Fernandez

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

RENE ALBA FERNANDEZ,

Petitioner,

v. Case No.: 2:26-cv-01674-SPC-KRH

WARDEN, FLORIDA SOFT SIDE

DETENTION CENTER et al.,

Respondents.

/

OPINION AND ORDER

Before the Court are petitioner Rene Alba Fernandez’s Petition for Writ

of Habeas Corpus (Doc. 1) and the government’s response (Doc. 4).

Alba Fernandez is a native of Cuba who was paroled into the United

States on November 28, 1993. An immigration judge ordered him excluded

and deported on April 7, 1997. Alba Fernandez remained in immigration

detention until July 6, 2001, when he was released on an order of supervision.

Immigration and Customs Enforcement (“ICE”) detained Alba Fernandez

again in 2018 before releasing him under another order of supervision.

On October 1, 2024, Alba Fernandez was convicted of armed burglary,

possession of a firearm by a convicted felon, aggravated battery, and

aggravated assault. ICE took custody of Alba Fernandez on October 27, 2025,

revoked his order of supervision based on a determination there was a

significant likelihood of removal in the reasonably foreseeable future, and

detained him at Alligator Alcatraz. On March 2, 2026, ICE attempted to

remove Alba Fernandez to Mexico. ICE claims Alba Fernandez failed to

comply with removal but does not provide any details. After the failed removal

attempt, ICE returned him to Alligator Alcatraz. Alba Fernandez challenges

the legality of his continued detention under the Fifth Amendment and

Zadvydas, infra.

Before addressing the merits of Alba Fernandez’s claim, the Court must

address its jurisdiction. The government argues two sections of the INA strip

the Court of jurisdiction over this action. It first points to a provision that bars

courts from hearing certain claims::

Except as provided in this section and notwithstanding any

other provisions of law (statutory or nonstatutory),

including section 2241 of Title 28, or any other habeas

corpus provision, and sections 1361 and 1651 of such title,

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 against any

alien under this chapter.

8 U.S.C. § 1252(g). This jurisdictional bar is narrow. “The provision applies

only to three discrete actions that the Attorney General may take: her ‘decision

or action’ to ‘commence proceedings, adjudicate cases, or execute removal

orders.’” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,

482 (1999); see also Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) (“We did

not interpret this language to sweep in any claim that technically can be said

to ‘arise from’ the three listed actions of the Attorney General. Instead, we

read the language to refer to just those three specific actions themselves.”).

“When asking if a claim is barred by § 1252(g), courts must focus on the action

being challenged.” Canal A Media Holding, LLC v. United States Citizenship

and Immigration Servs., 964 F.3d 1250, 1258 (11th Cir. 2020).

The government also raises the INA’s “zipper clause,” which states:

Judicial review of all questions of law and fact, including

interpretation and application of constitutional and

statutory provisions, arising from any action taken or

proceeding brought to remove an alien from the United

States under this subchapter shall be available only in

judicial review of a final order under this section. Except

as otherwise provided in this section, no court should have

jurisdiction, by habeas corpus under section 2241 or title

28 or any other habeas corpus provision, by section 1361 or

1651 of such title, or by any other provision of law

(statutory or nonstatutory), to review such an order or such

question of law or fact.

8 U.S.C. § 1252(b)(9). The zipper clause only applies to claims requesting

review of a removal order. See Madu v. U.S. Attorney Gen., 470 F.3d 1362,

1365 (11th Cir. 2006) (holding the INA did not divest the district court of

jurisdiction over a § 2241 challenge to detention of the petitioner pending

deportation).

Alba Fernandez does not challenge the commencement of a proceeding,

the adjudication of a case, or the execution of his removal order. Nor does he

ask the Court to review the removal order. Rather, Alba Fernandez challenges

the legality of his detention under a framework devised by the Supreme Court

for district courts to apply. See Zadvydas, 533 U.S. at 682 (stating the Court’s

limitation on post-removal detention “is subject to federal-court review.”). A

decision in Alba Fernandez’s favor would not impair ICE’s ability to execute

the removal order. The INA does not strip the Court of jurisdiction over this

action.

The Court turns to the merits of Alba Fernandez’s habeas claim. “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 Supreme 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 acknowledges the six-month period for presumptively

reasonable detention has expired, so Zadvydas’s burden-shifting framework

applies. Alba Fernandez has 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 Alba Fernandez in

2001 and 2018, no change in circumstances suggests Cuba will accept him for

repatriation now, and ICE has not shown any other country will accept him.

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

attempt to send Alba Fernandez 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 can

lawfully remove Alba Fernandez in the reasonably foreseeable future.

The Court finds there is no significant likelihood of removal 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 Alba Fernandez’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:

Rene Alba Fernandez’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 Alba Fernandez poses a danger to the community

sufficient to justify continued detention.

2. Within seven days of the custody review, the government shall file a

supplemental response, addressing the results of the review and any

updates on removal efforts.

3. Alba Fernandez may file a reply within three days of the

supplemental response.

DONE AND ORDERED in Fort Myers, Florida on August 3, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record