United States District Court

for the

Southern District of Florida

Jean Gardy Duvercy, Petitioner,

v.

William Barr and others, 

Respondents.

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)

)

)

)

Civil Action No. 20-22069-Civ-Scola

Order of Dismissal

Now before the Court is the Petitioner Jean Gardy Duvercy’s § 2241

petition. For the reasons set forth below, the Court dismisses the Duvercy’s 

§ 2241 petition (ECF No. 1).

1. Relevant Factual Background

Petitioner, Jean Gardy Duvercy, an immigration detainee at Krome Service 

Processing Center, filed a pro se petition for writ of habeas corpus pursuant to 

28 U.S.C. § 2241. Duvercy challenges the length of his detention by United States 

Immigration and Customs Enforcement (“ICE”) as unlawful because it exceeds 

ninety days. (ECF No. 1).

Duvercy, a native and citizen of Haiti, arrived in the United States in 1993 

“without being admitted or paroled.” (ECF No. 1 at 1; ECF No. 8-6 at 3.) Although 

Duvercy’s immigration proceedings continued for nearly nine years, the first 

three years of delays resulted from his own actions.1 The removal proceedings 

began in September 2010; and, for nearly one year, Duvercy sought multiple 

adjournments to secure counsel. (ECF No. 8-7 at 1-2.) Then, Duvercy’s counsel 

continued to seek adjournments through April 2012. (Id. at 2.) At Duvercy’s

request, the hearing was again adjourned until February 2013. (Id.) But, in 

December 2012, Duvercy filed an application for cancellation of removal with the 

immigration court and requested the hearing be adjourned again until October 

2013. (Id.)

Over the next few years Duvercy’s hearing was adjourned for several

reasons including the closure of the court, to allow for the scheduling of a priority 

case and because the immigration judge was on detail or other assignment. (Id. 

at 3). It was, eventually, scheduled for October 2019. A few months before the 

hearing, Petitioner was convicted in Palm Beach County (Case No. 2017 

CF006486AMB), where he pled guilty to improper exhibition of a dangerous 

 1 See the immigration court’s decision outlining the procedural history. 

(ECF No. 8-6 at 3-4).

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weapon, assault, and discharging a firearm in a residential area. (ECF No. 8-3).2

Duvercy appeared for the October 31, 2019 hearing; and, still, the immigration 

judge reserved the decision. (Id.) The Department of Homeland Security took 

Duvercy into custody on the same day. (ECF No. 8-1). On December 9, 2019, 

Duvercy appeared, pro se, for a bond hearing with the immigration judge. (Id. at 

3). The immigration judge denied bond because Duvercy was subject to 

mandatory detention because of the “firearm/danger.” (Id.; ECF No. 8-5).

On May 7, 2020, the immigration judge denied Duvercy’s application for 

cancellation of removal and ordered him removed to Haiti pursuant to 

§ 212(a)(6)(A)(i) of the Immigration and Nationality Act. (ECF No. 8-6 at 37). The 

immigration judge determined that Petitioner’s recent conviction for violating 

Fla. Stat. § 790.15(4) “is an offense described under [8 U.S.C. § 1227(a)(2)(C)]

and . . . [was] statutorily ineligible for cancellation of removal.” (Id. at 33-34). On 

June 23, 2020, the immigration judge issued an order with respect to Petitioner’s 

custody. (ECF No. 12-2). Duvercy’s change in custody status was denied because 

there is “no changed circumstance”: he is a “danger” and a “flight risk” (Id.)

Petitioner reserved his right to appeal, and his brief was due on July 22, 2020. 

(ECF No. 12-1.)

2. Discussion

When viewing Duvercy’s pro se pleading liberally and pursuant to Haines 

v. Kerner, 404 U.S. 519, 520-21 (1972), his sole claim is that he has been illegally 

detained by ICE in violation of his due process rights and in excess of the ninetyday removal period under Section 1231. (ECF No. 1 at 1-2.) The Court does not 

agree.

