In the United States, immigrants facing deportation can be detained by Immigration and Customs Enforcement (ICE) for extended periods. However, what happens when a person has received a final order of removal but cannot be deported due to circumstances beyond their control—such as the lack of direct flights to their home country? In such cases, a legal remedy known as habeas corpus may provide a path to release.

Understanding Habeas Corpus in Immigration Proceedings

Habeas corpus, under 28 U.S.C. § 2241, is a fundamental legal principle that allows individuals to challenge unlawful detention by the government. It serves as a safeguard against arbitrary or prolonged confinement without justification. In the immigration context, habeas corpus is particularly relevant for noncitizens detained by ICE beyond a reasonable period, especially when removal is not feasible.

Noncitizens in detention often have limited legal options once a final removal order is issued. While ICE has the authority to detain individuals pending deportation, the legal basis for continued detention weakens when actual removal is not reasonably foreseeable. Habeas corpus petitions allow attorneys to argue that detention has become unlawful, thereby seeking court intervention to secure the individual’s release under an order of supervision (OSUP) or other appropriate conditions.

Zadvydas v. Davis: Limits on Indefinite Detention

The landmark Supreme Court case Zadvydas v. Davis, 533 U.S. 678 (2001) established critical limitations on ICE’s authority to detain noncitizens with final orders of removal. The Court ruled that the government cannot detain a noncitizen indefinitely if removal is not likely to occur in the reasonably foreseeable future. Specifically, the decision held:

• Once a noncitizen has been ordered removed, ICE may detain them for up to six months while working to facilitate deportation.
• If, after six months, removal remains unlikely or unfeasible, the noncitizen may challenge continued detention in federal court via a habeas corpus petition.
• The burden initially falls on the detainee to present evidence that deportation is unlikely to occur within a reasonable timeframe.
• If the detainee makes this showing, the burden shifts to ICE to demonstrate that removal is still reasonably foreseeable or that the detainee poses a significant risk to public safety.

Thus, Zadvydas serves as an essential precedent in challenging prolonged detention in cases where logistical, diplomatic, or humanitarian barriers prevent deportation.

Application to a Case Involving Russia

If an individual with a final order of removal cannot be deported because there are no direct flights to Russia, the situation raises serious legal and logistical concerns. While ICE may argue that removal could be accomplished via transit through third countries, real-world conditions—such as diplomatic relations, airline restrictions, and political tensions—may make this impractical or impossible.

In such cases, an attorney filing a habeas corpus petition can argue:

• No Significant Likelihood of Removal: If ICE cannot secure a flight to Russia or find an alternative route, then removal is not reasonably foreseeable.
• Violation of Due Process: Continued detention without any realistic deportation timeline violates the detainee’s constitutional right to due process.
• Precedent in Zadvydas: If ICE has no concrete plan for deportation, prolonged detention becomes unlawful under established Supreme Court precedent.

Courts have recognized that detention cannot continue indefinitely simply because ICE is “attempting” to remove a person. If removal is practically impossible, habeas corpus relief becomes a viable legal remedy to secure release under supervised conditions.

Steps for Filing a Habeas Corpus Petition

Filing a habeas corpus petition requires careful preparation and compelling evidence. Below are the key steps attorneys should take when pursuing this legal remedy:

1. Gather Evidence: Collect documentation demonstrating that removal is not practically possible. This may include records showing:
   • Lack of direct flights or transit restrictions.
   • Diplomatic barriers preventing repatriation.
   • Prior failed attempts by ICE to remove the individual.
   • Testimonies or expert opinions on country conditions that hinder deportation.
2. File in the U.S. District Court: Habeas corpus petitions must be filed in the federal district court where the detainee is held. The petition should include:
   • The legal basis for the claim under 28 U.S.C. § 2241.
   • Factual evidence showing why detention has become unlawful.
   • A request for release under an order of supervision (OSUP) or other court-mandated conditions.
3. Argue for Release: In court proceedings, emphasize the following points:
   • The Supreme Court has ruled against indefinite detention when removal is unlikely.
   • ICE has failed to show a viable plan for deportation.
   • The detainee is not a threat to public safety and can be released under appropriate conditions.
4. Respond to Government Objections: ICE may argue that removal remains feasible or that the detainee poses a flight risk or security concern. Attorneys should be prepared to counter these claims with:
   • Evidence of ICE’s lack of progress in removal efforts.
   • A proposed supervised release plan (such as regular ICE check-ins).
   • Testimony from family members, employers, or community organizations supporting the detainee’s release.

Why This Matters

Many noncitizens in detention have no control over their removal but are nonetheless held indefinitely due to bureaucratic obstacles, logistical barriers, or diplomatic tensions. Habeas corpus provides a crucial legal mechanism to prevent unconstitutional detention and ensure that individuals are not unlawfully deprived of their liberty.

For immigration attorneys, understanding and utilizing habeas corpus petitions can mean the difference between indefinite detention and lawful supervised release. By leveraging legal precedents, collecting strong evidence, and making compelling arguments in federal court, attorneys can effectively advocate for their detained clients and uphold fundamental due process rights.

In an era of increasing immigration enforcement, ensuring that ICE’s detention authority is not misused is more important than ever. Habeas corpus remains one of the most powerful tools in the fight against indefinite and unlawful immigration detention.