Saborit Aguilar v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Case No. 25-cv-03463-NYW
YUNIER SABORIT AGUILAR,
Petitioner,
v.
KRISTI NOEM, in her official capacity as Secretary of the Department of Homeland
Security,
PAMELA BONDI, in her official capacity as Attorney General of the United States,
TODD LYONS, in his official capacity as Acting Director and Senior Official Performing
the Duties of the Director of U.S. Immigration and Customs Enforcement,
ROBERT GUADIAN, in his official capacity as Field Office Director of U.S. Immigration
and Customs Enforcement, Enforcement and Removal Operations, and
JUAN BALTAZAR, in his official capacity as Warden of the Aurora Contract Detention
Center,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Verified Petition for a Writ of Habeas Corpus
(the “Petition”) filed by Petitioner Yunier Saborit Aguilar (“Petitioner” or Mr. Saborit
Aguilar”). 	[Doc. 1]. 	This Court ordered Respondents1 to show cause why the Petition
should not be granted. 	[Doc. 13 at 5]. 	Respondents have done so, see [Doc. 20], and
Petitioner has replied, see [Doc. 22]. 	For the reasons set forth below, the Petition is
respectfully GRANTED.
1 “Respondents” refers to Kristi Noem, the Secretary of the United States Department of
Homeland Security; Pamela Bondi, the United States Attorney General; Todd Lyons, the
Acting Director of ICE; Robert Guadian, an ICE Field Office Director; and Juan Baltazar,
the Warden of the Aurora Contract Detention Center. See [Doc. 1 at 1].
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BACKGROUND
Petitioner is a Cuban national who first entered the United States in 2019. [Doc. 1
at 5 ¶ 1]. 	His application for asylum was denied and he was removed in March 2020.
[Id.]. When he returned to Cuba, “Cuban counterintelligence detained and tortured him,
accusing him of being a spy for the United States government,” and for the next two years,
he was “repeatedly arrested, detained, jailed, and abused for continuing opposition
activities with the Patriotic Union of Cuba.” [Id.].
Petitioner 	reentered 	the 	United 	States 	in 	February 	2022 	and 	immediately
expressed fear to border patrol officers. [Id. at 5 ¶ 2]. His removal order was reinstated,
but he was referred for a reasonable fear interview. [Id.]. After establishing a reasonable
fear of persecution if he were to return to Cuba, he was referred to withholding-only
proceedings pursuant to 8 C.F.R. § 208.2(c)(2)(i). 	[Id.]. 	He was released from custody
in May 2022 on an Order of Supervision, which required regular reporting during the
pendency of the withholding-only proceedings. 	[Id. at 6 ¶ 3]. 	Petitioner fully complied
with the requirements of the Order of Supervision. [Id.].
On June 16, 2025, Petitioner was arrested outside his home by ICE officers. [Id.
at 6 ¶ 4]. His Order of Supervision was revoked without notice and without explanation.
[Id.]. Since then, he has been detained at the Aurora Contract Detention Facility. [Id. at
6 ¶¶ 4–5]. On September 18, 2025, an immigration judge granted Petitioner withholding
of removal. 	[Id. at 6 ¶ 5]. 	The Department of Homeland Security (“DHS”) waived any
appeal, which rendered the withholding order final. 	[Id.]. 	However, Petitioner has not
been released from custody. [Id.]. Mr. Saborit Aguilar filed the instant Petition on October
30, 2025, seeking his immediate release from custody. [Id. at 19]. He asserts four claims:
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(1) a procedural due process claim based on the revocation of his Order of Supervision
(“Count One”), [id. at 14]; (2) a due process claim based on Respondents’ failure to follow
DHS regulations (“Count Two”), [id. at 15]; (3) a substantive due process claim based on
his 	continued 	detention 	(“Count 	Three”), 	[id. 	at 	16]; 	and 	(4) 	a 	claim 	under 	the
Administrative Procedure Act (“Count Four”), [id. at 17].
LEGAL STANDARD
Section 2241 of Title 28 authorizes a court to issue a writ of habeas corpus when
a person is “in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). “The essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and that the traditional function of the writ is
to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
“Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis,
533 U.S. 678, 687–88 (2001)).
ANALYSIS
I. 	Detention of Noncitizens
Generally, when a noncitizen is ordered removed from the United States, the
removal 	“shall” 	occur 	within 	the 	next 	90 	days—the 	“removal 	period.” 	8 	U.S.C.
