The 10th Circuit Court of Appeals in Denver has granted a stay of removal from the country to Francisco Rodriguez-Guardado, a Massachusetts Institute of Technology custodian, for the duration of his case, which will run “at least into the summer,” said John T. Bennett, Rodriguez’ lawyer.
In a short order issued Friday evening, the court found that Rodriguez had made a “strong showing” that he would likely win his case, which seeks to reopen his asylum petition. Rodriguez came to the United States in 2006 seeking asylum from his native El Salvador; it took immigration courts five years before they denied his plea in 2011.
The court also found Rodriguez would be irreparably harmed without a stay; that the stay would not harm the immigration authorities; and that the public interest favors granting the stay.
The details of the court’s thinking were not discussed in the order, and the briefs from Rodriguez and the government remain under seal to protect confidential information relating to Rodriguez’s asylum claim. In response to a request from this reporter, the court also ordered Rodriguez’s attorneys to file redacted briefs for the benefit of the public by Dec. 22.
The Denver court’s stay of removal runs through the end of Rodriguez’s case, whenever that might be. His attorneys’ opening brief is due Jan. 16, and government has a month to respond; then he has another two weeks to reply, which take the case into late February or early March. After that, the court will decide whether to hear oral arguments, and issue a decision in weeks or months.
Meanwhile, Rodriguez is fighting to be released from jail while his asylum appeal goes forward. That case is in the First Circuit Court of Appeals in Boston, where he’s being held. The government’s brief is due Dec. 27, with his own reply due two weeks after. Rodriguez’s opening brief in the Boston case is sealed from the public, but the American Civil Liberties Union filed a public brief in support on Monday; the ACLU was joined by Sabin Willett, Julie Silva Palmer and Vanessa Brown from Morgan, Lewis & Bockius.
“We are hopeful [today’s decision] will put us in a stronger position to advocate for his release from detention,” Bennett said.
Bennett said he was not yet in a position to determine the interplay between Rodriguez’s Boston litigation and the presumptive six-month detention limit decided by the Supreme Court in Zadvydas v. Davis in 2001. Rodriguez will have been held for six months as of Jan. 18.