Montelier Chaviano v. RIPA

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 25-22451-CIV-DAMIAN

SERGIO MONTELIER CHAVIANO,

Petitioner,

v.

PAMELA BONDI, et al.,

Respondents.

______________________________________/

ORDER ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 4]

AND

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER [ECF NO. 17]

THIS CAUSE is before the Court on Petitioner, Sergio Montelier Chaviano’s

(“Petitioner”), Amended Petition for Writ of Habeas Corpus, filed May 31, 2025 [ECF No.

4], and Emergency Motion for Temporary Restraining Order and Preliminary Injunction

Staying Credible Fear Proceedings, filed June 8, 2025 [ECF No. 17 (“Emergency Motion”)].

THE COURT has considered the Petition and Emergency Motion, the record, and

relevant authorities, and the Court had the benefit of oral argument from the parties, who

appeared, through counsel, before the undersigned on June 12, 2025.

In short, Petitioner seeks an Order from this Court staying the ongoing credible fear

proceedings in which Petitioner is presently involved and directing the release of Petitioner

from the custody of the Immigration authorities while his removal proceedings proceed. For

the reasons set forth below, this Court denies the relief Petitioner seeks.

I. BACKGROUND

The facts set forth below are drawn from the parties’ submissions and, unless otherwise

indicated, are undisputed.

A. Petitioner’s Initial Entry Into The United States And Apprehension By Immigration.

Petitioner is a native and citizen of Cuba. See Am. Pet. [ECF No. 4] ¶ 22. On February

7, 2022, Petitioner entered the United States by crossing the border at or near Eagle Pass,

Texas, without inspection. Id. He was immediately apprehended by U.S. Customs and Border

Protection (“CBP”) Officials and placed in civil detention. Id.; Resp. [ECF No. 23] at 2.

Petitioner admitted he unlawfully entered without valid travel documents, and CBP

determined Petitioner was inadmissible. See Am. Pet. at 5, n.4; [ECF No. 23-1 (Form I-213,

Record of Deportable/Inadmissible Alien)]. As indicated in the Record of

Deportable/Inadmissible Alien, dated February 10, 2022, Petitioner advised Immigration

authorities that he was seeking asylum based on credible fear. See ECF No. 23-1.

On February 10, 2022, CBP initiated removal proceedings, pursuant to Section 240 of

the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., by issuing a Notice to

Appear (“NTA”), dated February 10, 2022, against Petitioner. See ECF No. 23-2. The NTA

charged Petitioner with being removable under Section 212(a)(6)(A)(i) of the INA as an alien

present in the United States without being admitted or paroled, or who arrived in the United

States at any time or place other than as designated by the Attorney General. See id. The NTA

explicitly informed Petitioner that he was not admitted or paroled and that he was subject to

removal, and it ordered him to appear before an Immigration Judge in Miami at a date and

time to be set. Id.

On February 22, 2022, Petitioner was served with an Order of Release on

Recognizance (Form I-220A). See ECF No. 23-3. The Order of Release advised Petitioner

that he had been placed in removal proceedings and that he was being released on his own

recognizance, provided he must report for any future hearing date before the Executive Office

for Immigration Review (“EOIR”); surrender for removal if so ordered; and report in person

to a Deportation Officer in Miramar, Florida, on April 18, 2022. Id. Petitioner signed the

Order of Release, acknowledging that although he was being released on his own

recognizance, he was in removal proceedings. Id. By all accounts, Petitioner continued to

appear as directed by Immigration Authorities.

B. Petitioner’s Removal Proceedings.

On April 14, 2023, Petitioner filed a Motion to Administratively Close Removal

Proceedings before an Immigration Judge in Miami, Florida, so that he could pursue

adjustment of status under the Cuban Adjustment Act.1 See ECF No. 23-4 (Motion for

Administrative Closure). In that Motion, Petitioner argued that his release qualified as

“parole.” Id. at 3–4. On April 17, 2023, the Immigration Judge in Petitioner’s Removal

Proceedings entered an Order stating that, after consideration of the facts and circumstances,

Petitioner’s Motion to administratively close his removal proceedings was denied. See ECF

No. 23-5 (“Order of the Immigration Judge”). The Immigration Judge specifically indicated:

“[Petitioner] is not yet prima facie eligible to adjust status as he has not been ‘paroled’ into

the United States pursuant to section 212(d)(5) of the [INA]; the Court maintains jurisdiction

over [Petitioner’s] case.” Id.

