Bernshtein v. U.S. Attorney General - Immigration Habeas Corpus Granted

Jump To

Top Caption Trial Court Document The text of this document was obtained by analyzing a scanned document and may have typos.

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

Feb. 9, 2026 Get Citation Alerts Download PDF Add Note

Vladislav Bernshtein v. U.S. Attorney General, et al.

District Court, M.D. Florida

• Citations: None known
• Docket Number: 3:25-cv-01153

• Precedential Status: Unknown Status

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.8K)

• PDF

Trial Court Document

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

VLADISLAV BERNSHTEIN,

Petitioner,

v. Case No. 3:25-cv-1153-JEP-PDB

U.S. ATTORNEY GENERAL, et al.,

Respondents.
___________________________________/

ORDER

Petitioner Vladislav Bernshtein, an immigration detainee at Baker
Correctional Institute, filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241 (Docs. 1, 11) on September 29, 2025.1 Respondents filed a motion
to dismiss (Doc. 8), and Petitioner filed a reply (Doc. 9). Ultimately, this Court
concludes the petition must be granted.
I.
According to Petitioner, he “is a stateless refugee who has been detained
since March 31, 2025.” (Doc. 11 at 1).2 He was born in the Soviet Union on May
23, 1980, and entered the United States as a refugee on January 25, 1990. (Id.

1 Because Petitioner did not personally sign the initial petition (Doc. 1), the Court
directed him to either file a verified copy of the petition or an amended petition. See Order
(Doc. 10). Petitioner complied by filing a verified copy of the petition (Doc. 11).

2 Respondents contend that Petitioner is a citizen of Belarus. (Doc. 8 at 2).
at 2). He became a lawful permanent resident on August 16, 1991. (Doc. 8 at
2). After entering a plea of no contest, the state court adjudicated Petitioner

guilty of two counts of use or possession of drug paraphernalia in February
2021 and sentenced him to 179 days in jail with credit for 179 days. (See State
v. Bernshtein, No. 2019 CF 000922 (Fla. 7th Cir. Ct.).3
On June 2, 2020, an immigration judge ordered Petitioner’s removal.

(Doc. 8 at 2). Petitioner appealed, but the Board of Immigration Appeals
dismissed his appeal on November 18, 2020. (Id.). On December 30, 2020,
Enforcement and Removal Operations (“ERO”) submitted requests for travel
documents to Russia and Belarus, however, both countries denied the requests

in January 2021. (Id.). Because the United States Immigration and Customs
Enforcement (“ICE”) was unable to remove Petitioner to either Russia or
Belarus, he was released on an order of supervision on February 2, 2021. (Doc.

3 The Court takes judicial notice of Petitioner’s state court dockets. See Fed. R. Evid.
201(b)(2) (a “court may judicially notice a fact that is not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned”); see generally Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649 (11th
Cir. 2020) (“State court records of an inmate’s postconviction proceedings generally satisfy”
the standard for judicial notice.).

Relying on the Declaration of Deportation Officer Luke Tine (Doc. 8-1), Respondents
assert that Petitioner was convicted of unlawful possession of heroin and clonazepam. (Doc.
8 at 2). The state court’s docket shows that Petitioner initially entered a plea of no contest to
possession of heroin and possession of a schedule IV controlled substance, but the state court
withheld adjudication of guilt and ordered Petitioner to complete 36 months in drug court.
See State v. Bernshtein, No. 2019 CF 000922 (Fla. 7th Cir. Ct.). Subsequently, on January
22, 2021, the state court granted Petitioner’s unopposed motion to withdraw his plea and
allowed him to enter a new plea of no contest to two counts of use or possession of drug
paraphernalia. (Id.). The state court entered judgment to that effect in February 2021. (Id.).
11 at 2; Doc. 8 at 2). More than four years later, on March 31, 2025, ICE re-
detained Petitioner following his arrest by the Flagler County Sheriff’s Office

for driving under the influence. (Doc. 11 at 2; Doc. 8 at 2-3).
According to Respondents, “[o]n April 17, 2025, Petitioner refused to
complete an application for travel documents.” (Doc. 8 at 3). On the other hand,
Petitioner responds by asserting that that he “did NOT refuse[] to complete

and sign an application for a travel document.” (Doc. 9-1 at 1, ¶ 3).
Nevertheless, on June 19, 2025, ERO again submitted a request for an
electronic travel document for Russia and Belarus. (Doc. 8 at 3.) On September
19, 2025, ERO was informed “that neither Russia nor Belarus would issue

travel documents.” (Id.). Thirty-five days later, Petitioner’s case was referred
“for possible third country removal” and Headquarters Removal and
International Operations (“HQ RIO”) “is continuing to explore third-country
removal options for Petitioner.” (Id. at 4). To date, however, ICE has been

unable to remove Petitioner.
Petitioner contends that he is entitled to immediate release from ICE
custody under Zadvydas v. Davis, 533 U.S. 678 (2001), and the Fifth
Amendment, because his post-removal order detention exceeds six months and

there is no significant likelihood of removal in the reasonably foreseeable
future. (See Doc. 11 at 2). He claims that “ICE has made no progress and no
country will accept him.” (Id.).
II.
Following an order of removal, immigration detention is governed by 8

