The Board of Immigration Appeals Clarifies Bond Jurisdiction After a Final Removal Order

Matter of W-F-D-, 29 I&N Dec. 854 (BIA 2026)

On August 25, 2026, the Board of Immigration Appeals ("BIA") issued an important precedential decision clarifying the limits of Immigration Judge authority over custody once a removal order becomes administratively final.

In Matter of W-F-D-, the Board held that Immigration Judges generally lack jurisdiction to conduct a custody redetermination or grant bond after the removal order has become final.

The Case

The respondent, a citizen of the Democratic Republic of Congo ("DRC"), entered the United States without inspection or admission in January 2025. An Immigration Judge later ordered her removed but granted protection under the Convention Against Torture from removal to the DRC.

The respondent did not appeal, and the removal order became administratively final when the appeal period expired.

After more than one year in detention, the respondent requested a custody redetermination from the Immigration Court. The Immigration Judge granted the request and ordered her released on a $1,500 bond. DHS appealed.

The BIA reversed—not because it determined that the respondent necessarily should remain detained, but because the Immigration Judge did not have jurisdiction to conduct the bond hearing in the first place.

The BIA's Holding

The distinction between pre-final-order detention and post-final-order detention is central to the decision.

Before a removal order becomes final, Immigration Judges may have authority under the applicable statutory and regulatory framework to determine whether a noncitizen should remain detained or be released on bond.

Once the removal order becomes administratively final, however, detention is governed by INA § 241(a), rather than the pre-final-order custody provisions.

The BIA specifically relied on the Supreme Court's decisions in Zadvydas v. Davis, 533 U.S. 678 (2001), and Johnson v. Arteaga-Martinez, 596 U.S. 573 (2022). Although Zadvydas recognized a reasonable-time limitation on post-removal-period detention, the Supreme Court did not hold that Immigration Judges have authority to conduct bond hearings for individuals detained under INA § 241(a)(6).

Johnson subsequently confirmed that § 241(a)(6) does not itself require bond hearings before Immigration Judges.

Accordingly, the BIA held that Immigration Judges generally lack jurisdiction to redetermine custody conditions once a removal order becomes administratively final.

The Board identified only a limited exception where DHS itself refers the matter to an Immigration Judge under 8 C.F.R. § 241.14(g) based on special circumstances warranting continued detention.

What This Means for Detained Noncitizens

The practical consequence is significant.

A noncitizen with a final removal order generally cannot return to Immigration Court and request an ordinary bond hearing simply because the person has remained detained for an extended period.

The Immigration Court is not the proper forum for a post-removal-period custody challenge based on the absence of a significant likelihood of removal in the reasonably foreseeable future.

That does not mean, however, that prolonged detention is beyond challenge. The BIA expressly recognized two potential avenues:

• A written custody-review request to DHS under 8 C.F.R. § 241.13; and

• A federal habeas corpus action under 28 U.S.C. § 2241 challenging the legality of continued detention.

Under Zadvydas, once post-removal-period detention reaches six months, a detained noncitizen who provides good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future may trigger an obligation for the Government to respond with evidence addressing that showing.

A Critical Distinction: Final Does Not Mean Remedy-Free

Matter of W-F-D- should not be read to mean that a person with a final removal order has no mechanism to challenge prolonged detention. Rather, the forum and legal mechanism change once the removal order becomes final.

This makes procedural timing especially important. Counsel representing a detained noncitizen should determine immediately whether the removal order is still appealable, whether it has become administratively final, and which statutory detention authority governs the client's custody.

Once the order is final, counsel should not assume that filing a conventional bond motion with the Immigration Court will provide a viable avenue for release.

The appropriate strategy may instead require engagement with DHS's custody-review process and, where warranted, litigation in federal district court.

Bottom Line

Matter of W-F-D-, 29 I&N Dec. 854 (BIA 2026) establishes an important jurisdictional boundary: after a removal order becomes administratively final, Immigration Judges generally lack authority to conduct custody redeterminations or grant bond in post-removal-period detention. 

The decision underscores the importance of identifying the procedural posture of a removal case before pursuing a custody challenge.

For detained individuals with final removal orders, potential relief may remain available through DHS custody review under 8 C.F.R. § 241.13 or federal habeas corpus proceedings, depending on the circumstances.

Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. Immigration detention and removal cases are highly fact-specific. Individuals facing detention or a final removal order should consult qualified immigration counsel promptly.