If your loved one has been held by ICE for 6 months or more with no clear end in sight, they have a constitutional right to challenge that detention. Federal courts have repeatedly held that the government cannot subject individuals to indefinite confinement without a specific, legal justification.
What Is Prolonged Detention?
Prolonged detention occurs when ICE holds a person for an extended period — typically six months or more — without a real chance for release. This happens at any stage: while awaiting an asylum hearing, during removal proceedings, or even after a final deportation order when the government cannot actually carry out the removal.
The U.S. Supreme Court set a clear precedent on this in Zadvydas v. Davis (2001). The Court ruled that the government cannot detain a person indefinitely after a final order of removal if deportation is not realistic. This established a presumptive six-month limit, after which the government must prove removal is foreseeable or release the individual.
Federal courts across the country now apply similar reasoning to people detained before a final order, finding that keeping a family member in custody for months without a bond hearing violates the Fifth Amendment’s Due Process Clause.
How We Challenge Prolonged Detention
We file habeas corpus petitions under 28 U.S.C. § 2241 in federal district court to stop constitutional violations. Our litigation focuses on three decisive factors for your family member’s release:
Duration of detention: We document the exact length of time the person has been confined to show it has become constitutionally unreasonable.
Lack of justification: We force the government to provide a specific reason for continued detention, rather than letting them rely on blanket administrative policies.
Foreseeability of removal: In post-order cases, we demonstrate when the government has no realistic prospect of carrying out a deportation within a reasonable timeframe.
What to Expect
After filing the petition, the government typically must respond within 14 to 30 days. A federal judge then reviews the case independently. When the government fails to justify the delay, the court orders the person’s release — either outright or under specific supervision conditions.
Most prolonged detention cases are resolved within one to three months. In jurisdictions like New Jersey, New York, and Maryland, courts are increasingly receptive to these constitutional claims.
FAQ
While six months is the standard threshold from Zadvydas, there is no absolute minimum. Courts have found shorter detentions unreasonable if the government lacks an individualized justification. If your loved one has been held for several months with no progress, contact us for an evaluation.
No. Some of our strongest cases involve people with final orders who cannot be deported because their home country won’t accept them or travel documents are unavailable. A deportation order does not give the government unlimited power to keep your family member in custody.
The government bears the burden of proof. A habeas petition forces them to prove "danger" or "flight risk" before an independent federal judge, rather than just asserting it in administrative paperwork. We demand a fair, individualized risk assessment for your relative.
Yes. A family member can file a petition through an attorney on behalf of a detained person. This is critical since those in custody often have restricted access to legal resources and communication.
Is your situation similar to these?
If your loved one is in ICE detention, we can review their situation today at no cost.
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