U.S.C. § 1231. See Johnson v. Guzman Chavez, 594 U.S. 523, 544 (2021)
(“§ 1231 explains what to do if the alien is ordered removed.”); see also Deshati
v. Noem, No. 25-cv-15940-ESK, 2025 WL 3204227, at *2 (D.N.J. Nov. 17, 2025)
(“The statute governing post-final order of removal immigration detention is 8

U.S.C. § 1231.”). Pursuant to section 1231(a)(1)(A), “when an alien is ordered
removed, the Attorney General shall remove the alien from the United States
within a period of 90 days.” Detention during the removal period is mandatory. 8 U.S.C. § 1231 (a)(2)(A). “The 90-day removal period shall be extended, and

the noncitizen may remain in detention, if the noncitizen (1) ‘fails or refuses to
make timely application in good faith for travel or other documents necessary
to the alien’s departure’ or (2) ‘conspires or acts to prevent the alien’s removal.’”
Singh v. U.S. Att’y Gen., 945 F.3d 1310, 1313 (11th Cir. 2019) (quoting 8 U.S.C.

§ 1231 (a)(1)(C)).
The Supreme Court in Zadvydas held that indefinite detention of aliens
raises serious constitutional concerns. 533 U.S. at 690–99. Once an order of
removal is final, the government may continue to detain an alien only for a

reasonable amount of time. See id. at 699–701. The reasonableness of the
detention is to be measured “primarily in terms of the statute’s basic purpose,
namely, assuring the alien’s presence at the moment of removal.” Id. at 699 (emphasis added). The Supreme Court held that six months is a presumptively
reasonable period to detain a removable alien awaiting deportation. Id. at 700–

1. “Although not expressly stated, the Supreme Court appears to view the six- month period to include the 90-day removal period [from section 1231(a)(1)(A)] plus 90 days thereafter.” Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002).

After that six-month period has passed, if 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 that showing.” Id. at 1052 (quoting Zadvydas, 533 U.S. at 701) (emphasis

added). 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. If an alien

makes these showings, then the burden shifts to the government to rebut the
presumption with sufficient evidence establishing that there is a “significant
likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S.
at 701. Notably, Zadvydas claims asserted prior to the presumptively

reasonable six-month period are deemed unripe and subject to dismissal
without prejudice. See Akinwale, 287 F.3d at 1052; see also Ramos Alvarez v.
U.S. Immigr. & Customs Enf’t, No. 3:25-cv-1038, 2025 WL 2591830, at *1 (M.D.
Fla. Sept. 8, 2025).

III.
Here, Petitioner was taken into ICE custody on March 31, 2025, and he
filed this case 182 days later on September 29, 2025.4 Although Petitioner had
been in ICE custody longer than 180 days when this case was filed,

Respondents contend that “Petitioner’s refusal to complete an application for
a travel document impeded ICE’s ability to submit a request for an electronic
travel document to Headquarters for a period of 63 days.” (Doc. 8 at 7). Thus,
Respondents ask the Court to apply § 1231(a)(1)(C) to toll the six-month period

for sixty-three days, which would render this case prematurely filed. In support
of their position, Respondents submit the Declaration of Deportation Officer
Luke Tine (Doc. 8-1). Officer Tine declares that “[o]n April 17, 2025, Petitioner
refused to complete an application for a travel document.” (Id. at 2, ¶ 16). He

next avers that sixty-three days later, “[o]n June 19, 2025, ERO submitted a
request for an electronic travel document . . . for evaluation by the Detention
and Deportation Officer . . . responsible for Russia and Belarus.” (Id. at 2, ¶
17).

4 While this period is technically five months and twenty-nine days by calendar
months, this Court will calculate the time under Zadvydas by the number of days. See
Akinwale, 287 F.3d at 1052 (“Although not expressly stated, the Supreme Court appears to
view the six-month period to include the 90–day removal period plus 90 days thereafter.”).
In response, Petitioner submits his own Declaration, averring that he
“did NOT refuse[] to complete and sign an application for a travel document.”

