# Hodge v. Barr

> District Court, W.D. New York · January 14, 2020

URL: https://www.frixlaw.com/law-library/cases/10361675

## Case

- **Court:** District Court, W.D. New York
- **Decided:** January 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
7
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.
10
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10361675. Public record. Not legal advice.