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

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:

• Country-of-removal will not accept the traveler — diplomatic notes from the consulate, unanswered travel-document requests, statelessness.
• Travel document is repeatedly denied — pattern of consular non-issuance.
• Country has no functioning government — failed-state designations, advisory bulletins.
• ICE's own conduct — long gaps between custody reviews, lack of substantive removal effort.

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.