Family member detained by ICE in El Paso? Here’s what determines whether they get a bond hearing, what disqualifies someone, and what you need to prepare right now.
If ICE has detained someone you love, you don’t have time to read a law review article. You need to know, in plain terms, what happens next and what you can do about it. Here in El Paso, that question is more urgent than ever, our federal courts saw about 26 immigration habeas cases a year on average before 2025. In 2025 alone, that number jumped to nearly 300, and January 2026 was on pace for even more. Families across West Texas are dealing with this right now, and most of them didn’t see it coming.
Here’s what actually decides whether your family member can get out on bond, and what you need to do to give them the best shot.
Step one: how did they get here?
This is the single most important question, and it decides which legal path applies.
Did they cross the border without being inspected, meaning they came in without going through a checkpoint or presenting to an officer? Or did they enter legally, with a visa, at a port of entry, or with some kind of status, and later fell out of status or overstayed?
These two situations lead to completely different processes.
If they entered without inspection: you need a habeas corpus, not a bond hearing
Here’s the honest answer, and it’s a hard one: if your family member crossed the border without inspection, even if that was 20 years ago, a 2025 immigration appeals decision called Matter of Yajure Hurtado changed the rules. It says immigration judges do not have the power to hold a bond hearing for someone in this situation, period. Not because of their record, not because of their family ties, not because of how long they’ve lived here. The immigration judge’s hands are tied by this decision.
The Fifth Circuit, the federal appeals court that covers Texas, backed this up in a case called Buenrostro-Mendez v. Bondi. So this isn’t a rule that might apply someday. It’s the law right here in El Paso today.
Here’s what this means for you: asking the immigration court for bond in this situation won’t work. Instead, your family member needs to file a habeas corpus petition in federal court, a separate request asking a federal judge to review whether the detention itself is legal.
There’s real hope here, and it’s not theoretical. The Fifth Circuit also ruled, in a case called Sosnava-Rodriguez v. Ortega, that the government cannot hold someone this way indefinitely after 90 days without an individual hearing, that becomes a constitutional problem your attorney can raise in the habeas petition. And we’re seeing this work in practice: one El Paso federal judge alone resolved dozens of these cases in a single month, ordering the government to provide bond hearings in the large majority of them.
If they entered legally or overstayed a visa: you can ask for bond but not everyone qualifies
If your family member came in through a port of entry or on a visa, the immigration court can consider bond. But two things can shut that door completely:
They were deported before and came back. If someone has a prior removal order and reentered the country, that prior order can be reinstated, and when that happens, bond isn’t available. This path is closed.
They have certain criminal convictions. Some convictions trigger what’s called mandatory detention, meaning the law doesn’t give the judge discretion to set bond at all. The category that catches most people by surprise is something called a “crime involving moral turpitude”, a legal term for crimes involving dishonesty or with intent to harm someone. There are real exceptions to this rule for certain types of crimes, but figuring out whether an exception applies takes a careful legal review. This is exactly the kind of thing you should not try to determine on your own.
What you need to prove to get bond
If your family member is eligible for a bond hearing, the judge is going to look at three things.
A sponsor. This is the person who will support your family member if they’re released. Someone here legally, with steady income, and a real relationship to the detained person. Judges strongly prefer a close family member over a friend. The closer the relationship, the better it looks.
Whether they’re a danger to the community. The judge looks hard at any criminal history. A recent arrest counts against someone much more than something from years ago. Charges like DWI or battery are treated seriously and can be a real obstacle. Before you meet with an attorney, get the criminal disposition (the court paperwork showing how a case was resolved) and the police report for anything in their history. Having these ready saves real time and lets the attorney give you a much clearer answer at the first meeting.
Whether they’re a flight risk. This is the one that requires a real conversation with a lawyer, because it depends entirely on your family member’s specific situation. The question the judge is really asking is: does this person have a realistic path to legal status? If so, they have a reason to stay and fight their case instead of running. Some of the paths that can apply include Cancellation of Removal for certain non-permanent residents, Adjustment of Status, or Special Rule Cancellation of Removal. Which one, if any, applies depends entirely on the individual’s history, family, and immigration record.
One thing worth knowing going in: judges don’t just want to hear that someone might qualify for something. They want to see it, ideally an application that’s already been filed. That’s a meaningful head start, and it’s something an attorney can help put in place quickly.
This moves fast: don’t wait to get help
Every part of this, figuring out which path applies, filing a habeas petition, preparing for a bond hearing, runs on a clock, and mistakes here are hard to undo. If you have a family member in ICE detention in El Paso, call Winterberg Law Firm right away. We’re handling these cases in the El Paso and Otero immigration jails, and we can tell you quickly which path applies to your situation and what to do next.
(915) 841-9777 | epimmigrationlawyer.com | El Paso, TX
This post is for general information only and isn’t legal advice for your specific situation. Every case is different, and the details of your family member’s immigration and criminal history matter enormously here. Talk to a licensed immigration attorney as soon as possible.
FAQ
What is a habeas corpus petition in an immigration case? It’s a request filed in federal court, not immigration court, asking a judge to review whether someone’s detention is legal. It’s the path available to people who entered without inspection and can’t get a bond hearing from an immigration judge.
Can someone who crossed the border illegally get bond in El Paso? Not through the immigration court, under current Fifth Circuit law. They may still be able to get released through a federal habeas corpus petition, especially after 90 days in detention.
What crimes disqualify someone from an immigration bond? Certain convictions trigger mandatory detention, most commonly what the law calls “crimes involving moral turpitude.” There are exceptions for some minor or old offenses, but this requires a case-by-case legal review.
How long can ICE hold someone without a bond hearing? For people subject to the no-bond-hearing rule, Fifth Circuit case law says holding someone more than 90 days without an individualized hearing raises a constitutional problem that can be raised in a habeas petition.
