How long can ICE detain someone after a final removal order? The 90-day removal period, custody reviews, and the six-month Zadvydas rule

How detention works after a final removal order: the 90-day removal period, ICE post-order custody reviews, the six-month Zadvydas presumption, and release on Form I-220B.

How long can ICE detain someone after a final removal order?

This page explains, categorically, what the law says about immigration detention after an order of removal becomes final: the 90-day removal period, the custody reviews ICE conducts under the regulations, the six-month rule from the Supreme Court’s Zadvydas decision, how a written release request works, and what release on an Order of Supervision involves. It does not evaluate any individual case or predict whether a particular person will be released — those outcomes depend on facts that only a licensed immigration attorney can assess.

Short answer (as of October 8, 2026). Federal law gives the government a 90-day “removal period” to carry out a removal order, and during that period the statute says the government “shall detain” the person (8 U.S.C. 1231(a)(1)–(2)). If removal does not happen within 90 days, the person becomes subject to supervision — but the statute lets the government keep certain groups detained beyond the removal period (1231(a)(6)). The Supreme Court in Zadvydas v. Davis (June 28, 2001) recognized a six-month presumptive period, and wrote that this presumption “does not mean that every alien not removed must be released after six months.”

When the 90-day removal period starts

Under 8 U.S.C. 1231(a)(1)(A), “when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days.” Under 1231(a)(1)(B), the period begins on the latest of three dates:

The date the order of removal becomes administratively final.
If a court reviews the order and stays the removal, the date of the court’s final order.
If the person is detained or confined other than under an immigration process (for example, in a criminal sentence), the date of release from that detention or confinement.

How the 90 days can be extended

Under 8 U.S.C. 1231(a)(1)(C), the removal period “shall be extended beyond a period of 90 days and the alien may remain in detention during such extended period if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure or conspires or acts to prevent the alien’s removal subject to an order of removal.”

The regulation that puts this into practice is 8 CFR 241.4(g)(5). It requires ICE to serve a Notice of Failure to Comply, which explains the extension rule, the criminal penalties in section 243(a) of the Act, the circumstances showing the failure to comply, and “the necessary steps that the alien must take in order to comply.” Under 241.4(g)(5)(iii), that notice has “the effect of extending the removal period as provided by law,” and ICE “is not obligated to complete its scheduled custody reviews” until the person has demonstrated compliance. Once the person complies, 241.4(g)(1)(ii) gives the government “a reasonable period of time in order to effect the alien’s removal.”

Who stays detained during the 90 days — and who can be held longer

During the removal period. Under 8 U.S.C. 1231(a)(2)(A), “During the removal period, the Attorney General shall detain the alien.” The same subsection says that “under no circumstance” during the removal period may the government release a person found inadmissible under section 1182(a)(2) or 1182(a)(3)(B), or deportable under section 1227(a)(2) or 1227(a)(4)(B).

A 2025 change. The Laken Riley Act (Pub. L. 119–1, § 3(e), January 29, 2025) added 1231(a)(2)(B), which gives a state attorney general or other authorized state officer standing to sue the Secretary of Homeland Security over an alleged violation of this detention requirement that “harms such State or its residents.” According to the Cornell LII amendment notes for section 1231, this is the only change to 1231(a) since 2006.

After the removal period. Under 8 U.S.C. 1231(a)(6), a person ordered removed “who is inadmissible under section 1182 of this title, removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period.” If released, the person is subject to the supervision terms in 1231(a)(3).

Reinstated orders. For a person who re-enters after removal, 8 U.S.C. 1231(a)(5) says “the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed,” and “the alien shall be removed under the prior order at any time after the reentry.” For the separate process of applying to return lawfully after a removal, see permission to return after deportation.

The post-order custody review timeline

The custody reviews are set out in 8 CFR 241.4. Per the eCFR version history, 8 CFR 241.4, 241.5, and 241.13 were last changed on December 23, 2016; a Federal Register search on October 8, 2026 for part 241 documents published since June 1, 2024 returned one document, a proposed rule (described in the work-permit section below), and no final amendment. The regulation still uses titles from the former INS (“district director,” “Executive Associate Commissioner,” “HQPDU”); they are quoted here as written.

