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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JOSE ADOLFO ZALDANA-MENJIVAR, 

 Petitioner, Case No. 15-cv-12512 

 Hon. Matthew F. Leitman 

v. 

DIRECTOR, BUREAU OF IMMIGRATION 

AND CUSTOMS ENFORCEMENT, 

 Respondent. 

__________________________________________________________________/ 

ORDER GRANTING EMERGENCY MOTION TO VACATE STAY OF 

REMOVAL (ECF #4), VACATING STAY (ECF #3), AND REQUIRING 

RESPONDENT TO PROVIDE UPDATE ON PETITIONER’S STATUS ON 

SEPTEMBER 1, 2015 

 

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Petitioner Jose Adolfo Zaldana-Menjivar (“Petitioner”), a citizen of El 

Salvador, is subject to a final order of removal from this country. He is currently 

in the custody of United States Immigration and Customs Enforcement (“ICE”) as 

he awaits removal. Petitioner has filed a petition for a writ of habeas corpus in this 

Court pursuant to 28 U.S.C. § 2241 (the “Petition”) in which he alleges that he is 

being unlawfully detained as his removal is processed. (See ECF #1.)1

 

On August 6, 2015, this Court entered an order temporarily staying 

Petitioner’s removal and ordering the Respondent to respond to the Petition. (See 

ECF #3.) Respondent has now asked the Court to vacate the stay and allow 

Petitioner’s removal to El Salvador. (See ECF #4.) Petitioner responds that the 

stay should remain in place. (See ECF #8.) 

The Court has carefully reviewed the Petition and both parties’ briefs and 

supporting documents. The Court concludes that oral argument is not necessary. 

See Local Rule 7.1(f)(2). For the reasons stated below, the Court GRANTS

Respondent’s motion to vacate the stay of removal and VACATES the stay. 

                                                            

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 Petitioner is not now challenging – and concedes that he cannot challenge in this 

action – the underlying removal over. As Petitioner properly recognizes, pursuant 

to the REAL ID Act of 2005, this Court has no jurisdiction to review the order 

authorizing Petitioner’s removal from this country. See 8 U.S.C. § 1252(a)(5) & 

(g); see also Jaber v. Gonzalez, 486 F.3d 223, 230 (6th Cir. 2007) (The REAL ID 

Act of 2005 clearly eliminated a habeas petition as a means for judicial review of a 

removal order”). Petitioner is currently contesting his removal in a separate action 

pending in the United States Court of Appeals for the Sixth Circuit. See ZaldanaMenjivar v. Lynch, Case No. 15-3081 (filed Feb. 3, 2015). 

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RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY 

 Petitioner was born in El Salvador in 1989. Petitioner says that he first came 

to the United States “when he was sixteen years old in an attempt to escape [the] 

escalating violence” in his home country. (See ECF #8 at 1, Pg. ID 67.) In 2009, 

Petitioner was convicted for possession of cocaine. (See Petition at ¶13.) 

According to Ericka Walker, an ICE Deportation Officer, Petitioner was thereafter 

“removed from the United States to El Salvador on October 9, 2009” pursuant to 

an order signed by an immigration judge. (Declaration of Ericka Walker, ECF #4-2 

at ¶5.) 

 Petitioner illegally returned to the United States “sometime after his 

removal” in March 2010. (Id.) On March 24, 2014, ICE took Petitioner into 

custody as an “unlawfully present criminal re-entry alien.” (Id. at ¶6.) 

 After he was taken into custody, Petitioner sought asylum in this country on 

the ground that he would be beaten and tortured by gang members if he was 

returned to El Salvador. The asylum officer concluded, based on Petitioner’s 

testimony, that Petitioner “demonstrated a reasonable fear of torture.” (ECF #8-1 

at 4, Pg. ID 73.) 

 Petitioner’s matter was then transferred to an immigration court in Detroit. 

(See Petition at ¶16.) Petitioner sought to avoid removal to El Salvador on the 

basis that he would be abused by gang members upon his return to that country. 

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The immigration judge considered Petitioner’s arguments and rejected them. On 

October 17, 2014, the immigration judge ordered Petitioner removed from the 

United States. (See ECF #1-3 at 2, Pg. ID 16.) 

 Petitioner then appealed the immigration judge’s ruling to the Board of 

Immigration Appeals (the “BIA”). (See Petition at ¶18.) The BIA dismissed 

Petitioner’s appeal, thereby affirming the immigration judge’s decision, on January 

14, 2015. (See ECF #1-4.) On that date, Petitioner’s order of removal became 

administratively final. See 8 U.S.C. § 1101(a)(47)(B). 

 On February 3, 2015, Petitioner sought review of the BIA’s decision in the 

United States Court of Appeals for the Sixth Circuit. See Zaldana-Menjivar v. 

Lynch, Case No. 15-3081 (filed Feb. 3, 2015). Petitioner also sought a stay of his 

removal proceedings while his appeal was pending. The Sixth Circuit denied a 

stay on February 11, 2015, concluding that Petitioner “ha[d] not made the requisite 

strong showing of a likelihood of success on the merits of his withholding of 

removal claim.” (See ECF #4-3.) 

 Petitioner has been in ICE custody since March of 2014. (See Petition at 

¶19.) 

 

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ANALYSIS 

A. The Framework for Assessing the Legality of Detention Following 

 Entry of a Final Order of Removal 

Once an order of removal becomes final, “the Attorney General shall 

remove the alien from the United States within a period of 90 days.” 8 U.S.C. 

§ 1231(a)(1)(A). This 90-day period is known as the “removal period.” Id. 

