# Opinion

> District Court, E.D. California · August 7, 2026

URL: https://www.frixlaw.com/law-library/cases/11434673

## Case

- **Full name:** Neill Alejandro Hernandez Betancourt v. Department of Homeland Security
- **Court:** District Court, E.D. California
- **Decided:** August 7, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:26-cv-4501-DAD-JDP
11 NEILL ALEJANDRO HERNANDEZ
BETANCOURT (A-Number: 074-135-
12 953),
FINDINGS AND RECOMMENDATIONS
13 Petitioner,
14 v.
15 DEPARTMENT OF HOMELAND
SECURITY,
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Respondent.
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19 Petitioner Neill Alejandro Hernandez Betancourt, a citizen of Cuba, was admitted to the
20 United States on March 15, 1996, through the Cuban Humanitarian Parole program. He was
21 ordered removed to Cuba by an immigration judge on April 7, 2015. Respondent re-detained
22 petitioner on February 9, 2026, and seeks to remove him to Mexico. Petitioner has not consented
23 to removal to Mexico and remains in custody.
24 Petitioner, proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2241,
25 alleging that his detention is illegal under Zadvydas v. Davis, 533 U.S. 678, 687 (2001) and 8
26 U.S.C. § 1231(a)(6) as his removal is not reasonably foreseeable. Respondent argues that
27 petitioner’s ongoing detention is reasonable because petitioner has refused to consent to removal
28 to Mexico, a country to which he has not been ordered removed. For the following reasons, I
1 recommend that the petition be granted and that petitioner be immediately released.
2 Background
3 Petitioner Neill Alejandro Hernandez Betancourt, a citizen of Cuba, was admitted to the
4 United States on March 15, 1996, through the Cuban Humanitarian Parole program. ECF No. 7-2
5 at 1. In 2014, petitioner was convicted of possession of marijuana for sale and carrying a
6 concealed weapon and received a sentence of two years of probation. Id. At some point
7 thereafter, immigration authorities took him into custody, and on December 8, 2014, they released
8 petitioner from immigration custody on an order of supervision. ECF No. 7-10; ECF No. 7-11.
9 An immigration judge ordered petitioner removed to Cuba on April 7, 2015. See ECF No. 7-1. It
10 appears that petitioner was placed back into immigration custody, as he was released on another
11 order of supervision on July 16, 2015, because immigration authorities had not been able to
12 remove him to Cuba. ECF No. 7-12.
13 ICE encountered petitioner in December 2025, when he was in state custody serving a
14 three-year sentence for crimes that include cannabis possession, driving on a revoked license,
15 obstructing a police officer, theft of a firearm, and battery. ECF No. 7-2 at 2. ICE re-detained
16 him on February 9, 2026, upon his release from criminal custody. ECF No. 1 at 1; ECF No. 7-5
17 at 1.
18 There is no indication in the record that ICE attempted to procure travel documents for
19 petitioner’s removal to Cuba. On the contrary, on February 12, 2026, June 3, 2026, and June 10,
20 2026, ICE gave petitioner notice that it intends to remove him to Mexico. ECF No. 7-6 at 1; ECF
21 No. 7-7 at 1; ECF No. 7-8 at 1. On July 6, 2026, ICE gave petitioner notice that it intended to
22 keep him in custody because of his “failure to comply” with removal to Mexico, which it deemed
23 in violation of 8 CFR § 241.4(g). ECF No. 7-9. This notice told petitioner that ICE had decided
24 to “extend” the statutory removal period because petitioner was failing to comply with his
25 “obligation” to leave for Mexico. Id. Petitioner has not consented to removal to Mexico and
26 remains in custody.
27 Legal Standard
28 A federal court may grant habeas relief when a petitioner shows that his custody violates
1 federal law. 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75
2 (2000). “[T]he essence of habeas corpus is an attack by a person in custody upon the legality of
3 that custody, and . . . the traditional function of the writ is to secure release from illegal custody.”
4 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus may be granted to a
5 petitioner who demonstrates that he is in custody in violation of the Constitution or federal law.
6 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has served as a means of
7 reviewing the legality of Executive detention, and it is in that context that its protections have
8 been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s habeas jurisdiction
9 includes challenges to immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
10 Analysis1
11 Petitioner asserts that his removal is not reasonably foreseeable under 8 U.S.C.
12 § 1231(a)(6) and Zadvydas v. Davis, 533 U.S. 678, 687 (2001), and thus his continued detention
13 is no longer authorized by statute.2 ECF No. 1 at 2, 6-7. Respondent argues that petitioner is
14 properly subject to continued detention pursuant to 8 U.S.C. § 1231(a)(6) until he agrees to be
15 removed to Mexico. ECF No. 8 at 4.
16 In Zadvydas, the Supreme Court considered prolonged immigration detention after a final

