Criminal Defense of Immigrants


§ 6.42 5. Indefinite Detention

Skip to § 6.

For more text, click "Next Page>"

The Attorney General is required to detain noncitizens subject to a final order of removal during a 90-day “removal period.”[1]  This period begins on the date the removal order becomes administratively final, or, if appealed to federal court, on the date the court issues the final order.[2]  If the noncitizen is incarcerated, the period could also begin on the date that s/he is released from incarceration.[3]  Once this period begins, s/he will be taken into custody pursuant to the warrant of removal.[4]  Any bond that has been posted will be canceled unless it has been breached.[5]  During the removal period, the DHS may not release any person with a final order of removal who has been found inadmissible under criminal and related grounds[6] or terrorist[7] activities.[8]  Similarly, the DHS may not release anyone with a final order who has been found deportable under criminal offenses[9] or terrorist activities.[10]

                If the person is not removed from the United States within the 90-day removal period, the statute provides for release subject to an order of supervision.[11]  However, the regulations shift the burden to the noncitizen to establish eligibility for an order of supervision.  They provide that the Attorney General may continue to detain noncitizens beyond the 90-day removal period unless they demonstrate to the district director’s satisfaction that they are likely to comply with the removal order and are not a risk to the community.[12]


                In Zadvydas v. Davis,[13] however, the United States Supreme Court found insufficient evidence of congressional intent to authorize indefinite detention of noncitizens subject to a final order of removal where there is no repatriation agreement with their home country.  For these so-called “lifers,” often from Cuba, Vietnam, and Eritrea, among others,[14] indefinite detention is now only permissible for six months after the final order of removal, unless there is evidence that a repatriation agreement will be reached in the foreseeable future.  Federal courts have habeas power to order release on conditions after a reasonable period when removal is not reasonably foreseeable.  At least one circuit court has held after Zadvydas that periodic review of indefinite detention satisfies due process.[15] 


                Although the Zadvydas decision itself dealt only with noncitizens that had been admitted to the United States and subsequently ordered removed,[16] the United States Supreme Court has extended this holding to noncitizens subject to removal from the United States on grounds of exclusion or inadmissibility proceedings.[17]


Inadmissible noncitizens or those who committed certain criminal offenses must meet a higher burden before they are released after this removal period.  These include persons who are inadmissible under INA § 212(a) or deportable under the following grounds: INA § § 237(a)(1)(C) (violated nonimmigrant status or condition of entry); 237(a)(2) (certain criminal convictions); or 237(a)(4) (security and related grounds).[18]  These inadmissible or deportable noncitizens may be detained beyond the 90-day removal period if they present a “significant risk of noncompliance with the order of removal.”[19]  They may be held until they demonstrate by clear and convincing evidence that their release would not pose a danger to the community or a significant flight risk.[20]


                On February 20, 2003, the Deputy Attorney General issued a memorandum regarding the 90-day removal period:


The Immigration and Nationality Act by its terms grants the Attorney General a full 90 days to effect an alien’s removal after the alien is ordered removed under section 241(a) of the Act, and it imposes no duty on the Attorney General to act as quickly as possible, or with any particular degree of dispatch, within the 90-day period. This reading of the Act raises no constitutional infirmity. It is permissible for the Attorney General to take more than the 90-day removal period to remove an alien even when it would be within the Attorney General’s power to effect the removal within 90 days. The Attorney General can take such action, however, only when the delay in removal is related to effectuating the immigration laws and the nation’s immigration policies. Among other things, delays in removal that are attributable to investigating whether and to what extent an alien has terrorist connections satisfy this standard.[21]


As expected, the Attorney General interprets the 90-day period as flexible.  The immigration authorities may also give lack of cooperation by the detained noncitizen as a reason for any delay or for refusing to release the noncitizen.[22]


