Menocal

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

FERNANDO MENOCAL,

Petitioner,

v. Case No.: 2:26-cv-01425-SPC-NPM

WARDEN, ALLIGATOR

ALCATRAZ et al.,

Respondents.

/

OPINION AND ORDER

Before the Court are petitioner Fernando Menocal’s Petition for Writ of

Habeas Corpus (Doc. 1) and the government’s response (Doc. 4).

Menocal is a native of Cuba who was paroled into the United States on

November 9, 1995. From 2002 to 2009, he was convicted of a drug charge,

burglary (twice), larceny (twice), and carrying a prohibited weapon. An

immigration judge ordered Menocal removed to Cuba on September 22, 2004.

Immigration and Customs Enforcement (“ICE”) released him on an order of

supervision on May 6, 2014. On December 6, 2025, Menocal reported to ICE

for a check-in appointment, and ICE revoked the order of supervision, arrested

him, and detained him at Alligator Alcatraz. ICE transported Menocal to

Texas in January 2026, and attempted to remove him to Mexico. The attempt

was unsuccessful, and ICE returned Menocal to Alligator Alcatraz. Menocal

claims his continued detention is unlawful because removal is not likely.

“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 Supreme 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 Menocal’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. Menocal 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

failed to remove him in 2004, Cuba historically does not repatriate its emigres

from the United States, and ICE has not procured travel documents, provided

a removal date, or produced evidence that removal might happen soon.

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

2026 attempt to send Menocal 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 Menocal in the reasonably foreseeable future.

The Court finds there is no significant likelihood of removal 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. Given Menocal’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:

Fernando Menocal’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 Menocal poses a danger to the community

sufficient to justify continued detention.

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

supplemental response, addressing the results of the review and any

updates on removal efforts. If ICE determines continued detention is

appropriate, the respondents must explain why.

3. Menocal may file a reply within three days of the supplemental

response.

DONE AND ORDERED in Fort Myers, Florida on May 22, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record