Detention after a final order of removal: the Zadvydas six-month rule

The 90-day removal period

Under 8 U.S.C. § 1231(a), once a removal order becomes final the government has a 90-day “removal period” to carry it out, and detention during that window is generally mandatory. After the 90 days, the statute allows continued detention of certain people, but it does not authorize detention forever.

What Zadvydas v. Davis held

In Zadvydas v. Davis (2001), the Supreme Court read the post-removal-order detention statute to permit detention only for a period reasonably necessary to bring about removal. To give lower courts a workable rule, the Court recognized six months as a presumptively reasonable period.

After six months, if the detained person provides good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing. As time passes, what counts as the “reasonably foreseeable future” shrinks. If the government cannot meet its burden, continued detention is no longer authorized, and the person should be released, typically under an order of supervision with reporting conditions.

Building a Zadvydas petition

These petitions turn on evidence about the real prospects of removal. Useful facts include:

• how long the person has been held since the order became final;
• records of requests for travel documents and the foreign government’s responses or silence;
• whether the country has a history of refusing or delaying repatriation;
• whether the person is stateless or their nationality is disputed;
• the person’s cooperation with ICE’s efforts to obtain documents.

Cooperation matters. Courts are far less receptive when the delay is caused by a detainee’s refusal to assist with travel documents, so a petition should show that the obstacle lies with the government or the foreign country, not with the petitioner.

A related limit: no automatic bond hearings

In Johnson v. Arteaga-Martinez (2022), the Supreme Court held that the post-removal-order statute does not itself require bond hearings after six months. That decision did not overrule Zadvydas. The Zadvydas framework — release when removal is not reasonably foreseeable — remains the principal habeas tool for people stuck in custody after a final order.

Frequently asked questions

Related guides

• DetentionProlonged immigration detention and the habeas remedy
• Filing a PetitionHow to file a habeas corpus petition for immigration detention
• Filing a PetitionWhat happens after you file a habeas corpus petition