportable after admission for offenses including multiple crimes involving moral turpitude, controlled substance offenses, firearms violations, and other crimes listed in the deportability statute.2Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens The third is anyone deportable for a single crime involving moral turpitude carrying a prison sentence of at least one year. The fourth involves terrorism-related activity or national security concerns. The fifth, added more recently, targets people without valid status who have been charged with, arrested for, or convicted of offenses like burglary, theft, shoplifting, assault on a law enforcement officer, or any crime causing death or serious bodily injury.
A separate track applies to people who arrive at a port of entry without valid documents or are otherwise inadmissible upon inspection. They are held while officers determine whether they have a credible fear of persecution or must be returned, and even those who establish a credible fear stay detained while their asylum claim is considered.3Office of the Law Revision Counsel. 8 USC 1225 – Inspection by Immigration Officers; Expedited Removal of Inadmissible Arriving Aliens; Referral for Hearing
The statute uses the word “shall.” The government must take these individuals into custody when they are released from criminal incarceration, whether that release is on parole, supervised release, or probation.
Which Convictions Trigger It
The criminal grounds reach further than most people expect. Immigration law defines offenses on its own terms, which often differ from how a state criminal court classifies the same conduct.
Aggravated Felonies
“Aggravated felony” is a term of art in immigration law covering dozens of offenses, many of which are neither aggravated nor felonies under state law. The list includes murder, rape, sexual abuse of a minor, drug trafficking, firearms trafficking, and crimes of violence where the prison sentence is at least one year.4Legal Information Institute. 8 USC 1101 – Definitions Theft and burglary qualify when the sentence imposed is one year or more. That one-year line catches people off guard, because a state misdemeanor with a 365-day sentence can be treated as an aggravated felony for immigration purposes.
Crimes Involving Moral Turpitude
These are offenses involving fraud, dishonesty, or conduct that shocks the conscience. There is no statutory list; immigration courts evaluate each offense individually. Common examples include theft with intent to defraud, certain assault offenses, and crimes involving deception. A single conviction can make you inadmissible, which triggers mandatory detention.5Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens Two or more convictions after admission make you deportable, which is a separate path to the same result.2Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens
Controlled Substances and Firearms
Any conviction related to a controlled substance after admission makes you deportable and subject to mandatory detention. That includes possession, distribution, and conspiracy involving any substance on the federal drug schedules. One narrow exception exists: a single offense involving possession for personal use of 30 grams or less of marijuana.2Office of the Law Revision Counsel. 8 USC 1227 – Deportable Aliens More than 30 grams, any other substance, or distribution of any amount takes you outside it.
Convictions for buying, selling, possessing, or using firearms in violation of federal or state law also trigger detention through the deportability ground.
The Petty Offense Exception
Not every crime involving moral turpitude locks you in. If it is your only such conviction, you may escape the inadmissibility ground through the petty offense exception. Three conditions must all be true: the offense is your only crime involving moral turpitude, the maximum possible sentence does not exceed one year, and the actual sentence imposed was not more than six months.5Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens
The six-month limit looks at the sentence the judge handed down, not the time actually served. If a court sentences you to eight months but suspends all but two, you do not qualify, because the imposed sentence exceeded six months.6U.S. Department of State Foreign Affairs Manual. 9 FAM 302.3 – Ineligibility Based on Criminal Activity, Criminal Convictions and Related Activities Where the exception applies, that conviction cannot make you inadmissible, and the basis for mandatory detention under that ground disappears.
How ICE Takes Custody
The process usually begins while you are still in local or state jail. ICE sends an immigration detainer (Form I-247A) asking the facility to notify ICE before releasing you and to hold you for up to 48 hours past your scheduled release.7U.S. Immigration and Customs Enforcement. DHS Form I-247A – Immigration Detainer – Notice of Action If ICE does not arrive within 48 hours, the jail must release you.8U.S. Immigration and Customs Enforcement. Immigration Detainers
After the transfer, officers run biometric checks, review your criminal history, and confirm whether you fit a mandatory detention category. If the records match, the government issues a Notice to Appear, the formal charging document that starts removal proceedings and places you in detention without bond.
One point often missed: ICE detainers are requests, not orders. ICE itself acknowledges that detainers “don’t impose any obligations on law enforcement agencies.”8U.S. Immigration and Customs Enforcement. Immigration Detainers Several federal appeals courts have held that honoring a detainer without an independent probable cause determination could violate the Fourth Amendment, and many jurisdictions now restrict or refuse cooperation.9Congress.gov. Sanctuary Jurisdictions: Policy Overview Whether a local jail holds you depends entirely on where you are. The practical result is that ICE sometimes cannot pick people up at the jailhouse door, which delays but does not eliminate the government’s ability to detain later.
Why Bond Is Off the Table
In ordinary immigration cases, an immigration judge can set bond starting at $1,500. Mandatory detention removes that option. The statute says people held under § 1226(c) may be released “only if” certain narrow witness-protection conditions are met, and an immigration judge has no power to set bail or grant conditional release.10Justia. Jennings v Rodriguez, 583 US (2018) Arguments about flight risk, community ties, or willingness to wear an ankle monitor do not change the answer.
