Under 8 U.S.C.S. § 1231, once removal is no longer reasonably foreseeable, continued detention is no longer authorized. Further, the presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months; after that, the alien is eligible for conditional release if he can demonstrate that there is no significant likelihood of removal in the reasonably foreseeable future.
Petitioner aliens, ordered removed but detained beyond the 90-day removal period, filed habeas corpus petitions challenging their continued detention. In one case, the United States Court of Appeals for the Ninth Circuit affirmed a writ ordering the alien released with conditions. In the second case, the United States Court of Appeals for the Eleventh Circuit affirmed a denial of the petition.
May inadmissible aliens that are ordered removed be held indefinitely after the initial 90-day removal period?
The Court affirmed the judgment of the Ninth Circuit and reversed the judgment of the Eleventh Circuit, and remanded both cases for proceedings consistent with the Court's opinion. The operative language of 8 U.S.C.S. § 1231(a)(6), "may be detained beyond the removal period," applied without differentiation to all three categories of aliens that were its subject. Since the Government suggested no reason why the period of time reasonably necessary to effect removal was longer for an inadmissible alien, the six-month presumptive detention period applied. Both aliens were detained well beyond six months after their removal orders became final. The Government having offered nothing to indicate that a substantial likelihood of removal subsisted despite the passage of six months and, indeed, having conceded that it was no longer even involved in repatriation negotiations with Cuba, and the district courts in each case having determined that removal to Cuba was not reasonably foreseeable, the petitions for habeas corpus should have been granted.