Recent policies announced by Immigration and Customs Enforcement, new legislation signed into law, and unusual legal interpretations by the Board of Immigration Appeals have all led to a significant uptick in ICE detentions since January 2025. As advocates, our goal in every case where a client is detained is to secure their release, if at all possible. However, in many cases recently, ICE is claiming that the noncitizen cannot legally be released or even get a bond hearing, under a theory that they are subject to “mandatory detention” under the immigration statute. It is, therefore, more important than ever for practitioners to understand mandatory detention and how to challenge its application to individual clients, so that no client who can legally be released remains in ICE custody without at least the opportunity to seek release.
This advisory explains each of the three statutory grounds for mandatory detention, and defenses and strategies that advocates can use to challenge the designation. It discusses the Laken Riley Act of 2025, the BIA’s decisions in Matter of Q. Li and Matter of Yajure Hurtado, and the current state of national litigation challenging ICE’s expansive use of mandatory detention.