LINARES v. DEPARTMENT OF HOMELAND SECURITY
Filing
9
ORDER OF DISMISSAL, accepting in part 4 Report and Recommendation. Signed by JUDGE ROBERT L HINKLE on 3/11/2013. The clerk must enter a judgment stating, The petition is dismissed without prejudice for lack of jurisdiction. The clerk must close the file. (kdm)
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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 OF DISMISSAL
The petitioner filed this petition for a writ of habeas corpus under 28 U.S.C.
§ 2241. The petition is before the court on the magistrate judge’s report and
recommendation, ECF No. 4. No objections have been filed.
The report and recommendation correctly concludes that the petition
challenges the order for the petitioner’s removal from the United States and that
this court therefore lacks jurisdiction; only the appropriate Court of Appeals has
jurisdiction over a challenge to a removal order. See, e.g., Ivantchouk v. U.S. Atty.
Gen., 417 Fed. Appx. 918, 921 (11th Cir. 2011) (affirming the district court’s
Case No. 4:13cv32-RH/CAS
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dismissal of a challenge to a removal order for lack of subject matter jurisdiction
under 8 U.S.C.§ 1252).
The report and recommendation concludes that the case should be
transferred to the Eleventh Circuit under a provision of the Real ID Act allowing
such a transfer. But by its terms, that provision allows transfer only of a petition
that was pending when the Real ID Act was enacted. See Pub. L. 109-13, § 106(c)
(“If an alien’s case, brought under section 2241 of title 28, United States Code, and
challenging a final administrative order of removal, deportation, or exclusion, is
pending in a district court on the date of the enactment of this division, then the
district court shall transfer the case (or the part of the case that challenges the order
of removal, deportation, or exclusion) to the court of appeals for the circuit in
which a petition for review could have been properly filed under [the new
provisions]”) (emphasis added). A petition that is filed in a district court after the
Real ID Act’s effective date should—perhaps must—be dismissed, not transferred
to the Court of Appeals. See Jay M. Zitter, Annotation, Validity, Construction, and
Application of REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 11 A.L.R.
Fed. 2d 1, § 7 (2006) (collecting cases).
Moreover, the petitioner says an appeal of the removal order already is
pending in the Eleventh Circuit. The better course, therefore, is to dismiss this
petition, leaving the petitioner free to attempt to file a new proceeding in the
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Eleventh Circuit only if he wishes to do so. This will avoid unnecessary
procedural complexity.
Accordingly,
IT IS ORDERED:
The report and recommendation is ACCEPTED in part. The clerk must
enter a judgment stating, “The petition is dismissed without prejudice for lack of
jurisdiction.” The clerk must close the file.
SO ORDERED on March 11, 2013.
s/Robert L. Hinkle
United States District Judge
Case No. 4:13cv32-RH/CAS
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