Stage	When (per the regulation)	Who decides	Notice to the detained person
Initial post-order custody review (241.4(h))	“prior to the expiration of the removal period”	The district director or Director of the Detention and Removal Field Office	Written notice “approximately 30 days in advance” so the person may submit information in writing
Headquarters review (241.4(k)(2)(ii))	“at the expiration of the three-month period after the 90-day review or as soon thereafter as practicable”	The Executive Associate Commissioner, “acting through the HQPDU” (241.4(c)(2))	“Approximately 30 days notice”
Later reviews (241.4(k)(2)(iii))	“within approximately one year” of a headquarters decision declining release	HQPDU	—
Interim requests (241.4(k)(2)(iii))	“Not more than once every three months” between annual reviews, on “a proper showing of a material change in circumstances”	HQPDU	Written response “within approximately 90 days”

How the first review works. Under 241.4(h)(1), the initial review “will consist of a review of the alien’s records and any written information submitted in English” by or on behalf of the person; the official “may in his or her discretion schedule a personal or telephonic interview.” Under 241.4(h)(2), the person “may be assisted by a person of his or her choice.” Under 241.4(h)(4), the person is notified in writing either that he or she “is to be released from custody” or “will be continued in detention pending removal or further review of his or her custody status.”

The headquarters review comes three months after the 90-day review — the 90-day period and those three months add up to about six months, which is our arithmetic, not a figure stated in the regulation.

What the reviewers must find before release

Under 8 CFR 241.4(e), before recommending or deciding to release a detained person, the reviewers must conclude that:

Travel documents “are not available or, in the opinion of the Service, immediate removal, while proper, is otherwise not practicable or not in the public interest”;
The person “is presently a non-violent person”;
The person “is likely to remain nonviolent if released”;
The person “is not likely to pose a threat to the community following release”;
The person “is not likely to violate the conditions of release”; and
The person “does not pose a significant flight risk if released.”

Section 241.4(f) lists the factors weighed, including disciplinary record and criminal history.

Travel documents. Under 241.4(g)(3), if “travel documents can be obtained, or such document is forthcoming, the alien will not be released unless immediate removal is not practicable or in the public interest.” Under 241.4(g)(4), no custody review is conducted “when the Service notifies the alien that it is ready to execute an order of removal.”

Sponsors. Under 241.4(j)(2), release may be conditioned “on placement with a close relative who agrees to act as a sponsor, such as a parent, spouse, child, or sibling who is a lawful permanent resident or a citizen of the United States,” and “no detainee may be released until sponsorship, housing, or other placement has been found for the detainee, if ordered.”

The six-month rule: Zadvydas v. Davis and Clark v. Martinez

Zadvydas v. Davis, 533 U.S. 678 (decided June 28, 2001). The Court recognized a six-month presumptive period. In the opinion at page 701: “After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.” The Court added that “as the period of prior post-removal confinement grows, what counts as the ‘reasonably foreseeable future’ conversely would have to shrink.”

The same passage sets the limit of the rule: “This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.”

The case syllabus (a summary, not part of the opinion) states that “the basic federal habeas statute grants the federal courts authority to determine whether post-removal-period detention is pursuant to statutory authority.”

Clark v. Martinez, 543 U.S. 371 (decided January 12, 2005). The opinion restates the Zadvydas holding at page 378: “the presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months.” The syllabus summarizes the holding: under 1231(a)(6) the government “may detain inadmissible aliens beyond the 90-day removal period, but only for so long as is reasonably necessary to achieve removal,” and “this same 6-month presumptive detention period applies in these cases.” The petitioners were Cuban nationals.

What the six-month rule is not: an immigration-judge bond hearing. In Johnson v. Arteaga-Martinez, 596 U.S. 573 (decided June 13, 2022), the Court held that “Section 1231(a)(6) does not require the Government to provide noncitizens detained for six months with bond hearings in which the Government bears the burden of proving, by clear and convincing evidence, that a noncitizen poses a flight risk or a danger to the community,” because “the statute says nothing about bond hearings before immigration judges or burdens of proof.” For bonds and bond hearings in other detention situations, see immigration bond hearings and how immigration bonds work.