1 Cuban Refugee Adjustment Act of November 2, 1966, Pub. L. No. 89-732, 80 Stat. 1161, as

amended (“Cuban Adjustment Act”).

On May 22, 2025, Petitioner attended a hearing at the EOIR, in Miami Immigration

Court. At that hearing, the U.S. Department of Homeland Security (“DHS”) made an ore

tenus motion to dismiss Petitioner’s removal proceedings pursuant to 8 C.F.R. § 239.2(a)(7)

(DHS’s exercise of prosecutorial discretion). See ECF No. 23-6 (Order on Motion to Dismiss).

Acknowledging that the Motion was opposed by Petitioner, the Immigration Court granted

the Motion. Id.

C. Petitioner’s May 22, 2025 Detention By Immigration Authorities.

Immediately after that May 22, 2025, hearing, authorities with Enforcement and

Removal Operations (“ERO”), a division of Immigration and Customs Enforcement

(“ICE”), encountered Petitioner and detained him pursuant to INA § 235, 8 U.S.C. § 1225(b).

See ECF No. 23-7 (Declaration of Supervisory Detention and Deportation Officer (“SDDO”)

Gregory Valcourt) ¶ 13. And, on that same day, Petitioner was served with a Notice and

Order of Expedited Removal, Form I-860 [ECF No. 23-8], and a Record of Sworn Statement

in Proceedings under Section 235(b)(1) of the Act, pursuant to INA § 235(b)(1), 8 U.S.C. §

1225(b)(1) [ECF No. 23-9]. The Notice and Order of Expedited Removal informed Petitioner

that DHS had determined that he is inadmissible under Section 212(a)(7)(A)(i)(I) and that he

was ordered removed. [ECF No. 23-8].

The Record of Sworn Statement indicates that Petitioner was given an opportunity to

provide a sworn statement in the proceedings but that he refused to do so without his attorney.

[ECF No. 23-9]. ERO detained Petitioner at the Broward Transitional Center (“BTC”). See

ECF No. 23-10 (“Detention History”). On May 30, 2025, ERO referred Petitioner’s case to

the U.S. Citizenship and Immigration Services (“USCIS”) for a credible fear interview

pursuant to 18 C.F.R. § 208.30. See ECF No. 23-7, Valcourt Decl. ¶ 14. Petitioner has

remained in Immigration custody since May 22, 2025. See ECF No. 23-10.

On June 3, 2025, Petitioner filed an appeal of the Immigration Judge’s May 22, 2025,

Dismissal Order with the Board of Immigration Appeals. See ECF No. 23-11. Petitioner’s

appeal remains pending, as does a decision from USCIS as it relates to the May 30, 2025,

credible fear interview. See Valcourt Decl. ¶ 14.

D. Petitioner’s Proceedings Before This Court.

On May 29, 2025, Petitioner initiated these proceedings by filing a Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2241. [ECF No. 1]. On May 31, 2025, Petitioner filed

the Amended Petition, which is now before this Court. [ECF No. 4]. And, on June 8, 2025,

Petitioner filed the Emergency Motion for Temporary Restraining Order and Preliminary

Injunction Staying Credible Fear Proceedings. [ECF No. 17]. The following day, June 9,

2025, Petitioner filed a Motion to Produce the Body of the Petitioner. [ECF No. 21].

After this Court issued an Order to Show Cause [ECF No. 13] directing an expedited

Response to the Amended Petition, on June 3, 2025, Respondents’ counsel entered a Notice

of Appearance, and on June 10, 2025, Respondents filed a Response to the Order to Show

Cause.2 [ECF No. 23].