§ 1231(a)(1); Morales-Fernandez v. Immigr. & Naturalization Serv., 418 F.3d 1116, 1123
(10th 	Cir. 	2005). 	Detention 	is 	mandatory 	during 	the 	removal 	period, 	8 	U.S.C.
§ 1231(a)(2)(A), but once the removal period expires, the noncitizen “may” be detained,
id. § 1231(a)(6) (emphasis added). 	The Supreme Court has recognized that this
permissive language “suggests discretion,” but “does not necessarily suggest unlimited
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discretion.” 	Zadvydas, 533 U.S. at 697. 	Indeed, “read in light of the Constitution’s
demands,” § 1231(a)(6) “limits an alien’s post-removal-period detention to a period
reasonably necessary to bring about that alien’s removal from the United States.” Id. at
689. In Zadvydas, the Court explained that
[a] statute permitting indefinite detention of an alien would raise a serious
constitutional problem. The Fifth Amendment’s Due Process Clause forbids
the Government to “depriv[e]” any “person . . . of . . . liberty . . . without due
process of law.” 	Freedom from imprisonment—from government custody,
detention, or other forms of physical restraint—lies at the heart of the liberty
that Clause protects.
Id. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). 	Finding “nothing in the
history of these statutes that clearly demonstrates a congressional intent to authorize
indefinite, perhaps permanent, detention,” the Zadvydas Court held that “once removal is
no longer reasonably foreseeable, continued detention is no longer authorized by statute.”
Id. at 699.
The 	Court 	did 	recognize, 	however, 	a 	presumptively 	reasonable 	six-month
detention period. Id. at 701. “After this 6-month period,” if the noncitizen demonstrates
“good reason to believe that there is no significant likelihood of removal in the reasonably
foreseeable future, the Government must respond with evidence sufficient to rebut that
showing.” 	Id. 	The Supreme Court explained that a six-month presumptive period does
not mean that every noncitizen detained for six months must be released; rather, a
noncitizen may remain in detention “until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” 	Id. 	But “if the government
fails to demonstrate a significant likelihood of removal in the reasonably foreseeable
future, the noncitizen must be released.” Ahrach v. Baltazar, No. 25-cv-03195-PAB, 2025
WL 3227529, at *2 (D. Colo. Nov. 19, 2025) (citing Zadvydas, 533 U.S. at 701).
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II. 	Petitioner’s Detention Has Exceeded the Presumptively Reasonable Period
The Court’s first task is determining whether Petitioner’s detention has exceeded
the six-month period that Zadvydas recognized as presumptively reasonable. Petitioner
represents that he was detained “for approximately two months in 2022” before he was
released on the Order of Supervision. [Doc. 1 at 10 ¶ 12; id. at 5–6 ¶ 2]. And since his
arrest on June 16, 2025, he has been detained just shy of six months. [Id. at 6 ¶¶ 4–5].
Mr. Saborit Aguilar contends that his periods of detention should be aggregated,
and 	considering 	them 	together, 	his 	detention 	exceeds 	the 	six-month 	period 	of
presumptive reasonableness. [Id. at 9]. He argues that “[m]ost courts hold the Zadvydas
period is cumulative, not reset by re-detention, to prevent indefinite imprisonment through
cycles of release and re-arrest,” and urges the Court to follow these courts. [Id. (collecting
cases)]. 	Respondents describe the applicable landscape as more balanced, asserting
that “[w]hile some district courts have considered the six-month Zadvydas period to be
cumulative, other district courts have held the opposite, including district courts in the
Tenth Circuit.” [Doc. 20 at 10 (collecting cases)].
Based on the Court’s independent research, it appears that district courts more
often conclude that a detainee’s periods of detention should be considered together in
determining whether the detention has exceeded the presumptively reasonable time
under Zadvydas. 	See, e.g., Pena-Gil v. Lyons, No. 25-cv-03268-PAB-NRN, 2025 WL
3268333, at *2 (D. Colo. Nov. 24, 2025) (“Despite petitioner’s 20-month and five-month
periods of detention being served nonconsecutively, petitioner has nonetheless been
detained longer than the six-month presumptively reasonable period.”); Siguenza v.
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Moniz, No. 25-cv-11914-ADB, 2025 WL 2734704, at *3 (D. Mass. Sept. 25, 2025) (“Most
courts to consider the issue have concluded that the Zadvydas period is cumulative.”
(collecting cases)). The Court agrees with this weight of authority. “[A] uniform rule that
counts and sums prior time in detention is appropriate. 	It is, after all, liberty at issue.”
