Reported / Citable
Background
Alexander B., who claims to be stateless, was ordered removed to Canada in 2003 but remained in the United States under an order of supervision for approximately 22 years. Immigration and Customs Enforcement detained him at an annual check-in on February 4, 2025. By the time of the report and recommendation, he had remained in post-removal custody for more than 17 months.
Canada declined to accept him, Russia did not recognize him as a citizen, and efforts to obtain travel documents or secure his acceptance by Rwanda, Panama, Costa Rica, Honduras, and Kosovo were unsuccessful. Alexander sought habeas relief under 28 U.S.C. § 2241, arguing that continued detention violated the statutory and constitutional limits recognized in Zadvydas v. Davis. Both sides moved for summary judgment.
The Court’s Holding
U.S. Magistrate Judge Karen Betancourt recommended granting Alexander’s habeas petition and summary-judgment motion, denying the government’s summary-judgment motion, and releasing him subject to supervision. The report concluded that Alexander carried his initial burden under Zadvydas by showing no significant likelihood of removal in the reasonably foreseeable future.
The government did not rebut that showing merely by documenting requests to countries that had not agreed to accept Alexander. Although the government argued that Alexander had obstructed removal and that the statutory removal period should therefore be extended, the magistrate judge did not decide whether his conduct warranted tolling. Instead, the report concluded that, even if the removal period had been extended, detention lasting beyond Zadvydas’s six-month presumptively reasonable period remained subject to constitutional review and was unlawful on the undisputed record. The recommendation remained subject to objections and review by the assigned district judge.
Key Takeaways
- Post-removal detention does not automatically become unlawful after six months, but a detainee may then challenge continued custody by showing no significant likelihood of removal in the reasonably foreseeable future.
- Outstanding requests to third countries, without evidence that any country is willing to accept the detainee, were insufficient to satisfy the government’s burden under Zadvydas.
- The recommended remedy was release under statutory and regulatory supervision conditions, not cancellation of the removal order.
Why It Matters
The recommendation underscores that the government must offer concrete evidence of reasonably foreseeable removal once a detainee makes the required Zadvydas showing. Evidence of unsuccessful diplomatic requests, standing alone, may not justify prolonged immigration detention.
It also illustrates the distinction between the government’s continuing authority to enforce a final removal order and its authority to keep a person detained indefinitely when no destination country has agreed to accept that person.