Leslie v. Holder et al
Filing
8
DECISION AND ORDER denying petition for writ of habeas corpus without prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 6/21/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NICHOLAS LESLIE, A97-519-269,
Petitioner,
No.11-CV-6411(MAT)
DECISION AND ORDER
-vsERIC 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.
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.1 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
1
Each of Leslie’s prior habeas petitions was dismissed upon
findings that the delay in processing his removal has been caused
by his own refusal to cooperate and his false claims of United
States citizenship. See Leslie v. Mule, et. al., No. 6:07-CV-6354
(W.D.N.Y. May 5, 2010) (Telesca, D.J.), Leslie v. Herrion, No.
6:08-CV-6301, 677 F. Supp. 2d 651 (W.D.N.Y. 2010) (Larimer, D.J.);
Leslie v. Holder, et. al., No. 6:10-CV-6513 (W.D.N.Y.) (Larimer,
D.J.).
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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.
1227(a)(1)(B).
DHS
See
INA
served
§
237(a)(1)(B),
Additional
8
U.S.C.
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.
-2-
§ 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
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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
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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
detention
habeas
in
corpus
DHS
in
which
custody.
See
he
challenged
Leslie
v.
his
Mule,
continued
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,
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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
obtain a travel document for Leslie’s removal.
On February 19, 2008, Leslie was issued another I-229, Warning
for Failure to Depart.
-6-
In
accordance
with
immigration
regulations,
DHS
reviewed
Leslie’s custody status in March 2008. On March 20, 2008, Leslie
was notified that DHS determined to continue his detention, finding
that he would be a threat to the community and a flight risk if
released from custody.
During
an
interview
on
April
22,
2008,
with
a
consular
representative, Leslie again falsely claimed to be a citizen of the
U.S. Virgin Islands. Thus, the Jamaican Consulate was prevented
from issuing a travel document for Leslie.
On May 16, 2008, based upon Leslie’s false claim to the
Jamaican Consulate that he was a citizen of the United States, DHS
served Leslie with 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 in obtaining a travel
document for his removal from the United States.
On June 24, 2008, Leslie was issued another I-229, Warning for
Failure to Depart. DHS served Leslie with a Notice of Failure to
Comply pursuant to 8 C.F.R. 241.4(g), on July 9, 2008, formally
advising him, among other things, that the removal period was
extended in his case.
DHS served Leslie with additional Warnings for Failure to
Depart on August 8, 2008; September 3, 2008; October 24, 2008;
November 26, 2008; December 26, 2008; January 26, 2009; February
26, 2009; March 26, 2009; April 24, 2009; May 22, 2009; June 17,
-7-
2009;
July
14,
2009;
August
13,
2009;
September
11,
2009;
October 6, 2009; November 5, 2009; and December 3, 2009. Leslie was
served with additional Notices of Failure to Comply on October 23,
2008;
January
26,
2009;
April
27,
2009;
July
24,
2009;
and
October 21, 2009.
On June 24, 2008, Leslie informed DHS that he would comply
with his obligation to assist in obtaining a travel document for
his removal from the United States. However, Respondents aver,
Leslie has provided no such assistance.
Leslie filed in this Court a second petition for writ of
habeas
corpus
on
July
8,
2008.
See
Leslie
v.
Herrion,
No. 6:08-CV-6301L(W.D.N.Y.). The Court (Larimer, D.J.) denied the
petition on January 6, 2010, noting that it was “the affirmative
obligation of an alien to make application in good faith for travel
and other documents necessary to effect his departure.” Leslie v.
Herrion, 677 F. Supp.2d 651, 653 (W.D.N.Y. 2010).
On August 29, 2008, Leslie was re-interviewed by a consular
representative, and refused to provide additional information for
purposes of verifying his identity.
On October 17, 2008, Leslie advised DHS that he had submitted
a letter to the Jamaican Consulate as evidence that he had provided
assistance in regards to the issuance of a travel document for his
removal. However, DHS learned a week later that the Consulate had
not received any correspondence from Leslie. The representative
-8-
further stated that Leslie must provide better information in
support of a travel document.
On December 30, 2008, a consular representative notified DHS
that as a result of the conflicting information provided by Leslie
in
previous
interviews,
Leslie
was
required
to
provide
more
information from local authorities in Jamaica. On January 22, 2009,
Leslie was again interviewed by a consular representative and
refused cooperate with their efforts to obtain a travel document.
DHS continued to contact the representative of the Jamaican
Consulate
regarding
the
status
of
Leslie’s
travel
document
throughout the period from February 12, 2009; and November 24,
2009.
On December 21, 2009, a consular representative requested
that DHS provide a travel itinerary for Leslie’s removal from the
United States. Thereafter, DHS made travel arrangements for Leslie
and scheduled his removal for January 21, 2010.
