Popov v. Hardin - Habeas Granted, Immigration Detention Ruled Unlawful

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Kirill Vladimirovich Popov v. David Hardin et al.

District Court, M.D. Florida

• Citations: None known
• Docket Number: 2:26-cv-00028

• Precedential Status: Unknown Status

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Trial Court Document

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

KIRILL VLADIMIROVICH POPOV,

Petitioner,

v. Case No.: 2:26-cv-00028-SPC-DNF

DAVID HARDIN et al.,

Respondents,
/

OPINION AND ORDER
Before the Court are petitioner Kirill Vladimirovich Popov’s Petition for
Writ of Habeas Corpus (Doc. 1), his supporting memorandum (Doc. 2), and the
government’s response (Doc. 8). For the below reasons, the Court grants the
petition.
A. Background
Popov is a native of Russia. He entered the country under a visa in 2007,
then overstayed that visa. Immigration and Customs Enforcement (“ICE”)
commenced removal proceedings, and an immigration judge ordered him
removed in 2014. ICE detained Popov on September 27, 2025, with the
intention to execute the removal order. On November 17, 2025, Popov filed a
motion to reopen his removal case, and it remains pending. He is currently
detained in Glades County Detention Center.
Popov challenges the legality of his detention under the Due Process
Clause of the Fifth Amendment, Zadvydas v. Davis, 533 U.S. 678 (2001), and

the Immigration and Nationality Act (“INA”).
B. Jurisdiction
Before addressing the merits of Popov’s claim, the Court must address
its jurisdiction. The respondents argue two sections of the INA strip the Court

of jurisdiction over this action. They first point to a provision that bars courts
from hearing certain claims. It states:
Except as provided in this section and notwithstanding any
other provisions of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title,
no court shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any
alien under this chapter. 8 U.S.C. § 1252 (g). This jurisdictional bar is narrow. “The provision applies
only to three discrete actions that the Attorney General may take: her ‘decision
or action’ to ‘commence proceedings, adjudicate cases, or execute removal
orders.’” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
482 (1999); see also Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) (“We did
not interpret this language to sweep in any claim that technically can be said
to ‘arise from’ the three listed actions of the Attorney General. Instead, we
read the language to refer to just those three specific actions themselves.”).
“When asking if a claim is barred by § 1252(g), courts must focus on the action
being challenged.” Canal A Media Holding, LLC v. United States Citizenship

and Immigration Servs., 964 F.3d 1250, 1258 (11th Cir. 2020).
The respondents also raise the INA’s “zipper clause,” which states:
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and
statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United
States under this subchapter shall be available only in
judicial review of a final order under this section. Except
as otherwise provided in this section, no court should have
jurisdiction, by habeas corpus under section 2241 or title
28 or any other habeas corpus provision, by section 1361 or
1651 of such title, or by any other provision of law
(statutory or nonstatutory), to review such an order or such
question of law or fact. 8 U.S.C. § 1252 (b)(9). The zipper clause only applies to claims requesting
review of a removal order. See Madu v. U.S. Attorney Gen., 470 F.3d 1362,
1365 (11th Cir. 2006) (holding the INA did not divest the district court of
jurisdiction over a § 2241 challenge to detention of the petitioner pending
deportation).
Popov does not challenge the commencement of a proceeding, the
adjudication of a case, or the execution of his removal order. Nor does he ask
the Court to review the removal order. Rather, Popov challenges the legality
of his detention under a framework devised by the Supreme Court for district
courts to apply. See Zadvydas, 533 U.S. at 682 (stating the Court’s limitation
on post-removal detention “is subject to federal-court review.”). A decision in
Popov’s favor would not impair ICE’s ability to execute the removal order. The
INA does not strip the Court of jurisdiction over this action.

C. Legality of Detention
“Once a noncitizen’s order of removal becomes administratively final, the
Government ‘shall’ remove the person within 90 days.” Singh v. U.S. Attorney
Gen., 945 F.3d 1310, 1313 (11th Cir. 2019) (quoting 8 U.S.C. § 1231 (a)(1)(A)).

