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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

ALIRIO SILVA-MONTOYA,

 Petitioner,

vs. Case No. 3:10cv488/RV/EMT

DEPARTMENT OF HOMELAND 

SECURITY, IMMIGRATION AND 

NATURALIZATION SERVICES

 Respondent.

REPORT AND RECOMMENDATION

This case is before the court upon Respondents’1 motion to dismiss the petition for writ of

habeas corpus filed pursuant to 28 U.S.C. § 2241 (doc. 18). Petitioner has not filed a response to

the motion, despite having been directed to do so, and having been warned that failure to comply

with an order of the court would result in a recommendation of dismissal of this action (see doc. 19).

Although this non-compliance enough would be sufficient to warrant dismissal of the petition, the

court will briefly set forth the reason that the case is otherwise subject to dismissal and engage in

a brief discussion of the merits of the claim.

Petitioner was convicted of illegal re-entry into the United States of a previously deported

alien and sentenced to 24 months incarceration on April 2, 2010. (See Case 3:09cr111/RV, docs.

26, 27). He filed the instant petition for writ of habeas corpus on November 29, 2010 (doc. 1). The

Eleventh Circuit affirmed his conviction and sentence on March 10, 2011 (id. doc. 57). He is

1 By separate order the court noted that only one Respondent remains, the Department of Homeland Security,

Immigration and Naturalization Services (see doc. 19). The Motion to Dismiss, however, was filed on behalf of the

Respondents originally named by Petitioner.

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currently incarcerated by the U.S. Bureau of Prisons at the Gilmer Federal Correctional Institution

(“FCI Gilder”) in Glenville, West Virginia.

In the instant petition, Petitioner lists the Department of Homeland Security and Immigration

and Naturalization Services (and its filing clerk) as respondents. He raises two claims. First, he

asserts that he qualifies for naturalization under 42 U.S.C. § 2000A-3-(2)(a) and § 2000a6 because

he has fathered five children who are U.S. citizens by birth (see case 3:09cr111/RV, doc. 29 at 19). 

He also claims that he was unlawfully deported prior to the conviction for which he is currently

incarcerated (doc. 1 at 3–4). Respondents now move to dismiss the petition. 

Although Respondents raise several arguments,2

 the single challenge that defeats the petition

is their argument that Petitioner cannot attack his final order of removal in district court. The REAL

ID Act of 2005, Pub.L. No. 109–13, 119 Stat. 231 (2005) strips district courts of habeas corpus

jurisdiction over orders of removal. Title 8 U.S.C. §§ 1252(a)(5) and (b)(9) provide respectively

that a petition for review filed in the appropriate court of appeals is the “sole and exclusive means

for judicial review of an order of removal” and that no other jurisdiction shall lie by habeas corpus

or otherwise. 8 U.S.C. § 1252(a)(5) and (b)(9). The only exceptions to this, presented in 8 U.S.C.

§ 1252(e), allow a court to determine whether a petitioner is an alien, whether a petitioner was

ordered removed, and whether a petitioner can prove by a preponderance of the evidence that he is

an alien lawfully admitted for permanent residence, that he has been admitted as a refugee, or that

he has been granted asylum. 8 U.S.C. § 1252(e). None of these exceptions are relevant to the

instant petition. Thus, to the extent the petition challenges the removal order, this court lacks the

jurisdiction to hear it and it must be dismissed. Although Petitioner does not specifically state that

he “challenges his removal order” in precisely those words, it is clear from the petition that this is

his intent. His assertions (i.e., that he qualifies for naturalization and that the basis for the pending

2 Respondents also assert that the petition is “moot” because Petitioner is not in the custody of the Department of

Homeland Security at this time. See Ferry v. Gonzales, 457 F.3d 1117, 1132 (10th Cir. 2006) (citing Soliman v. United

States ex rel. INS, 296 F.3d 1237, 1243 (11th Cir. 2002)). They maintain that they are not the proper respondents

because the warden of the institution where Petitioner is incarcerated is the proper respondent, see Rumsfeld v. Padilla,

542 U.S. 26, 435, 439 (2004), and that no relief can be afforded against that individual because the court lacks personal

jurisdiction over him. They also claim that the case was not filed in the proper venue, and that pursuant to 28 U.S.C.

§ 1406(a) it should be dismissed. See Kapordelis v. Danzig, 387 Fed. Appx. 905 (11th Cir. 2010).

Case No: 3:10cv488/RV/EMT

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removal order is a previous unlawful deportation) each by their very nature challenge the validity

of the order of removal. Furthermore, the relief he requests, temporary residential status with the

opportunity to apply for citizenship, and a “pardon,” makes it abundantly clear that it is the removal

order that is under attack.

Accordingly it is respectfully RECOMMENDED:

That Respondents’ motion to dismiss (doc. 18) be GRANTED and the petition for writ of

habeas corpus under § 2241 (doc. 1) be dismissed. 

At Pensacola, Florida this 8th day of August, 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon all other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case No: 3:10cv488/RV/EMT

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