Can noncitizens be detained prehearing in immigration proceedings and for how long?
Executive summary
Noncitizens can be detained before and during immigration court hearings under a statutory scheme that is both broad and segmented: some categories of people face mandatory detention while others are subject to discretionary detention with possible bond or parole, and actual lengths range from days to years depending on status, litigation, and detention capacity [1] [2] [3]. Courts have imposed constitutional limits on indefinite confinement, but routine practices and enforcement bottlenecks mean many detainees wait weeks or months for hearings and some remain detained well beyond six months [4] [5] [6].
1. What the law authorizes: layered detention rules with mandatory and discretionary tracks
federal law authorizes DHS to detain noncitizens at different stages—on arrival, while a removal decision is pending, and after a final order of removal—with specific statutory hooks that sometimes require detention and sometimes leave it to agency discretion; INA §236(a) allows discretionary detention pending removal, while INA §236(c) prescribes mandatory detention for certain criminal convictions and other categories [1] [2]. The post-order detention statute, 8 U.S.C. §1231, governs detention and removal after a final order and creates a 90‑day removal period during which the government is expected to effectuate removal, though it also contains language preserving detention authority beyond mechanical limits in some circumstances [7].
2. How long “prehearing” detention can practically last: from days to years
practically, noncitizens encountered by CBP or ICE may be held for days or weeks in short-term facilities but many are transferred to ICE custody and held for weeks, months, or even years while their cases proceed; national data show averages in recent years around several weeks (47–50 days), yet numerous detainees are routinely held longer than six months and case studies document average stays measured in hundreds of days in some jurisdictions [3] [5] [6]. For asylum seekers at ports of entry, reports note that a substantial share were held for up to 90 days after passing credible fear interviews, and NGOs contend averages may be higher than official figures [8].
3. Procedural safeguards and release options: bond, parole, custody reviews
detention is not absolute: INA permits bond or parole in many cases and detainees can request immigration-judge custody reviews; ICE also uses alternatives to detention and supervised-release programs, and detainees eligible for bond may ask an immigration judge for a hearing—though mandatory-detention categories can bar bond and agency practice varies by classification [1] [3] [9]. The EOIR process includes “reasonable cause” and continued-detention review hearings when DHS alleges special danger, with decisions and appeals subject to procedural timelines (e.g., remands and 30-day scheduling in certain appeals) but federal statutory and practical barriers limit judicial review of many custody decisions [10] [1].
4. Constitutional and judicial limits: indefinite detention challenged but not eliminated
the Supreme Court and lower courts have pushed back against unfettered indefinite detention, construing statutes to carry temporal limits where necessary to avoid constitutional problems and recognizing that detention must be “reasonably necessary to secure removal,” but the high court’s jurisprudence has not abolished long confinement and left significant room for mandatory detention in certain contexts [4]. Circuit litigation, notably the Ninth Circuit’s rulings and subsequent class actions, produced a six‑month benchmark for automatic individualized bond hearings in some cases, illustrating how litigation shapes when prolonged prehearing detention triggers additional safeguards [11].
5. On the ground: enforcement capacity, transparency, and agendas shaping detention length
bureaucratic constraints—detention-space shortages, the use of local jails, variation in compliance with ICE detainers, and slow asylum adjudications—drive much of the disparity between statutory schemes and experience, producing opaque detention timelines and sporadic oversight battles over access to facilities [12] [13] [6]. Advocacy groups and human-rights bodies argue prolonged detention violates international obligations and often results from policy choices, while government actors point to public-safety and removal-logistics rationales—each side has implicit agendas anchored in enforcement priorities or humanitarian critique that shape how detention duration is portrayed [8] [6].
6. Bottom line
statutorily, yes—noncitizens can be detained prehearing; the legal framework creates mandatory detention for some and discretionary detention for others, with release options available through bond, parole, or custody reviews—but how long detention lasts is context-dependent and ranges from days to months or years in practice, with averages of several weeks reported nationally yet routine occurrences of detention extending beyond six months in many jurisdictions [1] [3] [5] [6].