Reviews for Indefinite Detainees
By Kathleen Glynn and Sarah Bronstein*
U.S. Immigration and Customs Enforcement (ICE), the bureau within the Department of Homeland Security (DHS) that houses the Office of Detention and Removal, has ninety days to effectuate the deportation of an individual after removal proceedings are concluded and a final order of removal is entered against the non-citizen. 8 U.S.C. § 1231(a)(1). Detention beyond this period is authorized under certain circumstances. 8 U.S.C. § 1231(a)(6). The 2001 U.S. Supreme Court decision Zadvydas v. Davis held that post-removal-period detention is limited to a period reasonably necessary to effectuate removal from the United States; and found six months from the date of the final order of removal to be presumptively reasonable. 533 U.S. 678 (2001). Furthermore, the Court held it to be unlawful to continue to detain a person who has a final order of removal if it is unlikely the individual’s home country or any third country will accept him or her in the reasonably foreseeable future.
The Zadvydas regulations, which govern the post-order custody review procedure, were promulgated in November 2001. These regulations provide the procedures to be followed in determining whether an individual detainee will be detained or released following the ninety-day removal period.
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* Kathleen Glynn is a 2005 graduate of Boalt Hall School of Law, University of California, Berkeley, and a 2004-2005 intern with Catholic Legal Immigration Network, Inc. Sarah Bronstein is Supervisory Attorney for CLINIC’s Division of Special Projects/National Detention Representation Project. This analysis was edited by Kathleen Sullivan, Director of Special Projects, CLINIC. It was undertaken with the generous support of the Firedoll Foundation as part of CLINIC’s Indefinite Detention Project.