The second Trump administration continues to prioritize the removal of immigrants. The Department of Homeland Security (DHS) claims the administration has close to a million removals since the start of the term, including Immigration and Customs Enforcement (ICE) removals, Customs and Border Protection (CBP) removals, and Coast Guard repatriations. Tens of thousands of others are in immigration detention as they wait for removal proceedings. How long do those in detention have to wait? And if the case drags out for months and years, how long is too long?
An order issued by a U.S. District Judge on September 8, 2026, granted a writ of habeas corpus to a person who had remained in detention for 19 months. Under the Immigration and Nationality Act (INA), noncitizens still have due process rights and protections against prolonged detention. The case raises the question of what a "reasonable" time is for those imprisoned while awaiting immigration court proceedings or an expedited removal that proves to be anything but.
Some Background on Removal Proceedings
No single fixed time limit applies to immigration detention. How long a person may be held depends on the legal basis for detention and the stage of the removal case. ICE can hold them while it investigates or prepares charges, or if they’re considered to be under “active removal,” which may take months or years. After a final order of removal, ICE has 90 days to deport the detainee. This can be extended if the noncitizen failed or refused, in good faith, to seek the necessary travel documents or otherwise acted to delay removal.
While not U.S. citizens, those detained retain certain rights. These include access to legal service providers, parole and bond hearings, and access to their case files through the DOJ’s Executive Office for Immigration Review (EOIR). They may also be released on their own recognizance (OR), issued an Order of Supervision (OSUP), or monitored under an alternate means of detention. Detainees can challenge a final order of removal before the Board of Immigration Appeals (BIA). No matter how long that takes, they may have to spend their time waiting in prison or jail.
Both ICE and CBP can impose mandatory detention under certain conditions. If a noncitizen has crossed the border without going through a port of entry (in some jurisdictions), has a criminal conviction (usually an aggravated felony or drug charge), or is considered a terrorist or a national security threat, they can be held without bond. They’re also unlikely to be released if they’re considered a flight risk. Extended detention may apply if the subject has a criminal record, there are difficulties with the deportation paperwork, or there are pending legal proceedings before the BIA.
A Recent Example
Ahmed Abdirzak Aimad was born in Somalia. After several years in a Kenyan refugee camp, he was lawfully admitted to the U.S. in 1999 at age 11 and granted a cancellation of removal in 2010. On September 11, 2024, he was arrested on a drug possession offense and, after a detainer, was transferred to ICE custody on December 31 of that year. He received an order of removal on May 12, 2025, but the immigration judge ruled he couldn’t be sent to Somalia. ICE appealed, but the BIA upheld the decision on November 25. A month later, Aimad was transferred to a Nebraska prison for long-term incarceration while a third-country deportation was arranged.
Aimad filed a habeas petition on August 6, 2026, arguing that he’d been detained for more than a year and a half and that there was “no significant likelihood” of his removal within a reasonable amount of time. Senior United States District Judge John M. Gerrard stayed the case because Aimad was scheduled for deportation to Rwanda on August 25.
After being flown to a Mississippi prison, Aimad was taken off the flight list. Judge Gerrard, applying Zadvydas v. Davis, ruled that the amount of time Aimad had been detained after the Final Order of Removal had been issued was not reasonable. In approving Aimad’s petition and setting him free, Judge Gerrard also noted that he wasn’t sure if Aimad’s lengthy incarceration was due to the government’s “deliberate misrepresentation or mere ineptitude.” 90 days may not always be 90 days, but at least in this case, it’s not 19 months.
