Martinez v. Meade et al

Filing 9

ORDER ON EMERGENCY WRIT OF HABEAS CORPUS. ORDER Dismissing Case / Closing Case. (Without Prejudice) . The Petition, ECF No. 1 , is DISMISSED without prejudice. The Clerk of Court is directed to CLOSE this case. To the extent not otherwise disposed of, any scheduled hearings are CANCELED, all pending motions are DENIED as moot, and all deadlines are TERMINATED. Signed by Judge Beth Bloom on 9/26/2024. See attached document for full details. (nan)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 24-cv-22131-BLOOM/Elfenbein
CARLOS ALONSO MARTINEZ MAYORGA,
Petitioner,
v.
MICHAEL W. MEADE, Director in his
official capacity as Field Office Director
for the ICE Miami Office of Enforcement & Removal,
SUSAN DUNBAR, in her official capacity as acting
Executive Associate Director for Management and
Administration for Immigration, PATRICK K. LECKLEITNER,
in his official performing duties of the Director of the
United States Immigration and Customs Enforcement, and
ALEJANDRO MAYORKAS, Secretary, in his
official capacity as Secretary for the U.S. Department of
Homeland Security,
Respondents.
_____________________________________________________/
ORDER ON EMERGENCY WRIT OF HABEAS CORPUS
THIS CAUSE is before the Court upon Petitioner Carlos Alonso Martinez Mayorga’s
(“Petitioner”) Emergency Petition for Writ of Habeas Corpus (“Petition”) filed on June 4, 2024,
ECF No. [1]. Respondents filed a Memorandum of Fact and Law in Response to the Order to Show
Cause and in Opposition of Petitioner’s Emergency Petition for Writ of Habeas Corpus
(“Response”), ECF No. [6]. Petitioner filed a Reply, ECF No. [8]. The Court has reviewed the
Petition, the supporting and opposing submissions, the record in the case, and is otherwise fully
advised. For the reasons that follow, the Petition is dismissed.
I.

BACKGROUND
Petitioner seeks relief pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 1651, and Art. I § 9, cl. 2

of the United States Constitution. ECF No. [1] ¶ 1. Petitioner, a native and citizen of Nicaragua,

Case No. 24-cv-22131-BLOOM/Elfenbein
claims he was “detained and denied parole without an explanation in violation of the Constitution.”
Id. at 1. Petitioner is currently appealing the removal order against him to the Board of Immigration
Appeals (“BIA”). Id. ¶ 13. Petitioner states he has exhausted all available administrative remedies.
Id. ¶ 17. On May 14, 2024, Petitioner filed a Stay of Removal to the United States Immigration
and Customs Enforcement (“ICE”) and request for Order of Supervision (rather than detention)
which were denied because his passport had expired. Id. ¶¶ 14. One day later, on May 15, 2024,
Petitioner requested prosecutorial discretion from the Department of Homeland Security (“DHS”),
which was also denied. Id. ¶ 15. Then on May 21, 2024 1, Petitioner filed a Notice to Appeal before
the BIA — this appeal is currently pending. Id. ¶ 16. Although the appeal is pending, Petitioner
seeks a writ of habeas corpus as appeals for “these cases typically take extensive time [and here,
the] waiting time is not adequate and will cause irreparable harm to his Legal Permanent Resident
mother if Petitioner is not promptly released.” Id. ¶ 16. Petitioner argues he cannot be released
without an unexpired passport, but he cannot renew his passport while in detention. Id.
Petitioner asserts that his detention is due to a failure of due process. Id. ¶ 18. The alleged
failure of due process arose when the immigration judge overseeing Petitioner’s application for
asylum refused to consider Petitioner’s application, because, as conceded, the required pre-trial
brief was not filed in a timely manner. Id. ¶ 19. Petitioner claims his detailed application for
Asylum and Withholding of Removal explained his position in much greater detail than the PreTrial brief, and therefore, this failure “should not be considered an abandonment of the relief
[sought] in his Application for Asylum and Withholding of Removal.” Id.
The relief Petitioner seeks from this Court includes: (1) assume jurisdiction over this
matter; (2) a declaration that his continued detention violates his due process rights under the

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Petitioner inadvertently wrote 2023 in his Petition; the record is clear the appeal was filed in 2024.

