UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
ROGELIO RODRIGUEZ ORTEGA,
Petitioner, Case No. 2:26-cv-1368-KCD-NPM
v.
WARDEN, FLORIDA SOFT SIDE SOUTH DETENTION CENTER, US ATTORNEY GENERAL,
Respondents. /
ORDER Petitioner Rogelio Rodriguez Ortega is a Cuban citizen with a final order of removal. His path to that order runs through several criminal convictions. (Doc. 8-1 at 1.)1 Immigration and Customs Enforcement (“ICE”) apparently could not deport him at the time, so he was released on an order of supervision. After spending nearly fifteen years living in the community under supervision, Ortega was returned to immigration custody on November 3, 2025. He now seeks a writ of habeas corpus under 28 U.S.C. § 2241, asking this Court to order his immediate release. (Doc. 1.) For the reasons below, the petition is GRANTED IN PART.
1 Unless otherwise indicated, all internal quotation marks, citations, case history, and alterations have been omitted in this and later citations. I. Legal Framework The federal habeas statute, 28 U.S.C. § 2241, provides authority to
issue writs of habeas corpus when an individual is “[i]n custody in violation of the Constitution or laws or treaties of the United States.” Id. § 2241(c)(3). “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its
protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). “Section 2241 authorizes federal courts to hear challenges to immigration detention.” Grigorian v. Bondi, No. 25-CV-22914-RAR, 2025 WL 2604573, at *2 (S.D. Fla. Sept. 9, 2025).
II. Discussion A. Substantive Due Process Invoking the Fifth Amendment, Ortega first claims that he has been detained beyond the bounds of what substantive due process allows. (Doc. 1
at 7.) The statutory framework for removal works like this: when a noncitizen’s removal order becomes final, like here, the government has 90 days to effectuate removal. 8 U.S.C. § 1231(a)(1)(A). During that period, detention is mandatory. Id. § 1231(a)(2)(A). If the 90 days pass and the
noncitizen is still here, the statute gives the government a choice: release the individual on supervision or keep them detained. Id. § 1231(a)(6). But as the Supreme Court explained in Zadvydas v. Davis, the authority to detain does not stretch into infinity. To avoid serious
constitutional problems, the Court read an implicit limitation into the statute: the government may detain a noncitizen only for a period “reasonably necessary” to secure his removal. 533 U.S. 678 (2001). And to make that rule workable, the Court established a presumption. For the first
six months, detention is presumptively reasonable. Id. at 701. After that period has passed and the alien “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” the burden then shifts to the government to provide evidence sufficient to rebut
that showing. Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002). Thus, “in order to state a claim under Zadvydas, the alien not only must show post-removal order detention in excess of six months but also must provide evidence of a good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id. ICE took Ortega into custody on November 3, 2025, which is beyond six months. But on January 19, 2026, he refused removal to Mexico. Since that conduct stands uncontested, it tolls the detention period. (Doc. 8-7); see
Akinwale, 287 F.3d at 1052 n.4 (stating that “removal period shall be extended ... if the alien ... acts to prevent the alien’s removal subject to an order of removal”). Under 8 U.S.C. § 1231(a)(1)(C), the removal clock stops ticking if an alien refuses to cooperate in obtaining travel documents. It also tolls if the
alien “conspires or acts to prevent [his] removal.” Id. Common sense (and the Eleventh Circuit) tells us that a person cannot actively thwart his own deportation and then use the resulting delay to demand his freedom. Whether by stubbornly withholding a signature on a required form or by
affirmatively taking steps to sabotage the government’s efforts, an alien who engineers his own prolonged detention cannot turn around and complain about it. The law does not reward that kind of gamesmanship. See Quo Zing Song v. U.S. Atty. Gen., 516 F. App’x 894, 899 (11th Cir. 2013) (“The six-
month period is tolled, however, if the alien acts to prevent his removal.”). That is precisely the game Ortega is playing here. He claims his detention violates the Fifth Amendment, yet his refusal to cooperate with ICE is the very roadblock keeping him in custody.2 If he signs the paperwork,
his removal is reasonably foreseeable; if he does not, the delay is entirely of his own making. Because Ortega is apparently responsible for stalling his own departure, the presumptively reasonable period for his detention is
2 The Immigration and Nationality Act does not leave an individual without recourse if he objects to his designated destination. The statute provides a clear procedural framework for contesting removal to a specific third country. See 8 U.S.C. § 1231(b). But nowhere in his petition does Ortega allege—let alone offer evidence to show—that he has formally challenged his proposed removal to Mexico. Instead, he has apparently dug in his heels and refused to sign the necessary travel documents. Because it seems he bypassed the proper legal channels for contesting his destination, this Court accepts he is legally subject to removal to Mexico. tolled. Ortega can refile a new petition should his current detention be unimpeded, and he can demonstrate there is no significant likelihood of
removal in the reasonably foreseeable future. B. Procedural Due Process The Fifth Amendment prohibits deprivation of an individual’s life, liberty, or property without due process of law. U.S. CONST. amend. V.
