The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CARLOS GAMBO FERRER,
Petitioner,
v. Case No.: 2:26-cv-02023-SPC-KRH
WARDEN, FLORIDA SOFT SIDE
SOUTH,
Respondent,
/
OPINION AND ORDER
Before the Court are petitioner Carlos Gambo Ferrer’s Petition for Writ
of Habeas Corpus (Doc. 1) and the government’s response (Doc. 8).
Gambo Ferrer is a native of Cuba who entered the United States on
August 6, 1968. He was convicted of cocaine possession in 1996 and ordered
removed to Cuba on December 19, 2001. Immigration and Customs
Enforcement (“ICE”) placed Gambo Ferrer on an order of supervision in lieu of
detention. On December 5, 2025, Gambo Ferrer reported to ICE for a check-in
appointment, and ICE revoked his order of supervision and arrested him. He
has been in ICE detention since then, mostly at Alligator Alcatraz. Cuba
refused to accept Gambo Ferrer for repatriation on December 16, 2025. On
April 10, 2026, ICE brought Gambo Ferrer to the Mexican border and
requested that he depart to Mexico. Gambo Ferrer declined to exit the bus,
and ICE returned him to Alligator Alcatraz. Gambo Ferrer argues his
detention is unlawful because his removal is not 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 government argues Gambo Ferrer’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. Gambo Ferrer
has carried his initial burden by showing a good reason to believe there is no
significant likelihood of removal in the reasonably foreseeable future. Cuba
declined to repatriate him, and no other country has agreed to accept him.
The burden thus shifts to the government. ICE points to its April 2026
attempt to send Gambo Ferrer 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, 821 F. Supp. 3d 102 (D. Mass.
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
Gambo Ferrer in the reasonably foreseeable future.
The Court finds no significant likelihood Gambo Ferrer will be removed
in the reasonably foreseeable future. He is entitled to release from detention
under Zadvydas. If removal becomes likely in the reasonably foreseeable
future, ICE can detain Gambo Ferrer to “assur[e] [his] presence at the moment
of removal.” Zadvydas, 533 U.S. at 680.
Accordingly, it is hereby
ORDERED:
Carlos Gambo Ferrer’s Petition for Writ of Habeas Corpus (Doc. 1) is
GRANTED.
1. The government shall release Gambo Ferrer within 24 hours of this
Order and provide him telephone access so he can arrange his
transportation from the facility.
2. Within 48 hours of this Order, the government shall certify it has
released Gambo Ferrer from detention.
3. The Clerk is DIRECTED to terminate any pending motions and
deadlines, enter judgment, and close this case.
DONE AND ORDERED in Fort Myers, Florida on July 1, 2026.
UNITED STATES DISTRICT JUDGE
SA: FTMP-1
Copies: All Parties of Record