Reported / Citable
Background
Mohammad F., an Afghan national, entered the United States on January 15, 2025, and applied for asylum. The U.S. Citizenship and Immigration Services conducted a credible fear interview and issued a positive determination on March 16, 2025. However, on June 11, 2025, an Immigration Judge denied his asylum application and ordered removal to Afghanistan, though the judge granted withholding of removal to Afghanistan. Both the petitioner and the Department of Homeland Security waived appeal, making the removal order administratively final on June 11, 2025.
The 90-day removal period under 8 U.S.C. § 1231(a)(1)(A) expired on September 9, 2025, yet petitioner remained in custody. From June 2025 through March 2026, the Government made removal requests to Canada, Costa Rica, Panama, and Turkey—all of which declined to accept petitioner. By the time this case was decided in June 2026, petitioner had been detained for over one year with no designated third country for his removal.
The Court’s Holding
The magistrate judge granted petitioner’s habeas corpus petition and recommended his release from detention. The court applied the framework established in Zadvydas v. Davis, 533 U.S. 678 (2001), which prohibits indefinite detention of aliens after the removal period expires absent a significant likelihood of removal in the reasonably foreseeable future. The court found that petitioner’s detention exceeded six months, triggering Zadvydas protections.
The court determined that petitioner satisfied his initial burden of showing no significant likelihood of removal by demonstrating: (1) withholding of removal to Afghanistan bars return to his country of origin, (2) he has no legal status in any other country, and (3) the Government has not designated any third country willing to accept him. The Government then bore the burden to rebut this showing with evidence of a significant likelihood of future removal.
The court found the Government’s evidence insufficient. Merely requesting acceptance from multiple third countries—even after receiving rejections from four nations—does not demonstrate a significant likelihood of removal in the reasonably foreseeable future. Because continued detention without such likelihood violates the Fifth Amendment’s Due Process Clause, the court recommended petitioner’s immediate release subject to appropriate supervisory conditions.
Key Takeaways
- Detention of aliens ordered removed cannot continue indefinitely beyond the initial 90-day removal period; Zadvydas requires showing a significant likelihood of removal in the reasonably foreseeable future.
- Bare requests to third countries—even multiple requests after rejections—are legally insufficient to carry the Government’s burden under Zadvydas; affirmative evidence of realistic prospects for removal is required.
- Aliens detained post-removal-order have a right to judicial review of the constitutionality of their continued detention through habeas corpus proceedings in federal district court.
- When no significant likelihood of removal exists, due process mandates release from detention, not indefinite confinement—the alternative is supervised release, not permanent imprisonment.
Why It Matters
This case enforces constitutional limits on immigration detention under Zadvydas, a Supreme Court precedent that has become increasingly important as backlogs in third-country removals have grown. It establishes that merely going through the motions of requesting other countries’ acceptance is legally insufficient to justify continued confinement. The ruling places meaningful constraints on ICE’s detention authority by requiring concrete evidence that removal is actually likely in the foreseeable future, not merely theoretically possible.
The decision is significant for immigration practitioners and civil rights advocates challenging post-removal detention. It clarifies that attorneys can successfully challenge prolonged detention by focusing on the Government’s failure to identify any willing receiving country or realistic removal prospects—a fact pattern increasingly common given international barriers to accepting removed nationals from conflict zones. The ruling reinforces that constitutional due process protections apply even to aliens with final removal orders.