The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MIGUEL CUESTA,
Petitioner,
v. Case No.: 2:26-cv-01091-SPC-DNF
U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT,
Respondent,
/
OPINION AND ORDER
Before the Court are petitioner Miguel Cuesta’s Petition for Writ of
Habeas Corpus (Doc. 1) and the government’s response (Doc. 8). For the below
reasons, the Court grants the petition.
Cuesta is a native of Cuba who was paroled into the United States on
August 1, 1980. On February 10, 2003, he was convicted of burglary, escape,
and theft, and an immigration judge ordered Cuesta removed to Cuba in May
2003. Immigration and Customs Enforcement issued an order of supervision
on March 23, 2011, and Cuesta has complied with its terms. On November 1,
2025, he reported to ICE for a check-in appointment, and ICE arrested him.
Cuesta was detained at Alligator Alcatraz, but he is currently at the Central
Louisiana ICE Processing Center.
“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 Cuesta’s petition is premature because his
current detention has not exceeded 180 days. They assume a six-month
presumptively reasonable period of detention starts 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. Cuesta 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 2003, and there is no indication Cuba is likely
to accept him now.
The burden thus shifts to the government. In a declaration attached to
the response, a deportation officer claims ICE intends to removal Cuesta “once
the temporary restraining order is lifted.” (Doc. 8-4 at 2). The Court is not
aware of a temporary restraining order preventing removal. Nevertheless, it
appears ICE intends to make an informal effort to compel voluntary departure,
not an above-board removal attempt that complies 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 Cuesta in the reasonably foreseeable future.
The Court finds no significant likelihood Cuesta will be removed in the
reasonably foreseeable future. He is entitled to release from detention under
Zadvydas. If removal becomes likely in the reasonably foreseeable future, ICE
can detain Cuesta to “assur[e] [his] presence at the moment of removal.”
Zadvydas, 533 U.S. at 680.
Accordingly, it is hereby
ORDERED:
Miguel Cuesta Petition for Writ of Habeas Corpus (Doc. 1) is
GRANTED.
1. The respondent shall release Cuesta within 24 hours of this Order
and provide him telephone access so he can arrange his
transportation from the facility.
2. The Clerk is DIRECTED to terminate any pending motions and
deadlines, enter judgment, and close this case.
DONE AND ORDERED in Fort Myers, Florida on April 27, 2026.
UNITED STATES DISTRICT JUDGE
SA: FTMP-1
Copies: All Parties of Record