United States District Court, M.D. Florida, Tampa Division
ORDER DENYING PETITIONER'S “VERIFIED
PETITION FOR WRIT OF HABEAS CORPUS, APA JUDICIAL REVIEW, AND
BARBER UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's
“Verified Petition for Writ of Habeas Corpus, APA
Judicial Review, and Declaratory Relief” (Doc. #1),
filed by counsel on August 7, 2019. On August 9, 2019, the
Court entered an Order denying the request for a temporary
restraining order and ordered the Government to respond to
the allegations of the “Verified Petition for Writ of
Habeas Corpus, APA Judicial Review, and Declaratory Relief,
” which the Court construed as a motion for preliminary
injunction. (Doc. # 6). On August 21, 2019, the Government
filed its response. (Doc. # 10). On August 23, 2019,
Petitioner filed her reply. (Doc. # 12). After reviewing the
petition, response, reply, court file, and the record, the
Court finds as follows:
31, 2019, Petitioner initially filed an action seeking
identical or substantially similar relief in the United
States District Court for the Southern District of Florida.
See (Doc. # 1-4). On August 2, 2019, the district
judge entered an order finding that the case belonged in the
Middle District of Florida because Petitioner was presently
confined by means of ankle monitor to Tampa, Florida. In
order to afford Petitioner time to refile her claims in the
proper court before the alleged deadline for removal, the
district judge issued a temporary restraining order for
fourteen (14) days, staying the removal order until August
filed the instant petition on August 7, 2019, initiating this
action against Defendants Director, ERO Tampa Field Office,
Immigration and Customs Enforcement (ICE) and Acting
Secretary of the Department of Homeland Security (DHS). (Doc.
## 1, 2, and 3). Petitioner alleges that she is subject to a
final order of removal, and that she has been informed by ICE
that she and her husband are required to depart from the
United States to enforce their outstanding removal orders
before August 8, 2019. Petitioner alleges that her forced removal
to the Dominican Republic prior to the denial of Forms ETA
A-19003-58275, I-140, and I-601A would violate her
regulatory, statutory, and due process rights, in addition to
violating the Administrative Procedures Act. Petitioner seeks
to enjoin Defendants from executing the outstanding removal
order against her prior to the denial of her Forms I-140, or
Government argues that this Court does not have jurisdiction
to review the final removal order. Petitioner appears to
agree that this Court has no jurisdiction to review the
removal order itself, but instead contends that the Court may
issue a stay so that she may complete the provisional waiver
Petitioner styles her motion as a habeas petition, she is not
actually challenging the legality of her confinement. See
Preiser v. Rodriguez, 411 U.S. 475 (1973) (explaining
that the purpose of a writ of habeas corpus is to secure the
release of an individual from illegal custody). What
Petitioner requests, practically speaking, is to enjoin
Defendants from removing her before she is able to complete
the provisional waiver process. This relief sounds more like
a request for a preliminary injunction and should be treated
Court lacks subject matter jurisdiction to review
Petitioner's claims because she is attacking the
execution of her final removal order. See 8 U.S.C.
§ 1252(a)(5) (providing that “a petition for
review filed with an appropriate court of appeals in
accordance with this section shall be the sole and exclusive
means for judicial review of an order of removal entered or
issued under any provision of this chapter”); Cheng
Ke Chen v. Holder, 783 F.Supp.2d 1183, 1186 (N.D. Ala.
2011) (“[P]etitioner's request for a stay of
removal and for a temporary restraining order against the
respondents to prevent his removal are requests that need to
be made to the appropriate court of appeals, in this instance
the Eleventh Circuit Court of Appeals.”).
points to two non-binding, out-of-circuit cases - which are
currently pending on appeal - to argue that her removal
should be stayed while she applies for a provisional waiver.
In these cases, the courts ruled that § 1252 did not
preclude subject matter jurisdiction because the petitioners
were not challenging the validity of the removal order but
instead were challenging ICE's legal authority to remove
the petitioners before they could proceed through the lawful
permanent resident application process. See Calderon v.
Sessions, 330 F.Supp.3d 944 (S.D.N.Y. 2018); De
Jesus Martinez v. Nielsen, 341 F.Supp.3d 400 (D.N.J.
2018). However, “that is . . . . not the law of this
Circuit. And federal law is clear: Congress did not intend
for district courts to review removal orders.”
Majano Garcia v. Martin, 379 F.Supp.3d 1301, 1307
(S.D. Fla. 2018). Petitioner cannot rely on the provisional
waiver process to circumvent removal. Id.
the Court finds that it lacks subject matter jurisdiction to
review Petitioner's claims. This Order does not preclude
Petitioner from seeking relief in the immigration courts and
before the Board of Immigration Appeals, if appropriate.
Petitioner may also seek judicial review regarding her final
removal order with the appropriate appellate court, if she
may do so in good faith.
 Petitioner requests that the Court
accept her reply that she characterizes as filed out of time.
Because the reply was due on August 23, 2019, the Court