Parra

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 26-cv-24255-BLOOM

WILBER MENDOZA MARTINEZ,

Petitioner,

v.

CHARLES PARRA, Assistant Field Office Director

of U.S. Immigration and Customs Enforcement, Krome

North Service Processing Center; and KELIE WALKER, Field

Office Director of U.S. Immigration and Customs

Enforcement Miami Field Office,

Respondents.

________________________________/

ORDER ON PETITION FOR HABEAS CORPUS

THIS CAUSE is before the Court upon Wilber Mendoza Martinez’s (“Petitioner”)

Verified Petition for Writ of Habeas Corpus (“Petition”) under 28 U.S.C. §2241, alleging that he

has been unlawfully detained in Immigration and Customs Enforcement (“ICE”) custody. ECF

No. [1]. The Court issued its Order to Show Cause, ECF No. [4], and Respondents filed a

Response, ECF No. [7], to which Petitioner filed a Reply, ECF No. [8]. The Court has considered

the Petition, the supporting and opposing submissions, the record, the applicable law, and is

otherwise fully advised. For the reasons that follow, the Petition is granted.

I. BACKGROUND

Petitioner is a native and citizen of Cuba who entered the United States in 2008 and became

a lawful permanent resident in 2009. ECF No. [1] ¶ 10. He was later convicted in Florida state

court on charges of marijuana trafficking, and on May 27, 2015, he was ordered removed by the

Krome Miami Immigration Court. Id. In August 2015, Immigration and Customs Enforcement

(“ICE”) released Petitioner under an Order of Supervision (“OSUP”), and Petitioner resumed life

with his family in Florida. Id. ¶ 11; ECF No. [7] at 2.

On December 16, 2025, Petitioner appeared at his regularly-scheduled reporting

appointment in compliance with his OSUP. ECF No. [1] ¶ 12. “Notwithstanding his compliance

with all ICE reporting requirements, he was taken into custody, and has been continuously detained

since, currently at Krome.” Id. That same day, Petitioner’s OSUP was revoked. Id.

On January 5, 2026, ICE notified Petitioner of its intent to remove him to a third country,

Mexico. ECF No. [7] at 2. On January 11, 2026, Petitioner was transferred to a detention center in

El Paso, Texas. ECF No. [1] ¶ 13; ECF No. [7] at 2. On February 4, 2026, “ICE officers attempted

to cause [Petitioner] to voluntarily depart to Mexico through the border area near the city of Juárez,

Mexico.” ECF No. [1] ¶ 13. They woke Petitioner at midnight and transferred him to a room with

approximately 32 detainees. Id. ICE officers informed the detainees that they would be taken to

the Juárez border. Id. The officers stated to the detainees that boarding the bus was optional and

that detainees were not required to go. Id. Petitioner “and approximately eleven (11) other

detainees declined to board the bus, and the ICE officers left the room without saying anything

further.” Id.

After Petitioner declined to board the bus, three different ICE officers entered the room

and told the group that not boarding the bus could result in federal criminal charges. Id.

Petitioner “and the detainees explained that they were not violating any law, and they had

not received any documentation indicating that Mexico would legally admit them, grant them

lawful status, or otherwise accept them.” Id. The officers stated that, within approximately 15 days,

the detainees would be returned to Miami, Florida. Id. On February 7, 2026, Petitioner was served

with a Form I-229(a) Warning for Failure to Depart, which he refused to sign. ECF No. [7] at 3.

On or about March 15, 2026, Petitioner was transferred to Florida Soft Side South

(“Alligator Alcatraz”). ECF No. [1] ¶ 13. On or about March 31, 2026, he was returned back to

the El Paso detention center. Id. While in El Paso, three ICE officers entered the detainees’ housing

area and asked, “Who wants to go to Mexico?” Id. No one raised a hand. Id. No additional

documents or paperwork were provided to the detainees, and the officers left without further

explanation. Id. In April 2026, Petitioner was transferred to a facility in Louisiana. Id.

Subsequently, Petitioner was transferred back to Alligator Alcatraz. Id. On or about May 28, 2026,

Petitioner was transferred to Krome North Service Processing Center (“Krome”) in Miami, FL,

where he is currently detained. Id.

On April 15, 2026, Petitioner filed a habeas petition against the warden of Alligator

Alcatraz, challenging his detention and continued custody. Id. ¶ 16. The Court denied the petition,

“concluding that Petitioner’s detention had not yet exceeded the presumptively-reasonable six-

month detention period recognized in Zadvydas.” Id. The Court’s denial operated without

prejudice to refiling “should [Petitioner’]s current detention exceed the six-month mark, and he

can demonstrate there is no significant likelihood of removal in the reasonably foreseeable future.”

