A/HRC/7/12/Add.2 page 13 39. In its landmark decision, Zadvydas v. Davis,9 the Supreme Court held that indefinite immigration detention of non-citizens who have been ordered deported but whose removal is not reasonably foreseeable would raise serious constitutional problems. 40. Prior to Zadvydas, the Government had a policy of detaining individuals even when there was virtually no chance they would actually be removed (this has been especially common with migrants from countries such as Cuba, Iraq, the Islamic Republic of Iran, the Lao People’s Democratic Republic, the former Soviet Union and Viet Nam). The Government often referred to these individuals as “lifers”, in recognition of the fact that their detention was indefinite and potentially permanent. In the aftermath of Zadvydas, new regulations were promulgated in order to comply with the Supreme Court’s decision. Under these regulations, if the Department of Homeland Security cannot remove a migrant within the 90-day removal period, the Government is required to provide a post-order custody review to determine if the individual can be released. If the individual remains in detention six months after the removal order has become final, another custody review is to be conducted. Once it is determined that removal is not reasonably foreseeable, the regulations require the individual to be released under conditions of supervision. 41. Unfortunately, many problems plague the post-order custody review process. For example, some detainees never receive notice of their 90-day or 6-month custody reviews, and therefore do not have the opportunity to submit documentation in support of their release. Others never receive timely custody reviews at either the 90-day or 6-month mark. In addition, decisions to continue detention are often based on faulty reasoning and erroneous facts, ignore the law outlined by the Supreme Court in Zadvydas, or are essentially rubber-stamp decisions that fail to cite any specific evidence in support of their conclusion. 42. Frequently, these decisions ignore documentation (including letters from the detained individual’s consulate) that proves that there is no significant likelihood of removal in the reasonably foreseeable future. In other cases, the Department of Homeland Security has failed to present evidence of the likelihood of removal and instead blames detainees for failing to facilitate their own removal. 43. The Special Rapporteur notes that according to the law, individuals can be released on parole regardless of their immigration status. In practice, however, because migrants are not entitled to a review of their custody by an immigration judge, or are subjected to rubber-stamp administrative custody review decisions, their detention is essentially mandatory. 44. The Special Rapporteur acknowledges that the mission for the Department of Homeland Security is to “lead the unified national effort to secure America” through its Immigration and Customs Enforcement agency (ICE). ICE is the largest investigative branch of the Department of Homeland Security; and seeks to protect the United States against terrorist attacks by targeting undocumented immigrants, whom the agency considers to be “the people, money and materials that support terrorism and other criminal activities”. 9 See footnote 7 above.