Marbin Rodriguez, Petitioner v. Merrick Garland, United States Attorney General,1 et al., Respondents2
DECISION & ORDER Marbin Rodriguez has been detained in the custody of the United States Department of Homeland Security since June 5, 2020 — about 17 months. Docket Item 1 at 4; Docket Item 4-1 at 10. On March 10, 2021, Rodriguez filed a pro se petition for a writ of habeas corpus under 28 U.S.C. §2241, challenging the validity of his detention at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New York. Docket Item 1. On May 3, 2021, the respondents answered the petition, Docket Item 4, and on May 20, 2021, Rodriguez replied, Docket Item 5. For the reasons that follow, this Court grants Rodriguez’s petition in part. FACTUAL AND PROCEDURAL BACKGROUND The following facts, taken from the record, come largely from filings with the United States Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”). Rodriguez is a native and citizen of Honduras. Docket Item 4-1 at 5. He says that he entered the United States in March 1999. Docket Item 1 at 4. Rodriguez was arrested on June 10, 2017, after an encounter with a taxi driver. Docket Item 4-1 at 6. Rodriguez subsequently was convicted of criminal possession of a weapon in the second degree, menacing in the second degree, and criminal possession of a forged instrument in the second degree. Id. 7; Docket Item 4-2 at 10-11. On July 2, 2019, he was sentenced to three years and six months’ imprisonment, 364 days’ imprisonment, and one to three years’ imprisonment, respectively, on those charges, with the sentences to run concurrently. Docket Item 4-1 at 7; Docket Item 4-2 at 10. DHS issued an immigration detainer on January 10, 2020, requiring that DHS be notified if Rodriguez were released from the custody of the New York State Department of Corrections and Community Supervision. Docket Item 4-1 at 9. That same day, DHS also issued a “Notice to Appear,” charging that Rodriguez was subject to removal from the United States under various provisions of the Immigration and Nationality Act, 8 U.S.C. §§1011-1537. Docket Item 4-2 at 1-3. More specifically, DHS charged that Rodriguez was subject to removal as a noncitizen present in the United States without having been admitted or paroled, see 8 U.S.C. §1182(a)(6)(A)(i), and as a noncitizen who had been convicted of a crime involving moral turpitude, see id. §1182(a)(2)(A)(i)(I). Id. at 3. Rodriguez was transferred to DHS custody on June 5, 2020, and he then was notified that he would be detained pending resolution of his removal proceedings. Docket Item 4-1 at 10; Docket Item 4-2 at 9. On August 13, 2020, an Immigration Judge (“IJ”) ordered Rodriguez removed to Honduras and denied Rodriguez’s application for deferral under the Convention Against Torture. Docket Item 4-1 at 11; Docket Item 4-2 at 4-5, 15-20. The IJ also noted that Rodriguez’s claims for asylum and withholding of removal were withdrawn. Docket Item 4-1 at 11; Docket Item 4-2 at 4. On February 11, 2021, the Board of Immigration Appeals (“BIA”) dismissed Rodriguez’s appeal of the IJ’s decision. Docket Item 4-1 at 12; Docket Item 4-2 at 6-8. DHS subsequently contacted the Consulate General of Honduras to “request[] that [the Consulate] issue a passport or other suitable travel document” to Rodriguez to effect his removal. Docket Item 4-1 at 13; Docket Item 4-2 at 13-14. Rodriguez refused to participate in an interview with the Consulate on February 17, 2021, and was consequently served with a Form I-229(a), “Warning for Failure to Depart.” Docket Item 4-1 at 14-15. Rodriguez again refused to participate in an interview with the Consulate on March 31, 2021, and he was served with a second Form I-229(a). Id. at
