                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-2448
MOHAMMAD AZAM HUSSAIN,
                                            Petitioner-Appellant,
                               v.

MICHAEL B. MUKASEY, Attorney General
   of the United States, et al.,
                                   Respondents-Appellees.
                      ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
           No. 07 C 268—William C. Griesbach, Judge.
                        ____________
  ARGUED NOVEMBER 29, 2007—DECIDED DECEMBER 18, 2007
                        ____________


  Before CUDAHY, POSNER, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. The petitioner, Hussain, sought
temporary freedom by petitioning for federal habeas
corpus, claiming that his detention pending removal
proceedings deprived him of liberty without due process
of law. (He named as a respondent, along with his im-
mediate custodian, the Attorney General; whether the
Attorney General is a proper respondent when the peti-
tioner is detained pursuant to removal proceedings is
an open question, Rumsfeld v. Padilla, 542 U.S. 426, 436 n. 8
2                                              No. 07-2448

(2004), unnecessary to address in this case.) The district
court turned him down, and he has appealed.
  The case has a tangled background. Hussain came to this
country from Pakistan, his native country, in 1994, and
five years later became a lawful permanent resident. In
September 2004 he was arrested and charged with immi-
gration fraud, based on false documents that had enabled
him to enter and remain in the United States; other mis-
representations were charged as well. He was convicted
in June 2005 and sentenced to nine months in prison,
time served. The following month he was placed in de-
tention in an immigration facility and removal proceed-
ings were begun. He has remained in immigration
custody for the past two and (almost) a half years.
  His removal hearing was spread over several days
between December 2005 and May 2006, when the immigra-
tion judge took the matter under advisement. He mean-
while had appealed his criminal conviction to us, for al-
though he had served his sentence, a reversal of the con-
viction would help him resist removal. In October 2006,
while the appeal was pending, the government agreed to
the vacation of the judgment and the dismissal of the
indictment in lieu of turning over classified information to
the defense. Later that month Hussain asked the immigra-
tion judge to order him released on bond pending the
conclusion of the removal proceeding, and in February
the immigration judge granted his request. But the gov-
ernment appealed to the Board of Immigration Appeals,
which stayed the immigration judge’s order; so Hussain
remained in custody.
  On May 1, 2007, while that appeal was pending before
the Board, the immigration judge concluded the removal
proceeding with an order that Hussain be removed. The
No. 07-2448                                                 3

judge ruled that Hussain had gained entry to the United
States by fraud and was barred from asylum (for which he
had applied during the removal proceeding) by having
been a member of a terrorist organization, the Mohajir
Qaumi Movement-Haqiqi. Mohajirs are Muslim refugees
from India who have settled in Pakistan. See Yaroslav
Trofimov, “Pakistan’s Embattled Leader Embraces Maver-
ick Partner,” Wall St. J., Dec. 5, 2007, p. A1. The “embattled
leader” is of course President Musharraf—himself a
Mohajir—and the “maverick partner” is MQM—the
Mohajir Qaumi Movement, though probably not the
branch to which Hussain belonged.
  But while finding that Hussain was removable, the
judge also found that he was entitled to relief under the
Convention Against Torture because if returned to
Pakistan he would be likely to be tortured. Thus the
removal order was contingent.
   Two months before that order was issued Hussain had
applied for habeas corpus. His application was denied
just weeks after the order of removal was entered, and it
is that denial that is challenged in this appeal. But that is
not the end of our narrative. Hussain appealed the removal
order to the Board of Immigration Appeals; the govern-
ment cross-appealed from the part of the order that granted
Hussain relief under the Convention Against Torture.
While those appeals were pending, the Board reversed
the immigration judge’s order to release Hussain (the
order the Board had earlier stayed), on the ground that
the finding that Hussain was a member of a terrorist
organization precluded his release. 8 U.S.C. § 1226(c)(1);
see id., § 1227(a)(4).
  In October, the Board affirmed the immigration judge’s
order in its entirety and remanded the case for the entry
4                                               No. 07-2448

of a final order of removal after completion of the back-
ground investigation required as a condition of release
when a removable alien is allowed to remain in this
country by reason of the Convention Against Torture or
the refusal of any country to accept him. 8 C.F.R. § 1003.47.
The immigration judge entered the final order on Novem-
ber 6, ordering Hussain removed but staying removal
until and unless he could be removed without his re-
moval’s precipitating a violation of the Convention Against
Torture. Hussain has filed a petition in this court to
review the order, which is administratively final. He
has also filed a petition to review the Board’s earlier
decision affirming the immigration judge’s contingent
removal order, but that decision was not a final order.
  We have stayed Hussain’s removal pending our decision
on the merits of the removal order. Entry of a stay may
seem redundant, given that removal is barred until com-
pliance with the Convention Against Torture is achieved.
But it is not. The protection that the Convention pro-
vides is fragile. The government wants to try to obtain
diplomatic assurances from the government of Pakistan
that Hussain will not be tortured if he is returned there,
and if that attempt fails the government intends to ex-
plore the possibility that India, or some other country
in which Hussain would not be in danger of being tor-
tured, will accept him. If either of these endeavors
should succeed, Hussain might, were it not for our stay,
be removed from this country before we could decide
his petition for review, though this is unlikely; the gov-
ernment is reluctant to initiate discussions with foreign
governments before our decision lest we decide that
Hussain is not removable and by doing so moot any
negotiations with foreign governments over removing him.
No. 07-2448                                               5

