Unreported / Non-Citable
Background
Edray Castro Aguiar is a citizen of Cuba who entered the United States on or about August 3, 1980. On January 15, 1991, an immigration judge ordered him removed from the United States. On or about December 28, 1993, he was convicted of assault on a police officer and possession of a firearm by a felon and sentenced to four years' imprisonment, and he has had numerous other encounters with law enforcement, some resulting in convictions. In December 2025, while he was at the Martin Correctional Institution, U.S. Immigration and Customs Enforcement lodged a detainer against him.
Aguiar was last released on an order of supervision in 2007. On January 11, 2026, ICE notified him that it was revoking that order to enforce the removal order, which became administratively final on January 15, 1991. On January 13, 2026, he was provided an informal interview, and he has been in ICE custody since approximately that date. He has been informed on numerous occasions that ICE seeks to remove him to Mexico, and he has repeatedly refused to consent to removal there. He filed a habeas petition in the Middle District of Florida on April 8, 2026, which that court granted his motion to voluntarily dismiss; he then filed a petition under 28 U.S.C. § 2241 in this Court on July 10, 2026. Respondents moved to dismiss on August 3, 2026, and filed a supplemental brief on October 15, 2026.
The Court’s Holding
The magistrate judge recommended denying Respondents' motion to dismiss. The first-to-file rule did not require dismissal because the Middle District of Florida had already granted Aguiar's motion to voluntarily dismiss his earlier-filed petition. On the merits, the court held that the burden-shifting framework of Zadvydas v. Davis does not apply: this is not the typical initial detention of an alien awaiting removal after a final order, but the re-detention of a noncitizen who was previously detained, released on an order of supervision for years, and whose 90-day removal period expired long ago. Under 8 C.F.R. § 241.13(i)(2), ICE may re-detain such a person only if changed circumstances show a significant likelihood of removal in the reasonably foreseeable future, and ICE bears the burden of making that showing.
Applying that standard, the court found that Respondents failed to show a significant likelihood of removal. Although DHS may have an informal arrangement with Mexico for third-country removals, Mexico accepts only individuals who consent to removal there, and Aguiar has repeatedly refused consent; the record contained no evidence Mexico would accept him without his consent. The court further concluded that even if the Zadvydas framework applied, Aguiar had shown good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future and Respondents failed to rebut that showing. The court therefore recommended granting the habeas petition, denying the motion to dismiss, ordering Aguiar's immediate release under appropriate conditions, and enjoining Respondents from re-detaining him under § 241.13(i)(2) unless material changed circumstances exist and a neutral decisionmaker determines removal is significantly likely.
Key Takeaways
- The magistrate judge recommended granting the habeas corpus petition and ordering Aguiar's immediate release under appropriate conditions.
- The court recommended denying the motion to dismiss because the first-to-file rule did not apply after the earlier Florida petition was voluntarily dismissed.
- When ICE revokes an order of supervision and re-detains a noncitizen whose 90-day removal period expired long ago, ICE bears the burden under 8 C.F.R. § 241.13(i)(2) of proving a significant likelihood of removal in the reasonably foreseeable future.
- Because Mexico only accepts third-country removals of individuals who consent, and Aguiar repeatedly refused consent, the court found removal was not reasonably foreseeable.
- The recommendation would enjoin re-detention absent material changed circumstances and a neutral decisionmaker's finding of significant likelihood of removal; parties may file objections within fourteen days of service.
Why It Matters
The recommendation reinforces Eastern District of California authority holding that the Zadvydas burden-shifting framework does not govern when ICE re-detains a noncitizen previously released on an order of supervision; instead, the government must show changed circumstances and a significant likelihood of removal under 8 C.F.R. § 241.13(i)(2). It also underscores the practical limits of third-country removal arrangements: a standing agreement with Mexico cannot justify prolonged detention when the detainee refuses consent and Mexico requires consent.
If adopted by the assigned district judge, the recommendation would secure Aguiar's release and impose forward-looking limits on any re-detention, requiring both material changed circumstances and an independent determination that removal is genuinely foreseeable in the reasonably foreseeable future.