Unreported / Non-Citable
Background
A lawful permanent resident who came to the United States as an infant refugee from the Khmer Rouge genocide remained in immigration custody after completing a lengthy California prison sentence. Immigration authorities ordered him removed to Cambodia, or alternatively the Philippines, but had not obtained travel documents. His Ninth Circuit petition for review remained pending.
After more than a year of post-order detention and more than seven months following denial of a stay request, he sought habeas relief. He argued that removal was not significantly likely in the reasonably foreseeable future and also challenged federal procedures for removing people to third countries they had not previously had a chance to address.
The Court’s Holding
The district court granted the petition and ordered immediate release. Under Zadvydas v. Davis, post-removal-order detention becomes constitutionally problematic when it continues beyond six months and the detainee shows good reason to believe removal is not reasonably foreseeable. General statements that officials were pursuing travel documents did not rebut the petitioner’s evidence, particularly without details about Cambodia’s willingness to recognize him or issue documents.
The court also barred removal to a third country without advance notice and a meaningful opportunity to raise fear-based protection claims. Required procedures included written notice at least 21 days before removal, a reasonable-fear interview, and time to seek reopening if officials rejected the fear claim. The order permits renewed detention only upon materially changed circumstances and a neutral finding that removal has become significantly likely in the reasonably foreseeable future.
Key Takeaways
- Post-order immigration custody is not indefinite merely because a removal order is administratively final.
- After six months, concrete evidence about travel documents and the receiving country matters more than generalized assurances that removal efforts continue.
- The government must rebut a supported showing that removal is not reasonably foreseeable.
- Third-country removal requires notice and a meaningful opportunity to present fear-of-persecution or torture claims.
- A release order may still allow re-detention if material circumstances change and removal becomes realistically imminent.
Why It Matters
The decision gives California immigration practitioners a detailed record-building roadmap for prolonged post-order detention cases: document the custody timeline, travel-document history, nationality questions, repatriation practices, and the government’s actual communications with the proposed receiving country. Mere passage of time is not enough, but time combined with specific obstacles can shift the burden.
The third-country protections are equally practical. Counsel should demand clear written notice of the destination and enough time to investigate country conditions, prepare the client for a fear interview, and seek reopening before physical removal occurs.