Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JORGE LUIS SOTO VILCHEZ, )
)
Petitioner, )
)
v. ) Case No. 25-3234-JWL
)
PAMELA BONDI, Attorney General; )
KRISTI NOEM, Secretary, )
Department of Homeland Security; )
TODD LYONS, Director, ICE; )
SAM OLSON, Director, )
ICE Field Office; and )
C. CARTER, Warden, FCI-Leavenworth, )
)
Respondents. )
)
_______________________________________)
MEMORANDUM AND ORDER
Petitioner, acting through counsel, filed a petition for habeas corpus under 28 U.S.C.
§ 2241, by which he challenges his detention by immigration officials. For the reasons set
forth below, the Court denies the petition.
Petitioner is a native and citizen of Venezuela. Petitioner entered the United States
without authorization in 2021, and in 2022 he filed an application for asylum. In October
2024, petitioner was convicted of a state-law offense, and on December 6, 2024,
immigration officials took custody of petitioner after his release from state custody.
Officials initiated removal proceedings, charging petitioner as inadmissible pursuant to 8
U.S.C. § 1182(a)(6)(A)(i) and 8 U.S.C. § 1182(a)(2)(A)(i)(I); and on April 23, 2025,
petitioner was ordered removed from the United States, although the immigration judge
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granted petitioner’s request for withholding of removal to Venezuela (meaning petitioner
could only be removed to an alternative third country).1 On September 17, 2025, petitioner,
acting through counsel, filed motions with the immigration court to stay removal and to
reopen removal proceedings, based on petitioner’s claim that officials had notified him of
an intent to remove him to Mexico. On September 18, 2025, the immigration court granted
the stay; and on November 21, 2025, the immigration court granted the motion to reopen
proceedings to allow petitioner to seek protection from removal to Mexico under the
Convention Against Torture (CAT). On January 6, 2026, the immigration court conducted
a hearing, but it does not appear that that court has ruled on petitioner’s application for
protection. Petitioner remains confined within this judicial district. On October 29, 2025,
petitioner filed the instant petition. Respondents have filed an answer to the petition,
petitioner has filed a reply brief, and the matter is therefore ripe for ruling.
Petitioner claims in his petition that his detention under 8 U.S.C. § 1231 has become
indefinite, without a sufficient likelihood of his removal to an alternative country, in
violation of that statute and due process.2 With respect to those claims, petitioner relies on
1 Because both sides waived appeal, the removal order became administratively
final on that date.
2 Petitioner also sought specific declaratory relief in a third count in his petition,
but he expressly withdrew that claim in his reply brief. In addition, in the reply brief,
petitioner appears to assert a due process violation based on the allegation that officials
violated applicable regulations by failing to conduct a timely custody review and by failing
to serve properly the eventual custody review decision (even though it is clear that
petitioner and his counsel did receive a copy of that decision). The Court notes that
petitioner has not identified any particular prejudice from the alleged violations. At any
rate, petitioner did not assert any such claim in his petition, and he has not sought to amend
to include such a claim; accordingly, the Court concludes that any such claim is not
properly before it.
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Zadvydas v. Davis, 533 U.S. 678 (2001). In that case, the Supreme Court held that Section
1231 does not authorize detention beyond the 90-day statutory removal period (beginning
after the removal order becomes final) once removal is no longer reasonably foreseeable;
and it established a presumptively-reasonable detention period of six months in which to
accomplish removal. See id. at 699-701. Petitioner argues that he should be released,
pursuant to the framework set forth in Zadvydas, because more than six months have
elapsed since his removal order became final in April 2025 and there is no significant
likelihood of his removal in the reasonably-foreseeable future.
Respondents argue that petitioner’s detention has not become impermissibly
indefinite under that framework, including because officials halted their removal efforts
once petitioner initiated proceedings to seek protection against removal to Mexico. More
significantly, however, respondents cite the fact that the immigration court granted the
motion by petitioner and his counsel to reopen removal proceedings. As respondents note,
courts have recognized that a final removal order is vacated when removal proceedings are
reopened. For instance, in Al-Shewaily v. Mukasey, 2007 WL 4480773 (W.D. Okla. Dec.
