LAURINDO

v.

UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)

Defendant. /

OPINION AND ORDER1

Before the Court is Petitioner Lucas Dos Reis Laurindo’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) filed on February 24, 2020. Respondent filed a Response (Doc. 8) on March 9, 2020. Petitioner was informed that he could file a reply but did not file. For the following reasons, the Court denies the Petition.

BACKGROUND

Petitioner is a citizen of Brazil and entered the United States on a B² tourist visa on August 24, 2019, with authorization to remain in the country until February 23, 2020. Petitioner was involved in a motor vehicle accident leading to the death of four individuals. (Doc. 1, Ex. A at ¶ 2). As part of the Florida Highway Patrol’s investigation of the accident, officers discovered that Petitioner was employed by Cramcrete LLC as a fulltime truck driver, in violation of his B² visa. (Doc. 1, Ex. A at ¶ 3).

JURISDICTION AND TRANSFER

Petitioner initiated this by filing his Petition with the United States District Court in for the Middle District of Florida, Orlando Division where he was detained after his arrest.

After service upon and a Response from Respondents, the Orlando Division transferred the case to this Court. The Orlando Division found the proper venue to be the Fort Myers Division because Petitioner had been transferred from Orlando to Krome to Moore Haven, in Glades County after filing his Petition.

Jurisdiction attaches upon the initial filing for habeas corpus relief and jurisdiction is not destroyed upon transferring petitioner and custodial change.

Once the court has acquired jurisdiction in a habeas corpus proceeding, such jurisdiction continues until the court has performed all acts necessary to grant all relief as is indicated in its jurisdictional power. Even the release of the prisoner from custody prior to completion of proceedings on the application, or transfer of custody to another person or place, will not divest the court of jurisdiction. 39 C.J.S. Habeas Corpus § 285 (Feb. 2020), citing inter alia, Ex parte Catanzaro, 138 F. 2d 100, 101 (3d Cir. 1943) (“[W]e do not believe that passing about of the body of a prisoner form one custodian to another after a writ of habeas corpus has been applied for can defeat jurisdiction of the Court to grant or refuse the writ on the merits of the application.”). The Supreme Court reaffirmed the continuing jurisdiction of the court once the habeas rule is satisfied. “Endo² stands for the important but limited proposition that when the Government moves a habeas petitioner after he properly files a petition naming his immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release.” Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004). This principle ingrained in habeas law prevents “the Kafkasque3 specter of supplicants wandering endlessly from one jurisdiction to another in search of a proper forum only to find that it lies elsewhere.” Eisel v. Sec’y of the Army, 477 F2d. 1251, 1258 (D.C. Cir. 1973). See also Griffin v. Ebbert, 751 F. 3d 288, 290 (5th Cir. 2014)(collecting cases). Indeed, Petitioner has been moved three times since being incarceration and placed in custody of ICE. But despite his recent movement to Moore Haven, he remains in an ICE contracted detention facility.

While there is no per se rule which prohibits transferring this action back and arguably transfer by the appellate court if appealed by petitioner might be proper, see Griffin, 751 F. 3d 290, (on appeal by petitioner finding jurisdiction attached once petition properly filed and vacating transferee’s dismissal of petition and transferring habeas back to original court for expeditious hearing on merits or approval of substitution of custodian),

as a general rule the transferee court should not re-transfer a case “except under the most impelling and unusual circumstances.” In re Crager Industries, 706 F. 2d 503, 505 (5th Cir. 1983). The Court will rule of the merits of the Petition to avoid the further delay of an adjudication of the underlying Petition.

DISCUSSION

Petitioner argues his Habeas Petition should be granted releasing him from custody because his arrest violated his Fifth Amendment right to due process. The Fifth Amendment states that no person shall be deprived of life, liberty, or property without due process of law. Respondent argues that Petitioner’s arrest and detention were lawful, his

Petition is premature because Petitioner failed to exhaust his administrative remedies, and his claim is barred by 8 U.S.C. § 1252(g).

The Supreme Court has held a six-month period of detention is presumptively reasonable to effectuate removal; after which, an alien is eligible for conditional release if he can show there is “no significant likelihood of removal in the reasonable foreseeable future.” Clark v. Martinez, 543 U.S. 371, 378 (2005) (quoting Zadvydas, 533 U.S. at 701). This six-month presumptively reasonable period must have expired when a petition is filed. Akinwale v. Ashcroft, 287 F. 3d 1050, 1052 (11th Cir. 2002).

When Petitioner filed his Petition, his six-month period had not yet expired. Agents arrested Petitioner and took him into custody on February 21, 2020, he was transferred to Krome on February 24, 2020 and filed his Petition on the same day. When this Petition was filed, Petitioner had been in custody only three days, considerably less than the 180- day presumptive reasonable period.

The Petition is dismissed without prejudice as premature. Assuming Petitioner is still in custody at the expiration of the 180-day presumptive reasonable period, he may file a new petition, accompanied by the requisite filing fee or motion to proceed in forma pauperis, if he wishes to contest his continued detention.⁴

Accordingly, it is now ORDERED: Petitioner Lucas Dos Reis Laurindo’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) is DISMISSED without prejudice, as premature. DONE and ORDERED in Fort Myers, Florida this 9th day of April 2020.

UNITED STATES DISTRICT JUDGE

SA: FTMP-2 Copies: All Parties of Record