Challenging Prolonged Immigration Detention: Legal Options

Prolonged immigration detention—being held by ICE for months or even years—is one of the most challenging situations an immigrant can face. However, the Constitution doesn't permit indefinite detention, and there are legal tools to challenge excessively long detention.

At Modern Law Group, we've helped many clients secure release from prolonged detention through habeas corpus petitions and other legal strategies. Here's what you need to know.

What is Prolonged Detention?

Prolonged detention generally refers to immigration detention lasting six months or longer, though there's no bright-line rule. Courts consider the totality of circumstances, including:

• Total time in custody
• Whether detention is pre-hearing or post-order
• Reasons for the delay
• Likelihood of removal
• Availability of alternative forms of supervision

Legal Framework: Key Supreme Court Decisions

Zadvydas v. Davis (2001)

This landmark case established that immigration detention cannot be indefinite. The Court held that after six months of post-removal-order detention, the burden shifts to the government to show that removal is reasonably foreseeable.

Demore v. Kim (2003)

This case upheld mandatory detention for certain criminal aliens during removal proceedings, but emphasized that such detention was constitutional only for a "brief period." The Court explicitly did not address prolonged mandatory detention.

Jennings v. Rodriguez (2018)

The Court held that the immigration statute doesn't require periodic bond hearings but left open whether the Constitution requires such hearings when detention becomes prolonged.

Strategies for Challenging Prolonged Detention

Strategy 1: Bond Hearing Requests

Request a bond hearing before an immigration judge. Even if initially denied, changed circumstances (including prolonged detention) may warrant a new hearing.

Arguments to make:

• Length of detention violates due process
• Changed circumstances since last bond hearing
• Strong community ties demonstrated
• Not a flight risk or danger to community

Strategy 2: BIA Appeals

Appeal adverse bond decisions to the Board of Immigration Appeals. Include arguments about prolonged detention violating due process rights.

Strategy 3: Habeas Corpus Petitions

File a habeas corpus petition in federal district court challenging the detention as unconstitutional. This is often the most powerful tool for challenging prolonged detention.

Federal habeas arguments include:

• Detention exceeds constitutional limits under Zadvydas
• Due process requires a bond hearing after prolonged detention
• Mandatory detention statute doesn't apply or has been exceeded
• Removal is not reasonably foreseeable

Strategy 4: Requests to ICE

Submit formal requests to ICE for release under various programs or based on changed circumstances. Document all requests and responses.

Building Your Case

To successfully challenge prolonged detention, you need strong documentation:

Detention Timeline

• Date of initial arrest/detention
• All transfers between facilities
• All court dates and continuances
• Reasons for any delays (who caused them)

Removal Foreseeability

If challenging post-order detention, document why removal isn't foreseeable:

• Country of origin won't accept deportees
• No travel documents available
• Pending appeals or petitions
• Political or practical barriers to removal

Personal Circumstances

• Family ties in the U.S.
• Employment history
• Length of residence
• Medical conditions
• Cooperation with immigration authorities

Who is Subject to Prolonged Detention?

Prolonged detention can affect various categories of immigrants:

Asylum Seekers

Those awaiting asylum hearings may be detained for months or years due to court backlogs. Courts increasingly recognize this violates due process.

Individuals with Criminal Records

Those subject to "mandatory detention" under INA § 236(c) may be held throughout their proceedings. However, prolonged mandatory detention raises serious constitutional concerns.

Post-Final Order Detainees

Those with removal orders who cannot be deported (because the home country won't accept them) have strong claims under Zadvydas.

Arriving Aliens

Those who arrived at ports of entry may face prolonged detention while their cases proceed. Recent court decisions have extended some protections to this group.

Recent Developments

Courts have increasingly recognized due process concerns with prolonged detention:

• Many circuits now require bond hearings after 6 months of detention
• Some courts shift the burden to the government after prolonged periods
• Courts have ordered release when removal isn't foreseeable
• COVID-19 has prompted additional scrutiny of detention decisions

What to Expect

Challenging prolonged detention typically involves:

1. Initial assessment: Attorney reviews detention circumstances
2. Strategy development: Determine best approach (bond, BIA, habeas)
3. Filing: Submit appropriate motions or petitions
4. Government response: Wait for and respond to government's arguments
5. Hearing/decision: Court rules on the challenge
6. Release or appeal: If successful, arrange release; if not, consider appeals

Why Legal Representation Matters

Prolonged detention challenges require sophisticated legal knowledge. An experienced attorney can:

• Identify the strongest legal arguments for your situation
• Navigate complex procedural requirements
• Present compelling evidence to courts
• Handle multiple simultaneous strategies
• Pursue emergency relief when needed