“It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.”
How later courts described this case
- “It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.”
- holding the INA did not divest the district court of jurisdiction over a § 2241 challenge to detention of the petitioner pending deportation
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ISMAEL GODINEZ PEREZ,
Petitioner,
v. Case No.: 2:25-cv-00429-JES-NPM
KRISTI NOEM, SECRETARY, U.S.
DEPARTMENT OF HOMELAND
SECURITY, and GARRETT RIPA,
FIELD OFFICE DIRECTOR, U.S.
IMMIGRATION AND CUSTOMS
ENFORCEMENT,
Respondents.
OPINION AND ORDER
Before the Court are Respondents Kristi Noem and Garrett
Ripa’s Motion to Dismiss (Doc. #11) and Petitioner Ismael Godinez
Perez’s Response (Doc. #15).
I. Background
This is an action for habeas corpus relief under 28 U.S.C. §
2241. Godinez Perez is a native and citizen of Mexico. He entered
the United States without inspection in 1999 and applied for asylum
in 2006. The following year, an immigration judge entered an order
of removal against Godinez Perez and denied his request for
withholding of removal. Godinez Perez appealed, and the Board of
Immigration Appeals vacated the removal order and remanded to the
immigration court. An immigration judge renewed the order for
removal but included a restriction that Godinez Perez could not be
removed to Mexico. Neither side appealed the order, and it became
final in 2010. ICE made no attempt to remove Godinez Perez for
the next 15 years.
ICE arrested Godinez Perez on April 25, 2025, after a traffic
stop.1 Godinez Perez commenced this action on May 22, 2025, by
filing a petition for habeas corpus relief. At the time, he was
detained in the Glades County Jail. He is now at Krome North
Service Processing Center. On June 1, 2025, ICE notified Godinez
Perez it intended to remove him to Guatemala. But on June 5, the
Guatemalan Consulate denied ICE’s request. ICE claims it is
investigating Godinez Perez’s removal to another country.
Godinez Perez claims his continued detention violates his
Fourth and Fifth Amendment rights. Respondents move to dismiss
the § 2244 Petition based on a lack of jurisdiction.
II. Legal Standard
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and statute,
which is not to be expanded by judicial decree.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). (internal
citations omitted). Federal Rule of Civil Procedure 12(b)(1)
provides for dismissal of an action if the court lacks subject
matter jurisdiction. A Rule 12(b)(1) challenge can be facial or
1 Respondents suggest the arrest occurred on April 27, 2025, but they
concede the factual point because they believe it is irrelevant.
factual. In a facial challenge, a court must consider the
allegations of the plaintiff’s complaint as true and merely look
and see if the plaintiff has sufficiently alleged a basis of
subject matter jurisdiction. A factual attack challenges subject
matter jurisdiction based on matters outside the pleadings. Efron
v. Candelario, 110 F.4th 1229, 1234 n.5 (11th Cir. 2024).
III. Discussion
Respondents raise two facial challenges to the Court’s
jurisdiction here. First, they argue certain statutory provisions
strip the Court of subject-matter jurisdiction over Godinez
Perez’s Petition. And second, they contend the Petition is
premature because the presumptively reasonable period of detention
has not yet expired.
A. The Court has subject-matter jurisdiction
Respondents argue the Immigration and Nationality Act (“INA”)
divests the Court of jurisdiction over Godinez Perez’s Petition.
One provision of the INA bars courts from hearing certain claims.
It states:
Except as provided in this section and notwithstanding
any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such
title, no court shall have jurisdiction to hear any cause
or claim by or on behalf of any alien arising from the
decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders
against any alien under this chapter.
8 U.S.C. § 1252(g) (emphasis added). This jurisdiction-stripping
clause applies only to claims challenging the three actions
emphasized above. Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 482 (1999) (“It is implausible that the
mention of three discrete events along the road to deportation was
a shorthand way of referring to all claims arising from deportation
proceedings.”).
Godinez Perez does not challenge the commencement of a
proceeding, the adjudication of a case, or the execution of his
removal order. He concedes that ICE has the authority to deport
him but challenges the legality of his detention under the
circumstances presented here.
The INA also includes a “zipper clause,” which states:
Judicial review of all questions of law and fact,
including interpretation and application of
constitutional and statutory provisions, arising from
any action taken or proceeding brought to remove an alien
from the United States under this subchapter shall be
available only in judicial review of a final order under
this section. Except as otherwise provided in this
section, no court should have jurisdiction, by habeas
corpus under section 2241 or title 28 or any other habeas
corpus provision, by section 1361 or 1651 of such title,
or by any other provision of law (statutory or
nonstatutory), to review such an order or such question
of law or fact.
8 U.S.C. § 1252(b)(9). The zipper clause only applies to claims
requesting review of an order of removal. Madu v. U.S. Attorney
Gen., 470 F.3d 1362, 1365 (11th Cir. 2006) (holding the INA did
not divest the district court of jurisdiction over a § 2241
challenge to detention of the petitioner pending deportation).
Godinez Perez does not ask the Court to review his order of
removal—he explicitly concedes its lawfulness—so this case does
not fall under the purview of the zipper clause.
B. The petition is ripe
Respondents next argue the Petition is premature because
their detention of Godinez Perez is within the presumptively
reasonable time period. “Once a noncitizen’s order of removal
becomes administratively final, the Government ‘shall’ remove that
person within 90 days.” Singh v. U.S. Attorney Gen., 945 F.3d
1310, 1313 (11th Cir. 2019) (quoting 8 U.S.C. § 1231(a)(1)(A)).
The Government may detain the noncitizen during that 90-day removal
period. Id. Detention may continue after the removal period, but
not indefinitely.
In Zadvydas v. Davis, the Supreme Court held, “if removal is
not reasonably foreseeable, the court should hold continued
detention unreasonable and no longer authorized by statute.” 533
U.S. 678, 700-01 (2001). The Court found it unlikely Congress
“believed that all reasonably foreseeable removals could be
accomplished in [90 days].” Id. at 701. So, “for the sake of
uniform administration in the federal courts,” it established a
“presumptively reasonable period of detention” of six months—the
90-day removal period plus an additional 90 days. Id. Courts
consider the constitutionality of continued detention under a
burden-shifting framework:
After this 6-month period, once 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 the showing.
Id.
Respondents argue Godinez Perez’s Petition is premature
because he has not been detained for longer than six months. Their
argument relies on the assumption that the Government may choose
to begin the presumptively reasonable period of confinement at any
time. That assumption is inconsistent with Zadvydas. As the
Eleventh Circuit recognized, “[t]he Supreme Court’s stated
rationale for establishing a presumptively reasonable ‘6-month
period’ for detention pending removal supports our conclusion that
this period commences at the beginning of the removal period.”
Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.3 (11th Cir. 2002).
The presumptively reasonable period for the Government to
detain Godinez Perez pending his removal ended in 2011. Zadvydas
thus does not bar Godinez Perez from challenging the reasonableness
and constitutionality of his current detention.
Accordingly, it is hereby
ORDERED:
Respondents Kristi Noem and Garrett Ripa’s Motion to Dismiss
(Doc. #11) is DENIED. Respondents shall respond to Godinez Perez’s
Petition within FOURTEEN (14) DAYS of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this lith day of
August 2025.
—
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J9GHN E. STEELE
SHYIOR UNITED STATES DISTRICT JUDGE
SA: FTMP-1
Copies:
Counsel of Record