United States District Court, N.D. Alabama, Middle Division
Scott Coogler, United States District Judge
magistrate judge filed a report and recommendation on
November 7, 2019, recommending that this petition for
habeas corpus relief filed pursuant to 28 U.S.C.
§ 2241 be dismissed without prejudice. (Doc. 26). The
petitioner was notified of his right to file objections
within fourteen (14) days. (Id.). The petitioner
responded by filing a response to the respondents'
answer, which the court construes as objections. (Doc. 27).
time the petitioner originally filed this action, a final
order of removal had not yet been entered against him. Based
on the petitioner's 34-month detention at that time, the
magistrate judge entered a report and recommendation that, as
a lawful permanent resident, due process required the
petitioner be provided with a bond hearing. (Doc. 16). After
entry of that report and recommendation, but prior to entry
of a final order in this court, the Board of Immigration
Appeals entered a final administrative decision in the
underlying removal action. (Doc. 24-1). As the basis for the
petitioner's detention thus shifted from 8 U.S.C. §
1225(b)(2)(A) to 8 U.S.C. § 1231(a)(2), the magistrate
judge withdrew the report and recommendation entered on May
3, 2019. (Doc. 25). The magistrate judge further provided the
petitioner with an opportunity to file an amended habeas
petition pursuant to § 2241, addressing his detention
based on the entry of a final order of removal.
the petitioner failed to file an amended petition, the
magistrate judge construed the instant petition to include a
challenge to the petitioner's post-final removal order
detention. (Doc. 26). Thus considering the petition as a
challenge to detention pursuant to 8 U.S.C. § 1231(a),
the magistrate judge recommended dismissal of this action as
prematurely filed based on Eleventh Circuit precedent.
(Id.). Specifically, Akinwale v. Ashcroft,
287 F.3d 1050, 1051-52 (11th Cir. 2002), requires a
petitioner demonstrate post-removal order detention greater
than six months at the time his petition is filed.
response, the petitioner challenges ICE's authority to
issue warrantless detainers, challenges the validity of his
removal proceedings before the Immigration Judge and the
Board of Immigration Appeals, and asserts his detention falls
under § 1227 rather than § 1231. (Doc. 27 at 4-5).
None of these arguments address the sole issue before this
court: Whether the petitioner's detention has exceeded
the time limitations set forth by 8 U.S.C. § 1231,
Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (holding
upon entry of a final order of removal, six months is a
presumptively reasonable amount of time for the government to
achieve removal), and Akinwale, 287 F.3d at 1052
(requiring “[t]his six-month period thus must have
expired at the time [the] § 2241 petition was filed in
order to state a claim under Zadvydas.”).
Board of Immigration Appeals' decision bears the entry
date of July 12, 2019. (Doc. 24-1). Thereafter, the
petitioner filed a petition for review and received a stay of
removal in the Second Circuit Court of Appeals. Moore v.
Barr, No. 19-2344 (2nd Cir. Aug. 28, 2019) (doc. 41).
Under the law of this Circuit, that stay of removal further
suspends the time period set forth by § 1231(a)(1).
See e.g., Guo Xing Song v. U.S. Atty Gen., 516
Fed.Appx. 894, 899 (11th Cir. 2013). Until six months of
unencumbered post-removal detention elapses, the petitioner
cannot make the showing required for relief.
de novo consideration of the entire file in this
action, including the report and recommendation and the
petitioner's further response, 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.
separate order will be entered.
 Although the petitioner asserts that
his “post-removal detention has now exceeded this
mandatory 90-day detention period, and is more than 6 months
duration, ” (doc. 27 at 9), the Board of Immigration
Appeals entered the final order of removal on July 12, 2019
(doc. 24-1). Six months from that date has not elapsed, even
if the ...