The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JULIO ALEMAN-DIAZ,
Petitioner,
v. Case No.: 2:26-cv-01469-SPC-DNF
U.S. ATTORNEY GENERAL et al,
Respondents,
/
OPINION AND ORDER
Before the Court are petitioner Julio Aleman-Diaz’s Petition for Writ of
Habeas Corpus (Doc. 1) and the government’s response (Doc. 12).
Aleman-Diaz is a native of Cuba who was paroled into the United States
on May 19, 1980. He was convicted of domestic violence battery in 1998,
burglary and grand theft in 1999, and aggravated battery in 2001. An
immigration judge ordered Aleman-Diaz removed to Cuba on September 7,
2005. Immigration and Customs Enforcement (“ICE”) was unable to execute
the removal order, so it released Aleman-Diaz under an order of supervision
on December 6, 2005. He was convicted of lewd and lascivious exhibition in
2008 and aggravated battery in 2011. ICE detained Aleman-Diaz again on
June 26, 2019, and released him under another order of supervision on October
17, 2019.
On October 28, 2025, ICE arrested Aleman-Diaz and turned him over to
ICE, and ICE revoked the order of supervision and detained him at Alligator
Alcatraz. Cuba refused to accept him for repatriation in December 2025. On
January 30, 2026, ICE brought Aleman-Diaz to a facility on the U.S.-Mexico
border. Aleman-Diaz refused to change his clothes and exit the pod, so ICE
returned him to Alligator Alcatraz. Aleman-Diaz argues his detention is
unlawful because removal is not significantly likely in the reasonably
foreseeable future.1
“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.”
1 This is Aleman-Diaz’s second habeas action. The Court dismissed the first because
Aleman-Diaz did not satisfy his burden of proof.
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 respondents acknowledge the six-month period for presumptively
reasonable detention has expired, so Zadvydas’s burden-shifting framework
applies. Aleman-Diaz carried his initial burden by showing a good reason to
believe there is no significant likelihood of removal in the reasonably
foreseeable future. The government was unable to remove him in 2005 and
2019, and Cuba refused to repatriate him in 2025.
The burden thus shifts to the government. ICE points to its January
2026 attempt to send Aleman-Diaz 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 Aleman-Diaz.
The Court finds no significant likelihood Aleman-Diaz 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.” Id. Given Aleman-Diaz’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:
Julio Aleman-Diaz’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 Aleman-Diaz 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. Aleman-Diaz may file a reply within three days of the supplemental
response.
DONE AND ORDERED in Fort Myers, Florida on June 2, 2026.
UNITED STATES DISTRICT JUDGE
SA: FTMP-1
Copies: All Parties of Record