Fernandez v. Department of Homeland Security

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 1 Application/Petition (Complaint) for Writ of Habeas Corpus filed by Zenon Fernandez ; adopting Report and Recommendations re 4 Report and Recommendations; Denying Petition for Writ of Habeas Cor pus; Certificate of Appealability: DENIED; Closing Case. Signed by Judge Robert N. Scola, Jr. on 5/17/2017. (ls) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Zenon Fernandez, Petitioner,

)
)
)
v.
Civil Action No. 17-21455-Civ-Scola
)
Department of Homeland Security, )
Respondent.
Order Adopting Magistrate Judge’s Report And Recommendation
This case was referred to United States Magistrate Judge Patrick A.
White, consistent with Administrative Order 2003-19 of this Court, for a ruling
on all pre-trial, nondispositive matters and for a report and recommendation
on any dispositive matters. On April 24, 2017, Judge White issued a report,
recommending that the petition for habeas corpus, brought in accordance with
28 U.S.C. § 2241, be denied and the case dismissed. (Rep. of Magistrate, ECF
No. 4.) Petitioner Zenon Fernandez has filed objections to the report. (Obj. to
Mag.’s Rep., ECF No. 7.)
The Court has considered, de novo, Judge White’s report, the Petitioner’s
objections, the record, and the relevant legal authorities. Fernandez’s
complaint appears to be twofold. First, he challenges the propriety of a detainer
lodged against him by the United States Department of Homeland Security,
Bureau of Immigration and Customs Enforcement. And, second, he complains
that the detainer has resulted in his placement in “close” custody, during his
confinement by the Florida Department of Corrections, in violation of his due
process rights.
Judge White explains, in his report, that Fernandez’s challenge to his
future ICE detention, upon his release from state custody, is not yet ripe for
review. In his objections, Fernandez says that he is “under the honest belief”
that “he was telephonically deported by the ICE official with whom he spoke”
but that the deportation order “cannot [be] verif[ied].” (Pet.’s Objs. at 1–2.)
Although it is true that a detainer coupled with a deportation order has been
found in some cases to confer jurisdiction on a district court, see, e.g.,
Simmonds v. I.N.S., 326 F.3d 351, 354 (2d Cir. 2003), here Fernandez has not
presented sufficient evidence that there is such an order. Thus, his claims
must fail because the “filing of the detainer, standing alone, did not cause him
to come within the custody of the INS.” Louis v. Sec’y, Florida Dep’t of Corr.,
524 F. App'x 583, 584 (11th Cir. 2013) (quoting Orozco v. U.S. INS, 911 F.2d
539, 541 (11th Cir.1990).

The Court therefore affirms and adopts Judge White’s report and
recommendation (ECF No. 4). The Court denies the petition for writ of habeas
corpus (ECF No. 1). The Court does not issue a certificate of appealability.
Lastly, the Court directs the Clerk to close this case.
Done and ordered, at Miami, Florida, on May 17, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge