Bernshtein

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

VLADISLAV BERNSHTEIN,

Petitioner,

v. Case No. 3:25-cv-1153-JEP-PDB

U.S. ATTORNEY GENERAL, et al.,

Respondents.

___________________________________/

ORDER

Petitioner Vladislav Bernshtein, an immigration detainee at Baker

Correctional Institute, filed a petition for a writ of habeas corpus under 28

U.S.C. § 2241 (Docs. 1, 11) on September 29, 2025.1 Respondents filed a motion

to dismiss (Doc. 8), and Petitioner filed a reply (Doc. 9). Ultimately, this Court

concludes the petition must be granted.

I.

According to Petitioner, he “is a stateless refugee who has been detained

since March 31, 2025.” (Doc. 11 at 1).2 He was born in the Soviet Union on May

23, 1980, and entered the United States as a refugee on January 25, 1990. (Id.

1 Because Petitioner did not personally sign the initial petition (Doc. 1), the Court

directed him to either file a verified copy of the petition or an amended petition. See Order

(Doc. 10). Petitioner complied by filing a verified copy of the petition (Doc. 11).

2 Respondents contend that Petitioner is a citizen of Belarus. (Doc. 8 at 2).

at 2). He became a lawful permanent resident on August 16, 1991. (Doc. 8 at

2). After entering a plea of no contest, the state court adjudicated Petitioner

guilty of two counts of use or possession of drug paraphernalia in February

2021 and sentenced him to 179 days in jail with credit for 179 days. (See State

v. Bernshtein, No. 2019 CF 000922 (Fla. 7th Cir. Ct.).3

On June 2, 2020, an immigration judge ordered Petitioner’s removal.

(Doc. 8 at 2). Petitioner appealed, but the Board of Immigration Appeals

dismissed his appeal on November 18, 2020. (Id.). On December 30, 2020,

Enforcement and Removal Operations (“ERO”) submitted requests for travel

documents to Russia and Belarus, however, both countries denied the requests

in January 2021. (Id.). Because the United States Immigration and Customs

Enforcement (“ICE”) was unable to remove Petitioner to either Russia or

Belarus, he was released on an order of supervision on February 2, 2021. (Doc.

3 The Court takes judicial notice of Petitioner’s state court dockets. See Fed. R. Evid.

201(b)(2) (a “court may judicially notice a fact that is not subject to reasonable dispute

because it . . . can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned”); see generally Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649 (11th

Cir. 2020) (“State court records of an inmate’s postconviction proceedings generally satisfy”

the standard for judicial notice.).

Relying on the Declaration of Deportation Officer Luke Tine (Doc. 8-1), Respondents

assert that Petitioner was convicted of unlawful possession of heroin and clonazepam. (Doc.

8 at 2). The state court’s docket shows that Petitioner initially entered a plea of no contest to

possession of heroin and possession of a schedule IV controlled substance, but the state court

withheld adjudication of guilt and ordered Petitioner to complete 36 months in drug court.

See State v. Bernshtein, No. 2019 CF 000922 (Fla. 7th Cir. Ct.). Subsequently, on January

22, 2021, the state court granted Petitioner’s unopposed motion to withdraw his plea and

allowed him to enter a new plea of no contest to two counts of use or possession of drug

paraphernalia. (Id.). The state court entered judgment to that effect in February 2021. (Id.).

11 at 2; Doc. 8 at 2). More than four years later, on March 31, 2025, ICE re-

detained Petitioner following his arrest by the Flagler County Sheriff’s Office

for driving under the influence. (Doc. 11 at 2; Doc. 8 at 2-3).

According to Respondents, “[o]n April 17, 2025, Petitioner refused to

complete an application for travel documents.” (Doc. 8 at 3). On the other hand,

Petitioner responds by asserting that that he “did NOT refuse[] to complete

and sign an application for a travel document.” (Doc. 9-1 at 1, ¶ 3).

Nevertheless, on June 19, 2025, ERO again submitted a request for an

electronic travel document for Russia and Belarus. (Doc. 8 at 3.) On September

19, 2025, ERO was informed “that neither Russia nor Belarus would issue

travel documents.” (Id.). Thirty-five days later, Petitioner’s case was referred

“for possible third country removal” and Headquarters Removal and

International Operations (“HQ RIO”) “is continuing to explore third-country

removal options for Petitioner.” (Id. at 4). To date, however, ICE has been

unable to remove Petitioner.

Petitioner contends that he is entitled to immediate release from ICE

custody under Zadvydas v. Davis, 533 U.S. 678 (2001), and the Fifth

Amendment, because his post-removal order detention exceeds six months and

there is no significant likelihood of removal in the reasonably foreseeable

future. (See Doc. 11 at 2). He claims that “ICE has made no progress and no

country will accept him.” (Id.).

II.

Following an order of removal, immigration detention is governed by 8

U.S.C. § 1231. See Johnson v. Guzman Chavez, 594 U.S. 523, 544 (2021)

(“§ 1231 explains what to do if the alien is ordered removed.”); see also Deshati

v. Noem, No. 25-cv-15940-ESK, 2025 WL 3204227, at *2 (D.N.J. Nov. 17, 2025)

(“The statute governing post-final order of removal immigration detention is 8

U.S.C. § 1231.”). Pursuant to section 1231(a)(1)(A), “when an alien is ordered

removed, the Attorney General shall remove the alien from the United States

within a period of 90 days.” Detention during the removal period is mandatory.

8 U.S.C. § 1231(a)(2)(A). “The 90-day removal period shall be extended, and

the noncitizen may remain in detention, if the noncitizen (1) ‘fails or refuses to

make timely application in good faith for travel or other documents necessary

to the alien’s departure’ or (2) ‘conspires or acts to prevent the alien’s removal.’”

Singh v. U.S. Att’y Gen., 945 F.3d 1310, 1313 (11th Cir. 2019) (quoting 8 U.S.C.

§ 1231(a)(1)(C)).

The Supreme Court in Zadvydas held that indefinite detention of aliens

raises serious constitutional concerns. 533 U.S. at 690–99. Once an order of

removal is final, the government may continue to detain an alien only for a

reasonable amount of time. See id. at 699–701. The reasonableness of the

detention is to be measured “primarily in terms of the statute’s basic purpose,

namely, assuring the alien’s presence at the moment of removal.” Id. at 699

(emphasis added). The Supreme Court held that six months is a presumptively

reasonable period to detain a removable alien awaiting deportation. Id. at 700–

01. “Although not expressly stated, the Supreme Court appears to view the six-

month period to include the 90-day removal period [from section 1231(a)(1)(A)]

plus 90 days thereafter.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir.

2002).

After that six-month period has passed, if the alien “provides good reason

to believe that there is no significant likelihood of removal in the reasonably

foreseeable future, the Government must respond with evidence sufficient to

rebut that showing.” Id. at 1052 (quoting Zadvydas, 533 U.S. at 701) (emphasis

added). Thus, “in order to state a claim under Zadvydas the alien not only must

show post-removal order detention in excess of six months but also must

provide evidence of a good reason to believe that there is no significant

likelihood of removal in the reasonably foreseeable future.” Id. If an alien

makes these showings, then the burden shifts to the government to rebut the

presumption with sufficient evidence establishing that there is a “significant

likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S.

at 701. Notably, Zadvydas claims asserted prior to the presumptively

reasonable six-month period are deemed unripe and subject to dismissal

without prejudice. See Akinwale, 287 F.3d at 1052; see also Ramos Alvarez v.

U.S. Immigr. & Customs Enf’t, No. 3:25-cv-1038, 2025 WL 2591830, at *1 (M.D.

Fla. Sept. 8, 2025).

III.

Here, Petitioner was taken into ICE custody on March 31, 2025, and he

filed this case 182 days later on September 29, 2025.4 Although Petitioner had

been in ICE custody longer than 180 days when this case was filed,

Respondents contend that “Petitioner’s refusal to complete an application for

a travel document impeded ICE’s ability to submit a request for an electronic

travel document to Headquarters for a period of 63 days.” (Doc. 8 at 7). Thus,

Respondents ask the Court to apply § 1231(a)(1)(C) to toll the six-month period

for sixty-three days, which would render this case prematurely filed. In support

of their position, Respondents submit the Declaration of Deportation Officer

Luke Tine (Doc. 8-1). Officer Tine declares that “[o]n April 17, 2025, Petitioner

refused to complete an application for a travel document.” (Id. at 2, ¶ 16). He

next avers that sixty-three days later, “[o]n June 19, 2025, ERO submitted a

request for an electronic travel document . . . for evaluation by the Detention

and Deportation Officer . . . responsible for Russia and Belarus.” (Id. at 2, ¶

17).

4 While this period is technically five months and twenty-nine days by calendar

months, this Court will calculate the time under Zadvydas by the number of days. See

Akinwale, 287 F.3d at 1052 (“Although not expressly stated, the Supreme Court appears to

view the six-month period to include the 90–day removal period plus 90 days thereafter.”).

In response, Petitioner submits his own Declaration, averring that he

“did NOT refuse[] to complete and sign an application for a travel document.”