Asking for release when removal is not foreseeable (8 CFR 241.13)

8 CFR 241.13 sets out a separate written-request process for a person detained under 241.4 after the removal period “where the alien has provided good reason to believe there is no significant likelihood of removal to the country to which he or she was ordered removed, or to a third country, in the reasonably foreseeable future.”

The request. Under 241.13(d)(1), the person “may submit a written request for release to the HQPDU asserting the basis for the alien’s belief.” Under 241.13(d)(2), the request must include “information sufficient to establish his or her compliance with the obligation to effect his or her removal and to cooperate in the process of obtaining necessary travel documents.”
Timing. Under 241.13(d)(3), the request may be submitted “at any time after the removal order becomes final,” but the government “may, in the exercise of its discretion, postpone its consideration of such a request until after expiration of the removal period.”
Acknowledgment. Under 241.13(e)(1), “within 10 business days after the HQPDU receives the request (or, if later, the expiration of the removal period),” the HQPDU responds in writing, with a copy to counsel of record, acknowledging receipt and explaining the procedures that will be used.
State Department input. Under 241.13(e)(3), if the HQPDU believes the request provides grounds for further review, the government “may, in the exercise of its discretion, forward a copy of the alien’s release request to the Department of State for information and assistance.”
The six-month window. Under 241.13(b)(2)(ii), the HQPDU “has no obligation to release an alien under this section until the HQPDU has had the opportunity during a six-month period, dating from the beginning of the removal period,” to make its determination.
While removal efforts continue, 241.13(f) sets no fixed deadline. Under 241.13(f), “there is no presumptive period of time within which the alien’s removal must be accomplished, but the prospects for the timeliness of removal must be reasonable under the circumstances.”
The decision. Under 241.13(g)(1), if the HQPDU determines there is no significant likelihood of removal in the reasonably foreseeable future, then “unless there are special circumstances justifying continued detention,” the government “shall promptly make arrangements for the release of the alien subject to appropriate conditions.”

Who 241.13 does not cover. Under 241.13(b)(3), the section does not apply to (i) “arriving aliens,” including those granted parole into the United States and “Mariel Cubans whose parole is governed by § 212.12”; (ii) people “still within the removal period,” including those whose removal period has been extended for failure to comply; or (iii) people ordered removed by the Alien Terrorist Removal Court. The regulation’s exclusion of arriving aliens sits alongside Clark v. Martinez, which applied the six-month presumption to inadmissible aliens under the statute; both are stated here as written.

Failure to cooperate: notices and criminal penalties

Besides the Notice of Failure to Comply described above, ICE has described in federal court filings serving a Form I-229(a), Warning for Failure to Depart. In Kanu v. Sheriff Butler County, No. 1:16-cv-756 (S.D. Ohio, report and recommendation filed November 7, 2016), an ICE declaration quoted in the court record said that “a form I-229(a), Warning for Failure to Depart, and an instruction sheet which explains case specific requirements for compliance is served every 30 days.” That describes the practice in that case; we did not find an ICE-published instruction page for Form I-229(a) on ice.gov on October 8, 2026.

Criminal penalties (8 U.S.C. 1253(a)). The penalty applies to a person “against whom a final order of removal is outstanding by reason of being a member of any of the classes described in section 1227(a)” who willfully fails or refuses to depart within 90 days of the final order, willfully fails or refuses to apply in good faith for travel documents, connives or conspires to prevent or hamper departure, or willfully fails to present for removal. The penalty is a fine under title 18, imprisonment of “not more than four years (or 10 years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of section 1227(a) of this title),” or both. Under 1253(a)(2), “it is not a violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.”

Civil penalties (INA 274D). Separate from the criminal provision, INA 274D(a)(1) (8 U.S.C. 1324d(a)(1)) authorizes a civil penalty against a person who willfully fails or refuses to depart after a final order of removal, or takes certain actions to thwart departure or removal. The inflation-adjusted figure is up to $998 for each day of the violation (8 CFR 280.53(b)(14)). DHS imposes it with a written decision and order, served in person or by regular mail, under the procedure in 8 CFR part 281: a notice of appeal goes to DHS — not to the Board of Immigration Appeals — within 15 business days of service, and a supervisory officer who did not issue the decision reviews the written record and decides within 45 days. That procedure began as a June 27, 2025 interim final rule (90 FR 27439). The final rule (FR Doc. 2026-21024) was published in the Federal Register on October 14, 2026 (91 FR 65390) and states: “The effective date of this final rule is October 14, 2026.” It adds one exception: a late appeal can be accepted when ICE finds, case by case, that a mail delay beyond the person’s control caused it. The rule reports that from June 27, 2025 through September 14, 2026, ICE issued approximately 110,000 failure-to-depart civil penalties. Source: final rule, 91 FR 65390.

