I have a final order of removal but ICE cannot deport me — when do they have to release me?

2 min read · May 17, 2026

Under Zadvydas v. Davis, ICE has a 6-month presumptive limit on post-final-order detention, and after that the burden shifts to the government to show removal is significantly likely in the reasonably foreseeable future.

Zadvydas v. Davis, 533 U.S. 678 (2001), is one of the most useful detention cases for immigration practitioners. It holds that the post-removal-period detention statute, INA § 241(a)(6), does not authorize indefinite detention — it permits detention only as long as removal is reasonably foreseeable.

The 6-month rule

The Supreme Court adopted a 6-month presumptive period. For the first 6 months after a final order, continued detention is presumptively lawful while ICE attempts to remove. After 6 months, the detainee can shift the burden by providing "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." The government must then either rebut that showing or release.

What "good reason" looks like

Practical evidence we have used successfully:

Clark v. Martinez extension

Clark v. Martinez, 543 U.S. 371 (2005), extended Zadvydas to inadmissible noncitizens (arriving aliens, those ordered removed from the border). This was important because the government initially argued that inadmissible detainees had no constitutional liberty interest. The Court rejected that statutory split.

Procedure: POCR first, then habeas

ICE's regulations at 8 C.F.R. § 241.13 provide for Post-Order Custody Reviews at 90 days and 180 days. We always file substantive POCR submissions first. If POCR results in continued detention beyond 6 months without a meaningful pathway to removal, that POCR denial becomes the record for the habeas petition.

What relief looks like

The remedy is supervised release — the detainee is released under an Order of Supervision, must check in with ICE, and may have reporting and travel conditions. The removal order remains; the detention ends.

How we handle this

We calendar the 6-month Zadvydas date the day a final order issues. We build the POCR record affirmatively — letters to the consulate, evidence of country conditions, ICE's own pattern of inaction. When the 6 months pass without a viable removal plan, we file the habeas petition in the district of detention with the full POCR record attached. Most cases settle into release within 30–60 days; we have very rarely had to litigate to final order.

Frequently asked questions

What is a Request for Evidence (RFE) in a marriage case?

A Request for Evidence is a formal letter from USCIS asking for more documentation to support your marriage green card application. This often happens if the initial evidence of your marriage or your sponsor's income was insufficient. You must respond by the deadline listed in the letter to avoid a denial of your case.

How do I prove my marriage is real to the government?

You can prove your marriage is genuine by providing documents that show you share a life together. Common examples include joint bank statements, lease agreements with both names, photos of your wedding and trips, and birth certificates of any children. The officer at the interview will review these items to ensure the relationship is legitimate.

What happens if the sponsor does not make enough money?

If the primary sponsor does not meet the income requirements based on the poverty guidelines, a joint sponsor can be used. A joint sponsor must be a U.S. citizen or permanent resident who lives in the United States and is willing to accept financial responsibility for the applicant. They will need to provide their own Affidavit of Support and financial records.

Can I travel outside the United States while my green card is pending?

You should not travel outside the United States while your adjustment of status application is pending unless you have received an Advance Parole travel document. Leaving the country without this document can result in the government considering your application abandoned. It is always best to wait for the proper travel authorization before making international plans.

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