Id.

On June 8, 2026, ICE served Petitioner another I-229(a) Warning for Failure to Depart,

informing him of the duty to cooperate with removal, which he refused to sign. ECF No. [7] at 3.

That same day, ICE issued a Notice of Failure to Comply after Petitioner refused to sign third

country removal forms and stated to ICE that he will not cooperate with removal efforts. Id.

On June 17, 2026, Petitioner filed the instant Petition, arguing that his detention is unlawful

because (1) his continued detention contravenes 8 U.S.C. §1231(a)(6) (Count I) and (2) his

detention denies him the due process rights afforded by the Fifth Amendment (Count II). ECF No.

[1] at 20. Respondents oppose the Petition, contending that (1) Petitioner is lawfully detained under

8 U.S.C. §1231 and (2) the Court lacks jurisdiction to review revocation of Petitioner’s OSUP in

order to effectuate removal. ECF No. [7] at 4–5, 10. Petitioner replies that Respondents fail to

meet their burden to show there is a significant likelihood of removable in the reasonably

foreseeable future, tolling does not apply in Petitioner’s case, and the argument regarding the

OSUP is irrelevant. ECF No. [8].

II. Legal Standard

Pursuant to 28 U.S.C. §2241(a), district courts have the authority to grant writs of habeas

corpus. Habeas corpus is fundamentally “a remedy for unlawful executive detention.” Munaf v.

Geren, 553 U.S. 674, 693 (2008) (citation omitted). A writ may be issued to a petitioner who

demonstrates that he is being held in custody in violation of the Constitution or federal law. See

28 U.S.C. §2241(c)(3). The Court’s jurisdiction extends to challenges involving immigration

detention. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001).

III. DISCUSSION

A. Jurisdiction

The Court cannot grant habeas relief if it lacks subject matter jurisdiction over the Petition

in the first place; as such, the Court is obliged to consider its own jurisdiction. See Belleri v. United

States, 712 F.3d 543, 547 (11th Cir. 2013) (“In the federal tandem, jurisdiction takes precedence

over the merits. Unless and until jurisdiction is found, both appellate and trial courts should eschew

substantive adjudication.” (alterations added and citations omitted)). “Once a federal court

determines that it is without subject matter jurisdiction, the court is powerless to continue.” Univ.

of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).

Petitioner brings this case under 28 U.S.C. § 2241, the primary federal habeas statute,

which authorizes federal courts to hear “statutory and constitutional challenges to post-removal-

period detention.” Zadvydas, 533 U.S. at 688; see ECF No. [1] ¶ 2. Respondents, however, argue

that 8 U.S.C. § 1252(g) applies to bar review of Petitioner’s claims. ECF No. [7] at 10. Specifically,

Respondent argues that 8 U.S.C. § 1252(g) means that the Court cannot interfere with ICE’s

execution of removal orders. Id. at 10. Moreover, Respondents argue that the Court lacks

jurisdiction under § 1252(a)(2)(B)(ii) to review the discretionary decision to revoke Petitioner’s

OSUP. Id. at 111. Petitioner replies that § 1252(g) is construed narrowly, applying only to the three

specific actions identified in the statute, not every claim tangentially related to removal. ECF No.

[8] at 10.

Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or claim

by or on behalf of any alien arising from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). The

Supreme Court has explained that § 1252(g) is a “discretion-protecting provision” intended to

prevent the “deconstruction, fragmentation, and hence prolongation of removal proceedings.”

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 487 (1999) (“AAADC”).

That said, the Supreme Court has carefully defined the jurisdiction-stripping contours of §

1252(g). It explained that § 1252(g) is “narrow” and does not cover “all claims arising from

deportation proceedings” or impose “a general jurisdictional limitation.” AAADC, 525 U.S. at 482,

487. Instead, it bars review of “just three ‘discrete actions’: actions to ‘commence proceedings,

adjudicate cases, or execute removal orders.’” Camarena v. Dir., Immigr. & Customs Enf’t, 988

F.3d 1268, 1272 (11th Cir. 2021) (quoting AAADC, 525 U.S. at 482). “[A]lthough ‘many other

1 Petitioner clarifies that he is not challenging the revocation of his OSUP, so the Court does not address

this argument. ECF No. [8] at 10.

decisions or actions’ may be ‘part of the deportation process,’ only claims that arise from one of

the covered actions are excluded from [a court’s] review (at least by this provision).” Id. (quoting

AAADC, 525 U.S. at 482).