If released: the Order of Supervision (Form I-220B)

Under 8 U.S.C. 1231(a)(3), a person not removed within the removal period “shall be subject to supervision,” including periodic appearances before an immigration officer, information under oath, and “reasonable written restrictions.” Under 8 CFR 241.5(a), a person released under 241.4 is released on an order of supervision, and ICE may issue Form I-220B, Order of Supervision. Its conditions include, but are not limited to:

Reporting to a specified officer periodically and providing information under oath;
Continuing efforts to obtain a travel document and assisting the government in obtaining one;
Reporting for a mental or physical examination as directed;
Getting advance approval of travel beyond previously specified times and distances; and
Giving DHS written notice of any change of address.

Under 241.5(b), the officer may also require a bond. For a person released under 241.13, 241.13(h)(1) adds a requirement to “provide the Service with all correspondence to Embassies/Consulates requesting the issuance of travel documents and any reply.”

What the ICE form itself says. The I-220B form states that “because the agency has not effected your deportation or removal during the period prescribed by law,” the person is placed under supervision and must “appear in person at the time and place specified, upon each and every request of the agency.” Among its checkbox options, the form can include a requirement not to travel outside set limits “for more than 48 hours without first having notified this agency office,” written notice of any change of residence or employment “48 hours prior to such change,” and an Alternatives to Detention clause under which the person “will be subject to electronic monitoring and may be subject to a curfew.” For how check-ins and monitoring work day to day, see ICE check-ins and Alternatives to Detention and ICE ankle monitors and ISAP check-in rules. For address-change filings, see change of address.

Work permits. Under 8 U.S.C. 1231(a)(7), no one ordered removed is eligible for employment authorization unless the government specifically finds that the person “cannot be removed due to the refusal of all countries” to receive him or her, or that removal “is otherwise impracticable or contrary to the public interest.” Under 8 CFR 241.5(c), an officer “may, in his or her discretion,” grant employment authorization to a person on an order of supervision on similar findings. DHS published a proposed rule on June 5, 2026 (FR Doc. 2026-11285) to “limit and clarify eligibility” for this discretionary work permit; comments closed August 4, 2026, and a Federal Register search on October 8, 2026 found no final rule. See discretionary work permit restrictions.

Re-detention and revocation of release

Under 8 CFR 241.4(l)(1), a person released on an order of supervision “who violates the conditions of release may be returned to custody,” and is subject to the penalties in section 243(b) of the Act. “Upon revocation, the alien will be notified of the reasons,” and “will be afforded an initial informal interview promptly after his or her return to Service custody.” Under 241.4(l)(2), release may also be revoked “in the exercise of discretion.” For people released under 241.13, 241.13(i)(2) allows revocation if, “on account of changed circumstances,” the government determines “there is a significant likelihood that the alien may be removed in the reasonably foreseeable future,” and 241.13(i)(1) allows a person who violated conditions to be “continued in detention for an additional six months in order to effect the alien’s removal, if possible.”

Violating supervision is also a federal offense: under 8 U.S.C. 1253(b), a person who willfully fails to comply with the supervision requirements under 1231(a)(3), or knowingly gives false information, “shall be fined not more than $1,000 or imprisoned for not more than one year, or both.”

Two 2026 district-court decisions with different results. Federal district courts have reached different results in challenges to re-detention after an order of supervision was revoked, depending on the facts. Two examples from the U.S. District Court for the District of New Hampshire:

Mejia v. ICE ERO Field Office Director, No. 26-cv-205-LM-AJ, 2026 DNH 037 P (April 7, 2026): the petitioner had lived “in the community on an order of supervision for over twenty years” and was detained at “a routine check-in” on March 13, 2026, under a revocation notice citing 8 CFR 241.4(l). The petition was granted.
Cardona Lopez v. Luna, No. 26-cv-440-LM-AJ, 2026 DNH 086 P (June 30, 2026): the petitioner, who was in withholding-only proceedings, claimed ICE did not give him notice of the grounds for revocation or an opportunity to be heard. The petition was denied.

These are trial-level decisions; we did not find a federal appeals-court ruling on this question in our October 8, 2026 research.

Third-country removals

Because 8 CFR 241.13(a) counts possible removal “to a third country” in deciding whether removal is foreseeable, litigation over third-country removals bears on how that question is answered. The case is tracked on our third-country removals page.

Last verified: 2026-10-15. General information, not legal advice. Custody decisions after a removal order depend on the person’s nationality, criminal and immigration history, travel-document status, and the terms of the person’s own order, and court decisions in this area vary by jurisdiction. For any specific case, contact a licensed immigration attorney or BIA-accredited representative.

Frequently asked questions

Does ICE have to release someone after the 90-day removal period ends?

No. Under 8 U.S.C. 1231(a)(3), a person who is not removed within the 90-day removal period becomes subject to supervision, but 8 U.S.C. 1231(a)(6) lets the government detain certain people beyond the removal period, including people inadmissible under section 1182, people removable on certain criminal or security grounds, and people the government determines are a risk to the community or unlikely to comply with the order. The period can also be extended under 1231(a)(1)(C) when the person fails or refuses to apply in good faith for travel documents.

Does ICE have to release someone after six months?

Not automatically. In Zadvydas v. Davis (June 28, 2001) the Supreme Court recognized a six-month presumptive period, but wrote that the presumption does not mean that every alien not removed must be released after six months. After six months, once the person gives good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing.

Is there a bond hearing in front of an immigration judge after six months on a final order?

The statute does not require one. In Johnson v. Arteaga-Martinez (June 13, 2022) the Supreme Court held that section 1231(a)(6) does not require the government to provide noncitizens detained for six months with bond hearings in which the government bears the burden of proof. The custody routes described in the regulations are ICE’s post-order custody reviews under 8 CFR 241.4 and the written release request under 8 CFR 241.13; Zadvydas describes federal habeas corpus as the court route.

What is Form I-220B?

Form I-220B is the Order of Supervision. Under 8 CFR 241.5, a person released under the custody-review rules in 8 CFR 241.4 is released on an order of supervision whose conditions include periodic reporting, continuing efforts to obtain a travel document, advance approval of travel, and written notice of any change of address. The ICE form itself can also include an Alternatives to Detention enrollment clause with electronic monitoring.

What is Form I-229(a)?

Form I-229(a) is titled Warning for Failure to Depart. ICE does not publish a public instruction page for it that we could find on October 8, 2026; the description available comes from federal court records, such as an ICE declaration quoted in Kanu v. Sheriff Butler County (S.D. Ohio, 2016), which described serving the form with an instruction sheet on case-specific compliance requirements. The cadence described in that case is a description of that case, not a published nationwide rule.

Can ICE re-detain someone who was released on an order of supervision?

The regulations allow it. 8 CFR 241.4(l) says a person who violates the conditions of release may be returned to custody, that release may also be revoked in the exercise of discretion, and that the person will be notified of the reasons and given an initial informal interview promptly after return to custody. 8 CFR 241.13(i)(2) separately allows revocation when changed circumstances make removal significantly likely in the reasonably foreseeable future. In 2026, two decisions from the U.S. District Court for the District of New Hampshire reached different results on re-detention challenges.

Does possible removal to a third country count in the six-month analysis?

The regulation counts it. 8 CFR 241.13(a) asks whether there is no significant likelihood of removal to the country to which the person was ordered removed, or to a third country, in the reasonably foreseeable future. Third-country removals are the subject of litigation at the Supreme Court, which is tracked on our third-country removals case page.

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General information, not legal advice. MigrantUSA is an independent publisher and is not a law firm; using this site does not create an attorney-client relationship, and this content is not a substitute for advice from a licensed attorney about your specific situation. US federal, state, and local government procedures, fees, and forms change. Always verify current details directly with the relevant agency before acting. For immigration, tax, or other legal matters specific to your situation, consult a licensed attorney or BIA-accredited representative.