LINARES v. DEPARTMENT OF HOMELAND SECURITY

Filing 21

ORDER DISMISSING THE PETITION BUT GRANTING LEAVE TO AMEND - ADOPTING 19 Report and Recommendation. Signed by JUDGE ROBERT L HINKLE on 11/8/13. (Mr. Llovera may file an amendedpetition by not later than December 8, 2013. The clerk must mail a petition formto Mr. Llovera with the service copy of this order.) (deb)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

RAFAEL A. LLOVERA LINARES,
Petitioner,
v.

CASE NO. 4:13cv32-RH/CAS

DEPARTMENT OF HOMELAND
SECURITY,
Respondent.
_____________________________/

ORDER DISMISSING THE PETITION
BUT GRANTING LEAVE TO AMEND

By petition for a writ of habeas corpus under 28 U.S.C. § 2241, Rafael A.
Llovera Linares challenged an order for his deportation. As a small part of the
long petition, Mr. Llovera asserted that he had been detained longer than allowed
by Zadvydas v. Davis, 533 U.S. 678 (2001). But the three explicit claims and the
prayer for relief did not seem to include a Zadvydas claim; their focus was entirely
on the alleged invalidity of the deportation order. I dismissed the petition on the
ground that the challenge to the deportation order was within the exclusive
jurisdiction of the Court of Appeals. The Court of Appeals did not disagree but

Case No. 4:13cv32-RH/CAS

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reversed the dismissal and remanded for consideration of the Zadvydas issue that
the court deemed properly presented by the petition.
The petition is back before the court on the magistrate judge’s report and
recommendation, ECF No. 19. No objections have been filed.
The report and recommendation correctly concludes that the petition fails to
state a claim under Zadvydas on which relief can be granted. This is so because
the petition affirmatively asserts that immigration officials have tried to deport Mr.
Llovera but he has refused to go. As the cases cited in the report and
recommendation make clear, an alien who is still in detention only because the
alien refuses to leave the country is not entitled to relief under Zadvydas.
This order accepts the recommendation to dismiss the petition. The order
provides Mr. Llovera an opportunity to file an amended petition. An amended
petition must be a complete petition standing alone; it cannot carry forward
allegations from the original petition. An amended petition should omit the claims
asserting that the deportation order is invalid. An amended petition will be
dismissed unless it includes an allegation that Mr. Llovera is willing to cooperate
in his deportation but that his removal in the foreseeable future is nonetheless
unlikely. Unless Mr. Llovera can make such an allegation in good faith, he should
not file an amended petition.
For these reasons,

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IT IS ORDERED:
The report and recommendation is ACCEPTED and adopted as the court’s
further opinion. The petition is dismissed. Mr. Llovera may file an amended
petition by not later than December 8, 2013. The clerk must mail a petition form
to Mr. Llovera with the service copy of this order.
SO ORDERED on November 8, 2013.
s/Robert L. Hinkle
United States District Judge

Case No. 4:13cv32-RH/CAS