Javier Montes Cabrera v. United States Department of Homeland Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2025*
Decided April 4, 2025
Before
DIANE S. SYKES, Chief Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-3079
JAVIER MONTES CABRERA,
Petitioner-Appellant,
v.
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY,
Respondent-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 24-cv-713-wmc
William M. Conley,
Judge.
O R D E R
Javier Montes Cabrera is a Mexican citizen under an order of expedited removal.
He petitioned the district court for a writ of habeas corpus, see 28 U.S.C. § 2241, seeking
judicial review of a removal order entered against him by Immigration and Customs
Enforcement officials with the United States Department of Homeland Security. The
* The appellee filed a notice of intent not to file a brief in this appeal. After
examining the appellant’s brief and the record, we have concluded that the case is
appropriate for summary disposition. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 24-3079 Page 2
district judge dismissed his petition because Congress barred district courts from
exercising jurisdiction over review of removal orders. See 8 U.S.C. § 1252(a)(5). We
affirm.
We take judicial notice of the following facts, as recited in the complaint and plea
agreement in the underlying criminal case. See J.B. v. Woodard, 997 F.3d 714, 717 (7th Cir.
2021). Montes Cabrera was a crew member aboard an unregistered speed boat that was
intercepted in 2020 by the United States Coast Guard in the high seas near Mexico. The
vessel was found to be carrying cocaine, and Montes Cabrera was arrested. He pleaded
guilty to possessing cocaine with intent to distribute while on a vessel subject to the
jurisdiction of the United States in violation of 46 U.S.C. § 70503. He was sentenced in
2023 to 60 months’ imprisonment.
In May 2024 the Department of Homeland Security issued an order of expedited
removal against Montes Cabrera under 8 U.S.C. § 1225(b)(1), determining that he was
an immigrant without valid documentation and therefore inadmissible under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I).
The following month, Montes Cabrera petitioned under 28 U.S.C. § 2241 for a
writ of habeas corpus to challenge the expedited removal order. (He filed his petition in
the United States District Court for the District of Columbia, but the petition was
transferred to the Western District of Wisconsin—the jurisdiction where he was
incarcerated.) He argued that he was entitled to have his case resolved through a formal
removal proceeding in an immigration court (and be permitted to leave voluntarily)
rather than through expedited removal proceedings. Invoking 8 U.S.C.
§ 1225(b)(1)(A)(iii), a provision authorizing expedited removal of non-arriving aliens
who have been in the United States for up to two years, he argued that he had been
physically present in the United States for more than two years before issuance of the
removal order.
The district judge dismissed the petition for lack of subject matter jurisdiction.
See F ED. R. C IV. P. 12(h)(3) (authorizing dismissal if court determines “at any time” that
subject matter jurisdiction is lacking). The judge explained that 8 U.S.C. § 1252(a)(5)
stripped district courts of jurisdiction over challenges to final orders of removal.
On appeal Montes Cabrera argues that he qualifies for a narrow exception to the
jurisdiction-stripping provisions of § 1252(e)(2). That subsection permits “[j]udicial
review of [certain expedited removal] determination[s]” in “habeas corpus
proceedings,” though such review is limited to petitions seeking a determination of:

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No. 24-3079 Page 3
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under [the expedited removal]
section, and
(C) whether the petitioner ... is an alien lawfully admitted for permanent
residence, has been admitted as a refugee under section 1157 of this title, or has
been granted asylum under section 1158 of this title.
§ 1252(e)(2)(A)–(C). Montes Cabrera invokes subparagraph (A) and argues that he
wishes to challenge his classification as an “alien” subject to expedited removal. He
proposes that the term “alien” is defined in § 1225(b)(1)(A)(iii)(II), a provision that
addresses which individuals will be subject to expedited removal. He reads the
provision to define an alien as one—unlike himself—who has not been physically
present for the two years preceding a determination of inadmissibility.
Montes Cabrera misinterprets the statutory provision. Section
1225(b)(1)(A)(iii)(II) does not define the term “alien”; it merely designates one category
of persons who will be subjected to expedited removal. The provision states that the
expedited removal process applies to those persons not paroled or admitted into the
United States who cannot prove that they have “been physically present in the United
States continuously for the 2-year period immediately prior to the date of the
determination of inadmissibility.” The term “alien,” in fact, is defined by the
Immigration and Nationality Act as “any person not a citizen or national of the United
States,” 8 U.S.C. § 1101(a)(3), and this definition applies to the entire Act, id. § 1101(a),
including the jurisdictional exceptions set forth in § 1252(e). Because Montes Cabrera is
not a United States citizen, he is deemed an alien within the meaning of the Act. His
petition does not satisfy any of the § 1252(e)(2) exceptions, and the district judge
properly dismissed his petition.
AFFIRMED

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