There may be new hope, however, for persons granted withholding or deferral of removal who would ordinarily be subject to mandatory and indefinite detention.  The INS released a memo from former INS General Counsel Bo Cooper, dated April 21, 2000, stating that if the INS is not “actively pursuing” a noncitizen’s removal, the noncitizen is not subject to mandatory detention and could be released from detention.  Noncitizens who have been granted withholding or deferral of removal to a specific country come within this category, unless the DHS is actively pursuing their removal to some third country.  The agency decision whether to release such a person must take into consideration “all appropriate factors, including whether the alien poses a threat to the community or flight risk.”[23]


                Under a recent regulation, the DHS is required to notify certain countries with treaty relations if a noncitizen from those countries is taken into DHS custody.[197]

[198] INA § 241(a)(2), 8 U.S.C. § 1231(a)(2); 8 C.F.R. § 241.3(a).  The removal period is defined in INA § 241(a)(1), 8 U.S.C. § 1231(a)(1).

[199] INA § § 241(a)(1)(B)(i), (ii), 8 U.S.C. § § 1231(a)(1)(B)(i), (ii).

[200] INA § 241(a)(1)(B)(iii), 8 U.S.C. § 1231(a)(1)(B)(iii).

[201] 8 C.F.R. § 241.3(a).

[202] 8 C.F.R. § 241.3(b).

[203] INA § 212(a)(2), 8 U.S.C. § 1182(a)(2).

[204] INA § 212(a)(3)(B), 8 U.S.C. § 1182 (a)(3)(B).

[205] INA § 241(a)(2), 8 U.S.C. § 1231(a)(2).

[206] INA § 237(a)(2), 8 U.S.C. § 1227(a)(2).

[207] INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B).

[208] INA § 241(a)(3), 8 U.S.C. § 1231(a)(3).  The statute provides that these noncitizens “shall be subject to supervision under regulations prescribed by the Attorney General.”

[209] 8 C.F.R. § 241.4(b).

[210] Zadvydas v. Davis, 533 U.S. 678 (2001).

[211] China has recently started refusing to allow repatriation, in some cases, in protest of United States asylum laws relating to China’s one-child policy.

[212] Hoyte-Mesa v. Ashcroft, 272 F.3d 989 (7th Cir. 2001).

[213] Subsequent cases agree that the transitional rules under IIRAIRA § 309 do not apply to noncitizens placed into proceedings prior to April 1, 1997.  Seirra v. Romaine, 347 F.3d 559 (3d Cir. Oct. 29, 2003); Martinez-Vazquez v. INS, 346 F.3d 903 (9th Cir. Oct. 1, 2003) (INA § 241(a)(6), 8 U.S.C. § 1231(a)(6) applies to inadmissible noncitizens ordered excluded prior to April 1, 1997).

[214] Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716 (Jan. 12, 2005).

[215] INA § 241(a)(6), 8 U.S.C. § 1231(a)(6).

[216] INA § 241(a)(6), 8 U.S.C. § 1231(a)(6); 8 C.F.R. § 241.4(a).

[217] Ibid.

[218] See DOJ Memorandum Opinion online (visited Sept. 15, 2004) at:

[219] Lema v. INS, 341 F.3d 853 (9th Cir. Sept. 2, 2003) (removable noncitizen who refuses to cooperate fully in securing travel documents from foreign government cannot meet burden of showing no significant likelihood of removal in the foreseeable future, and such noncitizen’s continued detention is authorized).

[220] The memo is reproduced in 77 interpreter releases 1445 (Appendix I) (Oct. 9, 2000), and available from AILA InfoNet.

[197] Consular Notification for Aliens Detained Prior to an Order of Removal: ICE Final Rule, Fed Reg. Vol. 72, No. 10, 1923 (Jan. 17, 2007) (“This final rule amends the Department of Homeland Security (DHS) regulations governing the detention of aliens prior to an order of removal. The rule updates the list of countries in 8 CFR 236.1(e), which, based on existing treaties, requires immediate communication with consular or diplomatic officers when nationals of listed countries are detained in the United States. The rule adds Algeria, Tunisia, and Zimbabwe to the list of countries and removes Albania and South Korea from the list of countries. In addition, the rule clarifies provisions related to treaties that the United States has with China, Hong Kong, and Poland. Finally, the rule updates the list with Antigua and Barbuda’s official name and by adding clarifying language about provisions governing U.S.S.R. successor states. DATES: This final rule is effective January 17, 2007.”).



