Beyond the Shadow of Zadvydas: The Unlawful Re-Detention of CAT-Protected Noncitizens and the Erosion of Due Process, Part I

Part One

Abstract

This Article examines the recent phenomenon of re-detaining noncitizens who have been granted protection under the Convention Against Torture (CAT) and released pursuant to Orders of Supervision. These individuals, many of whom have lived law-abiding lives for years, are being re-detained based on minor or dated criminal convictions. At the same time, Immigration and Customs Enforcement (ICE) pursues speculative “third-country removals” to states with no obligation to accept them. Drawing on statutory interpretation, constitutional doctrine, and a growing body of federal district court decisions, this Article argues that such practices contravene Zadvydas v. Davis, Clark v. Martinez, and the substantive and procedural protections of the Immigration and Nationality Act (INA). The Article further contends that these practices threaten not only the liberty interests of protected noncitizens but also the stability of the United States’ non-refoulement obligations under international law.

Part I. Legal Framework: The CAT, the INA, and the Zadvydas Lineage

The Statutory Foundation of Post-Removal Detention

The framework for post-removal detention is codified in § 241 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231. The statute provides that a noncitizen subject to a final order of removal shall be detained during the ninety-day “removal period.”¹ During that period, the Attorney General is required to effectuate removal to the designated country and is authorized to detain the individual to ensure compliance.² However, § 1231(a)(6) permits continued detention beyond the removal period only in narrow circumstances, specifically, for certain classes of noncitizens who are deemed inadmissible, removable due to criminal convictions, or determined to pose a risk to the community or a flight risk.³

Congress’s text does not authorize indefinite detention. The statutory design presumes that continued detention serves a temporary purpose: securing actual removal.⁴ When removal is not “reasonably foreseeable,” detention loses its statutory foundation and must end.⁵ The regulatory scheme at 8 C.F.R. § 241.4 implements this limitation by requiring periodic review of each detained noncitizen’s removal prospects and mandating release under an Order of Supervision when removal is not imminent.⁶

The Convention Against Torture and the Prohibition of Refoulement

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994,⁷ establishes an unequivocal prohibition against returning any person to a state where there are substantial grounds for believing that the individual would face torture.⁸ Article 3 of the Convention, incorporated into domestic law through the Foreign Affairs Reform and Restructuring Act of 1998 (FARRA),⁹ directs all executive agencies to ensure that “no person shall be returned” to such a country.¹⁰

This obligation operates in tandem with the INA’s withholding-of-removal provision, § 1231(b)(3)(A), which forbids removal to any country where an individual’s “life or freedom would be threatened.”¹¹ CAT protection is broader than statutory withholding because it covers torture regardless of motive, whereas withholding applies only to persecution based on specific protected grounds.¹² Once granted, both forms of protection create a categorical bar to removal to the country of risk.¹³ The noncitizen remains subject to the underlying order of removal but cannot lawfully be deported to the prohibited country.¹⁴

In practice, the Department of Homeland Security (DHS) has long managed such cases through supervised release under 8 C.F.R. § 241.5.¹⁵ Individuals with CAT or withholding protection receive conditional liberty, subject to periodic reporting and compliance requirements. For decades, courts and agencies have understood that this conditional release status reflects a balance between the government’s interest in eventual removal and the individual’s fundamental liberty interest in freedom from physical restraint.¹⁶

Zadvydas v. Davis and the Constitutional Limit on Indefinite Detention

The Supreme Court’s decision in Zadvydas v. Davis marked a watershed in the constitutional limits on immigration detention.¹⁷ In Zadvydas, two long-term lawful residents faced indefinite detention because no country would accept them after their removal orders became final.¹⁸ The Court rejected the government’s claim of unlimited detention authority, interpreting § 1231(a)(6) to contain an implicit temporal limitation grounded in constitutional avoidance.¹⁹ Reading the statute to authorize indefinite detention, the Court reasoned, “would raise serious constitutional concerns” under the Fifth Amendment’s Due Process Clause.²⁰

The Court held that detention is permissible only “for a period reasonably necessary to bring about that alien’s removal.”²¹ It established a presumptively reasonable six-month period, after which the government must show “that there is a significant likelihood of removal in the reasonably foreseeable future.”²² Absent such a showing, continued detention violates both the statute and due process.²³ The Court emphasized that “freedom from imprisonment—from government custody, detention, or other forms of physical restraint lies at the heart of the liberty that the Due Process Clause protects.”²⁴

Clark v. Martinez and the Extension to All Classes of Noncitizens

Four years later, in Clark v. Martinez, the Court reaffirmed Zadvydas and extended its statutory construction to cover inadmissible noncitizens as well.²⁵ The government argued that Zadvydas should apply only to those previously admitted to the United States, but the Court rejected this view, emphasizing the principle of uniform statutory interpretation: a single phrase in a statute must have a consistent meaning.²⁶

Justice Scalia, writing for the majority, underscored that § 1231(a)(6) “applies without distinction to all aliens ordered removed.”²⁷ The Court thus held that the same temporal limit applies regardless of admission status: once removal is not reasonably foreseeable, detention is unauthorized.²⁸ The decision not only confirmed the statutory ceiling on detention but also embedded due process norms into the statutory fabric of immigration enforcement.