Abuelhawa v. Noem, No. 4:25-cv-04128, 2025 WL 2937692, at *5 (S.D. Tex. Oct. 16,
2025). 	Holding otherwise would permit the federal government to “detain noncitizens
indefinitely by continuously releasing and re-detaining them.” 	Siguenza, 2025 WL
2734704, at *3. And as explained above, under Zadvydas, expiration of the presumptively
reasonable 	six-month 	detention 	period 	does 	not 	mandate 	a 	noncitizen’s 	release;
detention may continue “until it has been determined that there is no significant likelihood
of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. Expiration
of the six-month period simply requires the Government to rebut a petitioner’s showing
that “there is no significant likelihood of removal in the reasonably foreseeable future,”
assuming the petitioner makes that showing. Id.
Accordingly, the Court holds that Petitioner’s detention, calculated cumulatively at
approximately eight months, has exceeded the presumptively reasonable six-month
detention period recognized in Zadvydas. 	Thus, the Court must determine whether
Petitioner has met his burden to demonstrate that there is not a significant likelihood that
he will be removed in the reasonably foreseeable future. Id.
III. 	Petitioner Has Met His Burden
Mr. Saborit Aguilar argues that, due to his final withholding order and DHS’s waiver
of appeal, he cannot be removed to Cuba. [Doc. 1 at 11 ¶ 15]. He further contends that
he “has no other country of citizenship or nationality,” and “Respondents have not
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identified any specific third country willing to accept him, nor have they offered any
concrete information about negotiations, timelines, or conditions for such transfer.” [Doc.
22 at 17–18]. Respondents counter that “Petitioner’s withholding of removal to Cuba was
only granted approximately two months ago, on September 18, 2025, . . . and it was only
at that time that ICE began the process of pursuing Petitioner’s removal to an alternative
country.” [Doc. 20 at 12]. They assert that “[g]iven the recency of ICE’s commencement
of its search into third country options for Petitioner’s removal, Petitioner has not met his
burden under Zadvydas to show that there is no significant likelihood of his removal in the
reasonably foreseeable future.” [Id.].
As a preliminary matter, the Court finds that Respondents have misstated
Petitioner’s burden under Zadvydas. 	He is not required to “show that there is no
significant likelihood of his removal in the reasonably foreseeable future,” as Respondents
suggest. 	See [id.]. 	Rather, Mr. Saborit Aguilar must provide “good reason” to believe
that his removal is not significantly likely in the reasonably foreseeable future. Zadvydas,
533 U.S. at 701. This distinction is not a matter of semantics, but an important clarification
of Petitioner’s burden at this stage. See Cruz Medina v. Noem, 794 F. Supp. 3d 365, 379
(D. Md. 2025) (“[T]o shift the burden of production to the government Mr. Cruz Medina
need not prove that ‘there is no significant likelihood of removal in the reasonably
foreseeable future,’ but rather must articulate a ‘good reason to believe’ that removal is
unlikely in the reasonable foreseeable future.”); Siguenza, 2025 WL 2734704, at *3
(distinguishing between providing “good reason” to believe that removal is not significantly
likely and “establish[ing]” that removal is not significantly likely).
Petitioner’s burden may be met by, inter alia, showing “the existence of either
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institutional barriers to repatriation or obstacles particular to his removal.” 	Dusabe v.
Jones, No. 24-cv-00464-SLP, 2024 WL 5465749, at *3 (W.D. Okla. Aug. 27, 2024), report
and recommendation adopted, 2025 WL 486679 (W.D. Okla. Feb. 13, 2025). 	Courts
have found this burden satisfied where, for example, a habeas petitioner shows that some
impediment precludes removal to their country of origin. See Trejo v. Warden of ERO El
Paso E. Montana, --- F. Supp. 3d ---, 2025 WL 2992187, at *5 (W.D. Tex. Oct. 24, 2025)
(petitioner met his burden by showing he could not be removed to El Salvador, “the only
country of which he is a citizen,” and the government identified no alternative country for
removal); Roe v. Oddo, No. 3:25-cv-00128, 2025 WL 3030692, at *7 (W.D. Pa. Oct. 30,
2025) (“Petitioner has carried his burden of proffering good reason to believe that there
is no significant likelihood of removal in the reasonably foreseeable future, . . . due to
India’s denial of his travel document application.” (quotation omitted)); Momennia v.