On June 12, 2025, the parties appeared, through counsel, before the undersigned to be

heard on the pending Amended Petition and Motions. See ECF No. 26. At the hearing, the

undersigned directed counsel for Respondents to provide a status report informing the Court

of the anticipated timing of Petitioner’s upcoming third credible fear interview and any other

2 In the Order to Show Cause, this Court directed Respondents to title their Response to the

Order to Show Cause as a “Response” and not as a motion to dismiss. [ECF No. 13 at ¶ 3].

information that would indicate the possible timing of Petitioner’s removal. See ECF No. 27.

Respondents complied and filed a Status Report on June 12, 2025. [ECF No. 28]. In the Status

Report, Respondents indicate that Petitioner’s interview would not take place before June 23,

2025, and that Petitioner’s counsel would be given advance notice of the interview so that she

may attend. Id. Respondents also indicate that Petitioner will not be removed prior to

completion of the credible fear interview and that, if Petitioner is determined to have not

established credible fear, he may still request review of that determination by an Immigration

Judge, which would involve full removal proceedings and a full hearing before an

Immigration Judge. Id. The Status Report further indicates that Petitioner will remain

detained during that process. Id.

II. PETITIONER’S CLAIMS FOR RELIEF

As indicated above, there are presently two substantive matters pending before this

Court: (1) Petitioner’s Amended Petition for Writ of Habeas Corpus [ECF No. 4]; and (2)

Petitioner’s Emergency Motion for Temporary Restraining Order (“TRO”) and Preliminary

Injunction Staying Credible Fear Proceedings [ECF No. 17]. This Court separately denied

Petitioner’s Motion to Produce the Body of Petitioner [ECF No. 21]. See ECF No. 31. These

are discussed below, but the claims for relief in these pending filings are summarized here.

In the Amended Petition for Writ of Habeas Corpus, Petitioner claims Respondents

lacked the authority to arrest and detain him because he has been in the United States for

more than two years before the determination of inadmissibility and that he is statutorily

exempt from expedited removal as a parolee. Am. Pet. at 14. Petitioner further claims that he

is entitled to habeas review under the Suspension Clause of the United States Constitution.

Id. at 17–18. Petitioner requests that this Court assume jurisdiction over the matter, set it for

expedited consideration, and grant Petitioner a writ of habeas corpus that orders his

immediate release from Immigration custody. Id. at 20–21.

In the Emergency Motion for TRO and Preliminary Injunction, Petitioner requests the

Court stay his ongoing credible fear process in order to preserve the status quo while Petitioner

proceeds with his habeas proceedings before this Court. See generally Emer. Mot.

In their Response, Respondents contend that this Court lacks subject matter

jurisdiction to review Petitioner’s claims, that Petitioner was not paroled but was properly

placed in removal proceedings, and that he has been given the process he is due under

Congress’s existing framework. See generally Resp. [ECF No. 23].

Petitioner filed a Traverse, or Reply, in Support of the Amended Petition on June 12,

2025. [ECF No. 29].

These matters are ripe for adjudication.

This Court begins its analysis, as it must, with a consideration of whether this Court

has subject matter jurisdiction over Petitioner’s claims.

III. SUBJECT MATTER JURISDICTION AND THE INA

Respondents argue that this Court lacks subject matter jurisdiction to consider

Petitioner’s claims for relief. “Federal courts are courts of limited jurisdiction.” Kokkonen v.

Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (internal citations omitted).

Nowhere is this principle more rigorously applied than in immigration cases, where Congress

has plenary authority to define the contours of judicial review. See Fiallo v. Bell, 430 U.S. 787,

792 (1977) (citations omitted). Thus, federal courts are under a continuing obligation to

determine whether subject-matter jurisdiction exists. Cadet v. Bulger, 377 F.3d 1173, 1179 (11th

Cir. 2004). If a federal court determines at any time during the litigation that it lacks subject-

matter jurisdiction, the court must dismiss the action. Fed. R. Civ. P. 12(h)(3). The party

invoking the Court’s jurisdiction bears the burden of demonstrating that the matter falls within

the Court’s subject-matter jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).

Respondents’ primary basis for arguing a lack of subject matter jurisdiction is the

significant limitations Congress has placed on the power of federal courts to review expedited

removal orders. See Resp. at 6 (citing United States v. Herrera-Orozco, No. C-11-542, 2011 WL

3739160 (S.D. Tex. Aug. 23, 2011) (citing Brummer v. INS, 275 F.3d 443, 447 (5th Cir. 2001))).

