Reported / Citable
Background
Bernardo S., a Cuban national paroled into the United States in May 1980, was ordered removed in 1998 after conviction of an aggravated felony. An immigration judge ordered removal to Venezuela or Cuba. Though initially released under an order of supervision, ICE re-detained Bernardo in March 2025 to effect his removal. Bernardo filed a pro se habeas corpus petition alleging that ICE has detained him beyond the removal period in violation of due process, contending removal is unlikely in the near future. He noted that ICE attempted to remove him to Mexico in June and November 2025, but Mexico refused both times.
ICE responded that despite obstacles in securing removal—including Mexico’s refusals—the government is actively pursuing third-country removal to five different South, Central American, and African nations. ICE also documented an increase in successful deportations of Cuban nationals in fiscal years 2024 and 2025, establishing active efforts to execute removal.
The Court’s Holding
The magistrate judge applied the standard from Zadvydas v. Davis, 533 U.S. 678 (2001), which holds that six months from finality of a removal order is presumptively reasonable detention. Beyond six months, an alien bears the burden of proving no significant likelihood of removal in the reasonably foreseeable future; if he meets this burden, the government must respond with evidence to rebut it.
The court found Bernardo failed to meet his initial burden. His petition alleged only prolonged detention and Mexico’s refusals, presenting “nothing concrete” to suggest ICE cannot execute removal to alternative countries. The government’s evidence of ongoing third-country removal exploration and increased Cuban deportation success in recent fiscal years demonstrated that removal remains reasonably foreseeable. Accordingly, the court found no constitutional violation in continuing detention and recommended denial of the habeas petition without prejudice.
Key Takeaways
- An alien challenging detention under a final removal order must affirmatively prove removal is not reasonably foreseeable; mere allegations of delays are insufficient.
- Active government efforts to secure third-country removal satisfy the government’s burden under Zadvydas, even if one country refuses acceptance.
- Habeas relief is unavailable where removal remains reasonably foreseeable, regardless of the alien’s criminal history or length of detention.
Why It Matters
This decision reinforces that Zadvydas provides limited habeas protection for detainees with final removal orders. Petitioners must present concrete, specific evidence—not speculative claims—that removal is impossible or indefinitely delayed. Merely identifying obstacles or past refusals does not satisfy this burden if alternative removal pathways remain viable.
The ruling is significant for immigrants facing removal based on criminal convictions. It establishes that prolonged detention does not automatically violate due process; the constitutional inquiry focuses narrowly on the foreseeability of removal itself. ICE’s documented efforts to pursue multiple removal options, even to lesser-known third countries, may satisfy constitutional requirements even when primary removal destinations refuse.