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United States Constitution; (3) an order granting his immediate release; (4) an order awarding
attorney’s fees and costs; and (5) any other relief this Court deems necessary and just. Id. at ¶¶ 3034.
Respondents argue the Petition should be denied because: (1) Petitioner failed to name the
correct Respondent; (2) habeas is not a relief available to Petitioner as discretionary detention prior
to a final removal order is lawful, pursuant to 8 U.S.C. § 1226(a); (3) this Court lacks jurisdiction
to review the denial of bond and Petitioner’s detention pursuant to 8 U.S.C. § 1226(e) and the
Immigration and Nationality Act (“INA”) INA § 236(e); (4) this Court lacks jurisdiction to review
the order of removal, which is not final pursuant to 8 U.S.C. § 1252(b)(1)(2) and (9), INA § 242;
and (5) this Court does not have jurisdiction to review Petitioner’s denial of bond, parole, or his
non-final order generally, Petitioner’s due process rights have nevertheless not been violated. See
generally, ECF No. [6].
Petitioner replies that any failure to name the appropriate Respondent may be cured if leave
to amend is granted. ECF No. [8] at 2. Petitioner argues his due process rights were violated as his
current detention occurred while he was lawfully released on bond but arrested by the Miami Dade
Police “without a finding of probable cause;” therefore the actions derived from that arrest “should
be deemed null and void.” Id. at 2. Petitioner reasons that he is not challenging the Attorney
General’s discretionary judgment regarding the revocation of his bond and detention decision
under INA § 236. Id. Rather, Petitioner asks this Court to protect “his Constitutional right to due
process and declare invalid the procedural acts that derived from an illegal arrest that led to his
detention and the unconstitutionality of its removal process.” Id. at 3.

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II.

LEGAL STANDARD
A. Writ of Habeas Corpus 28 U.S.C. § 2441
Federal courts are vested with the authority to issue writs of habeas corpus to individuals

in custody if that custody is a “violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3). “Section 2241 is the proper vehicle through which to challenge the
constitutionality of a non-citizen's detention without bail.” Demore v. Kim, 538 U.S. 510, 516–17,
(2003). “A person need not be physically imprisoned to be in custody under the statute; instead,
habeas relief is available where the individual is subject to ‘restraints not shared by the public
generally.’” Ortega v. Bonnar, 415 F. Supp. 3d 963, 967–68 (N.D. Cal. 2019) (quoting Jones v.
Cunningham, 371 U.S. 236, 240 (1963)). Declaratory and injunctive relief are proper habeas
remedies. See id. at 970 (enjoining ICE from re-arresting petitioner without a bond hearing); see
also N.B. v. Barr, 2019 WL 4849175, at *7 (S.D. Cal. Oct. 1, 2019) (citing cases).
B. Subject Matter Jurisdiction
“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). “It is to be presumed
that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” Id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11
(1799) and McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-183 (1936)). “Indeed, it
is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir.
1999) “The jurisdiction of a court over the subject matter of a claim involves the court’s
competency to consider a given type of case, and cannot be waived or otherwise conferred upon
the court by the parties. Otherwise, a party could work a wrongful extension of federal jurisdiction
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and give courts power the Congress denied them.” Id. (quoting Jackson v. Seaboard Coast Line
R.R., 678 F.2d 992, 1000-01 (11th Cir. 1982)) (internal quotations omitted).
Further, a “district court may act sua sponte to address the issue of subject matter
jurisdiction at any time.” Herskowitz v. Reid, 187 F. App’x 911, 912-13 (11th Cir. 2006) (footnote
call numbers and citations omitted). This is because federal courts are “‘empowered to hear only
those cases within the judicial power of the United States as defined by Article III of the
Constitution,’ and which have been entrusted to them by a jurisdictional grant authorized by
Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor
v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “once a federal court determines
that it is without subject matter jurisdiction, the court is powerless to continue.” Id. at 410.
III.