This “arise from” language is construed similarly narrowly. It does not “sweep in any claim

that can technically be said to ‘arise from’ the three listed actions[;]” instead, the statute “refer[s]

to just those three specific actions themselves.” Jennings v. Rodriguez, 583 U.S. 281, 294 (2018).

Thus, to determine whether a claim “arise[s] from” one of the covered actions, “courts must focus

on the action being challenged,” Canal A Media Holding, LLC v. U.S. Citizenship & Immigr.

Servs., 964 F.3d 1250, 1258 (11th Cir. 2020), and assess whether one of the three actions listed in

§ 1252(g) forms the “basis of the claim,” Gupta v. McGahey, 709 F.3d 1062, 1065 (11th Cir. 2013)

suggestion for reh’g en banc denied, 737 F.3d 694 (2013), cert. denied, 34 S.Ct. 2840 (2014).

So, for instance, a noncitizen who seeks a stay of a removal order “runs headlong into §

1252(g)” regardless of how he frames the claim because, fundamentally, the action being

challenged is the decision to “execute” a removal order. Camarena, 988 F.3d at 1273. By contrast,

a noncitizen who challenges the “underlying legal bases for [] discretionary decisions and actions,”

Madu v. U.S. Atty. Gen., 470 F.3d 1362, 1368 (11th Cir. 2006), or who challenges the length of

his post-removal-order detention, Zadvydas, 533 U.S. at 688, does not face a jurisdictional barrier.

Here, Petitioner does not challenge the decision to execute his removal, the Government’s

general authority to deport or detain him, or anything else arising from the “execution” of a

removal order. Instead, he challenges the length of his detention. ECF No. [1]. This is a plainly

permissible challenge. The Court therefore has jurisdiction to adjudicate the Petition and turns to

the merits.

B. Zadvydas Claim (Count I)

In Count I, Petitioner argues that his continued detention is unlawful and contravenes the

limits set by the Supreme Court on § 1231(a)(6) detentions. ECF No. [1] ¶ 45. The six-month

presumptively reasonable period has expired, and Petitioner’s removal is not reasonably

foreseeable. Id. Specifically, because of U.S.-Cuba relations, his removal to Cuba is unlikely. Id.

¶ 24. Moreover, Petitioner’s “failure to comply” with his attempted removal to Mexico should not

cause the removal detention period to be tolled. Id. ¶ 25. There is no non-conclusory indication

that Mexico will accept Petitioner. Id. ¶¶ 27–29.

Respondents argue that Petitioner’s detention may be prolonged because he has acted to

prevent his own removal. ECF No. [7] at 5–6. Specifically, he failed to depart to Mexico on

February 4, 2026, which means the “clock” stopped at 50 days. Id. at 9.

Petitioner replies that his denial of “ICE’s efforts to force a ‘voluntary’ removal of him”

does not constitute thwarting his own removal. ECF No. [8] at 3. This is especially true where the

Government has not shown a “concrete removal plan,” “documentation of Mexican agreement to

receive the petitioner,” individualized travel documents, or evidence that Mexico would accept a

“non-consenting non-national removee.” Id. at 6.

“After the entry of a final order of removal against a noncitizen, the Government generally

must secure the noncitizen’s removal during a 90-day removal period.” Johnson v. Arteaga-

Martinez, 596 U.S. 573, 578 (2022) (quoting 8 U.S.C. § 1231(a)(1)(A)). Once that “removal period

expires, the Government ‘may’ detain only four categories of people: (1) those who are

‘inadmissible’ on certain specified grounds; (2) those who are ‘removable’ on certain specified

grounds; (3) those it determines ‘to be a risk to the community’; and (4) those it determines to be

‘unlikely to comply with the order of removal.’ ” Id. at 578–79 (quoting 8 U.S.C. § 1231(a)(6)).

But “Section 1231(a)(6) does not expressly specify how long detention past the 90-day

removal period may continue for those who fall within the four designated statutory categories.”

Id. at 579. And “indefinite detention” raises “serious constitutional concerns.” Zadvydas, 533 U.S.

at 682. As a result, the Supreme Court has “construe[d] the statute to contain an implicit

‘reasonable time’ limitation” of six months, “the application of which is subject to federal-court

review.” Id. “This 6-month presumption, of course, does not mean that every alien not removed

must be released after six months.” Id. at 701. “To the contrary, an alien may be held in

confinement until it has been determined that there is no significant likelihood of removal in the

reasonably foreseeable future.” Id. But “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 that showing.” Id.

