Opinion
Case No. 15-C-295
04-10-2015
FELIX D. GUZMAN-RIVADENEIRA, Petitioner, v. DAVID G. BETH, Kenosha County Sheriff, Respondent.
DECISION AND ORDER
The pro se Petitioner, Felix D. Guzman-Rivadeneira ("Guzman"), is currently being detained by Respondent David Beth ("Beth"), at the Kenosha County Detention Center pursuant to a final order of removal for deportation to Ecuador, and has filed a petition for relief under 28 U.S.C. § 2241. (ECF No. 1). Guzman cites Zadvydas v. Davis, 533 U.S. 678, 701 (2001) and asserts that he should be released because he has been in custody since April 9, 2014, and the order of removal became final on June 26, 2014. (Pet. ¶ 11.) If Guzman's allegations are true, his removal detention period is three months longer than the presumptive 6-month period. See id. ("[a]fter this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing.").
Guzman filed a petition for review of the removal order on December 18, 2014, which is awaiting briefing. See Guzman-Rivadeneira v. Holder, USCA No. 14-3734 (7th Cir.) If a removal order is judicially reviewed and the court orders a stay of the removal of the alien, the removal period does not begin to run until the "date of the court's final order." See 8 U.S.C. § 1231(a)(1)(B)(ii). As of April 2, 2015, the court of appeals' docket for Guzman's judicial review action does not indicate that the removal order has been stayed.
Guzman also states that this action arises under the United States Constitution, Immigration and Naturalization Act ("INA") as amended by the Illegal Immigration Reform and Responsibility Acts of 1996 ("IIRIRA"), 8 U.S.C. § 1101 et seq., Administrative Procedure Act, 5 U.S.C. § 705 et seq., and that Court may grant relief under § 2241, the APA, and the All Writs Act, 28 U.S.C. § 1651. (Pet. ¶¶ 2-3.)
Guzman alleges that although he has cooperated fully with the United States Immigration and Customs Enforcement ("ICE"), it has been unable to remove him to Ecuador or any other country and that there is good reason to believe that his removal will not be secured in the foreseeable future. He also alleges that he has exhausted his administrative remedies. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004) (requiring that a § 2241 applicant exhaust administrative remedies.) Guzman maintains that his continued custody violates 8 U.S.C. § 1231(a)(6) as interpreted by Zadvydas.
Section 1231(a)(6) states:
An alien ordered removed who is inadmissible under section 1182 of this title, removable under section 1227 (a)(1)(C), 1227 (a)(2), or 1227 (a)(4) of this title or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that the Court is to make a preliminary review and "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Guzman is in custody pursuant to the detention he now challenges, and raises arguable constitutional claims. At this stage of the proceedings, the Court cannot conclude that the writ sought by Guzman should not issue or that the application is plainly without merit. Accordingly, the Court will require Beth to file an answer showing cause why the application should not be granted.
No rules have been promulgated specifically for § 2241 applications. Rule 1 of the Rules Governing Section 2254 Cases in the United States District Courts states that the district court may apply any or all of the § 2254 rules to a habeas corpus petition not specifically covered by those rules. Civil Local Rule 9(a)(2) (E.D. Wis.) also states that the Court may apply any of the Rules Governing Section 2254 Cases in the United States District Courts to an application for release from custody pursuant to 28 U.S.C. § 2241.
Guzman also seeks appointment of counsel and has provided financial information demonstrating that he unable to retain counsel. The Court will address whether to appoint counsel after the answer has been filed.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT:
Beth is SUBSTITUTED as a Respondent in this action;
Holder is DISMISSED from this action;
On or before May 4, 2015, Beth MUST FILE AN ANSWER showing cause, if any, why this writ should not issue with respect to Guzman's petition for a writ of habeas corpus. The answer should contain the information required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts;
The Clerk of Court is DIRECTED TO SERVE the petition and a copy of this Order upon Beth; and
Pursuant to Fed. R. Civ. P. 4(i), the Clerk of Court is DIRECTED to send a copy of the petition and this Order to the United States Attorney for this District; and to send a copy of the petition and Order via registered or certified mail to the United States Attorney General in Washington, D.C., the United States Immigration and Customs Enforcement, and the United States Department of Homeland Security.
Dated at Milwaukee, Wisconsin, this 10th day of April, 2015.
BY THE COURT:
/s/ _________
HON. RUDOLPH T. RANDA
U.S. District Judge