Bondi, No. 25-cv-01067-J, 2025 WL 3011896, at *10 (W.D. Okla. Oct. 15, 2025) (finding
burden met where the petitioner showed that Iran denied his request for travel documents
because he was considered deceased in their systems), report and recommendation
adopted, 2025 WL 3006045 (W.D. Okla. Oct. 27, 2025); Misirbekov v. Venegas, No. 1:25-
cv-00168, 2025 WL 2450991, at *1 (S.D. Tex. Aug. 15, 2025) (“Petitioner has also
provided good reason to believe that there is no significant likelihood of removal in the
foreseeable future. 	He cannot be removed to Kyrgyzstan without facing political
persecution and he does not have citizenship nor any ties to any other country.”);
Vaskanyan v. Janecka, No. 5:25-cv-01475-MRA-AS, 2025 WL 3050081, at *5 (C.D. Cal.
July 18, 2025) (burden met where ICE was “unable to remove Petitioner to Russia or
Azerbaijan, the countries designated for removal”).
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In his verified Petition, Mr. Saborit Aguilar states that (1) he was subjected to
torture and abuse upon his return to Cuba in 2020, [Doc. 1 at 5 ¶ 1]; and because of his
treatment in Cuba, (2) an immigration judge has issued a final order withholding removal,
[id. at 6 ¶ 5]; such that (3) he cannot lawfully be removed to Cuba, [id. at 17 ¶ 36]; see
also 8 U.S.C. § 1231(b)(3)(A) (“[T]he Attorney General may not remove an alien to a
country if the Attorney General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.”). Petitioner also asserts in his reply brief
that he “has no other country of nationality.” 	[Doc. 22 at 5]. 	Moreover, the Court notes
that Respondents have not identified any other country that will accept Petitioner or
provided any information about a potential removal timeline. See [Doc. 20; Doc. 20-1].2
And even if ICE were to identify a country that would accept Petitioner, “any efforts to
remove [him] to a third country would likely be delayed by proceedings contesting his
removal to the third country finally identified.” Villanueva v. Tate, --- F. Supp. 3d ---, 2025
WL 2774610, at *10 (S.D. Tex. Sept. 26, 2025).
Because Petitioner has been granted withholding of removal to his only country of
citizenship and there are no other countries currently identified that would accept him,
Petitioner has shown “good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at 701. The burden
2 Respondents state that it was only after Petitioner was granted withholding of removal
that “ICE began the process of pursuing Petitioner’s removal to an alternative country,”
and assert that, given the “recency of ICE’s commencement of its search into third country
options for Petitioner’s removal, Petitioner has not met his burden under Zadvydas.”
[Doc. 20 at 12]. The Court is unpersuaded by this argument, given the lack of concrete,
case-specific information provided by Respondents and because Respondents have
provided no timing information with respect to removal. See [id.; Doc. 20-1].
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therefore shifts to Respondents to present evidence to rebut this showing. Id.
IV. 	Respondents Have Not Met Their Burden
Respondents argue that “the Court should find that Respondents’ evidence is
sufficient to rebut [Petitioner’s] showing,” directing the Court to a declaration from Egidio
Fantauzzi-Perez, an ICE deportation officer. 	[Doc. 20 at 13; Doc. 20-1]. 	In that
declaration, Mr. Fantauzzi-Perez states only that “ICE began the process of pursuing
Petitioner’s removal to an alternative country” and that 	“ICE continues to pursue third
country removal options in Petitioner’s case.” [Doc. 20-1 at ¶¶ 21, 23].3
Although Respondents insist that Mr. Fantauzzi-Perez’s declaration “shows that
Petitioner’s removal in the reasonably foreseeable future is significantly likely” and
demonstrates that “ICE has been diligently pursuing third country removal options for
Petitioner,” nothing in the declaration makes that showing. 	For example, Respondents
“do not identify which countries they might contact” to effectuate removal, nor do they list
“concrete steps they will take to effectuate [Mr. Saborit Aguilar’s] timely removal.” Ahrach,
2025 WL 3227529, at *5. 	Nor do Respondents give any sort of expected timeframe for
3 Mr. Fantauzzi-Perez also states that on October 15, 2025, ICE “served Petitioner with a
Notice to Alien of File Custody Review” and that this notice “informed Petitioner of the
approximate date of the Post Order Custody Review (‘POCR’) and that Petitioner was
able to submit documentation for consideration as part of that review.” [Doc. 20-1 at ¶ 22].
