Should you or a loved one be subject to ICE detention, after an order of removal became final, please be advised in June 2001, the United States Supreme Court issued Zadvydas v. Davis, a decision with tremendous significance.  The Court ruled that the indefinite detention of removable aliens is not allowed when the alien is unlikely to be removed in the reasonably foreseeable future.  For people who have entered the United States, the Court recognized that ICE generally cannot detain an alien for longer than six months after the issuance of a final removal order.

The Court ruled that, after six months of post-removal order detention, if the alien can provide good reason to believe that she is unlikely to be removed in the reasonably foreseeable future, and ICE cannot provide evidence showing otherwise, the alien must be released.

Thus, to be eligible for release pursuant to Zadvydas, you must be under a final order of removal.  After an immigration judge has ordered removal, the judge's order becomes final when: (1) appeal is waived; (2) the 30 day time period to initiate an appeal expires; (3) the appeal is dismissed by the Board of Immigration Appeals or (4) the Board of Immigration Appeals decides to uphold the removal order.  Moreover, you must have been admitted to the United States (such as you were a legal permanent resident, a visa-holder, an alien admitted as an overseas refugee, or you entered illegally prior to 1996).  Finally, there is not significant likelihood that you will be removed from the United States in the reasonably foreseeable future.  Chances of being able to show this are greater if you are stateless, you are from a country which has not repatriation agreement with the United States (such as Cuba) or you have been detained by ICE for longer than six months after your removal order becomes final and you have reason to believe your removal will not take place in the near future.

The Zadvydas holding was extended to inadmissible aliens by the Court in Clark v. Martinez on January 12, 2005.  The Court reasoned that even if the statutory purpose and constitutional concerns influencing the Zadvydas construction are not present for inadmissible aliens, that cannot justify giving the same statutory text a different meaning depending on the characteristics of the aliens involved.  The same six-month presumptive detention period applies in these cases.

Release is not automatic, however.  You face a potentially multi-step administrative process with ICE as well as litigation in federal court should ICE continue to detain you.