Trump Bond Rule Leaves More People Stuck in Immigration Custody Indefinitely

After Immigration and Customs Enforcement arrested a man who was filling up at a gas station in El Monte, California, the agency sent him to Otay Mesa Detention Center in San Diego, his attorney said in court.

The man had been in the U.S. since 2001, his attorney said. He and other people in this story with pending immigration proceedings are not being identified due to safety concerns.

Prior to President Donald Trump’s return to office, the man would likely have qualified for a bond as long as he had no significant criminal history, meaning that an immigration judge could set an amount for him to pay to be released from custody while his case proceeded. 

But since May 15, a published decision from the Board of Immigration Appeals has dramatically changed the rules for bond hearings, leaving many stuck in detention for indefinite periods of time.
 

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“It expanded the number of people who were not entitled to bond hearings in front of an immigration judge,” said Ginger Jacobs, a San Diego immigration attorney.

Many, under pressure from ICE officers and weary of conditions in custody, have decided to give up their cases and accept deportation.

One man who was recently released from custody told Capital & Main during an interview that the night before his bond hearing, ICE came to him and pressured him to give up. 

“They said, ‘Sign, and you’ll get out of here early tomorrow,’” he said.

ICE did not respond to a request for comment.

In July, the man arrested in El Monte sat for a bond hearing in a courtroom at the San Diego detention center while Immigration Judge Guy Grande appeared on a television screen. 

Grande opened with a question: “Do I have jurisdiction?”

He was asking whether he was even allowed to hold a bond hearing for the man.

ICE attorney Jonathan Grant immediately brought up the Board of Immigration Appeals decision, known as the Matter of Q. Li.

U.S. law separates people apprehended by immigration officials into several categories, two of which are significant to the decision. 

First, there are those who are “arriving,” meaning they’re in the process of entering the U.S. For example, people coming to a port of entry to request asylum who don’t have visas or other entry documents would be considered arriving. People who are arriving generally do not qualify for bond hearings under immigration law.

Second, there are people who are “present” in the U.S. without inspection. Historically, someone who crossed the border and was later apprehended on U.S. soil would generally be considered present and could seek a bond hearing.

But that’s now changing with the Q. Li decision.

In that case, Border Patrol apprehended Q. Li, a woman from China, shortly after she crossed into the U.S. in June 2022, according to court records. Li was about 100 yards north of the border at the time. 

The Department of Homeland Security released her the next day on parole with the condition that she check in periodically with ICE, according to court records. 

In October 2024, Interpol told the department that the woman was wanted in Spain for travel document forgery and human smuggling, court records say. Officers arrested her and began an immigration case against her. A judge denied her bond. Li appealed.

The Board of Immigration Appeals decided that Li should not have a bond hearing at all. (The outcome of Li’s immigration case is unclear.)

The decision says that people initially apprehended soon after crossing the border should not have a right to bond hearings even if they were paroled into the U.S. after that initial apprehension, according to immigration attorney Kevin A. Gregg, who runs the Immigration Review Podcast. 

The decision has meant that many of the people whom ICE arrested after immigration court hearings have not been able to request bond to get out of custody, Gregg said.

“What you’re doing is taking thousands of people, if not more, pursuing cases in nondetained proceedings and putting them in detained proceedings for no other reason than to fill private prisons and make it more difficult to bring cases,” Gregg said. “And people give up because being detained for months and years is a very harsh thing.”

Gregg said one of the issues with the decision is that it doesn’t define how close to the border or how soon after crossing the border the apprehension has to happen in order to trigger mandatory detention. 

Both Gregg and Jacobs said that ICE attorneys are incorrectly pushing to use the Q. Li decision to take bond hearings away even from people who have been in the U.S. for years and were not initially apprehended when they crossed into the country. 

“I don’t see that in the case,” Jacobs said.

But ICE isn’t always winning its arguments. In July an ICE attorney argued that the Q. Li decision should apply in another case before Judge Grande, this time regarding a man from Vietnam who had been arrested after an immigration court hearing.

But Matthew Springmeyer, an attorney representing the man, argued that both his initial parole paperwork after crossing the border with CBP One — a phone app that the Biden administration used to schedule asylum seekers to come to ports of entry — and the warrant issued for his arrest after an immigration court date referred to the part of immigration law for people present in the U.S., not people who are arriving.

“The government is trying to go back in time and change its own process,” Springmeyer said. “They can’t walk that back now.”

Grande decided he had the authority to make a bond decision.

He asked the ICE attorney whether the man was a danger to the community or a flight risk, the two reasons why someone can be held in immigration detention, which is civil rather than criminal custody.

The ICE attorney said the Vietnamese man had no criminal history. She argued that he was a flight risk because his immigration case was dismissed, though the man had appealed that decision.

Grande reasoned that prior to the man being detained, he was showing up to his court hearings and granted the man a bond of $3,000. 

One of the factors that the Board of Immigration Appeals used in the Q. Li decision to distinguish between who should be mandatorily detained and who should get bond hearings is whether the arrest involved a warrant, according to Gregg. Someone initially arrested with a warrant is considered present while someone arrested without a warrant might be arriving.

(Border officials and ICE can make arrests without judicial warrants, but they cannot force their way into homes to make those arrests without judicial warrants.)

But many of the people swept up in recent ICE raids around the country are arrested without warrants because officials are using tactics including racial profiling to stop people they believe to be undocumented.

In the case of the man arrested in El Monte, Grande noted that there was no warrant for the man’s arrest. 

He asked if the attorney representing the man wanted time to write a brief on whether Q. Li applied in his case. He told the attorney that in his initial take, the decision would apply.

“The way I read Q. Li is pretty expansive,” Grande said.

In the end, the attorney withdrew the bond request to try to figure out how to better present the case. 

In late July, according to immigration court records, the man gave up his case and asked to leave voluntarily.

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