Hodge v. Barr

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ANDREW HODGE,

No. 6:19-cv-06630-MAT

Petitioner, DECISION AND ORDER

-vs-

WILLIAM P. BARR, U.S. Attorney

General of the United States; JEFFREY

SEARLS, Facility Director, Buffalo

Federal Detention Facility,

Respondents.

I. Introduction

Proceeding pro se, Andrew Hodge (“Hodge” or “Petitioner”)

commenced this habeas proceeding against the named Respondents

(hereinafter, “the Government”) pursuant to 28 U.S.C. § 2241 (“§

2241”) challenging his continued detention in the custody of the

United States Department of Homeland Security (“DHS”), Immigration

and Customs Enforcement (“ICE”). For the reasons discussed below,

the request for a writ of habeas corpus is denied, and the Petition

(ECF #1) is dismissed without prejudice.

II. Factual Background and Procedural History

Hodge is a native and citizen of St. Kitts-Nevis who was

granted lawful permanent residence (“LPR”) status on April 15,

1983. On or about April 22, 1983, Hodge was was admitted to the

United States as an IR-6 visa holder (immigrant visa for spouse of

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United States citizen).

Between 1980 and 2009, Hodge sustained convictions in

California and Tennesee for, among other things, fraud, stolen

property, and forgery in California and Tennessee.

Following a January 2015 arrest in Tennessee, Hodge was served

with a Notice to Appear (“NTA”) charging him with being subject to

removal from the United States pursuant to Immigration and

Nationality Act (“INA”) 237(a)(2)(A)(iii), 8 U.S.C.

1227(a)(2)(A)(iii), as an alien who has been convicted of an

aggravated felony as defined in INA § 101(a)(43)(R), 8 U.S.C. §

1101(a)(43)(R), a law relating to an offense relating to commercial

bribery, counterfeiting, forgery, or trafficking in vehicles the

identification numbers of which have been altered for which a term

of imprisonment is at least 1 year.

On April 28, 2015, an immigration judge (“IJ”) ordered Hodge

removed from the United States to St. Kitts. Hodge filed an appeal

of the IJ’s decision to the Board of Immigration Appeals (“BIA”).

The BIA dismissed the appeal on August 14, 2015. On or about April

26, 2016, DHS removed Hodge from the United States.

On May 29, 2018, United States Customs and Border Protection

(“CBP”) encountered Hodge as an applicant for admission to the

United States under the Visa Waiver Program at the Peace Bridge

Port of Entry in Buffalo, New York. He was traveling on a

commercial bus and told the CBP officer that he was going to

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Brooklyn, New York to visit family and had never lived in the

United States. In completing the CBP Form I-94W, he claimed he had

never been arrested. These statements were refuted by CBP’s initial

records-check. After being confronted with this information, Hodge

admitted that he did not answer the questions truthfully.

On May 30, 2018, Hodge was arrested and charged in this Court

by means of a criminal complaint, with making materially false and

fictitious statements, in violation of 18 U.S.C. § 1001(a)(2). He

then was placed in the custody of the United States Marshal

Service. On January 25, 2019, Hodge was convicted as charged and

sentenced to time served.

Hodge was placed in DHS custody on January 25, 2019, and

served with a Notice of Referral to Immigration Judge for

asylum-only proceedings. Hodge did not file a formal asylum

application and withdrew his asylum-related claim

through his attorney by a letter dated May 3, 2019. On May 17,

2019, an IJ issued an order that deemed Hodge’s unfiled application

for relief from removal as abandoned and withdrawn. Hodge appealed

the IJ’s order to the BIA.

On July 12, 2019, the BIA denied Hodge’s motion to reopen his

2015 immigration removal proceedings as untimely and denied his

request for a stay of removal.

In a decision dated October 10, 2019, the BIA dismissed

Hodge’s appeal and denied his motion for remand. The BIA concluded

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that Hodge’s asylum claim was withdrawn and properly deemed

abandoned before the IJ. DHS is in possession of Petitioner’s valid

passport and had scheduled his removal for November 13, 2019.