Because a final order of removal has been entered, Duvercy “is no longer 

being detained pursuant to § 1226(c), which governs only detention prior to a 

final removal order.” De La Teja v. United States, 321 F.3d 1357, 1363 (11th Cir. 

2003) (emphasis in original). “Instead, he is being detained now pursuant to a 

wholly different statute, 8 U.S.C. § 1231(a), which controls the detention and 

removal of an alien subject to a final order of removal.” Id. Here, the immigration 

judge already determined that Duvercy will be deported to Haiti and issued a 

final order, which the Government attached to its response (see ECF No. 8-6), 

and therefore, § 1226 does not apply. See Jennings v. Rodriguez, 138 S.Ct. 830, 

833 (2018) (“Immigration officials are authorized to detain certain aliens in the 

course of immigration proceedings while they determine whether those aliens 

 2 The immigration judge explained the “extensive criminal record” which 

included convictions for eight separate offenses, four of which occurred after 

Petitioner was placed in removal proceedings. (ECF No. 8-6 at 7, 13, 29-35.)

Case 1:20-cv-22069-RNS Document 13 Entered on FLSD Docket 08/07/2020 Page 2 of 4
may be lawfully present in the country.”); Demore v. Kim, 538 U.S. 510, 528 

(2003) (Section 1226 “governs detention of deportable criminal aliens pending 

their removal proceedings. Such detention necessarily serves the purpose of 

preventing deportable criminal aliens from fleeing prior to or during their removal 

proceedings, thus increasing the chance that, if ordered removed, the aliens will 

be successfully removed.”).

Section 1231 provides that, ordinarily, once a noncitizen’s order of removal 

becomes administratively final, the Government “shall” remove that person 

within 90 days. 8 U.S.C. § 1231(a). However, “[n]oncitizens who have been 

ordered removed because of certain criminal convictions, or those whom the 

Attorney General has found to be ‘a risk to the community or unlikely to comply 

with the order of removal, may be detained beyond the removal period.’” Singh v. 

U.S. Attorney General, 945 F.3d 1310, 1313 (11th Cir. 2019). Noncitizens who 

are “removable under section 1227(a)(2),” like Duvercy, “may be detained beyond 

the removal period.” 8 U.S.C. § 1231(a)(6). The immigration judge explicitly 

stated that Duvercy’s recent firearm conviction for violating Fla. Stat. § 790.15(4) 

is an offense described under 8 U.S.C. § 1227(a)(2)(C), and therefore, the 

exception set out in § 1231(a)(6) applies here.

Although exempt from the 90-day requirement, the United States Supreme 

Court has imposed a “reasonable time” limitation on the amount of time that e 

a noncitizen can be detained under 8 U.S.C. § 1231(a)(6) prior to deportation. 

Zadvydas v. Davis, 533 U.S. 678, 682 (2001). Thus, “for the sake of uniform 

administration in the federal courts, six months is the appropriate period.” Id. 

at 680. “After the 6-month period, once an alien provides good reason to believe 

that there is no significant likelihood of removal in the reasonably foreseeable 

future, the Government must furnish evidence sufficient to rebut that showing.” 

Id. Here, a final order of deportation was issued by the immigration judge on May 

7, 2020 or about three months ago, and therefore his length of detention is 

presumed to be reasonable. Consequently, his petition challenging his continued 

detention must be dismissed.

3. Recommendation

In sum, the Court dismisses Duvercy’s petition for writ of habeas corpus filed 

pursuant to 28 U.S.C. § 22414 (ECF No. 1). The Court directs the Clerk to close

this case and mail this order to the address listed below. Any pending motions 

are denied as moot.

Case 1:20-cv-22069-RNS Document 13 Entered on FLSD Docket 08/07/2020 Page 3 of 4
Done and ordered at Miami, Florida, on August 7, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

cc: Jean Gardy Duvercy

200-464-145

Krome Service Processing Center

Inmate Mail/Parcels

18201 SW 12th Street

Miami, FL 33194

PRO SE

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