DISCUSSION
A. Proper Respondent
Petitioner named the following Respondents in his Petition seeking a writ of habeas corpus

and asking for an order issued against Immigration and Customs Enforcement (“ICE”) to release
him: Michael W. Meade, Susan Dunbar, Patrick Leckleitner, and Alejandro Mayorkas. 2 ECF No.
[1].
Respondents acknowledge that a federal district court may have jurisdiction to consider the
legality of Petitioner’s continued detention pending appeal, but the Respondents he named were
incorrect. ECF No. [6] at 9. Respondents point out that the Assistant Field Director, Mitchell Diaz

Meade is named as Director for the ICE Miami Office Enforcement and Removal Operations; Dunbar is
named as Acting Executive Associate Director for Management and Administration for Immigration and
Customs Enforcement; Leckleitner is named in his official capacity as Senior Official Performing Duties
of the Director of the United States Immigration and Customs Enforcement; and Mayorkas is named in his
official capacity as Secretary for the U.S. Department of Homeland Security. ECF No. [1] at 1. In his Reply,
Petitioner sought to amend his Petition to remove Susan Dunbar as a named Respondent and add Tae D.
Johnson in his official capacity as Acting Director for Immigration and Customs Enforcement. ECF No.
[8] at 1.

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(“Diaz”) is the immediate custodian in charge of the facility where Petitioner is detained. Pursuant
to 28 U.S.C. § 2443, Diaz is “the person having custody over the person detained” and therefore,
the only proper Respondent. Id. Respondents contend that “at minimum, all Respondents named
in the Emergency Petition should be dismissed as improper parties to this matter.” Id.
Petitioner replies that jurisdiction is proper notwithstanding the technical error. ECF No.
[8] at 1-2. Petitioner reasons that should Respondents decline to waive this jurisdictional issue
based on his technical error, he should be granted leave to amend the Petition, or this Court may
sua sponte substitute the correct Respondent. Id.
The Court agrees with Petitioner that his error is a technical one. In the interest of reaching
the merits of his Petition, the Court may sua sponte substitute the correct Respondent, and dismiss
the improperly named Respondents. As conceded, Diaz is the correct official within this Court’s
geographical jurisdiction notwithstanding the technical error in the Petition. In the Eleventh
Circuit, courts may sua sponte order substitution for the proper respondent as “denial of a habeas
petition for failure to name the proper respondent ‘would give an unreasonably narrow reading to
the habeas corpus statute.’” Jackson v. Chatman, 589 Fed. App’x 490, n. 1 (11th Cir. 2014)
(quoting West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir. 1973), aff’d in relevant part en banc,
510 F.2d 363 (5th Cir. 1975); 3 same, McCormick v. United States, Case No. 23-cv-22619-Altman,
2023 WL 5901189, n.1 (S.D. Fla. Sept. 11, 2023).
B. Discretionary Detention Pursuant to 8 U.S.C. § 1226(a), INA § 236(a)
Petitioner seeks an immediate release from his detention and has taken the following
actions thus far: he filed a Notice of Appeal to the Board of Immigration Appeals (“BIA”) that is

The Eleventh Circuit has adopted, as binding precedent, all decisions of the former Fifth Circuit handed
down prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc).

