Unreported / Non-Citable
Background
Alvaro Guillemot, a citizen of Italy, entered the United States on a visa on July 5, 2023, valid through October 2, 2023. He began the process to become a legal resident in April 2025. On April 27, 2026, Guillemot was detained by ICE after summoning emergency help for others while working at the jet ski business he owns and runs. He has remained in immigration custody since that date. On August 24, 2026, an immigration judge (IJ) granted the Department of Homeland Security’s unopposed motion to dismiss removal proceedings under 8 C.F.R. §§ 1239.2(c) and 239.2(a)(6) without prejudice.
Respondents assert, and Guillemot has not disputed, that he became subject to a final administrative order of removal (FARO) on that same date. Guillemot, proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 seeking release from custody. Respondents filed a motion to dismiss. Guillemot opposed the motion and requested a stay of removal, and later filed a motion for immediate release. Counsel appeared for Guillemot on October 7, 2026.
The Court’s Holding
The Magistrate Judge recommends denying the petition for writ of habeas corpus without prejudice, denying Guillemot’s motion to stay removal and motion for immediate release, and denying Respondents’ motion to dismiss as moot. The court found that Guillemot failed to show he is presently in custody in violation of the Constitution or federal law. Because Guillemot became subject to a FARO on August 24, 2026, his detention is now governed by 8 U.S.C. § 1231, which authorizes detention for at least 90 days while the removal order is effectuated, a period that comports with due process under Zadvydas v.
Davis, 533 U.S. 678 (2001). The court further held it lacks jurisdiction to issue a stay of removal, as the exclusive means to challenge a removal order is a petition for review in the court of appeals under 8 U.S.C. § 1252. The court also noted that Guillemot, now represented by counsel, never challenged the procedures of his bond hearing or the IJ’s flight risk finding, and the court may not second-guess the IJ’s weighing of the evidence.
Key Takeaways
- A noncitizen subject to a final administrative order of removal (FARO) may be detained under 8 U.S.C. § 1231 for at least 90 days without violating due process.
- District courts lack jurisdiction to grant stays of removal; the exclusive remedy is a petition for review in the court of appeals under 8 U.S.C. § 1252.
- A habeas petition under 28 U.S.C. § 2241 challenging detention pending removal must show custody in violation of the Constitution or federal law; mere detention during the statutory removal period is insufficient.
- Courts will not second-guess an immigration judge’s discretionary bond determination absent a claim of constitutional violation or abuse of discretion.
- The Magistrate Judge recommended denial without prejudice, preserving Guillemot’s ability to refile if detention exceeds the presumptively reasonable six-month period under Zadvydas.
Why It Matters
This Findings and Recommendations illustrates the narrow scope of habeas corpus review for noncitizens subject to final removal orders. It reaffirms that once a FARO issues, the detention authority shifts to § 1231, and the district court’s role is limited to assessing whether detention exceeds the Zadvydas presumptively reasonable six-month period.
The decision underscores the jurisdictional bar on district courts reviewing or staying removal orders, channeling such challenges to the courts of appeals. It also highlights the procedural default that occurs when a detainee fails to challenge bond hearing procedures before the agency or in court. The recommendation to deny without prejudice signals that prolonged detention beyond six months could reopen the habeas inquiry.