First Circuit

Reid v. Donelan,___ F.3d ___, 2016 WL 1458915 (1st Cir. Apr. 13, 2016) (migrants subjected to unreasonable detention through INA 236(c) are entitled to an individualized bond hearing; Fifth Amendment Due Process Clause does not require DHS to bring all detainees before an immigration judge for a bond hearing once they have been locked up for six months). Note: Every federal court of appeals to examine the mandatory detention statute, INA 236(c), 8 U.S.C. 1226(c), has recognized that the Due Process Clause imposes some form of reasonableness limitation upon the duration of detention that can be considered justifiable under that statute. See Reid v. Donelan, supra; Lora v. Shanahan, 804 F.3d 601, 606 (2d Cir.2015); Rodriguez v. Robbins, 715 F.3d 1127, 1138 (9th Cir.2013); Diop v. ICE/Homeland Sec., 656 F.3d 221, 232"33 (3d Cir.2011); Ly v. Hansen, 351 F.3d 263, 269"70 (6th Cir.2003). Each circuit has found it necessary to read an implicit reasonableness requirement into the statute itself, generally based on the doctrine of constitutional avoidance. See Lara, 804 F.3d at 614; Rodriguez, supra, 715 F.3d at 1138; Diop, 656 F.3d at 235; Ly, 351 F.3d at 270. The courts of appeal, however, are split as to whether to use a bright-line rule requiring an individualized bond hearing after detention has reached the six-month point. In the First, Third, and Sixth Circuits, every detainee must file a habeas petition challenging detention, and the district courts must then adjudicate the petition to determine whether the individual's detention has crossed the reasonableness' threshold, thus entitling him to a bail hearing. Lora, 804 F.3d at 614; see also Ly, 351 F.3d at 272. See Reid v. Donelan,___ F.3d ___, 2016 WL 1458915 (1st Cir. Apr. 13, 2016)(not automatically requiring a hearing after six months detention); Diop, 656 F.3d at 233 (Third Circuit noting that the inquiry into whether detention has become unreasonable will necessarily be a fact-dependent inquiry that will vary depending on individual circumstances and declin[ing] to establish a universal point at which detention will always be considered unreasonable); Ly, 351 F.3d at 271 (Sixth Circuit stating: A bright-line time limitation ... would not be appropriate.... [C]ourts must examine the facts of each case[ ] to determine whether there has been unreasonable delay in concluding removal proceedings.). The First Circuit in Reid stated: The Second and Ninth Circuits, on the other hand, have appl[ied] a bright-line rule to cases of mandatory detention and have held that the government's statutory mandatory detention authority under Section 1226(c) ... [is] limited to a six-month period, subject to a finding of flight risk or dangerousness. Lara, 804 F.3d at 614 (alterations in original) (quoting Rodriguez, 715 F.3d at 1133). Under this interpretation, every alien held pursuant to 1226(c) must be provided a bond hearing once his or her detention reaches the six-month mark, because any categorical and mandatory detention beyond that timeframe is presumptively unreasonable. Id. at 616. The detainee may continue to be held if an IJ determines that the individual does, in fact, pose a flight risk or danger to society, but the categorical nature of the detention expires. Id. The Supreme Court may grant cert to resolve this circuit split.

Second Circuit

Lora v. Shanahan, 804 F.3d 601 (2d Cir. Oct. 28, 2015) (noncitizen subject to mandatory detention must be afforded a bail hearing before an immigration judge within six months of his or her detention).