(Doc. 9-1 at 1, ¶ 3). He explains in his reply that the documents presented to

him were written in Russian, and he advised that he cannot read or write in

Russian and he asked for the documents to be translated to English. (Doc. 9 at

2). His deportation officer agreed to get the documents translated, but after

eight weeks and despite Petitioner’s continued requests for the translated

documents, the documents were returned to him with only fifteen of the

twenty-five questions translated. (Id.) Nevertheless, an officer told him that it

did not matter because he had already submitted the paperwork using

Petitioner’s signed documents from his prior detention in 2017. (Id.)

Courts have applied § 1231(a)(1)(C) differently when addressing a

Zadvydas claim:

Many courts conduct an analysis using the burden-shifting

framework from Zadvydas, considering an alien’s failure to

cooperate in determining whether the alien can show “good cause”

to believe that there is no significant likelihood of removal in the

reasonably foreseeable future. Other courts contend that an alien’s

failure to cooperate precludes an analysis under Zadvydas

altogether. Finally, some courts find an alien’s failure to cooperate

or filing of litigation equitably tolls, possibly indefinitely, the six-

month removal period. In fact, a couple of courts covered both

bases finding obstruction tolled the removal period, and in the

alternative, the alien did not meet the Zadvydas standard.

Glushchenko v. United States Dep’t of Homeland Sec., 566 F. Supp. 3d 693,

705–06 (W.D. Tex. 2021) (footnotes omitted).5 In Akinwale, the Eleventh

Circuit recognized that the six-month period may be tolled if the alien “‘acts to

prevent [his] removal’” by filing litigation “challeng[ing] issues related to his

removal order and his post-removal period detention.” Akinwale, 287 F.3d at

1052 n.4 (quoting 8 U.S.C. § 1231(a)(1)(C)). More recently, the Eleventh Circuit

noted that “if the removal period was extended by operation of § 1231(a)(1)(C),

then ICE can continue to detain [the petitioner] because ‘the keys to [the

petitioner’s] freedom [are] in his pocket and [he] could likely effectuate his

removal by providing the information requested,’ so he ‘cannot convincingly

argue that there is no significant likelihood of removal.’” Singh, 945 F.3d at

1314 (quoting Pelich v. Immigration & Naturalization Serv., 329 F.3d 1057,

1060 (9th Cir. 2003)); see Vaz v. Skinner, 634 F. App’x 778, 782 (11th Cir. 2015)6

(“Because Petitioner is responsible for thwarting his removal, he cannot show

that there is no reasonable likelihood that he will not be removed in the

5 Although district court orders are non-precedential, they may be cited as persuasive

authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310 (11th Cir. 2004) (noting that,

“[a]lthough a district court would not be bound to follow any other district court’s

determination, the decision would have significant persuasive effects”).

6 This Court does not rely on unpublished opinions as binding precedent; however,

they may be cited in this Order when this Court finds them persuasive on a particular point.

See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); Fed. R. App. P. 32.1; 11th

Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be

cited as persuasive authority.”).

reasonably foreseeable future if he cooperates with DHS and voluntarily signs

for the travel document.”); Oladokun v. U.S. Att’y Gen., 479 F. App’x 895, 897

(11th Cir. 2012) (“Oladokun fails to ‘provide[ ] good reason to believe that there

is no significant likelihood of [his] removal in the reasonably foreseeable

future,’” because his “non-cooperation is the only barrier to his removal.”

(quoting Zadvydas, 533 U.S. at 701).

Whether § 1231(a)(1)(C) applies as a tolling mechanism to the six-month

period (as requested by Respondents) or to the question of whether Petitioner

has shown a good reason to believe his removal is not reasonably foreseeable

is of no moment here. Either way, Respondents, who raised the claim that

sixty-three days should be tolled from the six-month calculation, have not

shown Petitioner acted in bad faith and thus, § 1231(a)(1)(C) is inapplicable

here.

There is no dispute that Petitioner did not complete the application for

travel documents that was presented to him on April 17, 2025.7 But a simple

7 While Petitioner does claim that he did not refuse to complete his application, (Doc.

9-1 at 1, ¶ 3), his explanation is that he would not fill out and sign the application on April

17, because the application was in Russian, a language he cannot read, (Doc. 9 at 2). Thus,

there is no actual dispute as to whether Petitioner filled out the form presented to him on

April 17, nor did Respondents’ affidavit present any specific factual contention that conflicts

with Petitioner’s version of events. (See Doc. 18-1, ¶ 16). If there were a dispute as to fact,

this Court would be obligated to hold an evidentiary hearing to resolve it. Singh, 945 F.3d at

