Roche

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

ROGELIO ROCHE,

Petitioner,

v. Case No.: 2:26-cv-01575-SPC-KRH

D.H.S. et al.,

Respondents.

/

OPINION AND ORDER

Before the Court are petitioner Rogelio Roche’s Petition for Writ of

Habeas Corpus (Doc. 1) and the government’s response (Doc. 11).

Roche is a native of Cuba who entered the United States on May 12,

1980, and later became a lawful permanent resident. On May 10, 1995, he was

convicted of kidnapping and sexual assault. An immigration judge ordered

Roche removed to Cuba on April 6, 2004. Immigration and Customs

Enforcement (“ICE”) was unable to execute the removal order, so it released

Roche under an order of supervision. On February 26, 2026, ICE revoked the

order of supervision, arrested Roche, and detained him at Alligator Alcatraz.

On March 27, 2026, ICE took a group of noncitizens—including Roche—to the

U.S.-Mexico border and instructed them to disembark and cross into Mexico.

Roche stayed on the bus, and ICE returned him to Alligator Alcatraz. Roche

challenges the legality of his continued detention.

Before addressing the merits of Roche’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).

Roche 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, Roche 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

Roche’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 Roche’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.

Because the six-month period for presumptively reasonable detention

has expired, Zadvydas’s burden-shifting framework applies. Roche 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 Cuban

government will not accept him for repatriation.

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

attempt to send Roche 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 Roche

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 Roche’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:

Rogelio Roche’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 Roche 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. If the government determines Roche should

remain detained because he presents a danger to the community, the

supplement must include the factual basis for that determination.

3. Roche may file a reply within three days of the supplemental

response.

DONE AND ORDERED in Fort Myers, Florida on September 8, 2026.

° tt WOhLataat he 7

UNITED STATES DISTRICT JUDGE

SA: FTMP-1

Copies: All Parties of Record