Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JAVIER RIVES HERNANDEZ,

Petitioner,

v. Case No.: 2:26-cv-01165-SPC-DNF

U.S. ATTORNEY GENERAL et al.,

Respondents,

/

OPINION AND ORDER

Before the Court are petitioner Javier Rives Hernandez’s Petition for

Writ of Habeas Corpus (Doc. 1) and the government’s response (Doc. 7). For

the below reasons, the Court grants the petition.

Rives Hernandez is a native of Cuba who was paroled into the United

States on May 13, 2006. After he failed to appear in immigration court, an

immigration judge ordered him removed on June 28, 2006. March 11, 2026,

local law enforcement arrested Rives Hernandez for petit theft and turned him

over to Immigration and Customs Enforcement (“ICE”). ICE unsuccessfully

attempted to remove Rives Hernandez to Mexico in March 2026, then returned

him to Florida and detained him at Alligator Alcatraz.

“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.

Because the six-month period for presumptively reasonable detention

has expired, Zadvydas’s burden-shifting framework applies. Rives Hernandez

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 2006, a recent attempt to remove him to

Mexico was unsuccessful, and there is no indication ICE can remove him to

either country soon.

The burden thus shifts to the government. ICE claims Rives Hernandez

refused removal to Mexico in March 2026 but does not provide any detail. In

any event, 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 Rives Hernandez in the reasonably foreseeable future.

The Court finds no significant likelihood Rives Hernandez 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 Rives Hernandez to “assur[e] [his] presence

at the moment of removal.” Zadvydas, 533 U.S. at 680.

Accordingly, it is hereby

ORDERED:

Javier Rives Hernandez Petition for Writ of Habeas Corpus (Doc. 1) is

GRANTED.

1. The respondent shall release Rives Hernandez 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 28, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record