Third Circuit

Diop v. DHS, 656 F.3d 221 (3d Cir. Sept. 1, 2011) (the mandatory detention provision at INA 236(c), 8 U.S.C. 1226(c), implicitly authorizes detention for a reasonable amount of time, after which the authorities must make an individualized inquiry into whether detention is still necessary to fulfill the statute's purposes of ensuring that an alien attends removal proceedings and that his release will not pose a danger to the community.).
Chavez-Alvarez v. Warden York County Prison, ___ F.3d ___, ___, 2015 WL 1567019 (3d Cir. Apr. 9, 2015) (granting habeas corpus and ordering prompt immigration bond hearing: we are convinced that, beginning sometime after the six-month timeframe considered by Demore, and certainly by the time Chavez"Alvarez had been detained for one year, the burdens to Chavez"Alvarez's liberties outweighed any justification for using presumptions to detain him without bond).

Ninth Circuit

Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. Oct. 28, 2015) (noncitizens subject to mandatory detention entitled to review after six months; DHS must prove by clear and convincing evidence that noncitizen is a flight risk or danger to community).
Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. Mar. 7, 2011) (noncitizens ordered removed, and detained under 8 U.S.C. 1231(a)(6), are entitled to the same procedural safeguards against prolonged detention as individuals detained under 8 U.S.C. 1226(a), and should be allowed release on bond unless they are determined to be a flight risk or danger to the community), applying reasoning of Casas"Castrillon v. Department of Homeland Security, 535 F.3d 942 (9th Cir.2008) (detention under 8 U.S.C. 1226(a)).
Owino v. Napolitano, 575 F.3d 952 (9th Cir. Aug. 4, 2009) ("Now that Owino is [a]n alien whose case is being adjudicated before the agency for a second time- after having fought his case in this court, Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 948 (9th Cir.2008), his case is squarely governed by the rule of Casas-Castrillon. Thus, whether Owino's continued detention complies with Zadvydas depends on whether he faces a significant likelihood of removal to [Kenya] once his judicial and administrative review process is complete. Casas-Castrillon, 535 F.3d at 948.").
Mukasey v. Diouf, 542 F.3d 1222 (9th Cir. Sept. 18, 2008) (rejecting argument that because it was not possible to tell how long it would take for the courts to resolve various habeas petitions filed by noncitizen, the noncitizen was in "indefinite detention" mandating release).


Akinola v. Weber, Civil Action No. 09-3415 (WJM), slip op. at 14 (D.N.J. Jan. 26, 2010) ("for an individual who had been in immigration detention for 17 months while challenging his removal, the Court is not inclined to accept Respondents argument in favor of continued detention based solely on the mandatory language of 1226(c), particularly where the Supreme Court in Demore did not expressly contemplate the constitutionality of such prolonged detention, and where Respondents have offered no other compelling justification or authority for such prolonged detention . . . .").
Akinola v. Weber, Civil Action No. 09-3415 (WJM), slip op. at 14 (D.N.J. Jan. 26, 2010) ("for an individual who had been in immigration detention for 17 months while challenging his removal, the Court is not inclined to accept Respondents argument in favor of continued detention based solely on the mandatory language of 1226(c), particularly where the Supreme Court in Demore did not expressly contemplate the constitutionality of such prolonged detention, and where Respondents have offered no other compelling justification or authority for such prolonged detention . . . .").
On Jan. 22, 2008, the United States and Vietnam signed a repatriation agreement allowing the United States to deport Vietnamese nationals who arrived to the United States on or after July 12, 1995, and who have received final orders of removal. For more information, see:,,, and
Two possible solutions for Vietnamese nationals who are now or in future may be subjected to deportation are as follows:

    (a) A grant of a U visa for certain crime victims can constitute a defense even where the immigrant has a final orders of removal.

    (b) If a criminal conviction, that is triggering removal, is vacated on a ground of legal invalidity, it ceases to exist for immigration purposes, and cannot cause removal. This postconviction relief in the criminal court in which the original conviction occurred might cure the underlying ground of removal, and provide a basis for reopening the final order, so the person would not in fact be deported.

Immigration and post-conviction counsel can help in two ways.