“[T]he Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. Courts examine procedural due process claims in two steps: the first asks whether there exists a protected
liberty interest under the Due Process Clause, and the second examines the procedures necessary to ensure any deprivation of that protected liberty interest accords with the Constitution. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
The first step is easy here. Once ICE unlocked the doors and placed Ortega on supervised release, he acquired a conditional liberty interest that triggered constitutional protection before it could be taken away. See Young v. Harper, 520 U.S. 143, 147-48 (1997). This is true even when the individual
is subject to extensive conditions of release. See Rodriguez Romero v. Ladwig, No. CV 25-1106-JWD-EWD, 2026 WL 321437, at *11 (M.D. La. Feb. 6, 2026) (“[N]on-citizens have an overwhelming liberty interest in their continued release under [an] Order of Supervision . . . that may not be removed without due process.”); see also Zadvydas, 533 U.S. at 690 (“Freedom from
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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
ROGELIO RODRIGUEZ ORTEGA,
Petitioner, Case No. 2:26-cv-1368-KCD-NPM
v.
WARDEN, FLORIDA SOFT SIDE SOUTH DETENTION CENTER, US ATTORNEY GENERAL,
Respondents. /
ORDER Petitioner Rogelio Rodriguez Ortega is a Cuban citizen with a final order of removal. His path to that order runs through several criminal convictions. (Doc. 8-1 at 1.)1 Immigration and Customs Enforcement (“ICE”) apparently could not deport him at the time, so he was released on an order of supervision. After spending nearly fifteen years living in the community under supervision, Ortega was returned to immigration custody on November 3, 2025. He now seeks a writ of habeas corpus under 28 U.S.C. § 2241, asking this Court to order his immediate release. (Doc. 1.) For the reasons below, the petition is GRANTED IN PART.
1 Unless otherwise indicated, all internal quotation marks, citations, case history, and alterations have been omitted in this and later citations. I. Legal Framework The federal habeas statute, 28 U.S.C. § 2241, provides authority to
issue writs of habeas corpus when an individual is “[i]n custody in violation of the Constitution or laws or treaties of the United States.” Id. § 2241(c)(3). “At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its
protections have been strongest.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). “Section 2241 authorizes federal courts to hear challenges to immigration detention.” Grigorian v. Bondi, No. 25-CV-22914-RAR, 2025 WL 2604573, at *2 (S.D. Fla. Sept. 9, 2025).
II. Discussion A. Substantive Due Process Invoking the Fifth Amendment, Ortega first claims that he has been detained beyond the bounds of what substantive due process allows. (Doc. 1
at 7.) The statutory framework for removal works like this: when a noncitizen’s removal order becomes final, like here, the government has 90 days to effectuate removal. 8 U.S.C. § 1231(a)(1)(A). During that period, detention is mandatory. Id. § 1231(a)(2)(A). If the 90 days pass and the
noncitizen is still here, the statute gives the government a choice: release the individual on supervision or keep them detained. Id. § 1231(a)(6). But as the Supreme Court explained in Zadvydas v. Davis, the authority to detain does not stretch into infinity. To avoid serious
constitutional problems, the Court read an implicit limitation into the statute: the government may detain a noncitizen only for a period “reasonably necessary” to secure his removal. 533 U.S. 678 (2001). And to make that rule workable, the Court established a presumption. For the first
six months, detention is presumptively reasonable. Id. at 701. After that period has passed and the alien “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future,” the burden then shifts to the government to provide evidence sufficient to rebut
that showing. Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002). Thus, “in order to state a claim under Zadvydas, the alien not only must show post-removal order detention in excess of six months but also must provide evidence of a good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id. ICE took Ortega into custody on November 3, 2025, which is beyond six months. But on January 19, 2026, he refused removal to Mexico. Since that conduct stands uncontested, it tolls the detention period. (Doc. 8-7); see
Akinwale, 287 F.3d at 1052 n.4 (stating that “removal period shall be extended ... if the alien ... acts to prevent the alien’s removal subject to an order of removal”). Under 8 U.S.C. § 1231(a)(1)(C), the removal clock stops ticking if an alien refuses to cooperate in obtaining travel documents. It also tolls if the
alien “conspires or acts to prevent [his] removal.” Id. Common sense (and the Eleventh Circuit) tells us that a person cannot actively thwart his own deportation and then use the resulting delay to demand his freedom. Whether by stubbornly withholding a signature on a required form or by
