Can ICE use mandatory detention to deny you a bond hearing?

What the Supreme Court will decide

The Court will decide whether a law requiring detention applies to people who entered without inspection and were arrested inside the country later. Its question presented concerns section 1225(b)(2)(A), which the government says requires detention during removal proceedings for people like Ricardo Aparecido Barbosa da Cunha.

That is a question about which detention law applies, not whether Barbosa da Cunha should be deported. As JURIST reported, the dispute separates people treated as applicants for admission under section 1225 from those whose detention falls under section 1226, which can permit bond.

This case asks about release while an immigration case proceeds. The separate fight over third country deportations concerns where the government can send someone. Both sit within the broader court fights over government power, but an order in one does not automatically answer the other.

For your family, the useful question is whether an immigration judge can consider release while the immigration case continues. Winning access to that hearing would not decide the immigration case itself. An immigration lawyer can assess those two questions separately.

Mandatory detention and a bond hearing are different

Mandatory detention under the law at issue means an immigration judge cannot release the person on bond. Under section 1226(a), a person eligible for bond can ask a judge to review custody and consider release, as the Second Circuit explained.

The difference is the chance to make a case for release. A bond hearing does not mean everyone gets out: the judge still considers danger and flight risk. Under section 1225, the government may grant parole, a separate, discretionary form of release for urgent humanitarian reasons or significant public benefit, according to the government’s petition.

The 2025 policy change reached people already living here

ICE’s July 8, 2025 guidance treated people present without admission as subject to detention without bond, even when they had lived in the U.S. for years. The government’s petition says they are applicants for admission under the statute; the Second Circuit described the change as a break with nearly thirty years of practice.

The government’s argument turns on admission, not simply how long someone has been here. Barbosa da Cunha’s side argues that the detention provisions must be read together and that section 1226(a) covers people arrested later inside the country. Years of residence are central to this story, but they are not, by themselves, a guarantee of bond eligibility.

The Second Circuit expressly kept two other categories outside its ruling: people apprehended while entering or shortly afterward, and people subject to section 1226(c) on specified criminal or terrorism-related grounds. A person’s exact detention provision therefore matters more than a general headline about ICE bond hearings.

A father won a hearing, then release on bond

Barbosa da Cunha obtained release only after a federal court ordered a bond hearing and an immigration judge considered his circumstances. The appeals court’s opinion describes a Brazilian man who entered in 2004 or 2005 and built a life in Massachusetts.

1. He lived with his wife and two U.S.-citizen children and owned his home.
2. He ran a small construction business and had work authorization while his asylum application was pending.
3. He had never been arrested for or charged with a crime.

Why his case reached a court in New York

His detention in Buffalo brought the challenge before a federal court in western New York, even though his home was in Massachusetts. ICE arrested him on his drive to work on September 26, 2025; an immigration judge initially refused a bond hearing.

He challenged detention through a habeas petition, a request for a court to review the legality of custody. The federal judge ordered a hearing or release, and the immigration judge subsequently found he presented no danger or flight risk. The Second Circuit affirmed that result on April 28, 2026.

That sequence is the practical lesson of his case: a family address and a detention address can point to different federal courts. A successful challenge to being denied a hearing is also separate from the judge’s later decision to release someone.

The appeals courts disagree about the same law

The Second Circuit rejected the government’s interpretation; the Fifth and Eighth Circuits accepted it. In September 2026, six Second Circuit judges said their conclusion matched “eight other circuits” when the full court declined to rehear the case.

The Supreme Court’s decision could resolve that disagreement nationally. Until it does, existing rulings and any later orders can affect the legal route available where a person is held. A national news story cannot replace that location-specific assessment.

The dates that brought the case to the Supreme Court

The change began with ICE’s July 2025 guidance and reached the Supreme Court in October 2026. The argument date remains the next missing date.

1. July 8, 2025

   ICE issues its interim guidance on detention of applicants for admission.

2. September 26, 2025

   ICE arrests Barbosa da Cunha while he is driving to work.

3. April 28, 2026

   The Second Circuit affirms his right to a bond hearing under section 1226(a).

4. July 23, 2026

   The government’s Supreme Court petition is docketed.

5. September 25, 2026

   The full Second Circuit declines to rehear the case.

6. October 1, 2026

   The Supreme Court grants review.

What a family can clarify while the case continues

The detention law and the place someone is held are the most useful starting points for a case-specific conversation. The grant of Supreme Court review does not make it necessary to wait for the justices before asking what legal options already exist.

This is general information, not legal advice. Juricue is not a law firm. If you need a lawyer to assess the detention, you can request legal help; contacting Juricue does not create an attorney-client relationship.

1. The detention center and federal court jurisdiction that cover the person’s custody.
2. The statutory provision stated in the custody or bond decision.
3. Whether the person was apprehended near entry or arrested later inside the country.
4. Any criminal or terrorism-related grounds that may trigger a separate detention rule.
5. Existing custody rulings, hearing records and any new orders that affect the case.

What happens next

The next development to watch is the Supreme Court’s argument schedule or a new order in No. 26-104. The Court has not set an argument date; its case docket will record the next step.