(1) First, many immigrants were mistakenly ordered deported for convictions or on the basis of records of convictions that do not establish a correct ground of deportation under current law. A change in the law is regarded as an "exceptional circumstance" that can be used by the Board of Immigration Appeals (if an appeal from the removal order was previously taken) or by the Immigration Judge (if no appeal was taken) to grant a sua sponte order reopening removal proceedings, after which they can be terminated, so the immigrant is not in fact deported. (See Matter of Vasquez-Muniz, 23 I. & N. Dec. 207, 208 (BIA 2002) [exceptional circumstances, justifying a sua sponte reopening of removal proceedings, found where previous decisions held an offense was an aggravated felony, but a later decision of the federal circuit court of appeals held it was not]). The Ninth Circuit, in particular, has handed down many decisions holding that a given offense, or a given "record of conviction," did not establish a deportable conviction. See N. TOOBY & J. ROLLIN, SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005)(updated monthly on

(2) Second, it is sometimes possible to reenter the criminal court in which the original conviction occurred that is triggering deportation, vacate the conviction on a ground of legal invalidity, and negotiate a new disposition of the criminal case that does not trigger deportation. If this occurs, the immigrant can suggest that the BIA (if an appeal from the removal order was previously taken) or the Immigration Judge (if no appeal was taken) grant a sua sponte order reopening removal proceedings, after which they can be terminated, so the immigrant is not in fact deported. If a conviction on which removal is based has been vacated on a ground of legal invalidity, the BIA has an established practice of regarding this as an "exceptional circumstance" warranting a belated sua sponte order reopening removal proceedings. (See Cruz v. Att'y Gen. of U.S., 452 F.3d 240, 246 n.3 (3d Cir. 2006)[citing 10 unpublished BIA decisions granting untimely motions to reopen based on vacated sentences: "The parties have not identified, and we have not found, a single case in which the Board has rejected a motion to reopen as untimely after concluding that an alien is no longer convicted for immigration purposes."]). The court went on to hold that the BIA may not deviate from a consistent pattern of administrative decisions without giving a logical explanation for doing so. (Cruz v. Att'y Gen. of U.S., supra, 452 F.3d at 249.)

In the Ninth Circuit, which includes California, it is even possible to suggest the Immigration Judge or BIA grant a sua sponte motion to reopen after an immigration has departed or been deported, if the conditions described above have been met. See Singh v. Gonzales, 412 F.3d 1117 (9th Cir. 2005) (motion to reopen is not barred if the immigrant departed before removal proceedings began); Lin v. Gonzales, 473 F.3d 9979 (9th Cir. 2007) (motion to reopen is not barred if immigrant deported after proceedings had been terminated by removal); Cardozo-Tlaseca v. Gonzales, 460 F.3d 1102 (9th Cir. 2006) (immigrant is entitled to reopen removal proceedings where conviction constituting one of two grounds of removal has been vacated on the merits even after immigrant had been removed from the United States, since the vacated vonviction was a "key part of his removal proceeding").
"An estimated 139,000 immigrants from eight countries China, Eritrea, Ethiopia, India, Iran, Jamaica, Laos and Vietnam have been ordered removed from the U.S. but have not been deported because of prolonged delays or refusals by foreign governments to issue the required travel documents." San Antonio Express-News, Oct 13, 2008.
The Memorandum of Understanding relating to removal of Vietnamese citizens says that it applies to persons who arrived in the U.S. on or after July 12, 1995. If the noncitizen entered in the 1980s, lived in the U.S. for many years, and then left the U.S. on vacation in 2008 and re-entered, immigration counsel can argue that the original entry date controls. Otherwise, an immigrant with a legitimate early entrance would lose all protection, under the MOU, by merely stepping briefly outside the country to buy tortillas. If the client lived in Vietnam, rather than merely visited Vietnam recently, the MOU might create a problem. Article 2, subsection 1, subsection (b) requires that the person previously resided in Vietnam and has no current residence in a third country. There is a stronger argument that the pre-1995 entry controls if the person was born in a refugee camp in a third country, such as the Philippines or Thailand, and then immigrated to the U.S., assuming that when they went back to Vietnam, they did not establish residency there. Thanks to Sin Yen Ling.