Federal judges are increasingly denying detained immigrants the chance to remain free as their cases wind through the court system, a pattern attorneys say has accelerated under the second Trump administration. This shift stems from a binding Board of Immigration Appeals ruling that has stripped judges of jurisdiction to consider bond for a large share of detained immigrants. If you represent clients in removal proceedings, you need to understand how this precedent now constrains your release arguments.
What changed
The Trump administration shifted its interpretation of who is entitled to a bond hearing. In September 2025, the Board of Immigration Appeals — an administrative court under the Department of Justice that is responsible for interpreting and applying immigration laws — made that shift official by ruling that if someone was not formally admitted or inspected by an immigration officer, immigration judges do not have the jurisdiction to consider or grant bond.
Prior to that ruling, from the mid-1990s until 2025, undocumented immigrants detained by federal authorities, regardless of how they entered the country, were typically entitled to a bond hearing before an immigration judge who would weigh whether that person posed a flight risk or danger to the community. Judges had broad discretion, and U.S. Immigration and Customs Enforcement was able to set an initial bond, which at times would allow detainees to avoid a court appearance.
The administration’s shift began with an ICE directive. A memo issued last year by the acting ICE chief directed immigration judges to stop holding bond hearings for people who “entered without inspection,” meaning they didn’t present themselves to a border official or pass through a designated port of entry. The BIA ruling formalized that interpretation as binding law.
Why it matters
Entry without inspection is one of the most common charges in ongoing immigration cases, according to the American Immigration Council, which found that in 2024, it was used in over 1 million of the 1.76 million immigration cases that year. This means the BIA’s jurisdictional bar applies to a substantial portion of your potential detained client base.
On the ground, this has immediate consequences for your clients and your case strategy:
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No judicial discretion. Even clients with decades of U.S. residence, citizen spouses, U.S.-born children, property ownership, and no criminal history cannot access bond hearings if they entered EWI. Migrants who entered the country without authorization are languishing in detention centers with little practical recourse, even those with longstanding community ties, no criminal records, and pending applications for legal status.
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Widespread denials in practice. The judges are siding more and more with federal prosecutors who argue that immigrants facing deportation pose flight risks or lack legal standing to even receive a bond hearing. Practitioners report that judges in New Jersey immigration courts are denying bond in nearly every case.
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Patchwork federal litigation. Some courts have struck down the no-bond policy as unconstitutional. On Monday, the U.S. 5th Circuit Court of Appeals, which oversees federal cases in Louisiana, Mississippi, and Texas, gave the Trump administration a temporary win on the issue as the full court prepares to hear a challenge to it (a three-judge 5th Circuit panel had previously ruled in favor of bond hearings). This means constitutional challenges remain active, but practitioners in the meantime must operate under the assumption that the BIA ruling is controlling in your circuit.
Way forward
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Map your client’s entry pathway immediately. If your client entered via a port of entry, inspected by an officer, or under a lawful immigration status at entry, you retain your bond-hearing arguments. If entry was EWI, understand that the BIA has eliminated your judge’s jurisdiction, and shift to federal habeas or constitutional challenge strategies in appropriate cases.
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Research circuit splits and pending litigation. Not all circuits have adopted the BIA’s ruling without question. Look for recent federal court decisions in your circuit challenging the no-bond policy on due-process or statutory grounds. The litigation landscape is still evolving.
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Document pretextual flight-risk findings. If a judge denies a hearing on EWI grounds, build a record showing that the prosecutor’s flight-risk argument would have failed under the pre-2025 standard. This preserves appellate arguments about how the categorical bar replaced individualized review.
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Advise clients on realistic timelines and detention conditions. Your detained EWI clients should understand that release pending their hearing is no longer a viable option. Discuss whether they are eligible for stays of removal, other forms of relief (asylum, VAWA, U visa, etc.), and whether an expedited trial would be preferable.
Disclaimer
This article is provided for informational purposes only and does not constitute legal advice. Fola Editorial is a software platform, not a law firm. Immigration law is complex and fact-specific; consult a licensed immigration attorney admitted to practice in your jurisdiction to discuss your case. Policy changes can occur without notice—verify this information against the Board of Immigration Appeals ruling and current published guidance from the Executive Office for Immigration Review (EOIR) before relying on it in client representation.