Tamayo-Valle v. Ouellette et al

Filing 3

ORDER that Eliazar Tamayo-Valle shall have until March 24, 2017, to file an amended petition in accordance with this order. Ordered by Judge Robert F. Rossiter, Jr. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ELIAZAR TAMAYO-VALLE,
Petitioner,

8:17CV46

vs.
ORDER
ERIC OUELLETTE, in his official capacity
as Acting Field Office Director for
Detention & Removal, Omaha Field Office;
THOMAS HOMAN, in his official capacity
as Acting Director of United States
Immigration and Customs Enforcement;
JOHN F. KELLY, in his official capacity as
Secretary of the United States Department
of Homeland Security; and JEFF
SESSIONS, in his official capacity as
Attorney General of the United States;
Respondents.
This matter is before the Court on petitioner Eliazar Tamayo-Valle’s (“TamayoValle”) Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 and § 2242
and Complaint for Declaratory and Injunctive Relief (Filing No. 1). Tamayo-Valle, a
native and citizen of Mexico, states he was removed from the United States in December,
2015, pursuant to “a final order of removal” he received on November 30, 2015. Seeking
to remedy what he describes as his “unlawful deportation,” Tamayo-Valle, in part, asks
the Court to grant him “a writ of habeas corpus directing the Respondents to immediately
allow [him] to return to the United States to pursue post-conviction relief.”
The Court has completed an initial review of the petition, see 28 U.S.C. § 2243,
and has some questions about the Court’s jurisdiction to hear this case and TamayoValle’s eligibility for relief under § 2241. See 28 U.S.C. § 2241; 8 U.S.C. § 1252.
Tamayo-Valle asserts the “Court has subject matter jurisdiction under 28 U.S.C. § 2241,

Art. I § 9, cl. 2 of the United States Constitution (“Suspension Clause”), and 28 U.S.C.
§ 1331, as [Tamayo-Valle] has been removed under color of the authority of the United
States, and such custody is in violation of the Constitution, laws, or treaties of the United
States.”
Under § 2241(c), “[t]he writ of habeas corpus shall not extend to a prisoner
unless” the prisoner “is in custody.” “[T]he ‘in custody’ requirement of the habeas
statute is satisfied as long as the petitioner was in custody at the time he filed his habeas
petition.” Lopez v. Heinauer, 332 F.3d 507, 510 (8th Cir. 2003). Section 2242 requires a
petitioner to “allege the facts concerning the applicant’s commitment or detention, the
name of the person who has custody over him and by virtue of what claim or authority, if
known.”
Tamayo-Valle’s petition does not provide sufficient information to enable the
Court to determine if he meets these standards under the habeas statutes. Based on the
allegations in the petition, it does not appear Tamayo-Valle is presently in custody,
having been removed to Mexico. And the Court is unable to determine whether TamayoValle was in custody on February 16, 2017, the date he filed his petition. “Habeas is at
its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693
(2008).
The Court will give Tamayo-Valle an opportunity to amend his petition to provide
sufficient information to allow the Court to determine whether he is eligible for relief
under § 2241, including, but not limited to, his current detention status, if any, and his
detention status as February 16, 2017. If Tamayo-Valle fails to remedy the significant
pleading deficiencies in the petition, the Court may dismiss this case without further
notice. See 28 U.S.C. § 2243; cf. McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal
courts are authorized to dismiss summarily any habeas petition that appears legally

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insufficient on its face.”). Tamayo-Valle shall have until March 24, 2017, to file an
amended petition in accordance with this order.
IT IS SO ORDERED.
Dated this 8th day of March, 2017.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge

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