17 1 Respondents argue that petitioner’s failure to list his immediate warden as a respondent
deprives this court of jurisdiction. See ECF No. 7 at 1, n.1. Petitioner named as respondents
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“Department of Homeland Security, U.S. Attorney General, Immigration and Customs
19 Enforcement.” ECF No. 1 at 1. While the pleading requirement of 28 U.S.C. § 2242 requires a
habeas petitioner to name “the person with the ability to produce the prisoner’s body before the
20 habeas court,” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), and the proper respondent is the
“warden of the facility where the prisoner is being held, not the Attorney General or some other
21 remote supervisory official,” id. at 435, n.8, I find, in the interest of justice, that the warden of
petitioner’s detention facility be added as a party. See Melian S. v. U.S. Att’y Gen., No. 1:26-cv-
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4512-TLN-CKD, 2026 WL 1862745, at *2 (E.D. Cal. June 29, 2026); Islamov v. Doe, No. 26-cv-
23 1528-JES-VET, 2026 WL 1179873, at *3 (S.D. Cal. Apr. 30, 2026); Yevhenii v. Mullin, No. 3:26-
cv-2228-JES-MMP, 2026 WL 1179869, at *2 (S.D. Cal. Apr. 30, 2026); Devilmar v. U.S.
24 Immigr. & Customs Enf’t, No. 3:26-cv-0009-JES-MSB, 2026 WL 130387, at *1 (S.D. Cal. Jan.
16, 2026); Guatam v. Corr. Corp of Am., No. 3:25-cv-3600-JES-DEB, 2026 WL 25846, at *2
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(S.D. Cal. Jan. 5, 2026); Herrera-Ramirez v. United States, No. 2:25-cv-1749-MMD-EJY, 2025
WL 3239043, at *2 (D. Nev. Nov. 19, 2025).
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2 Petitioner’s pro se filing is entitled to liberal construction. See Estelle v. Gamble, 429
27 U.S. 97, 106 (1976); see also Charan S. v. Warden of the Cal. City Det. Facility, No. 1:26-cv-
3017-TLN-JDP, 2026 WL 1144158, at *1 n.1 (E.D. Cal. Apr. 28, 2026) (applying liberal
28 construction to pro se immigration habeas filing).
1 order of removal. Although the government has statutory authority to detain noncitizens for
2 removal, “once removal is no longer reasonably foreseeable, continued detention is no longer
3 authorized by statute.” Zadvydas, 533 U.S. at 699. The Supreme Court established a burden-
4 shifting framework to determine whether continued immigration detention is lawful and adopted
5 a presumption that immigration detention is reasonable for a period of up to six months, after the
6 final order of removal, when the detention is related to effectuating removal. Id. at 701.
7 The immigration court ordered petitioner removed to Cuba on March 26, 1992. ECF No.
8 8-1 at 3. Zadvydas’ six-month presumptively reasonable period began that day. See Zadvydas,
9 533 U.S. at 682; 8 U.S.C. § 1231(a)(1)(B)(i). Immigration authorities held petitioner in custody
10 from at least March 26, 1992, to September 28, 1992, to attempt to remove him to Cuba. ECF
11 No. 8-1 at 3. They then released petitioner on an order of supervision when they could not
12 remove him. Id.
13 The six-month presumptively reasonable time-period under Zadvydas “does not reset
14 when the government detains [a non-citizen] under 8 U.S.C. § 1231(a), releases him from
15 detention, and then re-detains him again.” Aaron H. v. Chestnut, No. 1:26-cv-1232-TLN-SCR,
16 2026 WL 1398910, at *1 (E.D. Cal. May 19, 2026) (quoting Sied v. Nielsen, No. 17-cv-6785-LB,
17 2018 WL 1876907, at *6 (N.D. Cal. Apr. 19, 2018)); see also Siguenza v. Moniz, 2025 WL
18 2734704, at *3 (D. Mass. Sept. 25, 2025) (“Most courts to consider the issue have concluded that
19 the Zadvydas period is cumulative, motivated, in part, by a concern that the federal government
20 could otherwise detain noncitizens indefinitely by continuously releasing and re-detaining
21 them.”). Accordingly, immigration authorities already detained petitioner for the presumptively
22 reasonable six-month period in 1992, and his current detention, which started on February 9,
23 2026, is just shy of six-months as well.
24 After the first six months of detention, “once the alien provides good reason to believe
25 that there is no significant likelihood of removal in the reasonably foreseeable future, the
26 Government must respond with evidence sufficient to rebut that showing.” Zadvydas, 533 U.S. at
27 701. Petitioner has given the court good reason to believe that his removal to Cuba is not
28 reasonably foreseeable. See ECF No. 1 at 2. Immigration authorities previously detained
1 petitioner for six months in 1992 and were not able to remove him to Cuba. See ECF No. 8-1 at
2 3. They have not removed petitioner to Cuba during this detention period, and the evidence
3 indicates that they have made no effort to do so. As support for his allegation that his removal to
4 Cuba is not reasonably foreseeable, petitioner attaches two detainee request forms where ICE
5 staff notified him that he would have to agree to be removed to a third country. See ECF No. 1 at
6 10-11. On April 17, 2026, ICE staff told petitioner, “[t]he third country removal would be to
