Nicaisse

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

LYNDON MERLICK NICAISSE,

Petitioner,

v. Case No.: 2:26-cv-01526-SPC-KRH

ICE SOUTH FLORIDA

DETENTION FACILITY

Respondent,

/

OPINION AND ORDER

Before the Court are petitioner Lyndon Merlick Nicaisse’s Petition for

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

supplement (Doc. 12).

Nicaisse is a native of Haiti who entered the United States with a

temporary visa on April 3, 1986. Between 2004 and 2012, he was convicted of

multiple crimes, including grand theft, possession of cannabis, burglary, petit

theft, and trespassing. On October 15, 2014, an immigration judge ordered

him removed to Haiti and granted withholding of removal to Haiti. On

January 30, 2026, Nicaisse completed a state prison sentence for aggravated

battery, and Immigration and Customs Enforcement (“ICE”) took him into

custody to execute the removal order. On March 4, 2026, ICE took Nicaisse to

a port of entry at the U.S.-Mexico border. Nicaisse refused to exit the holding

room and cross into Mexico, and ICE returned him to Alligator Alcatraz.

Nicaisse argues his continued detention is unlawful.

Before addressing the merits of Nicaisse’s claim, the Court must address

its jurisdiction. The government argues two sections of the INA strip the Court

of jurisdiction over this action. They first points to a provision that bars courts

from hearing certain claims. It states:

Except as provided in this section and notwithstanding any

other provisions of law (statutory or nonstatutory),

including section 2241 of Title 28, or any other habeas

corpus provision, and sections 1361 and 1651 of such title,

no court shall have jurisdiction to hear any cause or claim

by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against any

alien under this chapter.

8 U.S.C. § 1252(g). This jurisdictional bar is narrow. “The provision applies

only to three discrete actions that the Attorney General may take: her ‘decision

or action’ to ‘commence proceedings, adjudicate cases, or execute removal

orders.’” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,

482 (1999); see also Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) (“We did

not interpret this language to sweep in any claim that technically can be said

to ‘arise from’ the three listed actions of the Attorney General. Instead, we

read the language to refer to just those three specific actions themselves.”).

“When asking if a claim is barred by § 1252(g), courts must focus on the action

being challenged.” Canal A Media Holding, LLC v. United States Citizenship

and Immigration Servs., 964 F.3d 1250, 1258 (11th Cir. 2020).

The government also raises the INA’s “zipper clause,” which states:

Judicial review of all questions of law and fact, including

interpretation and application of constitutional and

statutory provisions, arising from any action taken or

proceeding brought to remove an alien from the United

States under this subchapter shall be available only in

judicial review of a final order under this section. Except

as otherwise provided in this section, no court should have

jurisdiction, by habeas corpus under section 2241 or title

28 or any other habeas corpus provision, by section 1361 or

1651 of such title, or by any other provision of law

(statutory or nonstatutory), to review such an order or such

question of law or fact.

8 U.S.C. § 1252(b)(9). The zipper clause only applies to claims requesting

review of a removal order. See Madu v. U.S. Attorney Gen., 470 F.3d 1362,

1365 (11th Cir. 2006) (holding the INA did not divest the district court of

jurisdiction over a § 2241 challenge to detention of the petitioner pending

deportation).

Nicaisse does not challenge the commencement of a proceeding, the

adjudication of a case, or the execution of his removal order. Nor does he ask

the Court to review the removal order. Rather, Nicaisse challenges the legality

of his detention under a framework devised by the Supreme Court for district

courts to apply. See Zadvydas, 533 U.S. at 682 (stating the Court’s limitation

on post-removal detention “is subject to federal-court review.”). A decision in

Nicaisse’s favor would not impair ICE’s ability to execute the removal order.

The INA does not strip the Court of jurisdiction over this action.

The Court thus turns to the merits of the petitioner’s due process claim.

“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 Nicaisse’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. Nicaisse carried

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

likelihood of removal in the reasonably foreseeable future. ICE cannot

removed him to Haiti because an immigration judge granted withholding of

removal

The burden thus shifts to the government. ICE points to its March 2026

attempt to send Nicaisse 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 has

a plan in place to lawfully remove Nicaisse.

The Court finds no significant likelihood Nicaisse will be removed 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.” Jd. ICE has already scheduled a custody review of

Nicaisse’s file for June 11, 2026. (See Doc. 5-1 at 4). The Court finds continued

detention pending the review reasonable.

Accordingly, it is hereby

ORDERED:

Lyndon Merlick Nicaisse’s Petition for Writ of Habeas Corpus (Doc. 1)

remains under advisement.

1. On or before June 18, 2026, the respondents shall file a supplemental

response, addressing the results of the file custody review scheduled

for June 11, 2026. If ICE determines continued detention is

appropriate, the respondents must explain why.

2. Nicaisse may file a reply within three days of the supplemental

response.

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

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record