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pending; he requested a Stay of Removal before ICE; he requested an Order of Supervision; and
he requested Prosecutorial Discretion from the Department of Homeland Security (“DHS”). ECF
No. [1] at 4. Petitioner argues the Immigration Judge “flagrantly violated [his] constitutional right
to defense and to be heard in Court by ordering [his] Removal and detention.” Id. at 6.
Respondents argue that Petitioner was initially detained pursuant to 8 U.S.C. § 1226(a),
INA § 236(a) pending removal proceedings and determination of whether a final order of removal
was warranted, which Respondents argue has been done lawfully. ECF No. [6] at 11.
Petitioner replies that he was released on bond pursuant to § 1226(a), INA §236(a) but that
his later arrest by the Miami Dade Police Department which led to his current detention lacked
probable cause, and therefore the revocation of his bond and any further action derivative of that
arrest should be deemed “null and void.” ECF No. [8] at 2. Petitioner argues he is not challenging
the discretionary judgment of the Attorney General under § 1226(a) or (b), INA §236(a) or (b),
instead he seeks release through his Constitutional right to due process and argues that his illegal
arrest invalidates the procedural acts that followed, resulting in his detention. Id.
i. Petitioner is Detained Pursuant to 8 U.S.C. § 1226, INA 236
As Petitioner seeks habeas relief through an immediate release of his detention, the Court
reviews the basis of his current detention. The arrest that led to Petitioner’s detention occurred on
November 13, 2023. ECF No. [6] at 6. As Respondent acknowledges, the charges against
Petitioner for that arrest were dropped. Id. See ECF No. [1-13] at 2. While Petitioner asserts his
November 14, 2023 arrest was illegal, the record provided by Petitioner only indicates that he filed
a “Motion to Suppress All Evidence Derived from Illegal Stop” on February 25, 2024, then
withdrew that Motion on March 5, 2024; the case was then closed on May 16, 2024. ECF No. [113] at 2. Therefore, based on the record before this Court, Petitioner has not sufficiently
demonstrated his arrest was illegal or that there was a lack of probable cause as alleged.
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Petitioner cites to several cases in support of his argument that habeas relief is warranted
“when imprisonment is illegal” as he believes it is here. However, those case are distinguishable
and unpersuasive. ECF No. [1] at 5. See Zadvydas v. Davis, 533 U.S. 678 (2001) (“In these cases,
we must decide whether this post-removal-period statute authorizes the Attorney General to detain
a removable alien indefinitely beyond the removal period or only for a period reasonably necessary
to secure the alien's removal.”) (citing 8 U.S.C. § 1231(a)(6)); see Demore v. Kim, 53. U.S. 510,
516-17 (2003) (“respondent challenges the statutory framework that permits his detention without
bail.”). 4
Moreover, Petitioner’s criminal history was before the immigration judge who provided
Petitioner additional time to file certain documents, including his criminal history chart
“explaining in detail each and every encounter [Petitioner had] with law enforcement.” ECF No.
[6] at 7; Ex. O, Trans. 13:4-5. Petitioner was granted a continuance from April 10, 2024 until May
6, 2024 to file his criminal history chart before his hearing on May 13, 2024. Id. The record
indicates that the immigration judge warned Petitioner to comply, or his application would be
deemed abandoned, resulting in voluntary removal or he would be subject to an order of voluntary
departure. ECF No. [6-17] Ex. O, Trans. 13:1-13. Petitioner failed to comply and provide the
immigration judge the criminal history chart as ordered. That would have allowed review of all
prior encounters with law enforcement, and also address his November 13, 2024 arrest and whether
they was a proper basis for detention or removal. ECF No. [6-17] Ex. O, Trans. Apr. 10, 2024,
13:4-5; ECF No. [6-19] Ex. Q, Trans. May 13, 2024, 11:8-25; 12:1-9; 17:6-22; 18:6-11.

Petitioner filed an additional case that is out of this circuit, and inadvertently failed to include the full cite
for review.

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ii. Petitioner’s Detention is Lawful
Upon a review of Petitioner’s arguments and the case law provided, the Court finds
Petitioner has failed to establish that his detention pursuant to 8 U.S.C. § 1226, INA § 236 was
unlawful, or that this Court has jurisdiction to review the discretionary judgment of the Attorney
General. Respondents correctly point out that § 1226 provides that the determination to detain or
release an alien, through bond or parole, is solely within the discretion of the Attorney General.
Section 1226 provides in pertinent part:
(a) Arrest, Detention and Release
On a warrant issued by the Attorney General, an alien may be arrested and detained pending
a decision on whether the alien is to be removed from the United States. Except as provided
in subsection (c) and pending such decision, the Attorney General--(1) may continue to detain the arrested alien; and
(2) may release the alien on--(A) bond of at least $1,500 with security approved by, and containing
conditions prescribed by, the Attorney General; or
(B) conditional parole;
Id.
Petitioner points out that he was released on bond in 2019 pursuant to § 236(a)(2) 5. ECF
No. [8] at 2. Nevertheless, pursuant to 8 U.S.C. § 1226(b), INA § 236(b) the “Attorney General at
any time may revoke a bond or parole authorized under subsection (a), rearrest the alien under the
original warrant, and detain the alien.” Id. (emphasis added). Therefore, whether Petitioner was
released earlier on bond through § 1226, INA § 236 does not preclude revocation of his bond later
and is a proper basis for his detention.
Petitioner argues extensively that his detention is improper because the charges pursuant
to his November 13, 2023 arrest were dropped. However, that arrest is not the basis of his current
removal proceedings. After his arrest, a Record of Deportable/Inadmissible Alien was prepared,

The Warrant for Arrest of Alien from 2019, that the U.S. Department of Homeland Security issued against
Petitioner, was pursuant to INA § 236. ECF No. [6-7].