On November 1, 2019, Hodge filed a Petition for Review (“PFR”)

of the BIA’s order. Petitioner also filed a motion for stay of

removal with the Second Circuit on November 4, 2019. Because he

filed a stay motion, DHS is presently prevented from executing the

immigration order of removal due to the forbearance agreement

between DHS and the Second Circuit.

Hodge filed his Petition (ECF #1) on August 26, 2019, and

subsequently filed a Motion to Appoint Counsel (ECF #6). The

Government filed a Motion to Dismiss the Petition (ECF #8), arguing

that his due process challenge to his continued detention under

Zadvydas v. Davis, 533 U.S. 678 (2001), is premature because the

90-day period of mandatory detention under expiration of 8 U.S.C.

§ 1231 and the subsequent “presumptively reasonable” six-month

period have not yet expired. Petitioner filed a Reply (ECF #11).

III. Scope of Review

Title 28 U.S.C. § 2241 grants this Court jurisdiction to hear

habeas corpus petitions from aliens claiming they are held “in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); Zadvydas, 533 U.S. at 687 (citing

28 U.S.C. § 2241(c)(3)). However, the REAL ID Act of 2005, Pub. L.

No. 109-13, § 106(a), 199 Stat. 231 (May 11, 2005) amended the

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Immigration and Nationality Act (“INA”) to provide that petitions

for review filed in the appropriate Courts of Appeals were to be

the “sole and exclusive means for judicial review” of final orders

of removal. Ruiz-Martinez v. Mukasey, 516 F.3d 102, 113 (2d Cir.

2008) (citing REAL ID Act § 106(c); 8 U.S.C. § 1252(a)(5)). In

other words, the REAL ID Act “strips district courts of

jurisdiction to hear habeas petitions challenging final orders of

deportation. . . .” De Ping Wang v. Dep’t of Homeland Sec., 484

F.3d 615, 615-16 (2d Cir. 2007). District courts still are

empowered to grant relief under § 2241 to claims by aliens in

removal proceedings that their detention and supervision are

unconstitutional. See Zadvydas, 533 U.S. at 687-88; see also

Hernandez v. Gonzales, 424 F.3d 42, 42–43 (1st Cir. 2005) (“The

Real ID Act deprives the district courts of habeas jurisdiction to

review orders of removal, . . . [but] those provisions were not

intended to ‘preclude habeas review over challenges to detention

that are independent of challenges to removal orders.’”) (quoting

H.R. Cong. Rep. No. 109-72, at *43 2873 (May 3, 2005)).

Although this Court has jurisdiction to decide statutory and

constitutional challenges to civil immigration detention, it does

not have jurisdiction to review the discretionary decisions of the

Attorney General. Zadvydas, 533 U.S. at 688 (citing 8 U.S.C.

§ 1252(a)(2)(B)(ii)) (“[N]o court shall have jurisdiction to review

. . . any other decision or action of the Attorney General . . .

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the authority of which is specified under this subchapter to be in

the discretion of the Attorney General.”). “[W]hether the district

court has jurisdiction will turn on the substance of the relief

that a [petitioner] is seeking.” Delgado v. Quarantillo, 643 F.3d

52, 55 (2d Cir. 2011) (per curiam).

Iv. Discussion

The Court first considers the statutory basis for Falodun’s

detention. See Prieto-Romero v. Clark, 534 F.3d 1053, 1057 (9th

Cir. 2008) (noting that to determine whether detention of an alien

is authorized, threshold question is where to “locate [him or her]

. . . within the complex statutory framework of detention authority

provided by Sections 236 and 241 of the Immigration and

Nationality Act, codified at 8 U.S.C. §§ 1226 and 1231”).

“The distinction between § 1226 and § 1231 essentially comes

down to whether an alien is subject to a final order of removal.”

Enoh v. Sessions, 236 F. Supp.3d 787, 793 (W.D.N.Y. 2017), appeal

withdrawn, No. 17-1236, 2017 WL 6947858 (2d Cir. Dec. 7, 2017).

