Unreported / Non-Citable
Background
Petitioner David P.P., a citizen of Cuba, was paroled into the United States in 1995 and ordered removed in 1999. After serving criminal sentences, he was placed on an Order of Supervision (OSUP) in 1999. In July 2025, ICE encountered him in local custody and re-detained him in November 2025. Cuba has denied repatriation. ICE then attempted to remove Petitioner to Mexico as a third country, serving multiple notices between November 2025 and April 2026.
Petitioner refused to sign the notices and refused to cooperate with removal to Mexico. Petitioner filed a pro se habeas petition in April 2026 challenging his prolonged detention. The court appointed counsel, ordered briefing on third-country removal, and Petitioner filed a First Amended Petition (FAP). Respondents did not oppose amendment. The Magistrate Judge issued this Findings and Recommendation on the FAP.
The Court’s Holding
The Magistrate Judge recommends granting the First Amended Petition for writ of habeas corpus and ordering Petitioner's immediate release. The court concludes that the Zadvydas burden-shifting framework does not apply because Petitioner was previously released on OSUP after his removal period expired; instead, re-detention is governed by 8 C.F.R. § 241.13(i)(2), which requires ICE to show a significant likelihood of removal in the reasonably foreseeable future based on changed circumstances. The court finds that Mexico only accepts noncitizens who consent to removal, and Petitioner has repeatedly refused to cooperate.
Therefore, Respondents failed to meet their burden of showing a significant likelihood of removal. Even under Zadvydas, Petitioner satisfied his burden and Respondents failed to rebut it. The court recommends immediate release under appropriate conditions and an injunction against re-detention absent material changed circumstances and a neutral decisionmaker's determination of a significant likelihood of removal.
Key Takeaways
- Re-detention of a noncitizen previously released on an Order of Supervision (OSUP) after the 90-day removal period expired is governed by 8 C.F.R. § 241.13(i)(2), not the Zadvydas burden-shifting framework.
- Under 8 C.F.R. § 241.13(i)(2), ICE bears the burden to show a significant likelihood of removal in the reasonably foreseeable future based on changed circumstances to justify re-detention.
- Mexico's acceptance of third-country removals requires the noncitizen's consent; a noncitizen's refusal to cooperate negates a significant likelihood of removal.
- The court recommends immediate release and an injunction barring re-detention unless material changed circumstances exist and a neutral decisionmaker finds a significant likelihood of removal.
- The Findings and Recommendation is subject to 14-day objection period before the assigned District Judge reviews it under 28 U.S.C. § 636(b)(1)(C).
Why It Matters
This decision reinforces a growing line of cases in the Eastern District of California holding that ICE cannot indefinitely detain noncitizens who refuse third-country removal to Mexico when Mexico requires consent. It clarifies that the regulatory framework for re-detention after OSUP release (8 C.F.R. § 241.13(i)(2)) places the burden on the government to prove a significant likelihood of removal, which cannot be met when the designated country conditions acceptance on the detainee's cooperation.
The ruling aligns with Pedro V.L., Ramirez Outerino, and B.D. in this district, establishing that prolonged detention without a realistic prospect of removal violates due process.