(Doc. 9-1 at 1, ¶ 3). He explains in his reply that the documents presented to
him were written in Russian, and he advised that he cannot read or write in
Russian and he asked for the documents to be translated to English. (Doc. 9 at
2). His deportation officer agreed to get the documents translated, but after

eight weeks and despite Petitioner’s continued requests for the translated
documents, the documents were returned to him with only fifteen of the
twenty-five questions translated. (Id.) Nevertheless, an officer told him that it
did not matter because he had already submitted the paperwork using

Petitioner’s signed documents from his prior detention in 2017. (Id.)
Courts have applied § 1231(a)(1)(C) differently when addressing a
Zadvydas claim:
Many courts conduct an analysis using the burden-shifting
framework from Zadvydas, considering an alien’s failure to
cooperate in determining whether the alien can show “good cause”
to believe that there is no significant likelihood of removal in the
reasonably foreseeable future. Other courts contend that an alien’s
failure to cooperate precludes an analysis under Zadvydas
altogether. Finally, some courts find an alien’s failure to cooperate
or filing of litigation equitably tolls, possibly indefinitely, the six-
month removal period. In fact, a couple of courts covered both
bases finding obstruction tolled the removal period, and in the
alternative, the alien did not meet the Zadvydas standard.
Glushchenko v. United States Dep’t of Homeland Sec., 566 F. Supp. 3d 693,
705–06 (W.D. Tex. 2021) (footnotes omitted).5 In Akinwale, the Eleventh

Circuit recognized that the six-month period may be tolled if the alien “‘acts to
prevent [his] removal’” by filing litigation “challeng[ing] issues related to his
removal order and his post-removal period detention.” Akinwale, 287 F.3d at
1052 n.4 (quoting 8 U.S.C. § 1231 (a)(1)(C)). More recently, the Eleventh Circuit

noted that “if the removal period was extended by operation of § 1231(a)(1)(C),
then ICE can continue to detain [the petitioner] because ‘the keys to [the
petitioner’s] freedom [are] in his pocket and [he] could likely effectuate his
removal by providing the information requested,’ so he ‘cannot convincingly

argue that there is no significant likelihood of removal.’” Singh, 945 F.3d at
1314 (quoting Pelich v. Immigration & Naturalization Serv., 329 F.3d 1057,
1060 (9th Cir. 2003)); see Vaz v. Skinner, 634 F. App’x 778, 782 (11th Cir. 2015)6
(“Because Petitioner is responsible for thwarting his removal, he cannot show

that there is no reasonable likelihood that he will not be removed in the

5 Although district court orders are non-precedential, they may be cited as persuasive
authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310 (11th Cir. 2004) (noting that,
“[a]lthough a district court would not be bound to follow any other district court’s
determination, the decision would have significant persuasive effects”).

6 This Court does not rely on unpublished opinions as binding precedent; however,
they may be cited in this Order when this Court finds them persuasive on a particular point.
See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022); Fed. R. App. P. 32.1; 11th
Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be
cited as persuasive authority.”).
reasonably foreseeable future if he cooperates with DHS and voluntarily signs
for the travel document.”); Oladokun v. U.S. Att’y Gen., 479 F. App’x 895, 897 (11th Cir. 2012) (“Oladokun fails to ‘provide[ ] good reason to believe that there
is no significant likelihood of [his] removal in the reasonably foreseeable
future,’” because his “non-cooperation is the only barrier to his removal.”
(quoting Zadvydas, 533 U.S. at 701).

Whether § 1231(a)(1)(C) applies as a tolling mechanism to the six-month
period (as requested by Respondents) or to the question of whether Petitioner
has shown a good reason to believe his removal is not reasonably foreseeable
is of no moment here. Either way, Respondents, who raised the claim that

sixty-three days should be tolled from the six-month calculation, have not
shown Petitioner acted in bad faith and thus, § 1231(a)(1)(C) is inapplicable
here.
There is no dispute that Petitioner did not complete the application for

travel documents that was presented to him on April 17, 2025.7 But a simple

7 While Petitioner does claim that he did not refuse to complete his application, (Doc.
9-1 at 1, ¶ 3), his explanation is that he would not fill out and sign the application on April
17, because the application was in Russian, a language he cannot read, (Doc. 9 at 2). Thus,
there is no actual dispute as to whether Petitioner filled out the form presented to him on
April 17, nor did Respondents’ affidavit present any specific factual contention that conflicts
with Petitioner’s version of events. (See Doc. 18-1, ¶ 16). If there were a dispute as to fact,
this Court would be obligated to hold an evidentiary hearing to resolve it. Singh, 945 F.3d at
1315 (“It is well-established that a court may not decide a habeas corpus petition based on
affidavits alone when there are factually contested issues.”). However, as explained in the
paragraph that accompanies this footnote, there is no factual dispute as to Petitioner’s
asserted good-faith basis for failing to complete the application. Therefore, no evidentiary
hearing will be held.
refusal is not enough—Respondents must show that Petitioner acted in bad
faith, and they fail to do so. Indeed, Officer Tine’s Declaration provides no

