Post number 5374

The Government Must Remove a Noncitizen Within 90 Days of Detention

In Jean Marcel Perez Garcia v. Warden, Florida Side South Detention Facility, et al., No. 2:26-cv-788-JES-DNF John E. Steele United States District Judge United States District Court, M.D. Florida, Fort Myers Division (June 10, 2026) Jean Marcel Perez Garcia, a Cuban citizen, entered the United States in 2003. After convictions for a drug offense and felony insurance fraud, he was ordered removed in 2018 but was later released under supervision.

ICE revoked that supervision in December 2025 and detained him again to execute the removal order. In February 2026, ICE transported him to the U.S.–Mexico border and sought to have him depart to Mexico, but he refused. ICE then continued to detain him for more than six months without showing that any country had agreed to accept him or that travel documents had been secured.
LAW

Under 8 U.S.C. § 1231(a)(1)(A), the government must remove a noncitizen within 90 days after the removal order becomes final, and detention is mandatory during that period. Under Zadvydas v. Davis, 533 U.S. 678 (2001), post-removal detention is presumptively reasonable for six months, but after that period the detainee may be released if there is no significant likelihood of removal in the reasonably foreseeable future. The government may extend the removal period under 8 U.S.C. § 1231(a)(1)(C) if the noncitizen acts to prevent removal, but only where the government can show the detainee actually obstructed a realistic removal process.
DISCUSSION

The government argued that Perez Garcia was not entitled to release because he thwarted removal by refusing to board transport for Mexico and by refusing to sign removal paperwork. The court rejected that argument. It found no evidence that Mexico had actually agreed to accept him, no proof that ICE had obtained or even sought travel documents, and no concrete removal plan to any country.

The record showed only that ICE brought him to the border and tried to induce him to “voluntarily” leave for Mexico. The court concluded that this did not amount to a lawful or realistic removal effort and did not trigger tolling under § 1231(a)(1)(C).
ANALYSIS

The court applied Zadvydas and held that once Perez Garcia showed he had been detained beyond six months, the burden shifted to the government to demonstrate a significant likelihood of removal in the reasonably foreseeable future. The government failed to meet that burden. The court emphasized that speculation that Mexico might eventually accept him was not enough. Nor could ICE rely on coercive pressure to force a “voluntary” crossing into a third country as a substitute for actual removal. Because there was no evidence of meaningful progress toward removal and no concrete plan, continued detention had become unreasonable and unauthorized.
CONCLUSION

In short, Respondents present no evidence showing any significant steps taken to remove Perez Garcia to Cuba or another country. Instead, the only effort at removal was a trip to the United States-Mexico border in an apparent attempt to coerce Perez Garcia into voluntarily departing to a country of which he is not a citizen.

Detaining a noncitizen and using the specter of continued detention to compel him to “voluntarily” depart by walking across the international border does not constitute removal; rather, it is an action designed to lead to the type of indefinite detention that Zadvydas sought to prevent. The Court also noted that it has been 128 days since the purported attempted removal to Mexico – far more than the 90 days contemplated by 8 U.S.C. § 1231(a)(1)(A), and Respondents admit that no further actions have been taken in the interim.

The court granted the habeas petition. It ordered Perez Garcia’s release within 24 hours, subject to an order of supervision. The court also noted that ICE could re-detain him in the future if removal became significantly likely in the reasonably foreseeable future.
ZALMA OPINION

The court, reluctantly granted Perez Garcia’s Habeas request because – although he was a criminal alien – ICE was unable to fulfill a deportation order and deport him. Thanks to that inability a convicted insurance fraudster was released into the country to commit more fraud until ICE could arrest, confine and deport him because the law does not allow them to keep him confined instead of deport him.

(c) 2026 Barry Zalma & ClaimSchool, Inc.

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