Specifically, Respondents aver: “[T]hrough his habeas petition, Petitioner challenges his

detention, which arose precisely from the expedited removal process. Based on the plain

language of Congress’s amendments to the Immigration and Nationality Act (“INA”) in

1996, federal courts lack subject matter jurisdiction to hear any claims ‘arising from’ or

‘relating to’ the expedited removal process established by Congress under 8 U.S.C. §

1225(b)(1).” Resp. at 6 (citing 8 U.S.C. § 1252(a)(2)(A)(i)). Respondents go on to contend that

“[b]ecause Petitioner’s detention was a necessary part of the expedited removal process, it

‘arises from’ and is ‘related to’ that process, such that Congress’s plain language in 8 U.S.C.

§ 1252(a)(2)(A)(i) precludes federal court review of Petitioner’s habeas claim.” Id.

The undersigned agrees with Respondents.

A. The INA’s Limitations On Review Of Expedited Removal Orders.

Petitioner, as all parties here agree, is the subject of an expedited removal order

pursuant to 8 U.S.C. § 1225(b)(1)(A)(i). Judicial review of such an order is governed by 8

U.S.C. § 1252. See Diaz Del Cid v. Barr, 394 F. Supp. 3d 1342, 1345 (S.D. Fla. 2019) (citing

Castro v. U.S. Dep’t of Homeland Sec., 835 F.3d 422, 426 (3d Cir. 2016) (“This statute narrowly

circumscribes judicial review for expedited removal orders issued pursuant to § 1225(b)(1).”)).

The statute provides that, “[n]otwithstanding any other provision of law (statutory or

nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision . . . no

court shall have jurisdiction to review . . . any individual determination or to entertain any

other cause or claim arising from or relating to the implementation or operation of an order

of removal pursuant to section 1225(b)(1) of this title[.]” 8 U.S.C. § 1252(a)(2)(A)(i). The

statute does allow for judicial review in habeas corpus proceedings of determinations made

under Section 1225(b)(1), applicable to expedited removal, but states that such review “shall

be limited to determinations of—(A) whether the petitioner is an alien, (B) whether the

petitioner was ordered removed under [§ 1225(b)(1)], and (C) whether the petitioner can prove

. . . that the petitioner is [a lawful permanent resident], has been admitted as a refugee . . . or

has been granted asylum[.]” Id. § 1252(e)(2).

In the Petition before this Court, Petitioner seeks judicial review of determinations

made under Section 1225(b)(1). Specifically, he claims he is not eligible for expedited removal

because he has been continuously present in the United States for more than two years, such

that Section 1225(b)(1)(iii)(II) does not apply to him. He also claims he is exempt from the

expedited removal provisions because he was paroled into the United States as a matter of

law, citing Jennings v. Rodriguez, 583 U.S. 281, 288 (2018). See Am. Pet. at 14–17. And

Petitioner challenges his detention under the expedited removal provisions. Id. at 19. Thus,

he seeks this Court’s review of the Immigration authorities’ determinations as to each of these

issues.

This Court agrees with Respondents that the jurisdiction-stripping provisions of

Sections 1252(a) and (e)(2) apply to bar Petitioner’s habeas petition.

Initially, as to Petitioner’s challenges to the applicability of the expedited removal

provisions to him, the parties agree that those challenges do not fall within any of the three

bases for review set forth in Section 1252(e)(2). That is, he does not challenge the

determination of whether he is an alien, whether he was ordered removed, or whether he can

prove he is an alien who was lawfully admitted for permanent residence, has been admitted

as a refugee, or has been granted asylum. Therefore, review of Petitioner’s habeas petition is

foreclosed by the plain language of the jurisdiction-stripping provisions of Sections 1252(a)

and (e)(2). See Torrez v. Swacina, No. 20-20650-CIV-Altonaga, 2020 WL 13551822, at *3–4

(S.D. Fla. Apr. 17, 2020) (finding court lacked jurisdiction to review petitioner’s habeas

challenge to expedited removal proceedings based on challenge to determination of whether

he had previously been removed)3; Diaz Del Cid, 394 F. Supp. 3d at 1345 (finding challenge

to timing of credible fear interview foreclosed by Section 1252(e)).

