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The landscape of bond hearings in U.S. immigration courts has undergone a severe transformation over the past five years. Bond grant rates plummeted from 46% in fiscal year 2020 to just 25% in the early months of fiscal year 2025, according to data compiled by the TRAC Immigration Project at Syracuse University. Behind this decline lie structural changes in the profile of immigration judges, new ICE directives, and recent Board of Immigration Appeals precedents that have reshaped who has the right to their day in court.
How Bond Hearings Work
When a non-citizen is detained by Immigration and Customs Enforcement (ICE), the general rule is that they are entitled to a bond hearing before an Immigration Judge (IJ) under INA 236(a). At that hearing, the judge evaluates two primary factors: whether the person poses a flight risk and whether they present a danger to the community. If both factors are resolved in the negative, the judge may release the detainee upon payment of a bond, with a statutory minimum of $1,500.
The right to bond, however, is statutory and selective. INA 236(c) mandates detention for immigrants with certain criminal convictions, including certain crimes involving moral turpitude and offenses related to controlled substances. In those cases, the judge has no authority to grant bond, regardless of the detainee’s family or community ties.
The Collapse of Grant Rates
The decline in approvals has multiple causes. From 2015 to 2023, the number of immigration judges nearly tripled, and a significant portion of new appointments came from careers in the U.S. Attorney’s Office, ICE, and other law enforcement agencies. Studies by the American Immigration Lawyers Association (AILA) and TRAC show a consistent correlation between a magistrate’s professional background and more restrictive rates in bond, asylum, and cancellation of removal decisions.
On top of this institutional transformation, 2025 brought an additional layer of regulatory changes. ICE issued an internal directive reinterpreting INA 235 to argue that anyone who entered the United States without formal inspection is not subject to an IJ’s authority for a bond hearing. The practical consequence was the exclusion of a large segment of the detained immigrant population from access to the courts.
The Matter of Yajure-Hurtado Precedent
In 2025, the Board of Immigration Appeals cemented ICE’s position in a precedential decision. Matter of Yajure-Hurtado stripped immigration judges of the authority to grant bond to individuals who entered without inspection, classifying those situations as mandatory custody under INA 235(b)(1). A parallel decision, Matter of Q. Li, extended the interpretation to other categories of detainees.
The cumulative effect is dramatic. Thousands of detainees — including asylum seekers with credible fear findings, long-term residents, and parents of U.S. citizens — lost the right to even request release while their cases are pending in immigration court. Detention periods that once ranged from weeks to months have stretched to a year or more, even for individuals with no criminal history.
Habeas Corpus as an Alternative Path
Against this backdrop, the federal habeas corpus instrument has returned to the center of defense strategy. Petitions filed in U.S. District Courts — particularly in the circuits of California, New York, and Massachusetts — have been obtaining favorable rulings based on two main arguments: violation of Fifth Amendment due process and a statutory interpretation that diverges from the BIA’s position.
In several cases, federal judges have ordered the government to hold a bond hearing within short deadlines, typically seven days, or have ordered the immediate release of the detainee. Decisions from the Northern District of California and the Eastern District of New York have expressly rejected the Yajure-Hurtado interpretation when applied to long-term residents or asylum seekers with established family ties in the United States.
A habeas petition requires demonstrating that custody violates the law or the Constitution, and the proper venue is the federal district court where the detainee is physically held. For this reason, the place of detention — often determined by unilateral ICE transfers — directly affects the chances of success.
Most Affected Categories of Detainees
The tightening disproportionately affects certain groups. Asylum seekers who crossed the border without a visa, even those who immediately presented themselves to authorities, are treated as mandatory detainees. Migrants with pending cancellation of removal cases, who historically secured bond by demonstrating strong ties to the United States, have also lost access to the process. Meanwhile, holders of expired TPS and former DACA beneficiaries without an approved renewal are among the categories with the highest number of habeas grants in 2025 and 2026.
Alternatives to Detention
Alongside litigation, ICE’s Alternatives to Detention (ATD) program remains operational. Under this program, a detainee may be monitored via electronic ankle bracelet, a check-in app (SmartLINK), or telephone supervision while their case proceeds. The average daily cost of ATD is approximately $8 per person, significantly lower than the approximately $152 per day for detention in ICE-operated facilities, according to recent Department of Homeland Security budget figures.
Even so, admission to ATD is discretionary and has been applied inconsistently in 2025 and 2026. Advocates recommend simultaneously filing a bond request, a request for ATD enrollment, and, where applicable, a habeas corpus petition — maximizing all available paths to release.
What to Expect in the Coming Months
The conflict between the BIA and federal district courts remains unresolved. No Circuit Court of Appeals has issued a decision definitively upholding or rejecting the Matter of Yajure-Hurtado interpretation. In the meantime, the geographic fragmentation of decisions creates significant inequality: the same detainee profile may have a right to bond in San Francisco and no such right in El Paso.
For immigrants in vulnerable situations, the consistent advice from specialized attorneys is twofold. First, avoid contact with law enforcement systems that could trigger ICE custody, by keeping documentation current and complying with all court appearance obligations. Second, in the event of detention, act within the first 48 hours to identify the competent federal venue, gather evidence of community ties, and assess the viability of habeas corpus in addition to a conventional bond request.
Victoria Harper
Editor-in-Chief
Leading journalism and editorial content at Visto n’ Visa, Victoria helps make immigration topics clear, trustworthy, and easy to understand. Her focus is on delivering useful, human, and relevant content for people exploring new paths abroad.
