A U.S. District Court judge in New Jersey ordered the release of a detainee whom ICE had prevented from complying with a voluntary departure order—then used that missed deadline as grounds for mandatory detention. The decision signals that immigration officers cannot block someone’s departure and later argue the person must remain detained because they failed to leave on time.
What changed
Marlon Andres Torres Gomez had received permission from an immigration judge to leave the country by June 11, and his attorneys repeatedly contacted immigration officials seeking to coordinate his departure. Torres Gomez bought a one-way ticket from New York to Colombia for June 10. But ICE did not permit him to leave. Instead, the agency kept him detained as the deadline passed, then argued that he was subject to mandatory detention because he had failed to depart on time.
Torres Gomez filed a petition for a writ of habeas corpus, asking the court to order his release because his continued detention violated his constitutional right to due process. Judge Michael Farbiarz of the U.S. District Court for the District of New Jersey ordered Torres Gomez promptly released from federal custody.
Farbiarz rejected all three government justifications as “after-the-fact and plainly non-persuasive.” Federal officials first pointed to previous court injunctions preventing them from deporting Torres Gomez, but those cases were closed before the June 11 deadline. The injunctions restricted the government from deporting him but did not prevent Torres Gomez from leaving voluntarily. The government next argued that an immigration court had offered to extend the voluntary departure period, but Farbiarz found that the proposed extension did not justify keeping Torres Gomez detained and was not offered until June 12, one day after the original deadline had passed.
Immigration officials said they kept Torres Gomez in custody to protect his ability to appeal the immigration judge’s decision. The court said there was little evidence supporting that explanation and instead credited evidence that Torres Gomez wanted to leave and had informed a named ICE official that he did not wish to pursue an appeal.
Why it matters
This ruling has two critical implications for practitioners:
First, it establishes limits on ICE’s use of missed voluntary departure deadlines as grounds for mandatory detention. ICE cannot prevent him from complying with a voluntary departure order and then use the missed deadline it caused to justify his continued detention. Voluntary departure allows certain noncitizens to leave the United States on their own rather than being forcibly removed. Once the government grants that option, the U.S. Supreme Court has said, officials generally can detain and remove the person only if the person remains in the United States by choice.
Second, the decision underscores the government’s burden to show voluntary departure failures actually reflect the detainee’s choice—not government obstruction. If your client was ordered to depart, cooperated with attorneys and immigration officials to arrange travel, purchased tickets, and was then blocked from leaving by ICE, this decision supports a habeas petition arguing the resulting detention violates due process.
The ruling comes as the Trump administration encourages immigrants in the country without legal status to leave voluntarily. The decision was a rebuke of the administration’s handling of Torres Gomez’s case.
Way forward
If you represent someone in a similar fact pattern:
- Document all coordination attempts. Gather emails, phone records, and written requests your client or their attorneys made to ICE seeking to arrange departure during the voluntary departure window.
- Obtain the plane ticket or travel proof. If your client purchased a ticket but was not released, obtain that documentation along with any communications showing ICE prevented departure.
- File a habeas petition if detention continues after a missed deadline. Cite this decision to argue the government cannot use its own obstruction as grounds for mandatory detention.
- Preserve the record on intent to appeal. Get written confirmation from your client that they do not wish to appeal the voluntary departure order—the judge emphasized the government must show evidence that the detainee actually wanted to appeal, not merely speculate.
Disclaimer
This article is not legal advice and does not constitute the provision of legal services. Fola is a software company, not a law firm. You should verify the details of this decision and its application to your specific circumstances by consulting a licensed immigration attorney and reviewing the full court opinion. Immigration law and policy change without notice; always confirm current rules and procedures against official government sources and the most recent case law before relying on any summary for client advice.