Opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

FIDEL PONS GONZALEZ,

Petitioner,

v. Case No.: 2:26-cv-01746-SPC-NPM

D.H.S. et al,

Respondents,

/

OPINION AND ORDER

Before the Court are petitioner Fidel Pons Gonzalez’s Petition for Writ

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

Pons Gonzalez is a native of Cuba who entered the United States on June

11, 2007, and later became a lawful permanent resident. He was convicted of

theft in 2013 and cocaine possession, possession of a weapon, and larceny in

2015. An immigration judge ordered him removed on October 31, 2016.

Immigration and Customs Enforcement (“ICE”) was unable to remove Pons

Gonzalez to Cuba, so it released him under an order of supervision in 2017.

Since then, Pons Gonzalez has been convicted of burglary, vehicle theft, and

criminal damage.

On November 27, 2025, local police arrested Pons Gonzalez for

possession of cocaine and contacted Immigration and Customs Enforcement

(“ICE”). ICE issued an immigration detainer, and Pons Gonzalez was

transferred to ICE custody on December 1, 2025. ICE initially detained Pons

Gonzalez at Alligator Alcatraz. On January 26, 2026, ICE took Pons Gonzalez

to the Mexican border and attempted to release him into Mexico. Pons

Gonzalez did not cooperate, and ICE returned him to Alligator Alcatraz. He is

currently detained at Glades County Detention Center. Pons Gonzalez 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 Pons Gonzalez also argues ICE failed to follow proper procedures when revoking his release,

but the Court denied that claim in Pons Gonzalez v. Dep’t of Homeland Sec., M.D. Fla. 2:26-

cv-1311-SPC-DNF.

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 Pons Gonzalez’s petition is premature because

his current detention had not exceeded 180 days when he filed his petition.

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. Pons 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 2017, and no change in

circumstances makes removal to Cuba more likely now.

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

2026 attempt to send Pons 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 Pons Gonzalez.

The Court finds no significant likelihood Pons 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 Pons 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:

Fidel Pons 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 Pons 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. Pons Gonzalez may file a reply within three days of the supplemental

response.

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

, tite WObLatrat he 7

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record