The Continuing Role of Procedural and Substantive Due Process

Although Zadvydas and Clark were decided on statutory grounds, both decisions are rooted in the constitutional guarantee of due process.²⁹ The Fifth Amendment protects “persons,” not merely citizens, and extends to all individuals physically present in the United States.³⁰ As the Court held in Plyler v. Doe, “aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law.”³¹

This protection includes both procedural and substantive dimensions. Procedurally, due process requires notice and a meaningful opportunity to be heard before deprivation of liberty.³² Substantively, it forbids arbitrary governmental detention that lacks a legitimate regulatory purpose.³³ The government’s authority to detain in the immigration context thus rests on a delicate constitutional balance: detention is permissible only insofar as it serves the narrowly defined goal of effectuating removal.³⁴ When that goal becomes unattainable—as when CAT protection renders removal legally impossible, the constitutional basis for detention collapses.³⁵

Administrative Implementation: Orders of Supervision and Revocation Standards

Following Zadvydas, DHS promulgated regulations codified at 8 C.F.R. § 241.4 and § 241.5 to manage individuals who cannot be removed.³⁶ These rules create a structured review process: ICE must conduct custody determinations within 90 days of the removal order’s finality, followed by annual file reviews.³⁷ If removal is not reasonably foreseeable, release under supervision is mandatory.³⁸

Critically, revocation of supervised release is tightly constrained. Under 8 C.F.R. § 241.4(l)(2), ICE may revoke supervision only if it determines that (1) removal has become reasonably foreseeable; (2) the noncitizen violates the conditions of release; or (3) the individual poses a threat to the community.³⁹ Before revocation, ICE must provide written notice and an opportunity for an informal interview.⁴⁰ Courts have repeatedly held that failure to comply with these procedural requirements renders re-detention unlawful.⁴¹

The regulatory framework, therefore, reflects Congress’s and the Court’s shared understanding: supervision, not indefinite confinement, is the lawful default once removal is legally or practically impossible.⁴²

The Emerging Tension Between Statute and Practice

Despite this well-settled law, recent years have seen a resurgence of re-detention practices inconsistent with Zadvydas and the INA. Federal courts across multiple jurisdictions, Villanueva v. Tate in Texas,⁴³ Zavvar v. Scott in Maryland,⁴⁴ and Tang v. Bondi in Washington,⁴⁵ have documented a pattern of ICE re-detaining noncitizens who had long been living under supervision and seeking to remove them to “third countries” that either refused acceptance or had histories of returning deportees to torture. In each case, courts found that ICE had failed to follow its own regulations, lacked a factual basis for asserting foreseeability of removal, and violated the petitioners’ due process rights.

These rulings reaffirm the constitutional and statutory principles first articulated in Zadvydas: liberty may not be sacrificed to bureaucratic expedience. As the next Part explores, the government’s current reliance on speculative third-country removal schemes not only undermines these principles but also exposes protected individuals to grave risks of torture, violating both domestic and international law.

 

Footnotes (selected)

1. 8 U.S.C. § 1231(a)(1)(A).
2. Id. § 1231(a)(2).
3. Id. § 1231(a)(6).
4. See Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
5. Id.
6. 8 C.F.R. § 241.4(k) (2024).
7. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
8. Id. art. 3.
9. Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, § 2242, 112 Stat. 2681-761.
10. Id. § 2242(a).
11. 8 U.S.C. § 1231(b)(3)(A).
12. See 8 C.F.R. § 208.16(c).
13. See Matter of I-S- & C-S-, 24 I. & N. Dec. 432 (B.I.A. 2008).
14. See Wang v. Ashcroft, 320 F.3d 130, 142 (2d Cir. 2003).
15. 8 C.F.R. § 241.5 (2024).
16. See Clark v. Martinez, 543 U.S. 371, 380–81 (2005).
17. 533 U.S. 678 (2001).
18. Id. at 684–86.
19. Id. at 689.
20. Id. at 690.
21. Id. at 699.
22. Id. at 701.
23. Id. at 702.
24. Id. at 690.
25. 543 U.S. 371 (2005).
26. Id. at 378–79.
27. Id. at 378.
28. Id. at 386.
29. See Zadvydas, 533 U.S. at 690.
30. U.S. Const. amend. V.
31. Plyler v. Doe, 457 U.S. 202, 210 (1982).
32. Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
33. See Demore v. Kim, 538 U.S. 510, 528–29 (2003).
34. Zadvydas, 533 U.S. at 690.
35. Id. at 697.
36. 8 C.F.R. § 241.4 (2024).
37. Id. § 241.4(k)(2).
38. Id. § 241.4(k)(1)(ii).
39. Id. § 241.4(l)(2).
40. Id. § 241.4(l)(1).
41. See Villanueva v. Tate, No. H-25-3364, 2025 WL 2774610 (S.D. Tex. Sept. 26, 2025).
42. Zavvar v. Scott, No. TDC-25-2104, 2025 WL 2592543 (D. Md. Sept. 8, 2025).
43. Villanueva, 2025 WL 2774610.
44. Zavvar, 2025 WL 2592543.
45. Tang v. Bondi, No. 2:25-cv-01473, 2025 WL 2637750 (W.D. Wash. Sept. 11, 2025).