Title 8 U.S.C., § 1231(a) (1) (A) provides for a 90-day removal

period, during which the Government “shall detain,” id. §

(a) (2), an alien “ordered removed,” id. § 1231 (a) (1) (A).

The statute specifies that the removal period begins on the

latest of the following events:

(i) The date the order of removal becomes

administratively final.

(ii) If the removal order is judicially reviewed and if

a court orders a stay of the removal of the alien, the

date of the court’s final order.

(iii) If the alien is detained or confined (except under

an immigration process), the date the alien is released

from detention or confinement.

8 U.S.C. § 1231(a)(1)(B).

After the 90-day period of mandatory detention, the Government

has the discretion to release the alien or continue to detain him

or her. See 8 U.S.C. § 1231(a)(6) (stating that an alien ordered

removed “may be detained beyond the removal period”).

The Second Circuit has held that immigrants who have filed

petitions for review with a circuit court of appeals and have

received an order granting their stay motions are not detained

under 8 U.S.C. § 1231 (“Section 1231”) but instead are detained

under 8 U.S.C. § 1226 (“Section 1226”). Hechavarria v. Sessions,

891 F.3d 49, 55 (2d Cir. 2018), as amended (May 22, 2018). This

Court recently extended Hechavarria’s holding to aliens, like

Hodge, who have not been granted a formal stay from the Second

Circuit but whose removal is effectively stayed by operation of the

forbearance policy. Falodun v. Session, No. 6:18-CV-06133-MAT, 2019

WL 6522855, at *6 (W.D.N.Y. Dec. 4, 2019) (citations omitted).

Therefore, the Court finds that Hodge is not detained under § 1231.

A question remains, however, as to what statute does authorize

his detention, particularly in light of the fact that he was not

placed into removal proceedings via a Notice to Appear. Rather,

after he presented to border authorities as an applicant for the

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Visa Waiver Pilot Program, it was determined that he was proffering

fraudulent identification documents. He then was served with a Form

I-863 Notice of Referral to Immigration Judge and placed in asylum-

only proceedings. See Liu v. Gonzales, 181 F. App’x 52, 54 (2d Cir.

2006) (summary order) (“Under 8 C.F.R. § 217.4(a)(1), an applicant

for the VWPP, who is found to be ineligible for the program and

applies for asylum, is issued a Form I-863, Notice of Referral to

Immigration Judge, and placed in asylum-only proceedings. See 8

C.F.R. § 217.4(a)(1) & (b)(1). According to the BIA’s

interpretation, ‘the provisions of 8 C.F.R. § 217.4 are not limited

to aliens who are actually nationals of VWPP designated countries,

but specifically encompass individuals who present fraudulent and

counterfeit travel documents from such countries.’”) (quoting In re

Kanagasundram, 22 I. & N. Dec. 963, 964 (BIA 1999)).

It is an unsettled question as to which statute authorizes

such aliens’ detention. See, e.g., Bacuku v. Aviles, No. CV 15-2543

(MCA), 2016 WL 818894, at *6 (D.N.J. Mar. 2, 2016) (petitioner, a

VVWP violator, argued that his pre-removal detention was authorized

by § 1226, while the Government argued he was detained solely at

ICE’s discretion pursuant to 8 U.S.C. § 1187; district court did

not need to decide question because it found that, as a due process

matter, the petitioner’s more-than-23-month detention had become

unreasonably prolonged).

Here, Hodge has been detained for just shy of 12 months.

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“[T]he sheer length of the proceedings is not alone determinative

of reasonableness.” Debel v. Dubois, No. 13-CV-6028 (LTS) (JLC),

2014 WL 1689042, at *5 (S.D.N.Y. Apr. 24, 2014). Courts in this

Circuit routinely have found periods of detention comparable to or

greater than Hodge’s to be constitutional. See, e.g., Richardson v.

Shanahan, No. 15 CIV. 4405 AJP, 2015 WL 5813330, at *6 (S.D.N.Y.

