Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

REYNALDO BARRIOS

GONZALEZ,

Petitioner,

v. Case No.: 2:26-cv-01848-SPC-KRH

WARDEN, FLORIDA SOFT SIDE

SOUTH DETENTION CENTER et

al,

Respondents,

/

OPINION AND ORDER

Before the Court are petitioner Reynaldo Barrios Gonzalez’s Petition for

Writ of Habeas Corpus (Doc. 1) and the government’s response (Doc. 5).

Barrios Gonzalez is a native of Cuba who entered the United States as a

refugee on September 21, 1988, and later became a lawful permanent resident.

He was convicted of grand theft of a motor vehicle, burglary of a conveyance,

and escape from police in 1998. An immigration judge ordered him removed

on November 3, 1999. The government could not execute the removal order,

so it released Barrios Gonzalez on an order of supervision on July 9, 2001. In

2007, Barrios Gonzalez was convicted on burglary of a habitation and

sentenced to 6 years’ imprisonment. ICE detained Barrios Gonzalez in 2010,

could not remove him, and released him on another order of supervision.

On November 29, 2025, local law enforcement arrested Barrios

Gonzalez—the record does not reflect why. On January 7, 2026, Immigration

and Customs Enforcement (“ICE”) took custody of Barrios Gonzalez and

notified him it revoked his release because there was a significant likelihood of

removal in the reasonably foreseeable future. ICE initially detained Barrios

Gonzalez at Alligator Alcatraz. In March 2026, ICE took Barrios Gonzalez to

the U.S.-Mexico border for third-country removal. ICE claims Barrios

Gonzalez failed to comply with removal but does not explain how. In any event,

ICE returned Barrios Gonzalez to Alligator Alcatraz. He argues his detention

is unlawful because removal is not significantly likely in the reasonably

foreseeable future.

“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 respondents argue Barrios Gonzalez’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 arbitrarily detain noncitizens and avoid judicial scrutiny by

limiting consecutive periods of detention to 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. Barrios Gonzalez

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 2001 and 2010, and no change in

circumstances makes removal more likely now.

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

attempt to send Barrios Gonzalez 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 Barrios Gonzalez.

The Court finds no significant likelihood Barrios Gonzalez 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 Barrios Gonzalez’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:

Reynaldo Barrios Gonzalez’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 Barrios Gonzalez 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. Barrios Gonzalez may file a reply within three days of the

supplemental response.

DONE AND ORDERED in Fort Myers, Florida on June 17, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record