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providing that the basis for his removal was because Petitioner is not a citizen or national of the
United States, and that he “appears to have entered the United States without inspection at an
unknown place,” with no pending applications with immigration service. ECF No. [6-13] at 3. 6
Due to Petitioner’s lack of sufficient immigration documentation, he was thereafter held in ICE
custody pending removal. ECF No. [16-3] at 3.
The parties agree that Petitioner is an alien and agree that a final decision on removal was
pending at the time the Petition was filed. Consequently, the Court agrees that 8 U.S.C. § 1226(a),
INA § 236(a) applies to Petitioner notwithstanding his prior release on bond, or any other
argument set forth in the Petition and Reply. The burden of establishing jurisdiction “rests upon
the party asserting it.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)
(internal citations omitted). Despite Petitioner’s arguments, he has failed to meet his burden. As
such, the Court finds the application of 8 U.S.C. § 1226, INA §236 is proper in this matter. The
Attorney General may detain or release Petitioner on bond or parole, and that determination
remains within the sole discretion of the Attorney General, and is beyond the jurisdiction of this
Court.
C. Jurisdiction to Review Denial of Bond and Petitioner’s Detention
Petitioner asks this Court to assume jurisdiction, seeking immediate release. ECF No. [1]
at 7. Petitioner argues he “has been detained and denied parole without an explanation,” and the
various actions taken after the March 22, 2024 denial of bond, including his pending appeal to the

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The basis for removal provided was 8 U.S.C. § 1182(a)(7)(A)(i)(I), INA § 212(a)(7)(A)(i)(I) which states:
any immigrant at the time of application for admission who is not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing identification card, or other valid
entry document required by this chapter, and a valid unexpired passport, or other suitable
travel document, or document of identity and nationality if such document is required under
the regulations issued by the Attorney General under section 1181(a) of this title [] is
excludable. Id.

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Board of Immigration Appeals, resulted in an exhaustion of “every administrative remedy
available.” Id. ¶¶ 14-17; ECF No. [1-16].
Respondents argue that this Court cannot set aside the discretionary decision by the
immigration judge to deny Petitioner bond under 8 U.S.C. § 1226(e), INA § 236(e). ECF No. [6]
at 13. Respondents cite to Jennings v. Rodriguez, 583 U.S. 281 (2018) in support of their argument
that § 1226(e) prevents Petitioner from challenging the discretionary judgment of the Attorney
General with respect to his detention or release. ECF No. [6] at 13. Regarding denial of parole,
Respondents argue that parole is also discretionary and not subject to judicial review. See Reganit
v. Sec’y, Dept. of Homeland Sec., 814 F.3d 1253, 1257 (11th Cir. 2016) (citing 8 U.S.C. §
1182(d)(5)(A)).
Petitioner replies that he is challenging the due process violations “and the illegality of the
arrest that led to his subsequent removal order and continued detention.” ECF No. [8] at 3.
Petitioner argues that Jennings supports his argument as it “cleared the jurisdictional path for alien
detainees to challenge their detention via habeas petitions in district courts [and] reaffirmed the
status quo.” Id.
i. Section 1226(e) Precludes a Challenge to the Denial of Petitioner’s Bond
The Court agrees with Respondent. The statutory language in 8 U.S.C. § 1226(e),
INA § 236(e) is clear and unambiguous and provides:
The Attorney General's discretionary judgment regarding the application of this
section shall not be subject to review. No court may set aside any action or decision
by the Attorney General under this section regarding the detention or release of any
alien or the grant, revocation, or denial of bond or parole.
Id.
The statutory language was reinforced by the Supreme Court of the United States in
Jennings, holding “[a]s we have previously explained, § 1226(e) precludes an alien from
‘challeng[ing] a ‟discretionary judgment” by the Attorney General or a “decision” that the
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Attorney General has made regarding his detention or release.’” 583 U.S. at 295 (citing Demore
v. Kim, 538 U.S. 510, 516, (2003)). In Jennings, the Court did find jurisdiction was not precluded
by § 1226(e) for a discreet issue, which is not present here. Explaining the distinction, the Court
observed that “respondents are not asking for review of an order of removal; they are not
challenging the decision to detain them in the first place or to seek removal; and they are not even
challenging any part of the process by which their removability will be determined.” Id. at 294.
Rather, the discreet issue in Jennings was “the extent of the Government's detention authority
under the ‘statutory framework’ as a whole” and whether that authority permitted detention of
aliens without bail. Id. at 295-96. See also Nielsen v. Preap, 586 U.S. 392, 401 (2019). Here,
Petitioner only seeks review of his order of removal which § 1226(e) precludes as observed by
Jennings, and he is challenging the process by which he was removed However, Jennings clearly
distinguished the issues raised by Petitioner, and is therefore, unavailing to Petitioner.
Petitioner’s reliance on I.N.S. v. St. Cyr, 533 U.S. 289 (2001) to advance his argument that
district courts typically have jurisdiction over an alien’s challenge to his or her detention is also
distinguishable. As a threshold matter, St. Cyr did not address a challenge of detention pursuant to
§ 1226(e). In St. Cyr, the respondent, a detained alien, pled guilty to deportable crimes prior to the
enactment of two amendments at a time when INA § 212(c) gave the Attorney General broad
discretion to waive deportation of resident aliens. 7 Id. The Court determined that, prior to those
two amendments, “aliens like St. Cyr had a significant likelihood of receiving § 212(c) relief [and]
almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial.” Id.
at 325. For those reasons, the Court held discretionary relief under § 212(c) would remain available