18, 2007), the court cited opinions by the First Circuit, Seventh Circuit, and Ninth Circuit
in support of its statement that “courts have determined that an [immigration judge’s]
decision or granting of a motion to reopen removal proceedings vacates the previous order
of removal and reinstates the previously terminated immigration proceedings.” See id. at
*4 (citing cases); see also Ndaula v. Hoover, 2019 WL 3002955, at *3 (M.D. Pa. July 10,
2019) (noting that the Third Circuit had held with respect to the petitioner before it and in
another case as well that “the grant of a motion to reopen vacates the previous order of
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deportation or removal and reinstates the previously terminated immigration proceedings”)
(citing cases), appeal dismissed, 2020 WL 6277544 (3d Cir. July 9, 2020).
Petitioner argues that his removal order should not be deemed vacated because he
is merely seeking protection against removal to one country and is not seeking to undo the
removal order generally. Petitioner relies on Nasrallah v. Barr, 590 U.S. 573 (2020), in
which the Supreme Court held that a statutory prohibition against factual challenges to
final orders of removal does not apply to a challenge to a CAT order, which does not disturb
or merge into the final order of removal (as the alien may still be removed to a different
country). See id. at 582. In that case, however, the immigration judge had ordered removal
and granted CAT protection at the same time, and the immigration appeals court had then
vacated the portion granting CAT relief; thus, the Supreme Court did not address the effect
of a motion to reopen a final removal order for the assertion of a CAT claim. See id.
Petitioner also cites Johnson v. Guzman Chavez, 594 U.S. 523 (2021). In that case,
the aliens had been removed and later reentered without authorization, and officials
reinstated their prior removal orders; but asylum officers then determined that the aliens
had a reasonable fear of persecution or torture, and they were referred to immigration court
for withholding-only proceedings. See id. at 532. The Supreme Court noted that in such
a case, the removal order “is not vacated or set aside” and “remains in full force” during
the withholding only proceedings; and it held therefore that any detention of the aliens was
subject to Section 1231. See id. at 535-36. In Johnson, however, the aliens did not contest
that their prior removal order had long been administratively final, and the Court noted that
Section 1231 explicitly prohibits such aliens “from seeking review or relief from the
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[removal] order after it is reinstated following unlawful entry.” See id. at 535. Thus, again,
the Supreme Court did not address the present situation, in which the immigration court
granted the alien’s request to reopen removal proceedings.
Accordingly, the Court concludes that in those two cases the Supreme Court did not
disturb the well-established principle that a final order of removal is vacated when removal
proceedings are reopened, and petitioner has not cited any contrary authority directly
addressing the issue. Moreover, petitioner has not submitted a copy of the immigration
judge’s order reopening his proceedings, and thus there is no basis to believe that the judge
in petitioner’s case deviated from the usual procedure by which removal proceedings are
reopened.
The Court thus concludes that petitioner’s removal order was vacated when his
removal proceedings were reopened, and that petitioner’s detention is therefore not
governed by 8 U.S.C. § 1231, which authorizes detention during the post-order removal
period. See id. Rather, petitioner’s detention is presently authorized by 8 U.S.C. § 1226,
which applies pending removal proceedings. See id. Under that statute, because of his
state-court conviction, petitioner’s detention is mandatory. See id. § 1226(c)(1)(A).
Because petitioner’s claims are premised on his assertion that his continued detention under
Section 1231 is unlawful, those claims must fail. Petitioner has not argued or shown that
his continued detention under Section 1226 is unlawful. Accordingly, the Court denies the
petition for habeas relief.
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IT IS THEREFORE ORDERED BY THE COURT THAT the petition for habeas
corpus pursuant to 28 U.S.C. § 2241 is hereby denied.
IT IS SO ORDERED.
Dated this 4th day of February, 2026, in Kansas City, Kansas.
/s/ John W. Lungstrum
Hon. John W. Lungstrum
United States District Judge
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