On January 20, 2010, DHS cancelled the travel arrangements for
Leslie’s
removal
representative
that
after
more
DHS
was
time
was
notified
needed
to
by
a
verify
consular
Leslie’s
citizenship and that Leslie had not provided the Consulate with
requested documents and information.
DHS served Leslie with additional Warnings for Failure to
Depart on January 28, 2010; February 26, 2010; March 25, 2010;
April 26, 2010; May 26, 2010; June 25, 2010; July 22, 2010;
August 20, 2010; and September 17, 2010. DHS served Leslie with
-9-
additional Notices of Failure to Comply on January, 29, 2010;
April 27, 2010; and July 23, 2010.
Between March 11, 2010, and October 6, 2010, DHS continued to
contact the Jamaican Consulate regarding the status of Leslie’s
travel document. Due to Leslie’s continued failure to cooperate and
his failure to provide information needed to verify his identity,
DHS’s efforts to obtain a travel document for him are at a
standstill.
In the instant petition, Leslie asserts that the presumptively
reasonable removal period ended on April 30, 2007, and that his
continued detention violates due process principles as explicated
in Zadvydas v. Davis, 533 U.S. 678 (2001).
Respondents explain that Leslie is in failure to comply
status. As such, they argue, Leslie’s removal period has been
extended, and DHS is not obligated to complete its otherwise
scheduled custody reviews until Leslie has demonstrated compliance
with the statutory obligations. See 8 C.F.R. § 241.4(g)(5)(iii).
DHS’s expectation is that Leslie will be removed to his native
country of Jamaica within a reasonable time, as soon as Leslie
begins to cooperate with the efforts to secure travel documents for
his removal.
Respondents assert that there is no institutional barrier to
Leslie’s removal to Jamaican, noting that in the past three fiscal
years DHS has successfully repatriated 4,782 aliens to Jamaica.
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Statistical reports issued by DHS show that in fiscal year (“FY”)
2007, a total of 1,490 aliens were repatriated to Jamaica, while in
FY2008, 1,641 aliens were repatriated to Jamaica; and in FY2009,
1,651 aliens were repatriated to Jamaica. See Declaration of Donald
Vaccaro(“Vaccaro Decl.”), ¶ 52.
For the reasons that follow, the request for a writ of habeas
corpus is denied, and the petition is dismissed without prejudice.
III. Discussion
A.
INA § 241(a)(1)(C), 8 U.S.C. § 1231(a)(1)(C)
The authority to detain aliens after the issuance of a final
removal order is INA § 241, 8 U.S.C. § 1231. Under this provision,
the Attorney General is afforded a 90-day period to accomplish an
alien’s removal from the United States following the entry of a
final order of deportation or removal. See INA § 241(a)(1)(A)-(B),
8 U.S.C. § 1231(a)(1)(A)-(B). Detention of the alien is required
during
the
removal
period.
See
INA
§
241(a)(2),
8
U.S.C.
§ 1231(a)(2) (“During the removal period, the Attorney General
shall detain the alien.”).
For aliens who, like Leslie, have been convicted of criminal
offenses, the Attorney General may continue to detain the alien
even after the expiration of the 90-day removal period: “An alien
ordered removed who is . . . removable under section 237(a)(1)(C),
237(a)(2), or 237(a)(4) or who has been determined by the Attorney
General to be a risk to the community or unlikely to comply with
-11-
the order of removal, may be detained beyond the removal period
and, if released, shall be subject to the terms of supervision in
paragraph (3).” INA § 241(a)(6), 8 U.S.C. § 1231(a)(6); see also
8 U.S.C. §§ 1227(a)(1)(C), 1227(a)(2), & 1227(a)(4). The removal
period also may be suspended if the alien fails to cooperate with
the Attorney
General’s
efforts
to
removal
him.
See
8 U.S.C.
§ 1231(a)(1)(C) (“Suspension of period”) (“The removal period shall
be extended beyond a period of 90 days and the alien may remain in
detention during such extended period if the alien fails or refuses
to make a timely application in good faith for travel or other
documents necessary to the alien’s departure or conspires or acts
to prevent the alien’s removal subject to an order of removal.”).
The INA imposes an affirmative obligation on an alien “to make
timely application in good faith for travel and other documents
necessary to [his] departure,” and imposes criminal penalties for
a willful failure to do so. See INA § 243(a), 8 U.S.C. § 1253(a).
See also 8 C.F.R. § 241.4(g) (tracking language of 8 U.S.C.
§ 1231(a)(2)(C) and adding that “detention provisions of section
241(a)(2) of the Act will continue to apply, including provisions
that mandate detention of certain criminal and terrorist aliens.”).
The immigration regulations at 8 C.F.R. § 241.4(g) provide in
relevant part as follows:
[T]he
removal
period
is extended
under section
241(a)(1)(C) of the Act if the alien fails or refuses to
make timely application in good faith for a travel or
other documents necessary to the alien’s departure or
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conspires or acts to prevent the alien’s removal subject
to an order of removal . . . .