Likewise, because Petitioner’s detention arises from and is related to the expedited

removal order, review of his challenge to his detention is also foreclosed by Sections 1252(a)

3 The district judge in Torrez pointed out that the respondents’ position that review of

expedited removal determinations is precluded by Section 1252(e) is “well supported.” 2020

WL 13551822, at *3–4 (citing 8 U.S.C. § 1252(e)(2); Garcia v. Warden, Stewart Det. Ctr., 774 F.

App’x 522, 524 (11th Cir. 2019) (noting 8 U.S.C. section 1252(e)(2) did not authorize the

court to hear the petitioner’s argument that he qualified for cancellation of removal, a form

of immigration relief, set forth in the petitioner’s habeas petition); Pineda v. Customs & Border

Prot., 544 F. App’x 925, 926 (11th Cir. 2013) (finding “it was undisputed that officials

removed [the petitioner] on an expedited basis after a CBP officer determined she was an

intending immigrant without an immigrant visa ... [and] [t]he INA bars judicial review of any

claim arising from or relating to the implementation or operation of an expedited removal

order[.]” (citation omitted)); Vazquez-Ramirez v. U.S. Attorney Gen., 707 F. App’x 626, 629

(11th Cir. 2017) (citing 8 U.S.C. 1252(e)(2) and (3) and noting “[j]udicial review of an order

[of expedited removal] is limited to narrow circumstances”); Lucas v. U.S. Attorney Gen., 652

F. App’x 854, 858 (11th Cir. 2016) (“[E]xpedited removal orders issued pursuant to 8 U.S.C.

[section] 1225(b)(1) are not subject to judicial review except in very limited circumstances not

applicable here.” (citations removed))).

and (e)’s limiting provisions. See Osorio-Martinez v. Att’y Gen. United States of Am., 893 F.3d

153, 165 (3d Cir. 2018) (“‘Relating to’ is typically construed as having a broad, expansive

meaning, including in the immigration context.”) (citing Morales v. Trans World Airlines, Inc.,

504 U.S. 374, 383 (1992) (“The ordinary meaning of these words [‘relating to’] is a broad

one.”); Aguilar v. U.S. Immigration. & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1,

10 (1st Cir. 2007) (suggesting that, for purposes of a different provision of § 1252, “relating

to” could be used to mean “to sweep within its scope claims with only a remote or attenuated

connection” to the underlying removal)). As the Third Circuit explained in Osorio-Martinez,

“‘arising from or relating to’ must be interpreted broadly because we are reading the phrase

in the context of a statutory scheme that is ‘aimed at protecting the Executive’s discretion

from the courts.’” Id. (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 486

(1999)).

Thus, this Court agrees with Respondents that under the plain language of Sections

1252(a) and (e), this Court does not have jurisdiction to review any of the bases upon which

Petitioner seeks this Court’s review.

B. The Suspension Clause.

Petitioner argues that the narrow scope of habeas review provided by Section

1252(e)(2) is unconstitutional because it violates the Suspension Clause of the United States

Constitution.4 The Suspension Clause states that “[t]he Privilege of the Writ of Habeas

4 To determine whether a jurisdiction-stripping statute violates the Suspension Clause, the

Court proceeds through the two-step analysis that the Supreme Court announced in

Boumediene v. Bush, 553 U.S. 723 (2008). The Court first determines “whether a given habeas

petitioner is prohibited from invoking the Suspension Clause due to some attribute of the

petitioner or to the circumstances surrounding his arrest or detention.” Castro, 835 F.3d at 445

(citing Boumediene, 553 U.S. at 739). Then, if the petitioner is not prohibited from invoking

the clause, the Court “turn[s] to the question whether the substitute for habeas is adequate

Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety

may require it.” U.S. Const. art. 1, § 9, cl. 2.

1. Petitioner’s Challenges to Respondents’ Determination That He Qualifies For

Expedited Removal.