“During the removal period, the Attorney General shall detain the alien.” 8 U.S.C. 

§ 1231(2). Under certain circumstances, the Attorney General may continue to 

detain an alien subject to a final order of removal beyond the removal period. See 

8 U.S.C. § 1231(a)(6). For example, if an alien has committed certain crimes, or if 

the Attorney General determines that an alien is “a risk to the community or [is] 

unlikely to comply with the order of removal,” the Attorney General may extend 

the alien’s detention. See 8 U.S.C. § 1231(a)(6). 

 But ICE’s authority to continue an alien’s detention following the removal 

period is not unlimited. In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme 

Court held that § 1231 “does not permit indefinite dentition.” Id. at 689. Instead, 

the statute “limits an alien's post-removal-period detention to a period reasonably 

necessary to bring about that alien's removal from the United States.” Id. In 

addition, “once removal is no longer reasonably foreseeable, continued detention is 

no longer authorized by statute.” Id. at 699. 

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 The Supreme Court concluded in Zadvydas that a six month period of postremoval-period detention is “presumptively reasonable.” Id. at 701. “After this 6–

month period, [if] [an] 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.” Id. 

The Supreme Court further explained that “[t]his 6–month presumption, of course, 

does not mean that every alien not removed must be released after six months. To 

the contrary, an alien may be held in confinement until it has been determined that 

there is no significant likelihood of removal in the reasonably foreseeable future.” 

Id.

B. Petitioner Is Not Entitled to Release Under Zadvydas

 Petitioner argues that he is entitled to release under Zadvydas because (1) he 

has been in custody for more than six months since his removal order became final 

and (2) his removal is neither imminent nor reasonably foreseeable. However, the 

undisputed evidence before the Court establishes that Petitioner’s removal is, 

indeed, imminent. 

 Ms. Walker of ICE has submitted a sworn Declaration in which she states 

that the government of El Salvador has issued the travel papers necessary to allow 

ICE to remove Petitioner to El Salavador. (See ECF #4-2 at ¶¶ 11-12.) Ms. 

Walker further explains that the travel papers expire at the end of this month and 

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that ICE plans to remove Petitioner as soon as the Court allows. (See id. at ¶¶ 12-

14.) In fact, ICE had scheduled Petitioner’s removal for the week of August 10, 

but ICE was forced to cancel that removal once this Court entered its stay order. 

(See id. at ¶ 13.) 

 Courts have repeatedly held that once ICE obtains travel documentation, or 

even the promise that such documentation is forthcoming from the government of 

a petitioner’s home country, removal is sufficiently foreseeable (if not imminent) 

such that the continued detention of an alien subject to a final order of removal is 

permissible under Zadvydas. See e.g., Jaing Lu v. U.S. ICE, 22 F.Supp.3d 839, 844 

(N.D. Ohio. 2014) (“[p]etitioner’s continued detention [was not] unconstitutional” 

where ICE believed “travel documents would be issued in the near future”); Ismet 

v. Ashcroft, 2005 WL 147073, at *1 (E.D. Pa. Jan. 21, 2005) (report and 

recommendation) (denying alien’s habeas petition where “government [has] 

state[d] that all necessary travel documents for the petitioner have been obtained 

and his removal within the next several weeks is imminent”); Juma v. Mukasey, 

2009 WL 2191247, at *4 (S.D.N.Y. July 23, 2009) (report and recommendation) 

(concluding government “has amply rebutted [petitioner’s] claim that continued 

violation violated his due process rights” where it obtained travel documents and 

showed that removal was imminent); Fordjour v. Holder, 2012 WL 2090138, at *3 

(E.D. Cal. June 8, 2012) (report and recommendation), adopted at 2012 WL 

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2127482 (concluding that government’s evidence that travel documents had been 

provided “establishes that petitioner’s removal is imminent” and therefore not 

unlawful). Here, Petitioner cannot show that his detention runs afoul of Zadvydas

because his “removal is not merely reasonably foreseeable, it is imminent.” Wang 

v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003). 

 Notably, Petitioner does not contend otherwise in his response to 

Respondent’s motion to vacate the stay. Petitioner does not cite any evidence to 

counter Respondent’s showing that removal is imminent, nor does Petitioner cite a 

single case or statute that would support his request for release from ICE custody 

in light of his fast-approaching removal. Instead, Petitioner stresses the danger that 

he will face upon return to El Salvador. The Court takes Petitioner’s concerns very 

seriously. However, as explained in the footnote above, this Court has no authority 

to block Petitioner’s removal or order his release based upon the conditions that he 

may encounter in El Salvador; the Sixth Circuit has the exclusive authority to grant 

relief, if any, based on the circumstances that Petitioner claims he will face 

following removal. Simply put, on the current record before the Court, and under 

the circumstances of this case, the Court may not properly order Petitioner’s 

release from ICE custody nor block his removal to El Salvador. 

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CONCLUSION 

 For the reasons stated above, IT IS HEREBY ORDERED that 

 Respondent’s Emergency Motion to Vacate Stay of Removal (ECF #4) is 

GRANTED; 

 The Court’s August 6, 2015, Order staying removal proceedings (ECF #3) is 

VACATED; and 

 Respondent shall provide the Court with an update in writing on Petitioner’s 

status on September 2, 2015. If, contrary to ICE’s current plan, Petitioner 

remains in custody as of that date, Petitioner may renew his request for 

release, and the Court will consider the renewed request. 

 /s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

 

Dated: August 14, 2015 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on August 14, 2015, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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