Reported / Citable
Background
Osmany Moreno Chirino, a Cuban citizen who entered the United States in 2000 and later became a lawful permanent resident under the Cuban Adjustment Act, petitioned for habeas relief from post-removal-order immigration detention. The opinion says he was ordered removed to Cuba on “March 24, 20214,” a facially malformed date, after previously being convicted of forgery-related charges. Between 2014 and 2025, he alternated between supervised release and incarceration for theft offenses.
Moreno Chirino returned to Immigration and Customs Enforcement custody on April 26, 2026. ICE had unsuccessfully attempted to remove him to Cuba and Mexico and told the court that it was seeking another country willing to accept him. The government moved for summary judgment, while Moreno Chirino argued that his continued detention violated the Immigration and Nationality Act and Zadvydas v. Davis.
The Court’s Holding
The court granted the habeas petition in part and denied the government’s summary-judgment motion. It held that Moreno Chirino had shown no significant likelihood of removal in the reasonably foreseeable future because Cuba and Mexico had not indicated that they would accept him and ICE had not identified any willing third country. The government offered no evidence sufficient to rebut that showing.
The court ordered the government to release Moreno Chirino within 48 hours, return his personal property, notify counsel in advance, and release him in a public place within the Southern District of Texas. If the government seeks to detain him again while removal proceedings remain pending, it must provide notice and a pre-detention hearing before an immigration judge, where it must prove by clear and convincing evidence that he presents a flight risk or danger to the community.
Key Takeaways
- Unsuccessful removal efforts and the absence of any country willing to accept a detainee can establish that removal is not reasonably foreseeable under Zadvydas.
- A stated intention to search for a third country, without evidence that one will accept the detainee, did not satisfy the government’s rebuttal burden.
- The release order imposed advance-notice, property-return, compliance-reporting, and pre-detention-hearing requirements.
Why It Matters
The decision illustrates that ICE cannot justify prolonged post-removal-order detention merely by asserting that it continues to explore third-country removal. Once a detainee makes the required Zadvydas showing, the government must present concrete evidence that removal is significantly likely in the reasonably foreseeable future.
The order also provides procedural protection against renewed detention by requiring the government to establish flight risk or dangerousness by clear and convincing evidence at a hearing before an immigration judge.