Reported / Citable
Background
Kirleen Distefano Romero Gonzalez, a Venezuelan national detained by Immigration and Customs Enforcement, filed a pro se habeas petition under 28 U.S.C. § 2241. She challenged her detention pending removal on due process grounds and asked the district court to release her and stop her removal.
An immigration judge ordered Gonzalez removed to Ecuador, designated as a safe third country under an Asylum Cooperative Agreement, on February 23, 2026. The Board of Immigration Appeals summarily dismissed her appeal as untimely on April 20, 2026, and denied reconsideration on June 11, 2026. The magistrate judge treated the removal order as administratively final on April 20, 2026.
The Court’s Holding
The magistrate judge recommended dismissing Gonzalez’s detention challenge without prejudice as premature. Under Zadvydas v. Davis, post-removal-order detention is presumptively constitutional for six months, and Gonzalez had not been detained for six months after her removal order became final when she filed the petition.
The magistrate judge also recommended dismissing without prejudice Gonzalez’s request to stop or stay her removal for lack of jurisdiction. Because that request directly challenged execution of the removal order, the district court lacked authority to grant it under 8 U.S.C. § 1252(g) and the cited Fifth Circuit precedent.
Key Takeaways
- A challenge to post-removal-order detention under Zadvydas is premature when filed before six months have elapsed from the date the removal order became administratively final.
- A request to stop or stay removal directly challenges execution of a removal order and falls outside the district court’s jurisdiction.
- The disposition was a magistrate judge’s recommendation to dismiss both requests without prejudice, subject to the parties’ right to file objections within 14 days.
Why It Matters
The recommendation illustrates the separate limits governing immigration habeas cases: the six-month framework restricts when a detainee may bring a post-removal-order detention claim, while statutory jurisdictional limits prevent district courts from using habeas proceedings to halt execution of removal orders.
Because dismissal was recommended without prejudice, the recommendation did not adjudicate whether continued detention might become unlawful after the presumptively reasonable period expires.