Verde-LLanes v. Moniz

Filing 11

District Judge Leo T. Sorokin: ORDER entered. The Court hereby ORDERS as follows:1. The respondent shall provide an updated status report by the close of business on December 4, 2017, describing: a) the current status of its effo rts to remove Verde-Llanes, including whether the United States has provided the additional information Cuba requested, what (if any) response Cuba has provided to such information, and what other steps must be taken in order to remove Verde-Llanes; and b) the extent to which diplomatic relations and, specifically, repatriation efforts involving the United States and Cuba have changed in the ten months since the January 2017 agreement, including when the last removal of a Cuban national from the United States took place.2. Verde-Llanes shall respond to the motion to dismiss by December 4, 2017. Should he fail to respond to the motion, he risks dismissal of his petition due to failure to prosecute and failure to obey this Order. SO ORDERED. A copy of this Order has been mailed to the Petitioner via first and certified mail (#7746). ( Responses due by 12/4/2017), ( Status Report due by 12/4/2017)(Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
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ALBERTO VERDE-LLANES,
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Petitioner,
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v.
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Civil Action No. 17-11894-LTS
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SUPERINTENDENT ANTONE MONIZ, )
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Respondent.
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)
ORDER
November 20, 2017
SOROKIN, J.
Alberto Verde-Llanes, a Cuban citizen who came to the United States via the Mariel
boatlift, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on
October 2, 2017. Doc. No. 1. He challenges his detention by the Department of Homeland
Security, Immigration and Customs Enforcement (“ICE”), asserting his removal is not
reasonably foreseeable. Id. In an Order dated October 11, 2017, the Court directed the
respondent to “show cause why the Petition should not be granted” and to “inform the Court of
(i) the existence of and status of any repatriation agreement between the United States and Cuba;
and (ii) the status of Respondent’s efforts to repatriate Petitioner to Cuba.” Doc. No. 6.
On October 26, 2017, the respondent moved to dismiss the petition, Doc. No. 9, arguing
that it is “premature” and “states no legal basis for relief from custody” because “ICE is working
to secure Petitioner’s removal to Cuba, and his confinement is within the six-month period
deemed presumptively reasonable by the Supreme Court,” Doc. No. 10 at 1-2. In the
respondent’s view – based on non-binding decisions rendered by federal courts in other

jurisdictions – individuals like the petitioner may not seek release pursuant to Zadvydas v. Davis,
533 U.S. 678 (2001), until they have been in custody for at least six months.1
Preliminarily, it bears noting that the First Circuit has not interpreted Zadvydas as
creating an irrebuttable presumption that detention for less than six months is lawful (regardless
whether the detainee’s eventual removal is reasonably foreseeable or even possible); indeed, it
has not spoken on this question.2 As to the specific issues raised by this Court’s October 11,
2017 Order, the respondent’s motion and supporting documents: 1) include a general declaration
by an immigration officer that “ICE has routinely conducted repatriation flights, as needed, to
Havana, Cuba to facilitate the removal from the United States of Cuban Nationals”; 2) generally
cite a January 12, 2017 agreement between the two nations to “communicate . . . through
diplomatic channels” regarding the repatriation of Cuban nationals in the United States, pursuant
to which Cuba will “review, approve, or den[y]” requests to repatriate individuals in the “Mariel
Exchange category” within sixty days of a request by the United States; and 3) aver that ICE sent
the Cuban government a “diplomatic note” about Verde-Llanes on August 15, 2017, and that
Cuba has requested additional information. Doc. No. 10 at 4-5; Doc. No. 10-2. No further
information about repatriation to Cuba – generally, or as to Verde-Llanes – has been provided.3
Verde-Llanes – a noncriminal alien who has resided in the United States for more than thirtyfive years – was the subject of a final order of removal in October 1992. He did not appeal. He
was not detained pursuant to that order until June 23, 2017. At the time of the respondent’s
motion, Verde-Llanes had been in custody more than four months; today marks the end of his
fifth month in custody. According to Verde-Llanes, he has attempted to expedite his repatriation
and has offered to arrange a voluntary removal. Doc. No. 1 at 3.
2
Zadvydas itself does not plainly resolve this question, as the Court there both “conclude[d] that,
once removal is no longer reasonably foreseeable, continued detention is no longer authorized,”
and also “recognize[d] [six months as a] presumptively reasonable period of detention.” 533
U.S. at 699-701 (citing two decisions adopting “similar presumptions in other contexts,” one of
which adopted a general presumption that the Court explicitly acknowledged was open to
rebuttal in individual cases).
3
It appears the sixty-day period cited by the respondent would have expired for Verde-Llanes on
October 14, 2017.
1

2

Under the Local Rules, Verde-Llanes had fourteen days to oppose the motion to dismiss,
LR 7.1(b)(2), making his opposition due on November 9, 2017. See Fed. Deposit Ins. Corp. v.
Anchor Props., 13 F.3d 27, 31 (1st Cir. 1994) (noting pro se litigants must comply with
applicable federal and local rules). To date, Verde-Llanes has made no filing opposing the
motion or requesting an extension of time to oppose the motion.
In light of the foregoing, the Court hereby ORDERS as follows:
1) The respondent shall provide an updated status report by the close of business on
December 4, 2017, describing: a) the current status of its efforts to remove VerdeLlanes, including whether the United States has provided the additional information
Cuba requested, what (if any) response Cuba has provided to such information, and
what other steps must be taken in order to remove Verde-Llanes; and b) the extent to
which diplomatic relations and, specifically, repatriation efforts involving the United
States and Cuba have changed in the ten months since the January 2017 agreement,
including when the last removal of a Cuban national from the United States took
place.
2) Verde-Llanes shall respond to the motion to dismiss by December 4, 2017. Should
he fail to respond to the motion, he risks dismissal of his petition due to failure to
prosecute and failure to obey this Order. Link v. Wabash R. Co., 370 U.S. 626, 62930 (1962); Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 45-46 (1st Cir.
2002).
SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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