So, “in order to state a claim under Zadvydas, the alien not only must show post-removal

order detention in excess of six months but also must provide evidence of a good reason to believe

that there is no significant likelihood of removal in the reasonably foreseeable future.” Akinwale

v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002). If the petitioner provides such evidence, the

burden shifts to the Government to provide evidence sufficient to rebut that showing. Id. (quoting

Zadvydas, 533 U.S. at 701).

As of the filing of the Petition, Petitioner had been subjected to 183 days of detention, ECF

No. [1] ¶ 7, which is beyond the presumptively reasonable period contemplated by Zadvydas.

Thus, the Court turns to the question of whether Petitioner has shown that removal is unlikely

within the reasonably foreseeable future.

On May 27, 2015, an immigration judge in Miami, Florida ordered Petitioner removed

from the U.S. to Cuba. ECF No. [7-1] at 2. However, as Petitioner points out, “U.S.–Cuba relations,

historically poor, have deteriorated even further, resulting in reduced diplomatic engagement,

limited consular functions, and public reporting that repatriation negotiations between the two

governments have stalled.” ECF No. [2] ¶ 24 (citation omitted). Moreover, Cuba “has historically

refused to accept back its removable nationals.” WHITE HOUSE, PRESIDENTIAL ACTIONS,

Restricting the Entry of Foreign Nationals to Protect the United States from Foreign Terrorists

and Other National Security and Public Safety Threats, June 4, 2025,

https://www.whitehouse.gov/presidentialactions/2025/06/restricting-the-entry-of-foreign-

nationals-to-protect-the-united-states-from-foreign-terrorists-and-other-national-security-and-

public-safety-threats/ (last accessed August 4, 2026). Thus, Petitioner has shown that his removal

to Cuba is not likely in the reasonably foreseeable future.

On January 5, 2026, Respondents presented Petitioner with a Notice of Removal indicating

their intent to remove Petitioner to Mexico. ECF No. [7-8]. However, at Petitioner points out,

nowhere on the record is there a concrete removal plan, evidence of communications with Mexico

or efforts to obtain travel documents, evidence that Mexico has agreed to accept Petitioner, or even

an articulation of ongoing steps toward effectuating removal. ECF No. [1] ¶¶ 25, 26. Moreover,

there is evidence that Mexico’s acceptance of a Cuban national may be contingent upon the

individual’s agreement to go there, and Respondents do not have such agreement. See Sanchez v.

Bondi, et al., No. C25-2573-KKE, 2026 WL 160882, at 3–4 (W.D. Wash. Jan. 21, 2026) (noting

that Mexico’s conditional acceptance casted doubt on Respondents’ ability to remove the

petitioner).

Under these circumstances, the Court finds Petitioner has shown that his removal is not

likely in the reasonably foreseeable future, so the burden shifts to the Government to rebut that

showing. And Respondents have not done so, providing no evidence that an actual plan of removal

or any coordination with Cuba or Mexico has taken place. Instead, Respondents assert that

Petitioner has thwarted his own removal. See generally ECF No. [7]. However, the Court is not

convinced that the events that have taken place so far constitute a thwarting of removal.

As a general matter, if a petitioner “fails or refuses to make timely application in good faith

for travel or other documents necessary to the [petitioner’s] departure or conspires or acts to

prevent the alien’s removal subject to an order of removal,” then the removal period shall be

extended. 8 U.S.C. § 1231(a)(1)(C). Courts apply § 1231(a)(1)(C) in different ways:

Many courts conduct an analysis using the burden-shifting framework from

Zadvydas, considering an alien’s failure to cooperate in determining whether the

alien can show “good cause” to believe that there is no significant likelihood of

removal in the reasonably foreseeable future. Other courts contend that an alien’s

failure to cooperate precludes an analysis under Zadvydas altogether. Finally, some

courts find an alien's failure to cooperate or filing of litigation equitably tolls,

possibly indefinitely, the six-month removal period. In fact, a couple of courts

covered both bases finding obstruction tolled the removal period, and in the

alternative, the alien did not meet the Zadvydas standard.

Glushchenko v. United States Dep’t of Homeland Sec., 566 F. Supp. 3d 693, 705–06 (W.D. Tex.

