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Ho Kai Tam v. Department of Homeland Security (Bice)

September 30, 2011

HO KAI TAM
PETITIONER,
v.
DEPARTMENT OF HOMELAND SECURITY (BICE), U.S. IMMIGRATION & CUSTOMS ENFORCEMENT, RESPONDENT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

(A 46-157-614),

DECISION AND ORDER

I. INTRODUCTION

On July 7, 2005, pro se*fn1 Petitioner Ho Kai Tam filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention pending ongoing removal proceedings against him.*fn2 (Docket No. 1.) Petitioner sought release from custody and a declaration that he is a national of the United States.

On March 28, 2006, this Court dismissed Petitioner's challenge to his continued detention, denied his request for a declaration that he is a national of the United States, and transferred his nationality claim to the United States Court of Appeals for the Second Circuit pursuant to 8 U.S.C. § 1252 (b)(5). (Docket No. 6.)

On February 19, 2009, the Second Circuit denied Petitioner's nationality claim and transferred the case back to this Court for consideration of Petitioner's claim - first raised in Petitioner's appellate brief - that the former Immigration and Naturalization Service ("INS") improperly delayed adjudication of his nationality claim. The Second Circuit's Mandate was filed in this Court on June 2, 2009. (Docket No. 9.)

For the reasons stated below, Petitioner's remaining claim is dismissed and the Petition is denied in its entirety.

II. BACKGROUND

A. Facts

The pertinent facts are undisputed. Petitioner is a native and citizen of Hong Kong. (Administrative Record ("A.R.") 8.*fn3 He entered the United States as a lawful permanent resident on or about July 2, 1996. (A.R. 8.)

On December 31, 2002, the government filed a criminal complaint against Petitioner, charging him with mail fraud in violation of 18 U.S.C. § 1341. (Declaration of Christina M. Bonnette ("Bonnette Decl."), Docket No. 12, ¶ 6.)

On January 1, 2003, Petitioner signed a completed Application for Naturalization (N-400). (Bonnette Decl., ¶ 7.) Two days later, on January 3, 2003, he was arrested on the mail fraud charge. (Bonnette Decl., ¶ 8.) The next day, January 4, 2003, the INS Vermont Service Center received Petitioner's N-400 Application for Naturalization. (Bonnette Decl.,

¶ 9.) United States Probation and Pretrial Services notified INS of the criminal charges pending against Petitioner on January 7, 2003. (Bonnette Decl., ¶ 10.)

On May 27, 2004, Petitioner pled guilty to committing mail fraud in violation of 18 U.S.C. ยง 1341. (A.R. 38-54.) He was sentenced to a 3-month term of imprisonment on September 24, 2004. (A.R. 39.) Based on this criminal conviction, ...


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