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Hodge v. Barr

United States District Court, W.D. New York

January 14, 2020

ANDREW HODGE, Petitioner,
v.
WILLIAM P. BARR, U.S. Attorney General of the United States; JEFFREY SEARLS, Facility Director, Buffalo Federal Detention Facility, Respondents.

          DECISION AND ORDER

          HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.

         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 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 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 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 ...


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