Unreported / Non-Citable
Background
Petitioner Jeudy Jorge Benjamin Cordero is a Cuban citizen who entered the United States in June 2019, passed a credible fear interview, and was released on a $1,500 bond. He applied for asylum and obtained work authorization and a social security number. Although he was arrested for several non-violent misdemeanor offenses, none were prosecuted, and he has no criminal convictions.
Petitioner was re-detained by Respondents on February 17, 2025, after a misdemeanor arrest that resulted in no conviction. On April 2, 2026, an immigration judge denied his asylum application and ordered him removed to Cuba; no appeal was filed. After the removal order, ICE officers began visiting Petitioner and telling him he had to go to Mexico. Petitioner fears going to Mexico and has expressed that fear, but he was not provided an interview or any opportunity to present evidence regarding that fear.
Petitioner, proceeding pro se, filed a habeas petition under 28 U.S.C. § 2241 on April 2, 2026. After the court appointed counsel on August 26, 2026, Petitioner filed a first amended petition on September 25, 2026, challenging his continued detention under Zadvydas v. Davis and the government's third-country removal policy. Respondents filed a response on October 20, 2026, and Petitioner filed a reply on November 3, 2026.
The Court’s Holding
The magistrate judge recommends granting the first amended petition and directing immediate release. Under Zadvydas v. Davis, 533 U.S. 678 (2001), post-removal-period detention is limited to a period reasonably necessary to effectuate removal, with six months being presumptively reasonable. Here, the removal period began on May 2, 2026, when the time to appeal expired and the order of removal became administratively final, and the six-month presumptively reasonable period had just ended. Because Cuba is unwilling to repatriate U.S. deportees and Petitioner does not consent to removal to Mexico, there is no significant likelihood of removal in the reasonably foreseeable future. Respondents provided no evidence to rebut Petitioner's showing, rendering continued detention unreasonable and no longer authorized by statute.
The magistrate judge also finds that due process requires a full and fair hearing before a neutral adjudicator for any fear-based claim regarding third-country removal, not merely the opportunity to file a discretionary motion to reopen. The recommendation includes enjoining Respondents from re-detaining Petitioner absent material changed circumstances and a neutral determination that removal is significantly likely, and from effectuating third-country removal without providing written notice in a language Petitioner understands, fourteen days to raise a fear-based claim, and a meaningful opportunity to be heard before an immigration judge if such a claim is asserted. The magistrate judge also recommends terminating Respondents' motion to dismiss as moot.
Key Takeaways
- Detention beyond six months after a final removal order is presumptively unreasonable under Zadvydas when there is no significant likelihood of removal in the reasonably foreseeable future.
- Cuba's unwillingness to repatriate deportees and Mexico's requirement of consent for third-country removal can establish that removal is not reasonably foreseeable.
- Due process requires a meaningful hearing before an immigration judge for fear-based claims regarding third-country removal, not just the opportunity to file a motion to reopen.
- The government must provide written notice of any third-country destination in a language the detainee understands and at least fourteen days to raise a fear-based claim before removal.
- A magistrate judge's findings and recommendation are subject to objection and review by the assigned district judge within fourteen days of service.
Why It Matters
This recommendation reinforces the constitutional limits on indefinite immigration detention under Zadvydas, particularly for Cuban nationals who cannot be repatriated and face removal to third countries like Mexico that require consent. It underscores that the government bears the burden to rebut a showing that removal is not reasonably foreseeable once the six-month presumptive period expires.
The decision also contributes to the developing body of law requiring robust procedural protections for third-country removals, ensuring that noncitizens have a meaningful opportunity to present fear-based claims before an immigration judge rather than being relegated to discretionary motions to reopen. The recommendation is subject to de novo review by the assigned district judge, and the parties may file objections within fourteen days.