Do Undocumented Immigrants Have the Right to Bond? Explained.
As a result of Maldonado Bautista v. Santacruz Jr., people in removal proceedings who were denied bond in the past, just because they entered the country without inspection, can once again seek a bond hearing—at least as a matter of federal law.
The court certified a nationwide “Bond Eligible Class” and issued relief stating that class members are entitled to bond hearings. The decision involves undocumented immigrants who entered the U.S. without inspection, were not arrested at the border, and are not in mandatory detention for criminal or other specific reasons.
While the Department of Justice (DOJ) has reportedly told some immigration judges outside the Ninth Circuit to ignore the ruling, advocates and attorneys continue to rely on the court’s order to demand bond hearings and challenge unlawful detention in federal court.
Even though the DOJ has put up a fight, the ruling is binding on the Department of Homeland Security (DHS), not just a suggestion. At its core, this case emphasizes a long-standing principle: people should not be jailed without a chance to ask for release simply because of how they entered the country.
Maldonado Bautista is not the only case pushing back against the government’s attempt to deny bond hearings across the board. In the months since that decision, other federal courts have also rejected ICE policies that treated people who entered the country without inspection as automatically subject to detention with no chance for release.
Judges have repeatedly highlighted that immigration detention must be decided on an individual basis and that people cannot be locked up without an opportunity to ask for bond—even if that right must now be enforced in federal court rather than immigration court.
How can you get a bond as an undocumented immigrant?
1. Request a bond hearing
If the person is eligible, they or their lawyer must ask for a bond hearing with an immigration judge. This usually happens through the immigration court handling the deportation case. Sometimes ICE refuses to allow a bond hearing even when the law supports one, which is why having legal help can be very important.
2. Gather documents for the bond hearing
At the bond hearing, the judge decides whether the person is likely to attend future court dates and whether they pose any danger to the community. Helpful documents can include proof of family in the U.S., how long the person has lived here, work history, a clean or limited criminal record, letters from community members, and a stable place to live.
3. Go to the bond hearing
At the hearing, the judge listens to both sides. The government may argue that the person should remain detained, while the person or their lawyer explains why release is appropriate. The judge then decides whether to grant bond and how much it will be.
4. Pay the bond if it is granted
If the judge grants bond, a family member or friend must pay the bond to ICE before the person can be released. This money is usually returned at the end of the case as long as the person follows all court rules and attends all hearings.
5. Challenge the detention if bond is denied
If bond is denied—or if ICE claims the person is not allowed to ask for bond at all—the detention may still be challenged in federal court through a habeas petition. This allows a federal judge to review whether the government is lawfully allowed to keep the person detained without giving them a chance for release.
Challenging Matter of Yajure-Hurtado
In Matter of Yajure-Hurtado, the Board of Immigration Appeals (BIA) ruled that people who entered the United States without inspection—meaning they crossed the border without being formally admitted—are automatically treated as “applicants for admission” under immigration law.
Because of that label, the BIA concluded that immigration judges do not have the power to grant bond hearings to these individuals at all, no matter how long they have lived in the U.S. or how strong their family and community ties are.
Immigration judges are required to follow BIA precedent, which means Yajure-Hurtado led many judges to continue denying bond hearings. Maldonado Bautista, however, gives detained people a legal foundation to challenge that detention through habeas petitions. When someone is held in immigration detention and told they cannot get a bond hearing, a habeas petition may be their only way to fight back.
A habeas petition is a request filed in federal court asking a judge to review whether the government is lawfully allowed to keep someone detained. Unlike immigration court, which is part of the same system that ordered the detention, federal courts can independently examine whether the law and the Constitution are being followed.
If a judge finds that detention without a bond hearing is unlawful, the court can order the government to provide a bond hearing or release the person altogether.
If you believe that you or a loved one is being unjustly detained, an immigration attorney can help assess whether you are eligible for a bond hearing or federal court relief and take immediate steps to challenge unlawful detention. Acting quickly is essential, as challenging detention early can increase the chances of securing a bond hearing or release.
Even if the steps to get a bond seem easy, things can quickly become complex, so you should still consult a legal professional, if possible, to make your case as strong as possible.
