Subasic

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ADRIJAN SUBASIC,

Petitioner,

v. Case No.: 2:26-cv-02063-SPC-NPM

GARRETT J. RIPA et al.,

Respondents,

/

OPINION AND ORDER

Before the Court are Adrijan Subasic’s Petition for Writ of Habeas

Corpus (Doc. 1), the government’s response (Doc. 7), and Subasic’s reply.

Subasic is a native of Serbia and citizen of Montenegro who entered the

United States on October 26, 2014, on a B2 visa. He lives in Key West with

his U.S. citizen wife, and he has no felony convictions, violent criminal history,

or immigration violations. Immigration and Customs Enforcement (“ICE”)

detained him in the fall of 2025—the record does not reflect the precise date.

He filed a motion for a bond hearing with the immigration court on November

19, 2025.

On December 1, 2025, Immigration Judge Michael Walleisa denied

Subasic’s request for release on bond because Subasic “has not demonstrated

that he is not a danger to the community or a risk of flight.” (Doc. 7-1 at 1).

Subasic claims Judge Walleisa did not meaningfully consider the evidence he

submitted or the factors set out in Matter of Guerra, 24 I. & N. Dec. 37 (BIA

2006). The government does not contest that characterization of the bond

decision. On February 9, 2026, Subasic filed a second bond motion with

additional evidence. Judge Walleisa denied release on bond again because

Subasic “has not demonstrated changed circumstances.” (Doc. 7-2 at 1). On

May 23, 2026, Judge Walleisa ordered Subasic removed to Montenegro.

Subasic timely appealed, so the removal order is not administratively final.

In his habeas petition, Subasic claims his detention violates the Fifth

Amendment. He asks the Court to order the respondents to either release him

or afford him an individualized bond hearing at which the government bears

the burden of proof. In response, the government argues that the Court lacks

jurisdiction to consider Subasic’s claims, and that the Board of Immigration

Appeals (“BIA”) is the proper venue. The government points to a subsection of

the Immigration and Nationality Act that strips the Court of jurisdiction to

review an immigration judge’s discretionary bond decisions:

The Attorney General’s discretionary judgment regarding the

application of this section shall not be subject to review. No court

may set aside any action or decision by the Attorney General under

this section regarding the detention of any alien or the revocation

or denial of bond or parole.

8 U.S.C. § 1226(e). § 1226(e) does not apply here because Subasic does not ask

the Court to review the immigration judge’s discretionary judgments or

decisions. Rather, he asserts a bona fide due process claim challenging the

framework the government used to decide whether he should remain detained.

“It is well established that the Fifth Amendment entitles aliens to due

process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306

(1993). Immigration detention is civil in nature, and civil detention violates

the Fifth Amendment unless “a special justification…outweighs the

individual’s constitutionally protected interest in avoiding physical restraint.”

Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (internal quotation marks and

citation omitted).

The Supreme Court has long recognized that “due process is flexible and

calls for such procedural protections as the particular situation demands.”

Morrissey v. Brewer, 408 U.S. 471, 481 (1976). Courts looks to three factors

when considering what process is due in a given situation: (1) “the private

interest that will be affected by the official action;” (2) “the risk of an erroneous

deprivation of such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safeguards;” and (3) “the

Government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

All three factors weigh in Subasic’s favor. First, his interest in freedom

from detention “lies at the heart of the liberty” the Due Process Clause protects.

Zadvydas, 533 U.S. at 690. Second, the risk of erroneous deprivation of that

interest is substantial here. While there is no hard limit on how long a

noncitizen can be detained under § 1226(a), the longer the duration of Subasic’s

detention, the greater the deprivation of his right to liberty. In the context of

post-removal-order detention under § 1231, the Supreme Court limited the

presumptively reasonable period of detention to six months. Id. at 701. The

Court noted “that Congress previously doubted the constitutionality of

detention for more than six months.” Id.

As the Supreme Court recognized in Zadvydas, facts that justify a brief

period of detention might not justify a longer period of detention. See id. (“as

the period of prior postremoval confinement grows, what counts as the

‘reasonably foreseeable future’ conversely would have to shrink”). The fact that

Subasic’s detention now exceeds six months and could continue indefinitely

raises constitutional concerns. But under the status quo, Subasic has no

opportunity to address them. The Court sees value in additional safeguards,

like a bond hearing in which the government bears the burden of proof. See

Velasco Lopez v. Decker, 978 F.3d 842, 853 (2d Cir. 2020) (comparing the ease

with which the government can gather evidence with the hurdles faced by a

noncitizen in prolonged detention).

Third, the government has not established any legitimate interest in

continuing to detain Subasic without presenting a justification. Remember:

Judge Walleisa put the burden of proof on Subasic in the first bond hearing

and denied the second request because he found no material change in

circumstances. At no point since Subasic’s detention began in the fall of 2025

has ICE been required to show that either goal of immigration detention—to

ensure the noncitizen’s appearance at future immigration proceedings and to

prevent danger to the community—outweighs Subasic’s right to be free from

physical restraint. A bond hearing where the government bears the burden of

proof will preserve the two goals of immigration detention while accounting for

the government’s interest “in minimizing the enormous impact of incarceration

in cases where it serves no purpose.” Velasco Lopez, 978 F.3d at 854.

The Court will thus order the respondents to either bring Subasic before

an immigration judge for a third bond hearing within seven days or release

him under reasonable conditions of supervision while his removal proceeding

is pending. To satisfy this Order, the hearing must include—and the resulting

order must reflect—consideration of evidence properly submitted by the

petitioner and the factors announced in In re Guerra, 24 I. & N. Dec. 37 (BIA

2006), and the government must bear the burden of proof to justify continued

detention. If the respondents are unable to ensure Subasic receives a bond

hearing that complies with this Order within seven days, they must release

him, but they may impose reasonable terms of supervision.

Accordingly, it is hereby

ORDERED:

Adrijan Subasic’s Petition for Writ of Habeas Corpus (Doc. 1) is

GRANTED in part.

(1) Within ten days of this Opinion and Order, the respondents shall

either (1) bring Subasic for an individualized bond hearing before an

immigration judge or (2) release Subasic under reasonable conditions of

supervision. If the respondents release Subasic, they shall facilitate his

transportation from the facility by notifying his counsel when and where he

can be collected.

(2) The Clerk is DIRECTED to terminate any pending motions and

deadlines, enter judgment, and close the case.

DONE AND ORDERED in Fort Myers, Florida on July 2, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties or Record