United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.
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
Factual Background and Procedural History
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 United States citizen).
1980 and 2009, Hodge sustained convictions in California and
Tennesee for, among other things, fraud, stolen property, and
forgery in California and Tennessee.
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.
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.
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 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.
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.
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.
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.
decision dated October 10, 2019, the BIA dismissed
Hodge's appeal and denied his motion for remand. The BIA
concluded 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.
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 ...