Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ALEXIS DIEQUEZ MONTORO,

Petitioner,

v. Case No.: 2:26-cv-01041-SPC-NPM

U.S. ATTORNEY GENERAL et al.,

Respondents,

/

OPINION AND ORDER

Before the Court are petitioner Alexis Diequez Montoro’s Petition for

Writ of Habeas Corpus (Doc. 1) and the government’s response (Doc. 11).

Diequez Montoro is a native of Cuba who was paroled into the United

States on July 3, 2015. On April 11, 2016, he was convicted of trafficking in

cocaine, and an immigration judge ordered him removed to Cuba in January

2017. Immigration and Customs Enforcement (“ICE”) could not execute the

removal order because Cuba refused to repatriate Diequez Montoro, so it

released him on an order of supervision on June 6, 2017.

On October 24, 2025, Border Patrol agents arrested Diequez Montoro in

a targeted immigration enforcement operation and handed him over to ICE.

ICE took Diequez Montoro to the Mexican border earlier this year but did not

remove him. The only explanation why is a vague claim that Diequez Montoro

did not comply with removal. In any case, ICE returned him to Alligator

Alcatraz, where he remains detained.

“Once a noncitizen’s order of removal becomes administratively final, the

Government ‘shall’ remove the person within 90 days.” Singh v. U.S. Attorney

Gen., 945 F.3d 1310, 1313 (11th Cir. 2019) (quoting 8 U.S.C. § 1231(a)(1)(A)).

The government must detain the noncitizen during the 90-day removal period,

which begins when the removal order becomes administratively final. Id.

Detention may continue after the removal period, but not indefinitely.

In Zadvydas v. Davis, the Supreme Court held, “if removal is not

reasonably foreseeable, the court should hold continued detention

unreasonable and no longer authorized by statute.” 533 U.S. 678, 700-01

(2001). If removal is not practically attainable, detention no longer serves its

statutory purpose of “assuring the alien’s presence at the moment of removal.”

Id. at 699. The Court found it unlikely Congress “believed that all reasonably

foreseeably removals could be accomplished in [90 days].” Id at 701. So, “for

the sake of uniform administration in the federal courts,” it established a

“presumptively reasonable period of detention” of six months—the 90-day

removal period plus an additional 90 days. Id. Courts use a burden-shifting

framework to judge the constitutionality of additional post-removal detention:

After this 6-month period, once 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 the showing.

Id.

The government argues Diequez Montoro’s petition is premature

because he filed it before his current detention exceeded 180 days. They

assume a six-month presumptively reasonable period of detention begins each

time a noncitizen is detained. That assumption is inconsistent with Zadvydas.

It would effectively allow DHS to detain noncitizens indefinitely and avoid

judicial scrutiny by releasing and re-detaining them every 180 days. As the

Eleventh Circuit recognized, “[t]he Supreme Court’s stated rationale for

establishing a presumptively reasonable ‘6-month period’ for detention

pending removal supports our conclusion that this period commences at the

beginning of the removal period.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052

n.3 (11th Cir. 2002).

Because the six-month period for presumptively reasonable detention

has expired, Zadvydas’s burden-shifting framework applies. Diequez Montoro

has carried his initial burden by showing a good reason to believe there is no

significant likelihood of removal in the reasonably foreseeable future. ICE was

unable to remove him to Cuba in 2017, Cuba is still unwilling to issue travel

documents, and the government has not demonstrated any plan for removal

since his arrest in October 2025.

The burden thus shifts to the government. ICE points to its February

2026 attempt to send Diequez Montoro to Mexico. But the evidence before the

Court suggests that was an informal effort to compel voluntary departure, not

an above-board removal attempt that complied with statutory and

constitutional requirements. See Andriasian v. Immigr. and Naturalization

Servs., 180 F.3d 1033, 1041 (9th Cir. 1999) (“Failing to notify individuals who

are subject to deportation that they have the right to apply for asylum in the

United States and for withholding of deportation to the country to which they

will be deported violates both INS regulations and the constitutional right to

due process.”); see also D.V.D. v. U.S. Dep’t of Homeland Security, --- F. Supp.

3d ---, 2026 WL 521557 (D. Mass. Feb. 25, 2026) (setting aside DHS’s current

third-country removal policy because it violates noncitizens’ right to seek fear-

based relief under the Convention Against Torture). ICE makes no attempt to

show it can lawfully remove Diequez Montoro in the reasonably foreseeable

future.

However, assuring the presence of a noncitizen at the moment of removal

is not the only statutory justification for immigration detention. “The second

justification—protecting the community—does not necessarily diminish in

force over time.” Zadvydas, 533 U.S. at 690. The Supreme Court has “upheld

preventative detention based on dangerousness only when limited to specially

dangerous individuals and subject to strong procedural protections.” Id. Given

Diequez Montoro’s criminal history, the Court will give ICE an opportunity to

determine whether his detention is necessary to protect the community.

Accordingly, it is hereby

ORDERED:

Alexis Diequez Montoro’s Petition for Writ of Habeas Corpus (Doc. 1)

remains under advisement.

1. Within 30 days of this Order, ICE shall conduct a custody review to

determine whether Diequez Montoro poses a danger to the

community sufficient to justify continued detention.

2. Within seven days of the custody review, the respondents shall file a

supplemental response, addressing the results of the review and any

updates on removal efforts.

3. Diequez Montoro may file a reply within three days of the

supplemental response.

DONE AND ORDERED in Fort Myers, Florida on April 21, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record