The government must detain the noncitizen during the 90-day removal period,
which begins when the removal order becomes administratively final. Id. Detention may continue after the removal period, but not indefinitely.
In Zadvydas, the Supreme Court held, “if removal is not reasonably

foreseeable, the court should hold continued detention unreasonable and no
longer authorized by statute.” 533 U.S. at 700-01 (2001). If removal is not
practically attainable, detention no longer serves its statutory purpose of
“assuring the alien’s presence at the moment of removal.” Id. at 699. The

Court found it unlikely Congress “believed that all reasonably foreseeably
removals could be accomplished in [90 days].” Id at 701. So, “for the sake of
uniform administration in the federal courts,” it established a “presumptively
reasonable period of detention” of six months—the 90-day removal period plus

an additional 90 days. Id. Courts use a burden-shifting framework to judge
the constitutionality of additional post-removal detention:
After this 6-month period, once the alien provides 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 the showing. Id. The respondents argue Popov’s petition is premature because his current
detention has not exceeded 180 days. They assume the six-month
presumptively reasonable period of detention resets each time a noncitizen is
detained. That assumption is inconsistent with Zadvydas. It would effectively
allow DHS to detain noncitizens indefinitely and avoid judicial scrutiny by
releasing and re-detaining them every 180 days. As the Eleventh Circuit
recognized, “[t]he Supreme Court’s stated rationale for establishing a
presumptively reasonable ‘6-month period’ for detention pending removal
supports our conclusion that this period commences at the beginning of the

removal period.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.3 (11th Cir.
2002).
The respondents’ concerns about the Court’s understanding of Zadvydas
are overblown. It does not “effectively eliminate ICE’s ability to ever remove

an alien unless it does so within the presumptively reasonable timeframe.”
(Doc. 8 at 8). The Zadvydas framework guards only against indefinite
detention. The government loses the presumption of reasonableness after the
six-month period, but it can still show that detention is reasonable by meeting
its burden of proof. The government is wrong to suggest the burden would
require it to counterfactually “justify over a decade of detention if the burden

shifts.” (Doc. 8 at 10). The Zadvydas framework is prospective, not
retrospective. If the government can establish a significant likelihood of
removal in the reasonably foreseeable future, detention is lawful. Otherwise,
the government can keep tabs on the noncitizen through reasonable conditions

of supervision while it continues removal efforts. If removal becomes likely,
the government can detain the noncitizen while it irons out the details.
Because the six-month period for presumptively reasonable detention
has expired, Zadvydas’s burden-shifting framework applies. Popov has carried

his initial burden by showing a good reason to believe there is no significant
likelihood of removal in the reasonably foreseeable future. ICE has been
unable to execute the removal order for over a decade, there are no flights from
the United States to Russia due to Russia’s ongoing war with Ukraine, and

ICE has identified no third country for removal.
The respondents argue Popov withheld travel documents in bad faith by
refusing to sign a I-229(a) Warning. But Popov states—and the government
does not dispute—that he refused to sign the form because it had the wrong

name and date. The government also states it is working toward removal in
the reasonably foreseeable future, but they present no evidence of any
progress. There is no evidence that ICE has contacted Russia or any other
country about accepting Popov, or that Russia or another country would likely
accept him.
D. Conclusion
The Court finds no significant likelihood Popov will be removed in the
reasonably foreseeable future. He is entitled to release from detention under
Zadvydas. If removal becomes likely in the reasonably foreseeable future,
DHS can detain Popov to “assur[e] [his] presence at the moment of removal.”
Zadvydas, 533 U.S. at 680.
Accordingly, it is hereby ORDERED:
Kirill Vladimirovich Popov Petition for Writ of Habeas Corpus (Doc. 1) is
GRANTED.
1. The respondents shall release Popov within 24 hours of this Order.
2. The Clerk is DIRECTED to terminate any pending motions and
deadlines, enter judgment, and close this case.
DONE AND ORDERED in Fort Myers, Florida on February 6, 2026.

UNITED STATES DISTRICT JUDGE

SA: FTMP-1