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Pavel andreenko v. Eric H.

September 18, 2012

PAVEL ANDREENKO, PETITIONER,
v.
ERIC H. HOLDER, ATTORNEY GENERAL OF THE UNITED STATES; JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; JOHN T. MORTON, SECRETARY OF IMMIGRATION AND CUSTOMS ENFORCEMENT, RESPONDENTS.



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

DECISION AND ORDER

I. Introduction

In this pro se petition filed pursuant to 28 U.S.C. § 2241, Pavel Andreenko ("Andreenko" or "Petitioner") argues, inter alia, that his continued detention in Respondents' custody is unlawful, based on the Supreme Court's decision in Zadvydas v. I.N.S., 533 U.S. 678 (2001).

II. Factual Background and Procedural History

Andreenko is a native of the Union of Soviet Socialist Republics and a citizen of Russia, who was admitted to the United States at New York, New York, on or about September 20, 1991, as a B-2 temporary visitor for pleasure with authorization to remain in the United States for a temporary period not to exceed March 19, 1992. Andreenko remained in the United States beyond March 19, 1992, without authorization from the former Immigration and Naturalization Service ("INS").

Andreenko was placed in immigration removal proceedings by a Notice to Appear dated March 11, 1998, which charged him pursuant to Immigration and Nationality Act ("INA") § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), with being subject to removal from the United States as a non-immigrant who has remained in the United States for a time longer than permitted.

On February 19, 2002, an immigration judge ("IJ") granted Andreenko a Suspension of Deportation pursuant to Section 203 of the Nicaraguan Adjustment and Central American Relief Act. On May 2, 2002, Andreenko's status was adjusted to that of lawful permanent resident. Andreenko has been convicted of several criminal offenses in the United States including criminal possession of a controlled substance in the seventh degree on June 29, 2005, in Kings County, New York Criminal Court; disorderly conduct on January 4, 2007; criminal possession of marijuana and intentional damage to a monument on May 8, 2007, in the General District Court of Criminal, County of Fredericksburg, Virginia; promoting prison contraband in the first degree (a razor blade) on May 12, 2008, in Bronx County Supreme Court, New York; and criminal mischief in the fourth degree, on July 25, 2008.

On January 30, 2008, Andreenko was encountered by officers of the DHS New York City Criminal Alien Program at the Riker's Island Correctional Facility in New York City. After Andreenko's immigration status was confirmed, DHS lodged a detainer against Andreeko at the correctional facility.

Andreenko was placed in immigration removal proceedings by a Notice to Appear dated May 31, 2008, which charged him pursuant to INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I), with being subject to removal from the United States as a non-immigrant who has been convicted of a controlled substance offense, and pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as a non-immigrant who has been convicted of an aggravated felony, as defined in INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), i.e., an offense relating to the illicit trafficking in a controlled substance.

Upon his release from the custody of the New York State Department of Correctional Services and Community Supervision, Andreenko was received into DHS custody on October 22, 2008. His initial detention in DHS custody was pursuant to INA § 236, 8 U.S.C. § 1226 (pre-final detention).

On November 3, 2008, Andreenko, through counsel, admitted the factual allegations in the Notice to Appear and conceded removability as charged under INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I), but he contested removability under INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I). Subsequently, DHS withdrew the aggravated felony charge filed against Andreenko pursuant to INA § 237(a)(2)(B)(I), 8 U.S.C. § 1227(a)(2)(B)(I).

On February 16, 2010, an IJ found Andreenko subject to mandatory detention under INA § 236(c), 8 U.S.C. § 1226(c), for the duration of his immigration removal proceedings. Andreenko appealed the IJ's decision to the Board of Immigration Appeals ("BIA"). On April 19, 2010, the BIA dismissed Andreenko's appeal of the mandatory detention order.

On November 8, 2010, an IJ denied Andreenko's applications for cancellation of removal and denial of relief under the 12 Convention Against Torture ("CAT"), and ordered him removed from the United States. See In re Pavel Andreenko, No. A070 529 130 (B.I.A. Mar. 4, 2011), aff'g No. A070 529 130 (Immig. Ct. N.Y. City Nov. 8, 2010). Andreenko appealed the IJ's decision to the BIA. On March 4, 2011, the BIA dismissed Andreenko's appeal of the removal order.

On March 10, 2011, DHS served Andreenko with a formal Warning for Failure to Depart (Form I-229(a)), along with an instruction sheet listing actions that Andreenko was required to complete within 30 days to assist in obtaining a travel document for his removal from the United States. The warning form advised Andreenko, among other things, of penalties under INA § 243, 8 U.S.C. § 1253, for conniving or conspiring to prevent or hamper his departure from the United States, and also advised him that pursuant to INA § 241(a)(1)(C), 8 U.S.C. § 1231 a)(1)(C), a failure to ...


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