United States District Court, N.D. Alabama, Middle Division
DAVID PROCTOR, UNITED STATES DISTRICT JUDGE
Magistrate Judge filed a report and recommendation on
September 12, 2019, recommending that this petition for
habeas corpus relief filed pursuant to 28 U.S.C.
§ 2241 be dismissed without prejudice. (Doc. 12).
Petitioner filed timely objections. (Doc. 13).
objects to the report and recommendation construing his claim
as arising under 8 U.S.C. § 1231, asserting he is
actually detained pursuant to 8 U.S.C. §
1226(c). (Doc. 13 at 1-2). Relying on precedent
from other Courts of Appeal, Petitioner asserts that when the
Ninth Circuit issued a stay of removal, the statutory basis
for his detention reverted from § 1231 to § 1226.
(Id., at 4-5, 13). He further argues that due
process requires he be permitted a bond hearing.
(Id., at 9).
has obtained a stay of removal from the Ninth Circuit,
effectively halting the six month presumptively reasonable
removal period under Zadvydas v. Davis, 533 U.S.
678, 701 (2001). See Akinwale v. Ashcroft, 287 F.3d
1050, 1052 n.4 (11th Cir. 2002) (noting challenges to a final
order of removal “interrupt the running of time under
Zadvydas”). In this Circuit, a stay of removal
suspends the time period set forth by § 1231(a)(1),
rather than causing the detention to revert to §
1226. Linares v. Department of Homeland
Sec., 598 Fed.Appx. 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). While other Circuits have
decided this issue differently, see e.g., Prieto-Romero
v. Clark, 534 F.3d 1053 (9th Cir. 2008),  this court is
bound to follow the Eleventh Circuit's precedent. That
precedent states when Petitioner filed a motion to stay in
the Ninth Circuit, the presumptively reasonable removal
period under § 1231 ceased to run. See e.g., De La
Teja v. United States, 321 F.3d 1357, 1363 (11th Cir.
2003) (“Because a final removal order has been entered,
De La Teja is no longer being detained pursuant to §
1226(c), which governs only detention prior to a
final removal order. Instead, he is being detained now
pursuant to a wholly different statute … 8 U.S.C.
§ 1231 (a), which controls the detention and removal of
an alien subject to a final order of removal.”)
(emphasis in original); Elcock v. Stieff, 554
F.Supp.2d 1279, 1283 (S.D. Ala. 2008) (noting that when order
of removal became final, detention pursuant to § 1231
due process argument fairs no better. As an arriving alien,
“seeking initial admission to the United States,
” the petitioner “requests a privilege and has no
constitutional rights regarding his applications.”
Landon v. Plasencia, 459 U.S. 21, 32 (1982). The
Supreme Court has consistently held that constitutional
rights apply only to those within the United States.
Zadvydas, 533 U.S. at 693 (citing United States
v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (the
“Fifth Amendment's protections do not extend to
aliens outside the territorial boundaries.”);
Demore v. Kim, 538 U.S. 510, 522 (2003) (“this
Court has firmly and repeatedly endorsed the proposition that
Congress may make rules as to aliens that would be
unacceptable if applied to citizens.”). While some
district courts have questioned this conclusion, see
e.g., Alexandre v. Decker, 2019 WL 1407353, *4 (S.D.N.Y.
March 28, 2019) (“[E]ven an “arriving
alien” is entitled to a base level of procedural due
process through which his or her detention must be
evaluated.”); Bermudez Paiz v. Decker, 2018 WL
6928794, *12 (S.D.N.Y Dec. 28, 2018) (“Mezei
does not compel the categorical conclusion that all arriving
aliens may be subject to prolonged confinement without a bond
hearing.”), those decisions simply do not square with
Supreme Court and Eleventh Circuit precedent. And, in any
event, Petitioner's detention here does not raise
concerns with a base level of procedural due process. Rather,
it is precisely because Petitioner has taken advantage of
various due process protections offered to him, he is still
being detained rather than removed.
de novo consideration of the entire file in this
action, including the report and recommendation and
Petitioner's objections thereto, the court
OVERRULES 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
separate order will be entered.
 The Magistrate Judge correctly noted
that the “Motion for Preliminary Injunction”
(Doc. 10) filed by Petitioner was actually a reply to the
respondents' answer and sought no preliminary injunctive
relief. (Doc. 12 at 4 n.4). The court
DIRECTS the Clerk to re-docket that pleading
 Although Petitioner references 8
U.S.C. § 1226(c), which concerns only criminal aliens,
because he proceeds pro se, the court construes his
arguments as addressing § 1226(a), which applies to all
aliens and permits detention “pending a decision on
whether the alien is to be removed from the United
States” as well as a means to release an alien on bond.
8 U.S.C. § 1226(a)(1) and (2). See e.g., Nielsen v.
Preap, -- U.S. --, 139 S.Ct. 954, 959-960 (2019)
(setting forth distinctions between § 1226(a) and §
1226(c)). However, this this liberal construction of the
objections does not assist Petitioner as the entry of a final
order of removal placed Petitioner's detention squarely
under 8 U.S.C. § 1231.
 Dini v. Barr, No. 19-70060
(9th Cir. June 26, 2019).
 Petitioner's arguments conflate
the “final order of removal” with the
“removal period.” Section 1226, by its terms,
applies only prior to entry of a “final order of
removal.” In contrast, as relevant here, after entry of
a final order of removal, the “removal period”
begins to run only when, “if the removal order is
judicially reviewed and if a court orders a stay of removal
of the alien, the date of the court's final order.”
8 U.S.C. § 1231(a)(1)(B)(ii). To hold § 1226
reapplies after entry of a final order of removal, based on
the petitioner's decision to seek review and a stay of
removal in a Circuit Court, requires an implicit finding that
the challenged Order of Removal loses its status as a
“final” order. But without that finality, the
need to obtain a stay of removal becomes ...