United States District Court, N.D. Alabama, Middle Division
K. KALLON, UNITED STATES DISTRICT JUDGE
magistrate judge filed a report and recommendation on August
6, 2019, recommending that this petition for habeas
corpus relief filed pursuant to 28 U.S.C. § 2241 be
dismissed without prejudice. Doc. 12. The petitioner, through
counsel, has filed timely objections. Doc. 13.
petitioner first objects to the characterization of the claim
as a constitutional challenge, asserting that it is primarily
a statutory challenge. Doc. 13 at 3. The petitioner claims if
his detention is pursuant to 8 U.S.C. § 1226(a), he is
entitled to an immediate bond hearing, and if it is pursuant
to 8 U.S.C. § 1231 he is entitled to immediate release,
or alternatively, a bond hearing. Id., at 4.
However, because the petitioner previously received a bond
hearing pursuant to § 1226, this court cannot reverse or
revisit that denial of bond. See 8 U.S.C. §
1226(e). And because the petitioner has obtained a stay of
removal from the Second Circuit, the six month presumptively
reasonable removal period under Zadvydas v. Davis,
533 U.S. 678 (2001), has been halted. Akinwale v.
Ashcroft, 287 F.3d 1050, 1052 n. 4 (11th Cir. 2002).
Thus, neither § 1226 nor § 1231 entitle the
petitioner to an immediate bond hearing or release. This
objection is overruled.
petitioner next asserts that although he agrees with the
report and recommendation finding that he is subject to an
administratively final order of removal, he contends that his
detention became governed by § 1226 rather than §
1231 when the Second Circuit granted his stay of removal.
Doc. 13 at 4 – 5. The petitioner then asserts that the
report and recommendation “does not include a finding
on this pivotal question-whether he is currently in the
removal period.” Doc. 13 at 5. This contention is
belied by the report and recommendation, which notes that, in
this Circuit, a stay of removal suspends the time period set
forth by § 1231(a)(1). See doc. 12 at
4–5; see also Linares v. Department of Homeland
Sec., 598 Fed.App’x 885, 887 n. 2 (11th Cir.
2015); Davis v. Rhoden, 2019 WL 2290654 * 6-7
(S.D.Fla. 2019); Deacon v. Shanahan, 2016 WL
1688577, *5 (N.D. Ala. 2016); Harrison v. Holder,
2012 WL 4479258, *4 (N.D. Ala. 2012); Guentangue v.
Bateman, 2006 WL 3361428, *4 (S.D. Ala. 2006). Based on
Eleventh Circuit precedent, this objection is overruled.
petitioner next asserts that he is asking this court to
consider other forms of relief which are available, rather
than to review his bond denial:
Mr. Cesar is not asking this Court to review the IJ’s
November 2015 bond denial. Rather, he implores this Court to
conduct an independent analysis of the legality of his
continued detention based on the current factual record . . .
. At the time he received a bond hearing, Mr. Cesar’s
removal case was still pending before the agency, and he had
been detained for about seventeen months . . . Moreover,
during his bond hearing and prior habeas, it appears that the
parties and adjudicators all erroneously assumed that Mr.
Cesar’s conviction record subjected him to mandatory
detention under 8 U.S.C. § 1226(c), when in fact his
detention was (and continues to be) governed by the
discretionary pre-removal period detention provision, Section
1226(a) . . . .
Doc. 13 at 6. But, as previously stated, because a final
order of removal was entered, the petitioner’s
detention is pursuant to § 1231. Moreover, the
petitioner fails to identify what form of relief, if any,
this court can provide. He states only that “[t]his
Court has the authority to conduct a swift, independent
inquiry into Mr. Cesar’s claims that his over-five-year
detention violates the INA and the U.S. Constitution, and the
Court has the power and the discretion to craft the
appropriate remedy – including but not limited to a
bond hearing before an IJ . . . .” Doc. 13 at 6.
Unfortunately, the case law and circuit precedent disagree
with the petitioner.
the petitioner objects to the report and recommendation
finding that the Second Circuit’s stay of removal
halted the “presumptive removal period.” Doc. 13
at 7. The petitioner asserts this finding misinterprets
Akinwale, which has been “undermined by
Eleventh Circuit precedent and persuasive authority.”
Id. But the Eleventh Circuit vacated the decision
the petitioner cites in support of this point, Sopo v.
U.S. Attorney General, 825 F.3d 1199 (11th Cir. 2016),
vacated as moot, 890 F.3d 952 (11th Cir. 2018), and
Akinwale remains the law this court must apply. And
because Sopo did not address post-removal order
detention, any vestige of Sopo is not relevant to
this matter before the court.
close, the petitioner’s assertion that the Second
Circuit’s stay order does not stop the six month clock
of the presumptively reasonable removal period, doc. 13 at 8,
is undermined by Akinwale and its progeny. While
other Circuits may have decided this issue differently,
see e.g., Prieto-Romero v. Clark, 534 F.3d 1053 (9th
Cir. 2008),  this court is bound by Eleventh Circuit
precedent, which states that when the petitioner filed a
motion to stay in the Second Circuit, the presumptively
reasonable removal period ceased to run.
de novo consideration of the entire file in this
action, including the report and recommendation and the
petitioner’s objections thereto, the court
OVERRULES the petitioner’s objections,
ADOPTS the magistrate judge’s report
and ACCEPTS his recommendation. The court
finds that the petition for writ of habeas corpus is due to
be DISMISSED WITHOUT PREJUDICE A separate
order will be entered.
 The petitioner’s arguments
conflate a “final order of removal” and the
“removal period.” Section 1226, by its terms,
applies only prior to entry of a “final order of
removal.” For § 1226 to re-apply after entry of a
final order of removal, based on the petitioner’s
decision to seek review in a circuit court, requires an
implicit finding that the Order of Removal pending before a
circuit court is ...