This work is filled with disappointment and dead ends – good people who have no immigration options under our broken system and honorable families who lose family members to deportation because an arcane admissions system that stopped working many years ago isn’t being fixed by Congress or the president.
So on days like today, I think it’s okay to take delight in the small victories. To that end, I’m excited to share this order with you that we received yesterday, ordering ICE to release our client from jail in rural Kansas.
Imagine you are here as an international student but run out of money to pay for tuition. ICE arrests you and gets a judge to order you removed. But from a detention center in rural Kansas, despite everything you and ICE have tried, the country they’re trying to deport you to won’t agree to receive you. Do you just sit in jail forever, waiting for the remote possibility that someday they’ll be able to deport you?
Generally ICE has 90 days to try to deport someone once the appeals are over and the order of removal becomes final. This is called “the Removal period” and normally ICE is able to deport the person during this period without much of a problem. But not always.
Sometimes the receiving country refuses to take the necessary steps to get a travel document. Sometimes they genuinely dispute whether the person is even from there, especially if they’ve been in the United States for a lengthy time and had never obtained a passport in their home country.
So, how long can they keep detaining a person? The Supreme Court said in Zadvydas v. Davis that six months is a presumptively reasonable period to know if we’re going to be able to deport someone or not.
If ICE keeps detaining someone beyond that six-month mark and doesn’t have pretty good proof they’re about to be able to deport someone, the solution is to file a Habeas Corpus petition in the federal district court.
And, if all goes well, the court can order the person’s release from custody (at least until a removal plan can be finalized). This is not a long-term solution for an immigrant trying to stay here. He should, of course, pursue anything else he’s eligible for if there are things he can apply for. But, at least in the short-term, the result is that the immigrant gets to go home to his family and sleep in his own bed.