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Nicholas v. Eric H. Holder

June 21, 2012

NICHOLAS LESLIE, A97-519-269, PETITIONER,
v.
ERIC H. HOLDER, ATTORNEY GENERAL OF THE UNITED STATES; MICHAEL PHILIPS, FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL, BUFFALO FIELD OFFICE, BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT; DEPARTMENT OF HOMELAND SECURITY; AND TODD TRYON, FACILITY DIRECTOR, BUFFALO FEDERAL DETENTION FACILITY, RESPONDENTS.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Nicholas Leslie ("Leslie" or "Petitioner"), an alien under a final order of removal from the United States, has filed this, his fourth pro se habeas corpus petition in this Court.*fn1 Leslie again challenges his detention in the custody of the Department of Homeland Security ("DHS") while DHS continues its efforts to secure a travel document for his removal from the United States. Leslie contends that his removal is not reasonably foreseeable and that his continued detention violates his due process. Respondents argue that his continued detention in DHS custody of is in accordance with the Immigration and Nationality Act ("INA"), given that the INA allows extended detention where, as here, the alien's obdurate refusal to cooperate with DHS is the cause of the delay in effectuating the alien's removal.

II. Factual Background and Procedural History

Leslie is a native and citizen of Jamaica who entered the United States at or near Miami, Florida on April 24, 2000, under a H-2B non-immigrant visa. He was convicted in the Supreme Court of the State of New York, County of New York on March 9, 2005, of Criminal Sale of a Controlled Substance (cocaine) in violation of New York Penal Law § 220.30(1), and sentenced to a term of incarceration of three to nine years.

While he was incarcerated, DHS served him with a Notice to Appear on March 28, 2006, charging him with being subject to removal from the United States as an alien present in the United States who has remained in the United States for a time longer than permitted. See INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). DHS served Additional Charges of Inadmissibility/Deportability on Leslie, charging him with being subject to removal pursuant to 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; and pursuant to INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I), as an alien convicted of a controlled substance offense.

Upon his release from custody by the New York State Department of Correctional Services and Community Supervision on March 20, 2006, Leslie was received into DHS custody and placed in removal proceedings at the Buffalo Federal Detention Facility in Batavia, New York.

On May 30, 2006, during removal proceedings, Leslie provided a sworn statement to a deportation officer in which he claimed to have been born in the U.S. Virgin Islands, thereby making him a United States citizen by birth. However, DHS ascertained from from the U.S. Virgin Islands, Office of Vital Statistics Records that no record of birth could be found for Leslie, Nicholas, a/k/a Paul Thomas (DOB: xx/xx/1972), in either St. Thomas or St. John. Accordingly, on October 30, 2006, an immigration judge ordered Leslie deported to Jamaica. The Board of Immigration Appeals dismissed Leslie's appeal on February 12, 2007.

After Leslie refused to complete the necessary application to obtain a travel document from Jamaica on February 20, 2007, DHS issued a Form I-229, Warning for Failure to Depart, along with an instruction sheet listing actions that Leslie was required to complete within 30 days to assist DHS in obtaining a travel document for his removal. Leslie was advised that a failure to comply or to provide sufficient evidence of his inability to comply could result in the extension of the removal period and subject him to further detention.

Further investigation by DHS revealed that Leslie had been born in Jamaica and had been issued a H-2B nonimmigrant visa in Kingston, Jamaica, based upon his presentation of Jamaican passport number 1963071. Accordingly, on February 21, 2007, DHS sent a presentation packet to the Consulate General of Jamaica in New York, New York, requesting that a travel document be issued for Leslie's removal. DHS was informed that the Consulate was unable, at that time, to process or issue a travel document for Leslie due to the fact that Leslie claimed U.S. citizenship and refused to complete the Jamaican application for issuance of the travel document. The Jamaican Consulate further noted DHS that based upon Leslie's claim of U.S. citizenship, it needed a birth certificate from Leslie in order to issue a travel document.

In order to conclusively establish Leslie's true citizenship status, DHS requested the assistance of the American Embassy in Jamaica. On March 27, 2007, DHS received a document from a foreign investigator assigned to the American Embassy which identified Leslie as a Jamaican national. This document was issued by the Jamaican "Ministry of Labour Overseas Employment" and contained biographical information, a photograph of Leslie, and his fingerprints. DHS also obtained a copy of Leslie's application for a Social Security card from the United States Social Security Administration which revealed that Leslie had presented a Jamaican passport and I-94 form for his application.

On March 29, 2007, April 20, 2007, and May 23, 2007, DHS served Leslie with additional Warnings for Failure to Depart.

On May 16, 2007, a fingerprint technician employed by the New York State Police compared a photocopy of a fingerprint card of Nicholas Leslie taken at the Buffalo Federal Detention Facility with a photocopy of a Ministry of Labour Overseas Employment document bearing the name Nicholas Leslie which contained two fingerprint impressions. The technician determined that the fingerprints on both documents were made by the same individual.

On July 20, 2007, Leslie filed in this Court a petition for writ of habeas corpus in which he challenged his continued detention in DHS custody. See Leslie v. Mule, et al., No. 6:07-CV-6354(MAT)(W.D.N.Y.). This Court denied the petition, and the Second Circuit subsequently affirmed the denial in a summary order dated August 17, 2011, finding that "all of the evidence indicates that the delay in processing Leslie's removal has been caused by his own refusal to cooperate and his false claims of United States Citizenship." Dkt. #70 at p. 2, in Leslie v. Mule, et al., No. 10-2115-pr (2d Cir. Aug. 17, 2011) (summary order).

On August 15, 2007, the Government filed a criminal complaint against Leslie in this Court charging him with violating Title 8, United States Code, Section 1253(a)(1)(C) and Title 18, United States Code, Section 1001(a)(2). See United States v. Leslie, No. 1:07-MJ-0085 (W.D.N.Y.) (Schroeder, M.J.), merged with 07-CR-0627 (W.D.N.Y. Nov. 5, 2007). The Government moved for detention, and the Court remanded Leslie to the custody of the United States Marshals Service on August 15, 2007.

On November 5, 2007, Leslie pleaded guilty in this Court to a one count felony information charging him, pursuant to Title 18, United States Code, Section 1001(a)(2), with making a false statement, in that Leslie knowingly and willfully made materially false, fraudulent, and fictitious statements and representations to a DHS employee indicating that he was a citizen of the United States, when in truth and in fact, he is a citizen of Jamaica. Leslie was sentenced on December 19, 2007, to time served and a three year term of supervised release. That day, he was received into DHS custody. He is currently held at the Buffalo Federal Detention Facility in Batavia, New York, pending his removal from the United States.

In the meantime, DHS has continued to try to effectuate Leslie's removal. On January 28, 2008, DHS sent a presentation packet to the Consulate General of Jamaica in New York City to ...


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