2021) (footnotes omitted). In Akinwale, the Eleventh Circuit stated that where a petitioner “‘acts

to prevent [his] removal’” by “challeng[ing] issues related to his removal order and his post-

removal period detention,” the 180-day removal period may be tolled. See 287 F.3d at 1052 n.4

(quoting 8 U.S.C. §1231(a)(1)(C)). More recently, the Eleventh Circuit has found that where

removal is extended pursuant to 8 U.S.C. §1231(a)(1)(C), “ICE can continue to detain [the

petitioner] because the keys to [the petitioner’s] freedom [are] in his pocket and [he] could likely

effectuate his removal by providing the information requested, so he ‘cannot convincingly argue

that there is no significant likelihood of removal.’” Singh v. U.S. Att’y Gen., 945 F.3d 1310, 1314

(11th Cir. 2019) (quoting Pelich v. Immigration & Naturalization Serv., 329 F.3d 1057, 1060 (9th

Cir. 2003)); see Oladokun v. U.S. Att’y Gen., 479 F. App’x 895, 897 (11th Cir. 2012) (where non-

cooperation is the only barrier to petitioner’s removal, there is no good reason to believe there is

no significant likelihood of his removal); Linares v. DHS, 598 F. App’x 885, 887 (11th Cir. 2015)

(petitioner admitted that his actions and failure to cooperate is the only reason he remains in the

United States).

The Court does not find that Petitioner’s refusal to get off the bus is tantamount to a

“refus[al] to make timely application in good faith for travel or other documents necessary” or that

it otherwise prevented a legitimate removal effort. 8 U.S.C. § 1231(a)(1)(C). Indeed, one court in

this circuit put it quite well:

It is unclear whether ICE transported Petitioner to the border and essentially asked

him to voluntarily depart, whether ICE had ever previously communicated with

Mexico regarding Petitioner, or whether ICE even had an approved plan for

removal to Mexico that Petitioner actually thwarted in some way. Further, assuming

that Mexico was willing to accept Petitioner, the officer does not explain why ICE

could not or did not thereafter seek travel documents for Petitioner or otherwise

plan for his removal to Mexico via a different way, such as a charter flight.

Hernandez v. Mullin et al., No. 3:26-CV-619-JEP-PDB, 2026 WL 2249504, at *4 (M.D. Fla. Aug.

5, 2026). Here, too, there is no evidence of previous communications with Mexico or a plan for

removal to Mexico. Respondents do not even argue that “necessary travel documents have been

sought—let alone obtained—for any country.” Torres v. Warden, Fla. Soft Side S. Det. Facility,

No. 2:26-CV-1141-JES-NPM, 2026 WL 1993262, at *2 (M.D. Fla. July 10, 2026). An effort to

compel an individual to voluntarily depart by walking across an international border to a country

of which he is not a citizen is not a removal effort.

That leaves only Petitioner’s refusal to comply with third country removal efforts on June

8, 2026, as he refused to sign the Instruction Sheet to Detainee Regarding Requirement to Assist

in Removal. ECF No. [7-11]. Petitioner admits that he “stated he would not be cooperating with

efforts to effectuate his removal to Mexico.” ECF No. [8] at 4. Respondents do not explain how

an unsigned document of this sort “hinders removal efforts.” Massip Varela v. Warden, Fla. Soft-

Sided Facility, No. 2:26-CV-01700-SPC-KRH, 2026 WL 1596220, at *2 (M.D. Fla. June 4, 2026).

Indeed, they do not identify any action taken by Petitioner that has actually impeded a legitimate

effort at obtaining travel documents or securing Mexico’s agreement to accept Petitioner. The crux

of the “thwarting removal” analysis is whether the “keys” to Petitioner’s freedom are in his

pocket—whether ICE would likely be able to effectuate his removal if Petitioner would simply

cooperate. Singh v. U.S. Att’y Gen., 945 F.3d at 1314 (citation omitted). But there is no evidence

of Petitioner holding the keys here—of some legitimate removal effort (e.g., travel document

procurement, communication with Mexico, or otherwise) that Petitioner actually interfered with.

And ultimately, the fact remains that Respondents have made no attempt to show that

Mexico has agreed to accept Petitioner or that it will likely do so soon. Thus, the Court finds that

Petitioner is entitled to release under Zadvydas. Of course, if removal becomes likely in the

reasonably foreseeable future, ICE can detain Petitioner to “assur[e] [his] presence at the moment

of removal.” Zadvydas, 533 U.S. at 680.2

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUGED as follows:

1. The Petition, ECF No. [1], is GRANTED.

2. Respondents are directed to immediately release Petitioner on conditions of

supervision pursuant to 8 U.S.C. § 1231(a)(3).

3. The Clerk of Court shall CLOSE this case.

2 Because the Court orders Petitioner’s release based on Count I, the Court does not reach Petitioner’s

arguments in Count II.

Case No. 26-cv-24255-BLOOM

4. To the extent not otherwise disposed of, any scheduled hearings are

CANCELED, all pending motions are DENIED AS MOOT, and all deadlines

are TERMINATED.

DONE AND ORDERED in the Chambers at Miami, Florida on August 10, 2026.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

ce: counsel of record

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