Rodriguez v. Guadian et al

Filing 10

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is denied. Signed by District Judge John W. Lungstrum on 02/18/21. (smnd) Modified text on 2/18/2021. (smnd)

Case 5:20-cv-03297-JWL Document 10 Filed 02/18/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HENRY RIVERA RODRIGUEZ,
Petitioner,
v.

CASE NO. 20-3297-JWL

ROBERT GUADIAN, et al.,
Respondents.

MEMORANDUM AND ORDER
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241.
Petitioner is currently detained at the Chase County Jail in Cottonwood Falls, Kansas, on the
authority of the Enforcement and Removal Operations (“ERO”), Immigration and Custom
Enforcement (“ICE”), a sub agency of the U.S. Department of Homeland Security (“DHS”).
Petitioner seeks immediate release from custody, asserting that his continued detention pending
removal has exceeded the six-month period considered presumptively reasonable.
On January 25, 2021, the Court entered a Memorandum and Order (Doc. 6) setting forth
the underlying facts and legal standards in detail. The Court found that Petitioner met the initial
burden under Zadvydas v. Davis, 533 U.S. 678 (2001), by showing that he had been held for
more than six months following the order of removal without any significant likelihood of
removal in the reasonably foreseeable future. The Court found that the burden therefore shifted
to Respondents to rebut that showing.
Respondents assert that Venezuela has not refused to accept Petitioner; to the contrary,
Venezuela previously issued a travel document to facilitate Petitioner’s removal and has recently
indicated its intent to provide an updated travel document to replace the one that expired.

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Case 5:20-cv-03297-JWL Document 10 Filed 02/18/21 Page 2 of 3

Respondents allege that since flights to Venezuela have now resumed from a select few
countries, it is anticipated that ERO will be able to either remove Petitioner to Venezuela or
escort him to a last port destination (e.g. Mexico) and visually observe Petitioner board an
outbound plane destined to Venezuela to effect Petitioner’s removal. Respondents state that
“ICE ERO anticipates a tentative removal date scheduled to occur before January 31, 2021.”
(Doc. 3, at 12.)
The Court ordered the parties to submit status reports in light of a January 20, 2021
Memorandum by the Acting Secretary of DHS, placing a 100-day moratorium on removals and
directing the Acting Director of ICE to submit instructions and guidance on implementation of
the removal pause by February 1, 2021. The parties have now filed status reports (Docs. 7, 8
and 9), indicating that the United States District Court for the Southern District of Texas has
entered a nationwide temporary restraining order enjoining the 100-day pause on removals until
February 23, 2021. See Doc. 7–1, at 11–28 (Order Granting Plaintiff’s Emergency Application
for a Temporary Restraining Order); Doc. 9–1 (extending the TRO pending consideration of
preliminary injunction).
Respondents anticipated a tentative removal date scheduled to occur before January 31,
2021. Although this tentative date has passed, the Court finds that Respondents have met their
burden of rebutting the showing that there is no significant likelihood of removal in the
reasonably foreseeable future. Respondents have shown that: currently there is no pause on
removals; Venezuela previously issued travel documents to facilitate Petitioner’s removal and
has indicated its intent to provide updated travel documents to replace the expired documents;
flights to Venezuela have resumed from select countries; and ERO anticipates that it will be able
to either remove Petitioner to Venezuela or escort him to a last port destination (e.g. Mexico) and

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Case 5:20-cv-03297-JWL Document 10 Filed 02/18/21 Page 3 of 3

visually observe Petitioner board an outbound plane destined to Venezuela to effect Petitioner’s
removal. Therefore, the petition for habeas corpus is denied.
IT IS THEREFORE BY THE COURT ORDERED that the petition for habeas corpus
is denied.
IT IS SO ORDERED.
Dated February 18, 2021, in Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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