Deportation Order, but No Deportation - What happens when Immigration cannot deport someone?

There are many instances where the Department of Homeland Security, through Immigration and Customs Enforcement (ICE), has successfully received a Removal (deportation) order from a judge to deport someone, but for one reason or another, ICE has not been able to remove them from the United States. This often happens when the person's home country is not willing to take them back.

So, how long can ICE hold the person? Forever? Thankfully, no.

The United States Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), set the rules for how long ICE may keep someone detained who they cannot deport. In Zadvydas, the Supreme Court determined that Immigration may detain someone after entry of a final removal order for a period of time that is "reasonably necessary" to accomplish the alien's removal from the United States. Zadvydas, 533 U.S. at 699-700.

The court explained that the judges must, "ask whether the detention in question exceeds a period reasonably necessary to secure removal." Zadvydas, 533 U.S. at 699. Reasonableness must be measured in light of "the statute's basic purpose" of facilitating removal. Zadvydas, 533 U.S. at 699. Where removal is not "practically attainable," immigration detention does not "bear a reasonable relation to the purpose for which the individual was committed." Zadvydas, 533 U.S. at 690. Thus, the Court instructed that "if removal is not reasonably foreseeable, the court should hold continued detention unreasonable, and no longer authorized by statute. Id.

Since Zadvydas, the Supreme Court has repeatedly held that the Due Process clause permits detention of noncitizens pursuant to the general immigration detention statutes only if that detention "bears a reasonable relation to the purpose for which the individual was committed." Demore v. Kim, 538 U.S. 510, 530 (2003); see also Clark v. Martinez, 543 U.S. at 384.

So, what does this mean in the real world? Typically, if a judge issues a removal / deportation order and ICE cannot remove the person within 90 days, ICE should evaluate whether the person should be released from custody - although this is rarely the case in our experience.

But once we reach the six month mark, the argument to be released becomes much stronger. If ICE still refuses to release the detainee, it may be appropriate to seek relief from a Federal Court through a Writ of Habeas Corpus.