7 Mexico. And Cuba is very strict with who we send back to them so Cuba most likely won’t take
8 you.” Id. at 11.
9 As petitioner has given me good reason to believe that his removal to Cuba is not
10 reasonably foreseeable, the burden shifts to respondent. Rather than rebut petitioner’s evidence,
11 respondent confirms that “to date, Cuba has not agreed to repatriate Petitioner.” ECF No. 7.
12 Further, respondent provides no evidence or argument that it ever sought travel documents for
13 petitioner’s removal to Cuba. See ECF No. 7. On the contrary, within three days of petitioner’s
14 re-detention, three days after petitioner’s re-detention, respondent notified him on February 12,
15 2026, that it intended to remove him to Mexico. ECF No. 7-6. Respondent again provided
16 petitioner notice on June 3, 2026, and June 10, 2026, of its intent to remove him to Mexico. ECF
17 No. 7-7; ECF No. 7-8. Respondent states that “ERO-ICE has repeatedly asked Petitioner to
18 cooperate in his removal by agreeing that he will board a commercial flight to Mexico, but
19 Petitioner has repeatedly refused to cooperate.” ECF No. 7 at 3.
20 Petitioner has no removal order to Mexico, see ECF No. 7-1, and there is no legal
21 requirement that he cooperate with removal to that country. See Obando Vargas v. Blanche, No.
22 1:26-cv-5343-DAD-AC, 2026 WL 2056618, at *2 (E.D. Cal. July 16, 2026) (rejecting the
23 respondents’ argument that the petitioner may be detained indefinitely “because [he] is not
24 agreeing to voluntarily depart to a country he is not from and is under no legal obligation to go
25 to”); Torres Cruz v. Chestnut, No. 1:26-cv-4690-DAD-SCR, 2026 WL 2057108 (E.D. Cal. July
26 16, 2026) (calling such argument “frivolous”). Respondent cites Pelich v. I.N.S., 329 F.3d 1057,
27 1058 (9th Cir. 2003), for the proposition that petitioner has the keys to his freedom in his pocket,
28 but Pelich involved a removal to the country in the removal order, not—as here—removal to a
1 third country to which petitioner has no obligation to go. Respondent fails to cite authority
2 holding that a petitioner may be detained indefinitely until he finally capitulates to removal to a
3 third country.
4 In Zadvydas, the Court directed lower courts to “measure reasonableness . . . in terms of
5 the statute's basic purpose, . . . assuring the alien’s presence at the moment of removal.”
6 Zadvydas, 533 U.S. at 699. I find that the evidence before me shows no significant likelihood of
7 removal in the reasonably foreseeable future. Respondent’s attempts to remove petitioner to
8 Mexico, where he does not consent to be removed, do not satisfy its burden under Zadvydas.
9 As there is no “significant likelihood that petitioner will be removed in the reasonably
10 foreseeable future,” his continued detention is unlawful. See Aaron H., 2026 WL 139890, *2;
11 Hoac v. Becerra, No. 2:25-cv-1740-DC-JDP, 2025 WL 1993771, at *4-5 (E.D. Cal. July 16,
12 2025); Castillo Rivas v. Bondi, No. 26-cv-0134-KKE, 2026 WL 295705, at *3 (W.D. Wash. Feb.
13 4, 2026) (holding that the petitioner was entitled to release under Zadvydas where the petitioner, a
14 Venezuelan national, refused to be removed to Mexico). I recommend that petitioner be
15 immediately released from immigration custody.
16 Conclusion
17 Accordingly, the Clerk of Court is hereby directed to add the Warden of the California
18 City Detention Facility, Christopher Chestnut, as a respondent in this matter. .
19 Further, it is hereby RECOMMENDED that:
20 1. The petition for writ of habeas corpus, ECF No. 1, be GRANTED.
21 2. Respondent’s motion to dismiss, ECF No. 7, be DENIED.
22 3. Respondent be ordered to immediately release petitioner (A-Number: 074-135-953)
23 from its custody subject to the previously-imposed conditions of release, if any.
24 4. Respondent be ENJOINED AND RESTRAINED from re-detaining petitioner unless it
25 obtains a travel document for his removal, if necessary, and follows all procedures set forth in 8
26 C.F.R. §§ 241.4(l), 241.13(i), and any other applicable statutory and regulatory procedures.
27 5. The Clerk of Court be directed to serve California City Detention Facility with a copy
28 of this order.
1 6. The Clerk of Court be ordered to enter judgment accordingly and close this case.
2 These findings and recommendations are submitted to the United States District Judge
3 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within seven days of
4 | service of these findings and recommendations, any party may file written objections with the
5 | court and serve a copy on all parties. Any such document should be captioned “Objections to
6 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed
7 | within seven days of service of the objections. The parties are advised that failure to file
8 | objections within the specified time may waive the right to appeal the District Court’s order. See
9 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (th Cir.
10 1991).
1]
D IT IS SO ORDERED.

Dated: _ August 7, 2026 aw——
14 JEREMY D. PETERSON
15 UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11434673. Public record. Not legal advice.