Mandatory Detention · INA § 236(c)

Held With No Bond Under § 1226(c)? Federal Habeas May Free You.

ICE can jail people with certain convictions and refuse any bond hearing — but whether mandatory detention truly applies, and whether it can continue for months, are questions a federal judge can decide on habeas.

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If ICE says you must be held with no bond because of a criminal conviction, it is invoking INA § 236(c) (8 U.S.C. § 1226(c)) — the “mandatory detention” statute. It requires the government to detain certain noncitizens who are removable on criminal grounds — aggravated felonies, crimes involving moral turpitude, controlled-substance offenses, firearm offenses, and a few others — and, unlike ordinary custody under § 236(a), it means no bond hearing before the immigration judge.

Mandatory detention is not automatic-forever. Whether § 236(c) actually applies to you — and whether it can keep applying after months in custody — are questions a federal court can decide on habeas.

Are you even covered by § 1226(c)?

Mandatory detention applies only if your specific conviction is one of the enumerated triggers. Immigration law defines those categories narrowly and technically — the everyday name of an offense often does not match its immigration classification. In immigration court you can request a Joseph hearing (from Matter of Joseph) to argue you are not properly included in § 236(c); if the government is substantially unlikely to sustain the charge, you become eligible for a regular § 236(a) bond hearing.

Detained for months with no bond hearing?

In Jennings v. Rodriguez, 583 U.S. 281 (2018), the Supreme Court held that § 1226(c) does not itself require periodic bond hearings — but it expressly left open whether prolonged mandatory detention violates the Due Process Clause. Demore v. Kim, 538 U.S. 510 (2003), had upheld § 1226(c) only for the “brief period necessary” for removal proceedings. When detention drags on well past that, federal courts — on a habeas petition under 28 U.S.C. § 2241 — can order an individualized bond hearing. The analysis is as-applied: how long you have been held, why the case has stalled, and how likely removal actually is.

When a habeas petition makes sense

  • ICE labeled an old or minor conviction a mandatory-detention trigger that may not qualify
  • You were picked up long after finishing your criminal sentence (a “when released” timing dispute under Nielsen v. Preap)
  • Your § 1226(c) detention has become prolonged, with no hearing and no end in sight
  • The immigration judge denied a Joseph hearing or decided it wrongly

Held under a different authority? If you were denied a bond hearing after entering without inspection, see bond hearing denied & habeas. Detained after a final removal order, see the Zadvydas 6-month rule. For the underlying bond process, see our Florida immigration bond hearing guide, and for the criminal-immigration side, crimmigration defense.

File your habeas petition in the right court

District of ColumbiaMiddle District of FloridaNorthern District of FloridaSouthern District of FloridaWestern District of Texas

Frequently asked questions

Yes. Two ways: a Joseph hearing before the immigration judge to argue your conviction doesn't actually trigger § 236(c) mandatory detention, and — if that fails or your detention drags on — a federal habeas petition under 28 U.S.C. § 2241. If mandatory detention doesn't properly apply, you're entitled to a § 236(a) bond hearing.
From Matter of Joseph: a hearing where you argue you are not 'properly included' in mandatory detention. If the government is substantially unlikely to prove the charge that makes detention mandatory, the immigration judge must give you a regular bond hearing.
Maybe not. Jennings v. Rodriguez (2018) said § 1226(c) has no automatic hearing clock, but left open that prolonged mandatory detention can violate due process. Demore v. Kim upheld it only for the brief period normally needed for removal proceedings. When detention becomes prolonged, a federal habeas petition can seek an individualized bond hearing.
The government usually says yes. In Nielsen v. Preap (2019) the Supreme Court held the 'when released' language doesn't limit mandatory detention to immediate post-release arrests. But timing and classification are fact-specific, and a habeas court can review whether the statute really reaches your case.

Schedule a Consultation

If ICE is holding you with no bond because of a conviction, we can evaluate a Joseph hearing and a federal habeas petition right away.

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Attorney Advertising. General information, not legal advice, and does not create an attorney–client relationship. This is a fast-moving area of law; outcomes depend on the facts of each case.