Unreported / Non-Citable
Background
Antonio Olivares Barrientos, a Cuban citizen and national, was ordered removed by an immigration judge in 2003 and was detained for removal on July 23, 2026. He alleged that he had spent more than three years in immigration detention in the aggregate and argued that removal to Cuba was unlikely because the government had not identified a third country willing to accept him.
The government presented evidence that officials informed Olivares Barrientos he would be removed to Mexico, but that he refused to sign documents for removal to Mexico on September 8, 2026, and indicated that he would not depart for Mexico that day. Contending that his post-removal-order detention had exceeded the six-month period discussed in Zadvydas v. Davis, he petitioned for habeas relief under 28 U.S.C. § 2241.
The Court’s Holding
The court denied the habeas petition. It held that the Zadvydas framework does not afford relief when a detainee’s own conduct causes the delay in removal. Under 8 U.S.C. § 1231(a)(1)(C), the statutory removal period is extended, and detention may continue, when a noncitizen refuses to make a good-faith application for necessary travel documents or acts to prevent removal.
Because the record established that Olivares Barrientos refused to cooperate and actively resisted removal to Mexico, the court concluded that the removal period was suspended by operation of law. He therefore could not make the threshold Zadvydas showing that there was no significant likelihood of removal in the reasonably foreseeable future. The court found no statutory or constitutional violation, denied all pending motions as moot, and ordered the case closed.
Key Takeaways
- The six-month presumption recognized in Zadvydas addresses the government’s inability to accomplish removal, not delay caused by a detainee’s own obstruction.
- Refusing to sign removal documents or otherwise resisting departure may extend the removal period under 8 U.S.C. § 1231(a)(1)(C) and permit continued detention.
- A detainee who actively prevents removal cannot establish the threshold showing required to shift the evidentiary burden to the government under Zadvydas.
Why It Matters
The decision distinguishes prolonged detention caused by practical or diplomatic barriers from detention prolonged by a noncitizen’s refusal to cooperate. In the latter circumstance, the court treated the statutory removal period as suspended and declined to apply the ordinary Zadvydas presumption in the detainee’s favor.
For practitioners, the factual record concerning travel documents, proposed destinations, and a client’s cooperation may determine whether a post-removal-order detention claim can proceed beyond the initial Zadvydas threshold.