First, insofar as Petitioner’s challenges to whether he qualifies for expedited removal

are concerned, this Court finds that these challenges fall within the Supreme Court’s Opinion

in Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), in which the Supreme

Court rejected a claim that Section 1252(e) violates the Suspension Clause based on a

challenge to a denial of asylum. In Thuraissigiam, the petitioner, who was in expedited

removal proceedings, sought habeas review of an Immigration Judge’s determination that he

was not entitled to asylum on credible fear grounds. Id. at 114–15. After the district court

determined that it lacked jurisdiction to consider the habeas petition based on Section 1252(e),

the petitioner challenged the constitutionality of the statute on grounds it violates the

Suspension Clause. Id. The Supreme Court held that the petitioner’s Suspension Clause

argument failed “because it would extend the writ of habeas corpus far beyond its scope ‘when

the Constitution was drafted and ratified.’” Id. at 107 (quoting Boumediene v. Bush, 553 U.S.

723, 746 (2008)). The Court explained that the Suspension Clause protects the writ of habeas

corpus as it existed in 1789, when the Constitution was adopted, and that at that time, the

writ “simply provided a means of contesting the lawfulness of restraint and securing release.”

Id. at 117. Because Thuraissigiam was not seeking release, he did not show that the statute

and effective to test the legality of the petitioner’s detention (or removal).” Id. at 445 (citing

Boumediene, 553 U.S. at 739). For the reasons explained herein, this Court finds Petitioner

does not get past the first step under the circumstances presented here. See Diaz Del Cid, 394

F. Supp. 3d at 1347.

violated the Suspension Clause as applied to him where he complained only of the suspension

of his right to habeas review of the immigration court’s determination of whether he qualified

for asylum.

Likewise, to the extent that Petitioner here complains of the Respondents’

determination that he qualifies for expedited removal, under Thuraissigiam, the suspension of

his right to seek habeas review of that determination does not implicate or violate the

Suspension Clause.

2. Petitioner’s Challenge To His Detention.

The next issue, then, is whether the statute’s bar to habeas review of Petitioner’s

detention violates the Suspension Clause. The undersigned agrees with Petitioner that the

Thuraissigiam opinion does leave room for a Suspension Clause challenge to the limitation of

habeas review of issues involving detention. However, Petitioner’s challenge to the statute

nevertheless does not present a Suspension Clause violation as applied to him.

The Supreme Court’s analysis in Thuraissigiam is again instructive. In Thuraissigiam,

the petitioner, who was in expedited removal proceedings, did not seek release from detention

but, instead, sought a change in his status based on a claim of credible fear so that he could

remain lawfully in the United States. As the Court points out, Thuraissigiam did not dispute

that “confinement during the pendency of expedited asylum review, and even during the

additional proceedings he seeks, is lawful.” Id. at 118. As the Court further points out, “Nor

could he.” Id. That is, because he was apprehended in the very act of attempting to enter this

country, he was inadmissible because he lacks an entry document (citing INA §§

1182(a)(7)(A), 1225(b)(1)(A)(i), and, under those circumstances, his case qualified for the

expedited review process, including mandatory detention during his credible fear review

(citing §§ 1225(b)(1)(B)(ii), (iii)(IV)). Id. Although Petitioner here disputes that he qualifies for

expedited review, he is otherwise very similarly situated to Thuraissigiam. Nevertheless,

because the issue before the Thuraissigiam Court was not whether Thuraissigiam could seek

habeas review of his detention, the opinion does not dictate that the statute does not violate

the Suspension Clause by precluding review of Petitioner’s challenge to his detention. But the

Thuraissigiam Court’s analysis of the Suspension Clause in the context of Section 1252(e)(2)

does lead this Court to the conclusion that Section 1252(e)(2) does not violate the Clause in

so far as the facts of this case are concerned.

