In a perfect world, a person who has come before an immigration judge has to wait very little time to move on with his or her life. However, given the United States’ extensive immigration court backlog and current culture of xenophobia, many immigrants who have been through the deportation and appeals processes still find themselves in legal limbo afterward, for reasons both appropriate and misguided.
ICE used to be able to hold people indefinitely. However, in 2001, the Supreme Court decided the case of Zadvydas v. Davis, in which it was held that indefinite detention of (theoretically removable) aliens was impermissible in cases when the alien was not likely to be removed in the near future. In other words, if mere bureaucracy is holding up your departure, or a conflict that makes it temporarily unsafe to return to your home country, you are still permitted to be detained. If circumstances exist that mean your country will be unsafe or unreachable for the foreseeable future, you will be much more likely to receive a supervised release, or parole. While this decision only applied to admissible aliens, the court decided Clark v. Martinez three years later, extending the same standard to the undocumented.
Since Zadvydas was decided, the procedure underwent some modifications. Nowadays, after a final order has been entered in your case, Immigration & Customs Enforcement (ICE) has 90 days to remove you from the country. That period of time does not begin to run unless you have exhausted your appeals and there are no stays pending in your case. However, once it does begin to run, you must be removed during that 90 days. If you are not, you are entitled to a review of your detention.
If you are still in detention after the 90 days has elapsed, you are entitled to have your deportation officer conduct a review of your case. There are rare exceptions to this rule, namely if you have a communicable and dangerous disease or are a significant security risk, but otherwise, you are entitled to a review.
Am I Entitled to Review?
Not everyone is entitled to a review of their post-order status, but many are. In order to determine whether the Zadvydas or Martinez standards apply to you, you must fit the following criteria:
- You must be under a final order of removal. An order is final when no action has been taken after a certain period of time (usually 30 days) or when all appeals have been exhausted;
- You must have already petitioned for administrative review of your case. If you have not yet done this, ICE authorities will tell you to do so first; and