Today, Xinis found that there is no final order of removal against Abrego Garcia and thus no bar to her review of his habeas corpus petition. She then concluded, "The absence of a removal order raised an intractable problem for [the Trump regime," because the INA does not allow any removal proceedings in the absence of a final order of removal. This would suffice to justify releasing Abrego Garcia, but Xinis also turned to his constitutional argument for his release. 17/
Congress can only enact immigration laws and procedures that do not fall foul of the U.S. Constitution. This includes its statutorily enacted system of immigration detention. In a case called Zadvydas v. Davis, the Supreme Court addressed the due process limits on holding in detention a non-citizen who actually is actually subject to a final an order of removal. Zadvydas rejects unlimited detention. Detention to effectuate a removal order can only be for a "reasonably necessary" period. 18/
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