1315 (“It is well-established that a court may not decide a habeas corpus petition based on

affidavits alone when there are factually contested issues.”). However, as explained in the

paragraph that accompanies this footnote, there is no factual dispute as to Petitioner’s

asserted good-faith basis for failing to complete the application. Therefore, no evidentiary

hearing will be held.

refusal is not enough—Respondents must show that Petitioner acted in bad

faith, and they fail to do so. Indeed, Officer Tine’s Declaration provides no

details surrounding Petitioner’s actions on April 17, 2025. Cf. Singh, 945 F.3d

at 1315 (holding that there was a factual dispute when the government’s

affidavit “contend[ed] that Mr. Singh was evasive” in completing his

application). Without a showing of bad faith, § 1231(a)(1)(C) does not apply

here. See Singh, 945 F.3d at 1314 (“[T]he text makes it clear that bad faith

must be proven before the removal period can be extended for failure to return

a complete and accurate travel application.”). Thus, the Court denies

Respondents’ request to toll the six-month period for sixty-three days. As such,

the Court finds Petitioner’s six-month period expired prior to filing this case.

Next, the Court considers whether Petitioner has “provide[d] good reason

to believe that there is no significant likelihood of removal in the reasonably

foreseeable future.” Akinwale, 287 F.3d at 1052. He asserts that in 2020, “ICE

attempted to deport him to Russia and Belarus, but both countries denied

repatriation.” (Doc. 11 at 2). Thus, he was released on an order of supervision,

and for the more than four years that followed, he remained within the United

States but was re-detained in March 2025. (Id.). Over six months later, ICE

still was unable to deport him, (id.), and Petitioner claims that “ICE has made

no progress and no country will accept him,” (Doc. 11 at 2).

Given the record, the Court finds that Petitioner has provided good

reason to believe that there is no significant likelihood of removal in the

reasonably foreseeable future. Thus, the burden shifts to Respondents to

“respond with evidence sufficient to rebut [Petitioner’s] showing.” Akinwale,

287 F.3d at 1052. As explained below, Respondents fail to do so.

In Officer Tine’s Declaration, he confirms that on September 19, 2025,

both Russia and Belarus declined to issue travel documents for Petitioner.

(Doc. 8-1 at 3, ¶ 27). This appears to be no surprise given that both countries

similarly refused to do so in January 2021 (see id. at 2-3, ¶¶ 9-10, 27), and

Respondents have provided no information regarding a change in

circumstances that would have led those countries to render a different

decision. On October 24, 2025, Petitioner’s case was referred “for possible third-

country removal.” (Id. at 3, ¶ 29). At the time of Officer Tine’s Declaration

(November 25, 2025), HQ RIO was “continuing to explore third-country

removal options in Petitioner’s case.” (Id. ¶ 30).

Respondents’ conclusion that “there is a significant likelihood that

Petitioner will be removed in the reasonably foreseeable future” is solely based

on their bare-bones allegation that they are “continuing to explore third-

country removal options.” But Respondents neither provide details relating to

their plan for third-country removal nor identify any country they have

contacted or plan to contact to determine whether such country will accept

Petitioner. Respondents were initially advised in January 2021 that Russia

and Belarus would not accept Petitioner, yet ICE made no attempt to initiate

third-country removal proceedings at that time. Now, it has been more than

four months since Russia and Belarus again advised ICE that neither country

will accept Petitioner, yet Respondents provide no evidence of their efforts to

remove Petitioner to a third country. Rather, Respondents are simply

“explor[ing] third-country removal options,” but have failed to show that they

are any closer to deporting Petitioner than they were at the time of his re-

detention on March 31, 2025. See Zadvydas, 533 U.S. at 701 (“[A]s the period

of prior postremoval confinement grows, what counts as the ‘reasonably

foreseeable future’ conversely . . . shrinks.”).

Based on the evidence presented, the Court finds Respondents have

failed to show a significant likelihood that Petitioner will be removed in the

reasonably foreseeable future. Therefore, Petitioner is entitled to release from

detention under Zadvydas.

Accordingly, it is ORDERED:

1. Respondents’ motion to dismiss (Doc. 8) is DENIED.

2. Petitioner’s petition for writ of habeas corpus (Docs. 1, 11) is

GRANTED. Respondents shall release Petitioner within 24 hours

of this Order.

3. The Clerk is DIRECTED to enter judgment granting the petition,

terminate any motions, and close the file.

DONE AND ORDERED in Jacksonville, Florida on February 9, 2026.

JORDAN E. PRATT

UNITED STATES DISTRICT JUDGE

C:

Vladislav Bernshtein

Counsel of Record

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