details surrounding Petitioner’s actions on April 17, 2025. Cf. Singh, 945 F.3d
at 1315 (holding that there was a factual dispute when the government’s
affidavit “contend[ed] that Mr. Singh was evasive” in completing his
application). Without a showing of bad faith, § 1231(a)(1)(C) does not apply

here. See Singh, 945 F.3d at 1314 (“[T]he text makes it clear that bad faith
must be proven before the removal period can be extended for failure to return
a complete and accurate travel application.”). Thus, the Court denies
Respondents’ request to toll the six-month period for sixty-three days. As such,

the Court finds Petitioner’s six-month period expired prior to filing this case.
Next, the Court considers whether Petitioner has “provide[d] good reason
to believe that there is no significant likelihood of removal in the reasonably
foreseeable future.” Akinwale, 287 F.3d at 1052. He asserts that in 2020, “ICE

attempted to deport him to Russia and Belarus, but both countries denied
repatriation.” (Doc. 11 at 2). Thus, he was released on an order of supervision,
and for the more than four years that followed, he remained within the United
States but was re-detained in March 2025. (Id.). Over six months later, ICE

still was unable to deport him, (id.), and Petitioner claims that “ICE has made
no progress and no country will accept him,” (Doc. 11 at 2).
Given the record, the Court finds that Petitioner has provided good
reason to believe that there is no significant likelihood of removal in the

reasonably foreseeable future. Thus, the burden shifts to Respondents to
“respond with evidence sufficient to rebut [Petitioner’s] showing.” Akinwale,
287 F.3d at 1052. As explained below, Respondents fail to do so.
In Officer Tine’s Declaration, he confirms that on September 19, 2025,

both Russia and Belarus declined to issue travel documents for Petitioner.
(Doc. 8-1 at 3, ¶ 27). This appears to be no surprise given that both countries
similarly refused to do so in January 2021 (see id. at 2-3, ¶¶ 9-10, 27), and
Respondents have provided no information regarding a change in

circumstances that would have led those countries to render a different
decision. On October 24, 2025, Petitioner’s case was referred “for possible third-
country removal.” (Id. at 3, ¶ 29). At the time of Officer Tine’s Declaration
(November 25, 2025), HQ RIO was “continuing to explore third-country

removal options in Petitioner’s case.” (Id. ¶ 30).
Respondents’ conclusion that “there is a significant likelihood that
Petitioner will be removed in the reasonably foreseeable future” is solely based
on their bare-bones allegation that they are “continuing to explore third-

country removal options.” But Respondents neither provide details relating to
their plan for third-country removal nor identify any country they have
contacted or plan to contact to determine whether such country will accept
Petitioner. Respondents were initially advised in January 2021 that Russia
and Belarus would not accept Petitioner, yet ICE made no attempt to initiate

third-country removal proceedings at that time. Now, it has been more than
four months since Russia and Belarus again advised ICE that neither country
will accept Petitioner, yet Respondents provide no evidence of their efforts to
remove Petitioner to a third country. Rather, Respondents are simply

“explor[ing] third-country removal options,” but have failed to show that they
are any closer to deporting Petitioner than they were at the time of his re-
detention on March 31, 2025. See Zadvydas, 533 U.S. at 701 (“[A]s the period
of prior postremoval confinement grows, what counts as the ‘reasonably

foreseeable future’ conversely . . . shrinks.”).
Based on the evidence presented, the Court finds Respondents have
failed to show a significant likelihood that Petitioner will be removed in the
reasonably foreseeable future. Therefore, Petitioner is entitled to release from

detention under Zadvydas.
Accordingly, it is ORDERED:
1. Respondents’ motion to dismiss (Doc. 8) is DENIED.
2. Petitioner’s petition for writ of habeas corpus (Docs. 1, 11) is

GRANTED. Respondents shall release Petitioner within 24 hours
of this Order.
3. The Clerk is DIRECTED to enter judgment granting the petition,
terminate any motions, and close the file.
DONE AND ORDERED in Jacksonville, Florida on February 9, 2026.

JORDAN E. PRATT
UNITED STATES DISTRICT JUDGE

C:
Vladislav Bernshtein
Counsel of Record

13