As the Court explained in Thuraissigiam, the determination of whether the statute

violates the Suspension Clause is made based on the scope of the writ of habeas corpus at the

time the Suspension Clause was adopted. 591 U.S. at 116. And, as the Court further

explained, the traditional function of the writ was to secure release from “illegal” custody. Id.

at 117 (citing 3 W. Blackstone, Commentaries on the Laws of England 137 (habeas was a

means to “remov[e] the injury of unjust and illegal confinement”); 3 Commentaries on the

Constitution of the United States § 1333, p. 206 (1833) (Habeas “is the appropriate remedy to

ascertain . . . whether any person is rightfully in confinement or not.”); Preiser v. Rodriguez,

411 U.S. 475, 484 (1973) (“It is clear . . . from the common-law history of the writ . . . that

the essence of habeas corpus is an attack by a person in custody upon the legality of that

custody, and that the traditional function of the writ is to secure release from illegal custody”);

Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (similar); Munaf v. Geren, 553 U.S. 674, 693 (2008)

(similar)). In short, the writ was meant to provide for review of whether custody is illegal.

Here, Petitioner does not dispute nor does he challenge that detention is authorized in

expedited removal proceedings, “pending a final determination of credible fear of persecution

and, if found not to have such a fear, until removed.” See Reply at 1, n.1 (citing §

1225(b)(1)(B)(iii)(IV)).5 Nor does Petitioner argue that Section 1225(b)(1)(B)(iii)(IV) or

detention pursuant to that statute is illegal. Thus, because Petitioner is presently in expedited

removal proceedings, his detention is not illegal, but, instead, is permitted under the expedited

removal statute.6 As such, Petitioner does not challenge his inability to seek habeas review of

what he contends is illegal detention, and, therefore, he is not challenging the suspension of

his habeas rights as those rights were understood when the Suspension Clause was drafted.

Instead, Petitioner seeks review of the basis for his detention, that is, Respondents’

determination that he qualifies for expedited removal. Under 1252(e), that determination is

not reviewable by a writ of habeas corpus, and, as the Supreme Court held in Thuraissigiam,

the suspension of that review does not violate the Suspension Clause.

In other words, although the suspension of the right to seek habeas review of the

legality of detention may implicate the Suspension Clause, that is not what Petitioner seeks

review of by way of his habeas Petition. He seeks review of the Respondents’ determination

that he qualifies for expedited removal because, if he does, he is being legally detained. But,

based on the Court’s opinion in Thuraissigiam, the suspension of the ability to seek habeas

review of the Respondents’ determination does not violate the Suspension Clause. Therefore,

5 Petitioner likewise acknowledges that 8 CFR § 235.3(b)(2)(iii) also provides for detention

pending determination of admissibility and removal. Reply at n.1.

6 As Petitioner is presently in expedited removal proceedings and no final order of removal

has been entered, the decision to detain him appears to be discretionary. Although it is not

the case here, as at least one court in this District has observed, if the decision to detain

Petitioner is the result of a warrant issued by the Attorney General, that decision is not subject

to review. See Dos Santos v. Meade, Case No. 20-cv-22996-Gayles, 2020 WL 6565212, *3 (S.D.

Fla. Nov. 9, 2020).

as applied to Petitioner’s circumstances and the issues he raises in his habeas Petition, Section

1252(e) does not violate the Suspension Clause.

The authorities relied on by Petitioner in support of his claim that the statute violates

the Suspension Clause are unavailing. In Ibrahim v. Acosta, No. 17-cv-24574, 2018 WL

582520, at *5–6 (S.D. Fla. Jan. 26, 2018), the court did find that it retained limited jurisdiction

under the Suspension Clause, but the court stressed that its ruling was based on the “unique

circumstances” of that case – none of which are presented here. To the contrary, Petitioner’s

circumstances are not exceptional, and his presence in the United States for the last three

years while in removal proceedings does not change that. See, e.g., Cabrera v. U.S. Dep’t of

Homeland Sec., No. 24-cv-3079, 2025 WL 1009120 (7th Cir. Apr. 4, 2025) (affirming dismissal

of petition challenging expedited removal despite the petitioner’s claim of two years’ physical

presence). Cf. Osorio-Martinez, 893 F.3d at 166 (children granted Special Immigrant Juvenile

(“SIJ”) status); Agarwal v. Lynch, 610 F. Supp. 3d 990, 1004 (E.D. Mich. 2022) (petitioner

lived lawfully in the United States for nearly 10 years and reentered with a valid visa). Here,

Petitioner has not offered anything about his circumstances that distinguishes him from the

cases in which courts consistently find a lack of subject matter jurisdiction to review

determinations by Immigration authorities in expedited removal proceedings. Accord Quintero

v. Field Off. Dir. of Miami ICE Field Off., No. 25-cv-22428-CMA, ECF No. 25 (S.D. Fla. June

23, 2025).