The amendments in question in St. Cyr were the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). I.N.S.
v. St. Cyr, 533 U.S. 289, 293 (2001).

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to aliens “whose convictions were obtained through plea agreements and who [] would have been
eligible for § 212(c) relief at the time of their plea under the law then in effect.” Id. at 325
(emphasis added). The decision in St. Cyr does not pertain to the facts here or the controlling
statutes. 8 Accordingly, Petitioner has failed to establish that his detention is subject to review by
this Court. Instead, the decision to deny Petitioner bond is discretionary pursuant to § 1226 and
beyond the jurisdiction of this Court.
ii. Parole is Discretionary Pursuant to Section 1182
Petitioner has raised denial of parole as a basis for relief. ECF No. [1] at 1. Petitioner argues
that his mother, a legal permanent resident, was diagnosed with cancer and is dependent on him
“for financial, health care, and emotional support,” raising her care as a basis for his release. Id. ¶¶
24, 25. Respondent points out that parole from custody differs from bond but is also discretionary,
and therefore, not subject to this Court’s review. ECF No. [6] at 15.
Respondent is correct that a decision to parole is discretionary, and therefore this Court
does not have jurisdiction to review. Section 1182 states:
The Attorney General may, except as provided in subparagraph (B) or in section
1184(f) of this title, in his discretion parole into the United States temporarily under
such conditions as he may prescribe only on a case-by-case basis for urgent
humanitarian reasons or significant public benefit any alien applying for admission
to the United States, but such parole of such alien shall not be regarded as an
admission of the alien and when the purposes of such parole shall, in the opinion
of the Attorney General, have been served the alien shall forthwith return or be
returned to the custody from which he was paroled and thereafter his case shall
continue to be dealt with in the same manner as that of any other applicant for
admission to the United States.
8 U.S.C. § 1182(d)(5)(A), INA § 212(d)(5)(A)

Petitioner cites to additional cases from outside of this circuit, pertaining to different factual bases, such
as inhumane conditions of confinement, unlawful and unreasonable length of detention, failure to fulfil
INA obligations, etc. As these are clearly distinguishable cases and not binding on this Court, the analysis
need not go further.