The Service shall advise the alien that the Notice of
Failure to Comply shall have the effect of extending the
removal period as provided by law, if the removal period
has not yet expired, and that the Service is not
obligated to complete its scheduled custody reviews under
this section until the alien has demonstrated compliance
with the statutory obligations . . . .
The fact that the Service does not provide a Notice of
Failure to Comply, within the 90-day removal period, to
an alien who has failed to comply with the requirements
of section 241(a)(1)(C) of the Act, shall not have the
effect of excusing the alien’s conduct.
8 C.F.R. § 241.4 (g)(1)(i)(C)(ii) and (g)(5)(iv).
B.
Application to Leslie’s Case
There is no dispute that Leslie’s continued detention is
pursuant to INA §, 8 U.S.C. § 1231, as he is an alien under a final
order of removal. Pursuant to 8 U.S.C. § 1231(a)(1)(B)(iii),2 a 90day statutory removal period commenced on December 19, 2007,3 when
Leslie was received into DHS custody upon his release from the
2
Title 8 U.S.C., § 1231(a)(1)(B) provides that the removal
period begins on the latest of the following dates:
(i) The date the order of removal becomes administratively
final;
(ii) If the removal order is judicially reviewed and if a
court orders a stay of the removal of the alien, the date of
the court’s final order; or
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C., § 1231(a)(1)(B)
3
Petitioner’s assertions regarding the commencement of the ninety-day
statutory removal period are incorrect, and he does not provide his
reasoning or statutory authority for his calculations.
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custody of the United States Marshal Service where he had been
detained other than under an immigration process (i.e., he was
detained by virtue of his federal criminal conviction).
Clearly, more than ninety days have elapsed since December
19, 2007. Respondent argues that the statutory period of removal
has been suspended, and effectively extended, due to Leslie’s
refusal to make timely application in good faith for travel or
other documents necessary for his departure and because Leslie has
conspired and acted to prevent his removal from the United States,
thereby rendering his continued custody lawful. See 8 U.S.C.
§ 1231(a)(1)(C).
As noted above, Leslie was criminally prosecuted in this Court
pursuant to 8 U.S.C. § 1253(a)(1)(C) and 18 U.S.C. § 1001(a)(2) for
his obstruction of DHS efforts to remove him from the United States
in accordance with the order of removal. On November 5, 2007, when
Leslie pled guilty to making a false statement pursuant to 8 U.S.C.
§ 1001(a)(2), he admitted facts showing his refusal to make timely
a application in good faith for travel or other documents necessary
for his departure as well as his conspiratorial actions designed to
prevent his removal. In the plea agreement, signed on November 5,
2007, Leslie specifically admitted that he falsely and knowingly
stated that he was born in the U.S. Virgin Islands in order to
avoid deportation from this country.
-14-
During an interview with the Jamaican Consulate General on
April 22, 2008, Leslie again made a false statement claiming to be
a citizen of the U.S. Virgin Islands, which has prevented the
issuance of a travel document.
As a result of Leslie’s actions, on 44 separate occasions
between February 20, 2007, and August 22, 2011, DHS served Leslie
with a
Warning
for
Failure
to
Depart,
including
44
separate
instruction sheets listing items that Leslie was to provide within
30 days. The instruction sheets also advised Leslie that his
failure to comply or provide sufficient evidence of his inability
to comply could result in the extension of the removal period and
subject him to further detention.
Between July 2008, and July 2011, 13 separate Notices of
Failure to Comply were served upon Leslie. Leslie has provided no
evidence that he responded to the instruction sheets by providing
any
§
of
the
items
241(a)(1)(C),
8
requested
U.S.C.
§
of
him.
Thus,
1231(a)(1)(C),
pursuant
to
INA
suspension
of
the
statutory removal period is warranted. Moreover, Further, Leslie
has offered no credible evidence to refute DHS’s assertion that
Leslie can be removed in the reasonably foreseeable future if he
cooperates and provides the information as he is statutorily
required to do. In sum, Leslie’s continued detention under INA
§ 241(a)(1)(C) is lawful, and there is no basis for granting relief
under 28 U.S.C. § 2241.
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IV.
Conclusion
For the foregoing reasons, Nicholas Leslie’s § 2241 petition
is denied without prejudice, with leave to re-file should it
subsequently appear that suspension of the removal is no longer
warranted and that there is no significant likelihood of his
removal in the reasonably foreseeable future.
Because Petitioner has not made a “substantial showing of the
denial
of
a
constitutional
right”
pursuant
to
28
U.S.C.
§ 2253(c)(2), no certificate of appealability shall issue. The
Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and FED. R. APP.
P. 24(a)(3), that any appeal from this Decision and Order would not
be taken in good faith and therefore the Court denies leave to
appeal as a poor person. See Coppedge v. United States, 369 U.S.
438, 445-46 (1962).
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
Rochester, New York
June 21, 2012
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