affirmatively taking steps to sabotage the government’s efforts, an alien who engineers his own prolonged detention cannot turn around and complain about it. The law does not reward that kind of gamesmanship. See Quo Zing Song v. U.S. Atty. Gen., 516 F. App’x 894, 899 (11th Cir. 2013) (“The six-
month period is tolled, however, if the alien acts to prevent his removal.”). That is precisely the game Ortega is playing here. He claims his detention violates the Fifth Amendment, yet his refusal to cooperate with ICE is the very roadblock keeping him in custody.2 If he signs the paperwork,
his removal is reasonably foreseeable; if he does not, the delay is entirely of his own making. Because Ortega is apparently responsible for stalling his own departure, the presumptively reasonable period for his detention is
2 The Immigration and Nationality Act does not leave an individual without recourse if he objects to his designated destination. The statute provides a clear procedural framework for contesting removal to a specific third country. See 8 U.S.C. § 1231(b). But nowhere in his petition does Ortega allege—let alone offer evidence to show—that he has formally challenged his proposed removal to Mexico. Instead, he has apparently dug in his heels and refused to sign the necessary travel documents. Because it seems he bypassed the proper legal channels for contesting his destination, this Court accepts he is legally subject to removal to Mexico. tolled. Ortega can refile a new petition should his current detention be unimpeded, and he can demonstrate there is no significant likelihood of
removal in the reasonably foreseeable future. B. Procedural Due Process The Fifth Amendment prohibits deprivation of an individual’s life, liberty, or property without due process of law. U.S. CONST. amend. V.
“[T]he Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. Courts examine procedural due process claims in two steps: the first asks whether there exists a protected
liberty interest under the Due Process Clause, and the second examines the procedures necessary to ensure any deprivation of that protected liberty interest accords with the Constitution. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982).
The first step is easy here. Once ICE unlocked the doors and placed Ortega on supervised release, he acquired a conditional liberty interest that triggered constitutional protection before it could be taken away. See Young v. Harper, 520 U.S. 143, 147-48 (1997). This is true even when the individual
is subject to extensive conditions of release. See Rodriguez Romero v. Ladwig, No. CV 25-1106-JWD-EWD, 2026 WL 321437, at *11 (M.D. La. Feb. 6, 2026) (“[N]on-citizens have an overwhelming liberty interest in their continued release under [an] Order of Supervision . . . that may not be removed without due process.”); see also Zadvydas, 533 U.S. at 690 (“Freedom from
imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that the [Due Process] Clause protects.”). That takes us to the second step: determining exactly what process is
due. At its core, the Due Process Clause demands that before the government strips a person of a protected liberty interest, it must provide notice and a meaningful opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Due process requires notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 272 (2010). From the record now before the Court, the opportunity to be heard is
entirely missing. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (describing the opportunity to present reasons why proposed action should not be taken as a “fundamental due process requirement”). When that happens, this Court has consistently found that the Government must
provide the required interview under 8 C.F.R. § 241.13(i)(3). Petitioner is not instead entitled to release. See Diaz v. Fla. Soft Side S., Warden, No. 2:26-cv- 1293-KCD-NPM, 2026 WL 1379036, at *4 (M.D. Fla. May 18, 2026). III. Conclusion The Government violated the Constitution when it canceled Ortega’s supervision without providing him an opportunity to be heard. But winning on procedure does not entitle him to the substantive windfall of immediate release. Rather, the appropriate remedy is to require the Government to do its job and provide the process due. Accordingly: 1. Ortega’s Petition for Writ of Habeas Corpus (Doc. 1) is GRANTED IN PART and DENIED IN PART. 2. To the extent Ortega seeks a procedural remedy for the revocation of his supervised release, the petition is GRANTED. All other relief is DENIED. 3. Respondents are ORDERED to provide Ortega with the informal interview required by 8 C.F.R. § 241.138@)(8) by May 28, 2026. If that procedure is not provided by the Court’s deadline, Respondents are directed to release Ortega. 4. The Clerk is directed to enter judgment accordingly and close the case. The Court will retain jurisdiction to enforce this Order. ORDERED in Fort Myers, Florida on May 21, 2026.
KyleC.Dudek United States District Judge