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Moreover, Petitioner seeks immediate release and has not expressed an argument for
temporary parole as provided above. Petitioner does not indicate that if released, he would return
to custody at a time deemed proper by the Attorney General, so his case would be handled as “any
other applicant for admission to the United States.” Id. Instead, Petitioner argues his detention,
revocation of bond, and all actions that arose out of his November 14, 2023 arrest should be
deemed “null and void.” ECF No. [8] at 2.
As Respondents correctly point out, the Eleventh Circuit has held that “Congress has
delegated remarkably broad discretion to executive officials under the Immigration and
Naturalization Act, and these grants of statutory authority are nowhere more sweeping than in the
context of parole of excludable aliens.” Garcia-Mir v. Smith, 766 F.2d 1478, 1484 (11th Cir. 1985)
(citing Jean v. Nelson, 727 F.2d, 957, 977 (11th Cir. 1984)).
Accordingly, this Court does not have jurisdiction to review the decision of the
immigration judge to deny Petitioner bond, nor the decision to have not granted release through
parole due to the health of Petitioner’s mother as both are discretionary determinations.
D. Jurisdiction to Review Petitioner’s Non-Final Order of Removal and Detention
Petitioner concedes his “appeal is pending before the Board of Immigration Appeals.” ECF
No. [1] ¶ 16. However, he argues appeals “take extensive time” and because his passport was
expired, he cannot be released to obtain a valid passport, and thus, no administrative relief is
available to him. Id. ¶¶ 16-17.
Respondents argue this Court does not have jurisdiction because judicial review is limited
to review of a final order of removal pursuant to INA § 242(b)(9) which is not the case here. ECF
No. [6] at 14. Respondents contend Petitioner’s claim that his detention arose from a failure of due
process, and that the ruling by the immigration judge denying his application for asylum as
abandoned, was an unconstitutional violation of his right to due process is without merit “as the
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decision to institute removal proceedings is not subject to judicial review.” Id. at 15-16.
Petitioner’s Reply does not address those arguments.
The Court agrees with Respondents and finds jurisdiction does not exist because the
provisions for Judicial Review of Orders of Removal within 8 U.S.C. § 1252(b), INA § 242(b),
explicitly preclude review of non-final orders:
(b) Requirements for review of orders of removal
With respect to review of an order of removal under subsection (a)(1) 9, the
following requirements apply:
(1) Deadline
The petition for review must be filed not later than 30 days after the date of
the final order of removal.
8 U.S.C. § 1252(b)(1), INA § 242(b)(1)
(9) Consolidation of questions for judicial review
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 shall have
jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas
corpus provision . . . or by any other provision of law (statutory or nonstatutory),
to review such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9), INA § 242(b)(9) (emphasis added)
The statutory language is clear and unambiguous and precludes judicial review of any order
of removal that is not final. It is undisputed that the Petition was filed prior to review of the appeal
before the immigration judge. Accordingly, 8 U.S.C. § 1252(b)(2) and (9), INA § 242(b) and (9)
prevents this Court from judicial review of Petitioner’s non-final order. Moreover, even if the order
of removal were final, this Court would still not have jurisdiction as review of a final order must
be filed with the respective court of appeals:
(2) Venue and forms
The petition for review shall be filed with the court of appeals for the judicial
circuit in which the immigration judge completed the proceedings.
Subsection (a)(1) provides for judicial review of a final order of removal, except as in subsection (b).
8 U.S.C. § 1252(a)(1), INA § 242(a)(1).

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Case No. 24-cv-22131-BLOOM/Elfenbein
8 U.S.C. § 1252(b)(2)(9), INA § 242(b)(2)(9)
Petitioner does not point to any exception allowing this Court to review a non-final order.
Nor does Petitioner’s assertion that there are no administrative remedies available to him disturb
the fact that the pending appeal means the order is not final and therefore, not reviewable.
Accordingly, 8 U.S.C. § 1252(b), INA § 242(b) precludes this Court from having jurisdiction over
the Petition.
E. Due Process
Regarding Petitioner’s argument that the immigration proceedings violated his due process
rights, the Court agrees with Respondents that it cannot reach that determination when it does not
have jurisdiction to review the case. “[O]nce a federal court determines that it is without subject
matter jurisdiction, the court is powerless to continue.” Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999). As this Court has determined there is no basis for jurisdiction to
review the Attorney General’s decision under 8 U.S.C. § 1226(e), INA § 236(e), and the lack of
jurisdiction to review pursuant to 8 U.S.C. § 1252(b), INA § 242(b), this Court cannot proceed to
the due process argument raised by Petitioner.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. The Petition, ECF No. [1], is DISMISSED without prejudice.
2. The Clerk of Court is directed to CLOSE this case.
3. To the extent not otherwise disposed of, any scheduled hearings are CANCELED, all
pending motions are DENIED as moot, and all deadlines are TERMINATED.

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Case No. 24-cv-22131-BLOOM/Elfenbein
DONE AND ORDERED in Chambers at Miami, Florida, on September 26, 2024.

cc:

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

counsel of record

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