What Is Mandatory Detention Under INA 236(c)?

Most people arrested by ICE inside the United States can ask an immigration judge to set bond. A smaller group cannot. INA 236(c) requires the government to detain, without bond, anyone who is removable on the criminal and security grounds the section lists, for the entire length of their removal proceedings. That can mean many months in custody with no hearing on whether the person is dangerous or likely to flee. This post explains what triggers mandatory detention under INA 236(c), what the 2025 expansion added, and the two ways to challenge it.

What INA 236(c) requires

The section directs the Attorney General to take into custody any noncitizen who falls within its categories when the person is released from criminal custody, and bars release except in narrow witness-protection circumstances. The immigration judge has no authority to set bond for someone properly held under the section. The Supreme Court has upheld the provision against a facial constitutional challenge and has held that the government’s authority does not lapse when ICE waits years after the criminal release to make the arrest. Whether the section applies to a particular person is therefore the whole question, and our immigration detention and bond practice answers it by analyzing every conviction against the statute before anything else.

Offenses that trigger mandatory detention

The categories are defined by reference to the inadmissibility and deportability grounds. A person is subject to mandatory detention if they are:

• Inadmissible under INA 212(a)(2), which covers crimes involving moral turpitude, controlled substance offenses, multiple convictions with a combined sentence of five years or more, drug trafficking, prostitution and related offenses.
• Deportable under INA 237(a)(2)(A)(ii) for two or more crimes involving moral turpitude, (A)(iii) for an aggravated felony, (B) for a controlled substance offense, (C) for a firearms offense, or (D) for certain other offenses.
• Deportable under INA 237(a)(2)(A)(i) for a single crime involving moral turpitude where a sentence of at least one year was imposed.
• Inadmissible or deportable on the terrorism-related grounds.
• Within the categories added by the Laken Riley Act in 2025, discussed below.

Each of these grounds has its own body of case law about which state offenses qualify. A conviction that looks serious on a rap sheet may not fit any of them; a conviction that looks minor sometimes does.

The Laken Riley Act expansion

Signed in January 2025, the Laken Riley Act added a new category to INA 236(c). It applies to people who are inadmissible for being present without admission, for misrepresentation or for lacking valid entry documents, and who have been charged with, arrested for, convicted of, or admit committing burglary, theft, larceny, shoplifting, assault of a law enforcement officer, or any crime that results in death or serious bodily injury. The provision is notable because an arrest or charge alone is enough; no conviction is required. For a person who entered without inspection, a single shoplifting arrest that was later dismissed can now mean detention without bond for the duration of the case. The categorical approach that governs the older grounds does not map neatly onto this new category, and litigation over its scope is ongoing as of this writing.

The Joseph hearing: arguing the section does not apply

A person held under INA 236(c) may ask the immigration judge for a hearing under Matter of Joseph to argue that they are not properly included. The standard is demanding: the person must show that the government is substantially unlikely to prevail on the charge that triggers mandatory detention. In practice this is a legal argument about the conviction. Immigration law uses the categorical approach, which compares the elements of the state offense to the elements of the federal ground without looking at what the person actually did. If the state statute criminalizes conduct broader than the federal ground and is not divisible, the conviction does not qualify, and the person is entitled to an ordinary bond hearing. Certified records of conviction, including the charging document, plea colloquy and judgment, are essential, because the judge may consult them only to determine which part of a divisible statute the person was convicted under. Our post on what happens at a bond hearing covers what follows if the Joseph challenge succeeds.

Prolonged detention and habeas corpus

When the Joseph hearing fails, the remaining challenge is to the length of detention. In Jennings v. Rodriguez, the Supreme Court held that INA 236(c) itself contains no implied limit on how long a person may be held and no requirement of a periodic bond hearing. The Court left open whether the Constitution requires a hearing once detention becomes prolonged, and the federal courts of appeals have reached different answers. In many districts, a person detained for many months without a hearing may file a petition for a writ of habeas corpus under 28 U.S.C. 2241 in the district where they are confined, asking the court to order a bond hearing, often with the burden placed on the government. Courts weigh the length of detention, the reasons for delay, the likelihood that removal proceedings will end soon, and whether the detention facility is in a jurisdiction that has adopted a bright-line rule. Our habeas corpus practice files these petitions, and the broader set of options after a denial is covered in our post on what to do when immigration bond is denied.

What to do in the meantime

While detention continues, the merits case moves on an accelerated detained docket, so the fastest way out is sometimes to win. Three tasks run in parallel. Obtain certified dispositions for every conviction so the categorical analysis can be done properly. Explore post-conviction relief in criminal court where a conviction is legally defective; a vacatur based on a procedural or constitutional defect eliminates the conviction for immigration purposes, while a vacatur granted solely to avoid immigration consequences does not. And prepare the application for relief, whether asylum, cancellation or adjustment, so the immigration judge can decide the case rather than continue it. The overlap between criminal records and immigration consequences is the subject of our post on crimmigration, and our removal defense team handles the detained merits case alongside the custody fight.

If a family member has been told they are not eligible for bond because of a criminal record, the conviction may not trigger mandatory detention at all. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Sena Sahin. Clear advice for individuals, families, and business owners.

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