Accordingly, Petitioner has not shown that Section 1252(e), as applied to him, violates

the Suspension Clause, and this Court lacks subject matter jurisdiction over Petitioner’s

Amended Petition.

IV. DUE PROCESS

Petitioner also asserts that he is entitled to due process and that his detention violates

his due process rights in light of the fact that he has resided in and established ties in the

United States for the last three years.

This Court agrees that Petitioner does have due process rights. As discussed herein

and on the record at the hearing before this Court, Petitioner does not deny that he is presently

here illegally and that he has been afforded hearings before the Immigration Court as well as

at least two credible fear interviews thus far. Petitioner has not provided any authority that

demonstrates that his detention for the last month, approximately, pursuant to Section

1225(b)(1)(B)(iii)(IV), violates due process. To the contrary, there is ample authority for the

principle that detention, even for far longer periods, pending immigration proceedings does

not violate due process rights. See, e.g., O.D. v. Warden, Stewart Det. Ctr., No. 4:20-CV-222-

CDL-MSH, 2021 WL 5413968, at *5 (M.D. Ga. Jan. 14, 2021), report and recommendation

adopted, 2021 WL 5413966 (M.D. Ga. Apr. 1, 2021) (denying due process challenge to

nineteen months in immigration custody, nothing, “a significant factor weighing against a

finding that Petitioner’s detention has become unreasonably prolonged is the fact that he has

been provided with a bond hearing, a custody re-determination, and BIA de novo review of

the [Immigration Judge]’s custody decision”); Sigal v. Searls, No. 1:18-CV-00389, 2018 WL

5831326, at *5, 9 (W.D.N.Y. Nov. 7, 2018) (denying habeas relief to petitioner detained for

seventeen months after “tak[ing] into account all of the factual circumstances”); see also Hylton

v. Shanahan, No. 15-CV-1243-LTS, 2015 WL 3604328, at *6 (S.D.N.Y. June 9, 2015)

(detention without bail for roughly two years did not violate due process); Luna-Aponte v.

Holder, 743 F. Supp. 2d 189, 197 (W.D.N.Y. 2010) (three years).

As Respondents point out, Petitioner has not submitted evidence that he has been

detained for any other purpose than resolution of his removal proceedings. See Resp. at 17–

18.

Taking into consideration all of the circumstances presented here, this Court finds

Petitioner has not shown a basis for finding that his due process rights have been violated as

the result of his detention.

V. CONCLUSION

For the reasons set forth above, based on 8 U.S.C. §§ 1252(a) and (e), this Court lacks

subject matter jurisdiction to consider Petitioner’s Amended Petition for a Writ of Habeas

Corpus. And this Court finds that, under the circumstances presented, Petitioner has not

demonstrated that § 1252(e), as applied to him, violates the Suspension Clause. Nor has

Petitioner demonstrated that his detention violates his due process rights. Therefore, his

Amended Petition must be dismissed.

Further, this Court cannot grant the injunctive relief sought by Petitioner under the

circumstances presented because the dispute in this case concerns the Respondents’

determination of whether Petitioner is subject to expedited removal, and, therefore, this Court

is precluded from review of that determination. See 8 U.S.C. §§ 1252(a) and (e).

Accordingly, it is hereby

ORDERED AND ADJUDGED as follows:

1. Petitioner’s Amended Petition for Writ of Habeas Corpus [ECF No. 4] is

DISMISSED.

2. Petitioner’s Emergency Motion [ECF No. 17] is DENIED.

The Clerk is directed to CLOSE this case, and any pending motions are denied as

moot.

DONE AND ORDERED in Chambers in the Southern District of Florida, this 23rd

day of June, 2025.

MELISSA

UNITED STATES DISTRICT JUDGE

cc: Counsel of Record

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