Respondents explain in their response brief that a POCR “is a process by which DHS
considers whether continued detention is warranted for a noncitizen who has been
ordered removed, including whether there is a significant likelihood of the individual’s
removal in the reasonably foreseeable future.” 	[Doc. 20 at 5]. 	Neither Respondents’
response nor Mr. Fantauzzi-Perez’s declaration states the “approximate date” of the
POCR that was apparently provided to Petitioner. 	See [id.; Doc. 20-1]. 	Because
Respondents failed to provide the Court with this information, the Court can only infer that
the “approximate date” of the POCR is not in the reasonably foreseeable future.
Moreover, Respondents do not argue that the POCR is a necessary step in effectuating
removal or has any impact on whether removal is likely in the reasonably foreseeable
future. See [Doc. 20].
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effectuating removal or explain how long it typically takes to identify third country options,
coordinate with those countries, or complete removal proceedings. 	See [Doc. 20; Doc.
20-1]. And although Respondents note the fact that Mr. Saborit Aguilar was just granted
withholding of removal in September 2025, see [Doc. 20 at 12–13], they do not explain
how this should play into the Court’s analysis with respect to their burden, see [id.]. The
Court cannot simply guess that Respondents have not had sufficient time to make
adequate progress on removal without any such representation from Respondents.
Respondents’ bare assertions that ICE is “pursu[ing] third country removal options”
are insufficient to meet Respondents’ burden to put forth evidence sufficient to rebut
Petitioner’s showing. See Balouch v. Bondi, No. 9:25-cv-00216-MJT, 2025 WL 2871914,
at *3 (E.D. Tex. Oct. 9, 2025) (ruling that “conclusory statements via written declarations
that [the government was] taking steps to remove Petitioner to Iran” were insufficient to
meet government’s burden); Momennia, 2025 WL 3011896, at *10 (“[M]ere intent to find
a third country is too speculative to permit indefinite detention or to overcome [the
petitioner’s] showing.”). 	Indeed, “Zadvydas rejected the proposition that continued
detention is permissible ‘as long as good faith efforts to effectuate . . . deportation
continue.’” 	Ahrach, 2025 WL 3227529, at *4 (quoting Zadvydas, 533 U.S. at 702).
“Instead, the government must actually make legitimate progress towards removal.” Id.
(citing Hassoun v. Sessions, No. 18-cv-00586-FPG, 2019 WL 78984, at *5 (W.D.N.Y.
Jan. 2, 2019)). Unsubstantiated assertions do not meet this burden. Pena-Gil, 2025 WL
3268333, at *4 (collecting cases).
While the government “has the right to enforce” Petitioner’s order of removal, it
“may not detain [him] for an indefinite and undetermined period of time while it tries to
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effect that removal when the circumstances are such that his removal is not reasonably
likely in the foreseeable future.” Villanueva, 2025 WL 2774610, at *10. For the reasons
set forth in this Order, the Court concludes that Respondents’ continued detention of
Petitioner violates Petitioner’s substantive due process rights. 	The Court will order that
Mr. Saborit Aguilar be released from custody pursuant to 28 U.S.C. § 2241(c)(3).4 See
Salazar-Martinez v. Lyons, No. 2:25-cv-00961-KG-KBM, 2025 WL 3204807, at *2 (D.N.M.
Nov. 17, 2025) (“The remedy for a Zadvydas claim is generally release of the petitioner
under conditions of supervision.” (collecting cases)).
CONCLUSION
For the reasons set forth above, IT IS ORDERED that:
(1) The Verified Petition for a Writ of Habeas Corpus [Doc. 1] is GRANTED;
(2) Respondents SHALL RELEASE Mr. Saborit Aguilar no later than 48 hours
after the issuance of this Order; and
(3) On or before January 8, 2026, the Parties shall file a joint status report
informing the Court of the status of Mr. Saborit Aguilar’s release and
whether any additional proceedings in this matter are required.5
4 Because the Court is granting Petitioner’s Petition and ordering his release on his
substantive due process claim (Count Three), the Court need not address Counts One,
Two, or Four. See Pena-Gil, 2025 WL 3268333, at *4 n.5 (collecting cases).
5 To the extent Petitioner seeks a Court order “[d]eclar[ing] that Petitioner’s arrest and
continued detention are unlawful,” [Doc. 1 at 18], this request is moot in light of the Court’s
order to release Petitioner, Pena-Gil, 2025 WL 3268333, at *5. To the extent Petitioner
requests attorney’s fees, [Doc. 1 at 19], this District’s Local Rules require those requests
to be made by separate motion, see D.C.COLO.LCivR 54.3.
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DATED: December 8, 2025 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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