This is the hardest reality for families to absorb. Someone with U.S. citizen children and decades of lawful presence can be held for the full length of their case, which in contested proceedings can run past a year. The meaningful ways out are winning the underlying immigration case, successfully challenging the classification itself, or reaching the post-removal stage where different rules apply.
Challenging the Classification: The Joseph Hearing
A Joseph hearing is the one procedural tool for challenging whether ICE correctly placed you in mandatory detention. It comes from a Board of Immigration Appeals decision and lets you argue that you do not actually belong in a mandatory detention category.11U.S. Department of Justice. Matter of Joseph, 22 I&N Dec. 799 (BIA 1999)
The burden is steep. You must convince the immigration judge that the government is “substantially unlikely” to prove the charges that placed you in mandatory detention. The judge is not weighing your character, your family, or your chances of winning your overall case. The inquiry is narrow: did the government classify you correctly? If your record clearly shows a qualifying offense, the hearing will not help. These hearings tend to succeed only when there is a real legal dispute, such as when a state conviction does not match the federal definition of an aggravated felony, or when the government charged the wrong ground.
You have the right to hire an attorney, but the government will not provide one. Federal law permits representation “at no expense to the Government,” which in practical terms means many people in mandatory detention navigate their most consequential proceedings without a lawyer.12Office of the Law Revision Counsel. 8 USC 1362 – Right to Counsel
No Periodic Bond Hearings, No Matter How Long It Takes
For years, the Ninth Circuit required the government to give bond hearings every six months for anyone held under mandatory detention. The Supreme Court ended that in 2018. In Jennings v. Rodriguez, the Court held that § 1226(c) does not implicitly require periodic bond hearings regardless of the length of detention.10Justia. Jennings v Rodriguez, 583 US (2018) The statute says detention “must continue” pending a decision on removal, and the Court found no basis for reading a time limit into that language.
You can be held for a year, two years, or longer with no automatic right to have a judge reconsider whether you should remain in custody. Some detainees have filed habeas corpus petitions in federal district court arguing that prolonged detention without a hearing violates due process. Results vary by circuit, and the Supreme Court has not recognized a constitutional floor for how long mandatory detention can last before removal proceedings conclude.
Delayed Arrest Does Not Get You Out
A common misconception is that if ICE does not pick you up immediately when you leave criminal custody, mandatory detention no longer applies. The Supreme Court rejected that argument in Nielsen v. Preap in 2019, holding that the statute applies to anyone who has committed a qualifying offense, regardless of whether ICE arrested them the day of release or months later.13Justia. Nielsen v Preap, 586 US (2019)
Before that decision, some people who had been living in the community for years after finishing their sentences argued they should get a regular bond hearing because ICE had not acted promptly. The Court found that the “when released” language describes the timing of the government’s obligation, not a precondition that limits who qualifies. A qualifying conviction from years ago can still result in mandatory detention with no bond hearing.
What Changes After a Removal Order
Once an immigration judge issues a final removal order, detention shifts to a different framework. The government enters a 90-day “removal period” during which it must physically deport you, and detention during that window is mandatory.14Office of the Law Revision Counsel. 8 USC 1231 – Detention and Removal of Aliens Ordered Removed The 90 days start when the removal order becomes final or when you complete any criminal sentence, whichever comes later. The government uses this window to obtain travel documents and arrange transportation.
What happens when removal stalls was addressed in Zadvydas v. Davis. The Court held that the government cannot hold you indefinitely after a final removal order if deportation is not reasonably foreseeable.15Legal Information Institute. Zadvydas v Davis Six months of post-order detention is presumed reasonable. After that, if you can show there is no significant likelihood of removal in the reasonably foreseeable future, you may be eligible for release.
Release is not automatic. You must affirmatively request it, and ICE evaluates whether removal is still feasible. If released, you are placed under an Order of Supervision (Form I-220B), which requires periodic appearances before an immigration officer, information about your living situation and activities, and compliance with any written restrictions the government imposes.16U.S. Immigration and Customs Enforcement. Order of Supervision (Form I-220B) Conditions often include GPS monitoring through ICE’s Alternatives to Detention program. The removal order remains in effect; if your home country later agrees to take you, the government can re-detain and carry out the deportation.
A Separate Regime for Suspected Terrorists
A distinct statute creates an even more restrictive regime for people the Attorney General personally certifies as suspected terrorists, an authority that can be delegated only to the Deputy Attorney General.17Office of the Law Revision Counsel. 8 USC 1226a – Mandatory Detention of Suspected Terrorists; Habeas Corpus; Judicial Review Once certified, the person must be detained until removed. The government has seven days to either begin removal proceedings or file criminal charges, and failure to do so requires release. The Attorney General must review the certification every six months. Even here, indefinite detention is limited: continued detention beyond six months when removal is not reasonably foreseeable is permitted only if release would threaten national security or public safety.