Oct. 6, 2015) (citing Hylton v. Shanahan, 15 Civ. 1243, 2015 WL

36044328, at *1, *5-6 (S.D.N.Y. June 9, 2015) (23-month detention

constitutional); Baker v. Johnson, 2015 WL 2359251, at *13 (11-

month detention at time of filing and likely 15 to 17-month total

detention constitutional); Vaskovska v. Holder, No. 14-CV-270, 2014

WL 4659316, at *1-*4 (W.D.N.Y. Sept. 17, 2014) (15 month detention

by date opinion issued constitutional); Debel, 2014 WL 1689042, at

*6 (18-month detention constitutional even though total detention

time ultimately was “likely” to exceed 2 years); Johnson, 942 F.

Supp.2d, at 408-10 (15-month detention constitutional); Johnson v.

Phillips, No. 10-CV-480, 2010 WL 6512350 at *6-*7 (W.D.N.Y. Dec.

20, 2010) (17-month detention), report & rec. adopted, 2011 WL

1465448 (W.D.N.Y. Apr. 18, 2011); Luna-Aponte v. Holder, 743 F.

Supp.2d 189, 197 (W.D.N.Y. 2010) (detention for over 3 years

constitutional); Adreenko v. Holder, 09 Civ. 8535, 2010 WL 2900363,

at *3-*4 (S.D.N.Y. June 25, 2010) (13-month detention

constitutional); Adler v. U.S. Dep’t of Homeland Sec., 09 Civ.

4093, 2009 WL 3029328, at *2 (S.D.N.Y. Sept. 22, 2009) (15-month

detention constitutional)).

Moreover, the record fails to indicate that Hodge’s continued

detention will last indefinitely or that his ultimate removal is

unlikely; if Hodge’s petition for review is denied and a final

order of removal is entered against him, there do not appear to be

any institutional or other barriers to his deportation. Young v.

Aviles, 99 F. Supp.3d 443, 456 (S.D.N.Y. 2015) (citing Johnson v.

Orsino, 942 F. Supp.2d 396, 410 (S.D.N.Y. 2013) (“[T]here is no

indication that Johnson’s continued detention pending resolution of

his appeal to the BIA will last indefinitely or for a lengthy

period of additional time. Significantly, if Johnson’s appeal is

denied and a final order of removal is entered against him, there

will be no impediment to his deportation.”); other citations

omitted). DHS indicates that it does not anticipate any

institutional barriers to Hodge’s removal. DHS is in possession of

Hodge’s valid passport, and he previously was removed without

incident from the United States to St. Kitts by DHS in April 2016.

The totality of the circumstances leads the Court to conclude

that his detention without a bond hearing has not crossed the line

into a due process rights violation at this point in time. “If, at

some point in the future, there are factors involving the length of

his detention [which] implicate constitutional concerns, the

petitioner is entitled to file another habeas petition.” Andreenko

v. Holder, No. 09CIV8535CMJCF, 2010 WL 2900363, at *4 (S.D.N.Y.

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June 25, 2010) (citing Sulayao v. Shanahan, No. 09 Civ. 7347, 2009

WL 3003188, at *8 (S.D.N.Y. Sept. 15, 2009); Samuel v. Immigration

and Naturalization Service, No. 01 Civ. 3413, 2005 WL 120221, *2

(S.D.N.Y. Jan. 20, 2005) (denying habeas petition without prejudice

to re-filing once stay of deportation lifted, when petitioner will

have “burden of showing that there is good reason to believe that

there is no significant likelihood of removal in the near future”).

V. Conclusion

For the foregoing reasons, the Petition is dismissed without

prejudice, and the Motion to Appoint Counsel in connection with

this proceeding is denied as moot. To the extent Hodge seeks an

order staying his removal from the United States, the Court is

without jurisdiction to consider such a request. See, e.g.,

Meleance v. Bd. of Immigration Appeals, 363 F. App’x 765, 766 (2d

Cir. 2010) (unpublished opn.) Accordingly, the request for a stay

is denied with prejudice. The Clerk of Court is directed to close

this case.

SO ORDERED.

s/ Michael A. Telesca

HONORABLE MICHAEL A. TELESCA

United States District Judge

Dated: January 14, 2020

Rochester, New York.

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