  Hussain argues that the refusal of the Board of Immigra-
tion Appeals to allow him to be released during the
administrative removal proceeding had no statutory
basis and indeed was unconstitutional because of the
length of time that he has been in detention (even apart
from the time he was detained because of the since-aban-
doned criminal proceeding). The argument became moot
with the issuance on November 6 of the immigration
judge’s final order directing that Hussain be removed
contingent on its being done in a way that complies with
the Convention Against Torture. We can stay the contin-
gent removal order pending completion of our judicial
review, and we have done so, but there is nothing
we can do about the Board’s failure to have ordered
Hussain released during the administrative proceeding,
for that is now complete.
  Nor can we (putting aside for the moment Hussain’s
constitutional claim) order his release pending our decision
on the validity of the contingent removal order. All other
objections pressed by the government to one side, the
statute that governs judicial review of removal orders bars
review of discretionary determinations by the Board,
8 U.S.C. § 1252(a)(2)(B)(ii), and we held in Bolante v.
Keisler, No. 07-2550, 2007 WL 3170144 (7th Cir. Oct. 31,
2007), that this section of the immigration code bars us
from ordering the release of an alien pending judicial
review of the order of removal.
  What is true but does not avail Hussain is that indefinite
detention of aliens who are ordered removed is forbidden.
Ordinarily an alien ordered removed must be removed
within 90 days after the order of removal has become
administratively final, or, if as in this case a stay pend-
ing judicial review has been granted, within 90
6                                               No. 07-2448

days after the court has upheld the order. 8 U.S.C.
§ 1231(a)(1)(B). But section 1231(a)(6) says that the gov-
ernment “may” detain him beyond that period. To avoid
a due process issue, the Supreme Court held in Zadvydas
v. Davis, 533 U.S. 678 (2001), that section 1231(a)(6)
should be interpreted to create a presumption that if
six months after the beginning of the removal period
the alien has not been removed, he is entitled to be re-
leased if “there is no significant likelihood of removal in
the reasonably foreseeable future.” Id. at 701. Hussain’s
removal period will not begin until and unless we affirm
the removal order.
   Demore v. Hyung Joon Kim, 538 U.S. 510 (2003), holds
that the principle of Zadvydas does not require release
pending judicial review of the removal order, that is, before
that review is complete, which is where Hussain is. The
difference between the two cases, as pointed out in Kim,
is that an alien who is ordered removed could languish
in detention for the rest of his life if no country could
be persuaded to accept him, whereas judicial review of
removal orders takes only a limited amount of time and
if there is hardship to the petitioner the court can agree to
expedite the proceeding. In fact, we have ordered ex-
pedited briefing and argument in the judicial review
proceeding.
   All that is left for Hussain to argue is that since he
a l r e a d y h a s b e en detained in immigrat i on
custody—improperly he argues—for more than two
years (indeed for more than three years if his detention
on criminal charges is included), due process bars his
detention for another minute, and we should therefore
reverse the district court and order him released until
we decide whether to uphold the order of removal. In effect
No. 07-2448                                               7

he seeks compensation in kind for what he claims was the
unlawful denial of release during the administrative
proceeding. This “comp time” approach, in which a moot
habeas corpus proceeding becomes the vehicle for obtain-
ing release pending judicial review of an administrative
order, won’t wash. We could not just order Hussain
released; a motion for release hasn’t even been filed in the
judicial review proceeding. We would have to remand this
case—the habeas corpus case—to the district court to fix
appropriate terms of release. By the time that was done, the
proceeding in this court to review the removal order—the
proceeding that we are expediting—would be over. For
before we could even remand this case to the district
court to fix the terms of release we would have to deter-
mine whether Hussain had been entitled to release dur-
ing the administrative proceedings—the issue to which
the parties have devoted 167 pages of contentious brief-
ing—and therefore had a claim, on his view of the law,
to compensation in the form of an immediate release.
  This is not to say that an alien never has a right to re-
lease from immigration custody before he is subjected to a
final order of removal. Inordinate delay before the order
was entered might well justify relief, Ly v. Hansen, 351
F.3d 263, 271-73 (6th Cir. 2003), with habeas corpus the
appropriate vehicle for obtaining it, as we know from
Zadvydas and Kim. It would be a considerable paradox to
confer a constitutional or quasi-constitutional right to
release on an alien ordered removed (Zadvydas) but not on
one who might have a good defense to removal. In this case
removal proceedings began in July 2005 and did not wrap
up at the administrative level until the immigration
judge’s final order of removal in November of this
year—more than two years later. But Hussain did not file
8                                                 No. 07-2448

his application for habeas corpus until March of this year,
with the completion of the administrative removal proceed-
ing within sight. By that time, the only appropriate relief
would have been to condition his continued detention on
a prompt resolution of the removal proceeding—and
that relief was not sought. By delay in seeking habeas
corpus he allowed his case for release pending the com-
pletion of the proceeding to become moot.
  Oddly, neither party has explained why the administra-
tive proceeding took so long. But even if the delay was
unconscionable, was not procured in whole or part by
Hussain himself, and was of such a length as to infringe
his rights because he was denied release throughout the
protracted proceeding, it would not do to order his re-
lease now, when the removal proceedings are in their
final stage. Should we affirm the contingent order of
removal, the protection provided by Zadvydas against
indefinite detention will click in. But that is for the future.
For the present, the issue is habeas corpus relief, and for
the reasons that we have explained the judgment of
the district court denying that relief must be
                                                   AFFIRMED.

A true Copy:
        Teste:

                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit



                    USCA-02-C-0072—12-18-07
