UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 1:20-cv-22998-BLOOM

CATALIN AIONESEI-LUPU,

Plaintiff,

v.

UNITED STATES

ATTORNEY GENERAL, 

William Barr, et al.,

Defendants.

__________________________/

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS – 28 U.S.C. § 2241

THIS CAUSE is before the Court upon Petitioner Catalin Aionesei-Lupu’s (“Petitioner”) 

Petition for a Writ of Habeas Corpus, filed pursuant to 28 U.S.C. section 2241, ECF No. [1], filed 

July 21, 2020. The Court has carefully considered the Petition, the record in this case, and is 

otherwise fully advised. For the reasons that follow, the Petition is denied as premature.

I. INTRODUCTION

Petitioner is a native and citizen of Romania. See Pet. 2. Petitioner first entered the United 

States in September 2007, but, according to Petitioner, an immigration judge ordered his removal

on March 27, 2014. See id. 3. Several years later, on January 31, 2020, Petitioner was taken into 

custody. See id. He is currently housed in the Krome Service Processing Center in Miami, Florida. 

See id. 1. To date, Immigration and Customs Enforcement (“ICE”) has been unable to deport or 

remove Petitioner. See id. 3.

Petitioner now challenges his continued detention by the Department of Homeland Security

(“DHS”) and ICE. As relief, Petitioner requests the Court declare his continued detention is not 

authorized by the Immigration and Nationality Act (“INA”) or the Fifth Amendment to the United 

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States Constitution. See Pet. 7. Petitioner also seeks a writ of habeas corpus directing his immediate 

release. See id.

II. LEGAL STANDARD

Pursuant to Rule 1(b) of the Rules Governing Section 2254 Cases in the United States 

District Courts, Rule 4 may be applied to cases brought pursuant to 28 U.S.C. section 2241. 

Therefore, summary dismissal of a habeas corpus action brought pursuant to 28 U.S.C. section

2241 is appropriate when the petition plainly reveals that relief is not warranted under Rule 4. See 

28 U.S.C. § 2243 (providing that a section 2241 petition can be dismissed unless it appears from 

the application that the person detained is entitled to the relief); McFarland v. Scott, 512 U.S. 849, 

856 (1994). Section 2241 authorizes a district court to grant a writ of habeas corpus whenever a 

petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 

28 U.S.C. § 2241(c)(3). 

Through this lens, the Court addresses the instant Petition. No order to show cause has been 

issued because on the face of the Petition it is evident Petitioner is not entitled to relief.

III. DISCUSSION

As noted, Petitioner advises the Court he was ordered removed or deported on March 27, 

2014, and detained several years later, on January 31, 2020. See Pet. 2. When an alien is ordered 

removed, the Attorney General must remove the alien from this country within a period of ninety 

days. See 8 U.S.C. § 1231(a)(1)(A). During this ninety-day period, the alien remains in custody. 

See 8 U.S.C. § 1231(a)(2). Here, the record is silent as to why Petitioner was ordered removed or 

deported on March 27, 2014, but not detained for several years.

The initial removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively 

final;

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(ii) If the removal order is judicially reviewed and if a court 

orders a stay of removal of the alien, the date of the court’s 

final order.

(iii) If the alien is detained or confined (except under an 

immigration process), the date the alien is released from 

detention or confinement.

8 U.S.C. § 1231(a)(1)(B). However, certain removable aliens may be detained beyond the ordinary 

ninety-day removal period. See 8 U.S.C. § 1231(a)(6); Akinwale v. Ashcroft, 287 F.3d 1050, 1051 

(11th Cir. 2002). The Attorney General may detain an alien, “who has been determined . . . to be 

a risk to the community or unlikely to comply with the order of removal,” beyond the initial ninetyday period. 8 U.S.C. § 1231(a)(6).

In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court concluded that 8 U.S.C. 

section 1231(a)(6) does not authorize immigration officials to hold removable aliens in custody 

indefinitely. Id. at 689, 696–99. Although an alien can be detained during the ninety-day removal 

period contemplated by the statute, the alien can be held for only a reasonable period after that. Id.

at 699–701. The Court explained that the statute contains an implicit temporal limitation on the 

government’s authority to detain aliens and that the total reasonable period of detention (including 

the ordinary ninety-day removal period under section 1231(a)(1)-(2))

1

is presumed to be six 

months, unless immigration officials can show that there is a “significant likelihood of removal in 

the reasonably foreseeable future.” Id. at 701. 

Thus, to be granted relief from a post-removal order of detention pursuant to Zadvydas, a 

petitioner must first show that he has been detained beyond the presumptively reasonable six1

“Although not expressly stated, the Supreme Court appears to view the six-month period to include the 

90-day removal period plus 90 days thereafter.” Akinwale, 287 F.3d at 1052.

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month period to detain a removable alien. See id. at 699–701. See also Akinwale, 287 F.3d at 1051–

52. Second, a petitioner must also provide good reason to believe that there is no significant 

likelihood of removal in the foreseeable future. Zadvydas, 533 U.S. at 698–701; Akinwale, 287 

F.3d at 1052. The Eleventh Circuit in Akinwale held that to state a claim under Zadvydas, the sixmonth presumptively reasonable removal period must have expired at the time the alien filed his 

section 2241 petition, and that the petitioner “must provide evidence of a good reason to believe 

that there is no significant likelihood of removal in the reasonably foreseeable future.” 287 F.3d at 

1052. In that case, the Eleventh Circuit affirmed the district court’s adoption of the magistrate 

judge’s recommendation that the petition should be dismissed without prejudice because the alien 

filed it prematurely. Id.

Notwithstanding the uncertainty regarding the date of the final order of removal, Petitioner 

informs the Court his “removal period began around January 31, 2020.” Pet. 6. Thus, the initial 

ninety-day statutory removal period expired on April 30, 2020, and the additional ninety-day 

period is set to expire on July 29, 2020. Petitioner concedes the same in his Petition. See id.

(“Rough calculations tell us [Petitioner’s] ninety-day removal period ended at the end of April 30, 

2020, and his 180day [sic] removal period ends on July 29, 2020.”). Petitioner mailed his Petition 

to the Clerk of the Court on July 18, 2020, see Pet. 8, and it was filed on July 21, 2020. Therefore, 

because the Petition was filed before the six-month removable period had expired, it is due to be 

dismissed without prejudice as it is premature at this time.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that:

1. Petitioner’s Petition for a Writ of Habeas Corpus, ECF No. [1], is DISMISSED 

without prejudice: 

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2. Petitioner may refile his Petition should he remain in detention after the six-month 

removeable period has expired

3. All pending motions are DENIED as moot;

4. The Clerk of the Court shall CLOSE this case. 

DONE AND ORDERED in Chambers at Miami, Florida, on July 22, 2020.

____________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

Catalin Aionesei-Lupu

A087-417-960

Krome Service Processing Center

Inmate Mail/Parcels

18201 SW 12th Street

Miami, FL 33194

PRO SE

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