2. Post-Order Custody Review at Ninety Days Upon expiration of the 90-day removal period, ICE will by statute review the need for continued detention. Absent justification of the individual being a danger to the community, significant flight risk or that removal is imminently pending, the individual should be released at the 90-day review. In general, the detained individual does not need to request that ICE conduct this custody review; rather, ICE initiates the review itself. However, the individual should receive notice 30 days prior that the review will be conducted. This allows the individual to present evidence and other documents in support of release upon review. In addition to any typical evidence that might be submitted explaining why an individual should be released,200 evidence of statelessness may support the case for release. Evidence can include: 1) Explanation of statelessness and why the individual is stateless; 2) Official U.S. Government letters finding this person stateless (if applicable); 3) UNHCR statelessness status determination or evidence that the individual has requested to be recognized as stateless under UNHCR’s mandate (if applicable); 4) Evidence of the individual’s cooperation with attempts to remove her, including letters submitted by the individual to relevant consulates, and any responses taking a position on the citizenship of the individual, or evidence on the State(s) general attitude in terms of nationality status of persons similarly situated; 5) Case law demonstrating that similarly situated individuals were found to be stateless or not able to be removed from the United States. 3. Post-Order Custody Review at 180 Days If an individual is detained beyond the initial 90-day custody review, ICE will initiate a second custody determination after 180 days in detention.201 At this stage, the presumptive reasonableness of continued detention shifts, and ICE must justify why continued detention for removal purposes is necessary. Thus, the focus of this review is on whether removal is reasonably possible in the near future. Similar to the 90-day review, an individual may provide evidence in support of release, focusing on the unlikelihood of removal. For stateless persons, again, the focus of such evidence may be to prove the high unlikelihood or impossibility of removal. Additionally, evidence of efforts to comply with the removal order and secure removal to another country will also be of value. 4. Petition for a Writ of Habeas Corpus If after 180 days, ICE decides not to release a stateless person or fails to make a prompt decision regarding on-going detention, the individual may file a petition for a writ of habeas corpus in federal district court. Such a challenge would be brought under the 2001 U.S. Supreme Court opinion in Zadvydas v. Davis.202 In Zadvydas, the Court held that, as a general principle, DHS cannot detain those with a final administrative order of Such evidence would demonstrate that an individual is neither a flight risk nor a danger to the community. Importantly, this review is carried out at ICE Headquarters Post-Order Detention Unit (HQPDU) in Washington, D.C. 202 533 U.S. 678 (2001). 200 201 46