Tamayo-Valle v. Ouellette et al

Filing 6

ORDER that the amended petition is dismissed without prejudice. 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”) Amended 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. 4). TamayoValle, a native and citizen of Mexico, was removed from the United States in December
2015 and is now reportedly in Mexico. He asks for “a writ of habeas corpus directing the
Respondents to immediately allow [him] to return to the United States to pursue postconviction relief” in an underlying criminal case.

He also requests that the Court

“[d]irect Respondents to allow [him], once his conviction is vacated, to pursue relief from
removal or in the alternative for a declaratory judgment allowing him to pursue
immigration benefits, including waiver of removal.”
On March 8, 2017, the Court ordered Tamayo-Valle to amend his original petition
to provide sufficient information to allow the Court to determine whether it has

jurisdiction to review his petition (Filing No. 3). See 28 U.S.C. § 2241 (explaining “[t]he
writ of habeas corpus shall not extend to a prisoner unless” the prisoner “is in custody”);
8 U.S.C. § 1252 (limiting judicial review of removal orders). In particular, the Court
questioned whether Tamayo-Valle was “in custody” within the meaning of § 2241 and
was eligible for habeas relief in this Court despite his removal to Mexico and the postremoval filing of his petition. See, e.g., Lopez v. Heinauer, 332 F.3d 507, 510 (8th Cir.
2003).
In his amended petition, Tamayo-Valle—acknowledging he is not now physically
“in custody” and was not physically “in custody” when he filed his petition—points out
“[a] person need not be physically detained in order to file a habeas corpus petition.”
According to Tamayo-Valle, “[a]n ‘in-custody’ determination can be made on this case
because a restraint has been imposed on [his] liberty, constitutional and statutory
violations are alleged, and the case presents a question of law for which there is no other
judicial forum to answer.” In support, Tamayo-Valle relies on cases in which petitioners
challenging the conditions of their release or subject to outstanding orders of removal
were found to be “in custody.” See, e.g., Simmonds v. INS, 326 F.3d 351, 354 (2d Cir.
2003).
While Tamayo-Valle is correct that a petitioner need not necessarily be physically
restrained to petition for habeas relief, see Rumsfeld v. Padilla, 542 U.S. 426, 437 (2004)
(“[O]ur understanding of custody has broadened to include restraints short of physical
confinement.”), Tamayo-Valle has not cited—and the Court has not found—any case in
which an admitted alien petitioning for habeas relief was found to be “in custody” under
§ 2241 despite the fact that he had already been removed from the United States to his
native country more than a year before he filed his habeas petition. To the contrary,
several circuit courts have generally found “an alien who has been deported pursuant to a
final removal order is not ‘in custody’ for habeas purposes.” Merlan v. Holder, 667 F.3d
538, 539 (5th Cir. 2011) (per curiam) (joining the Third, Ninth, and Eleventh Circuits).
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But cf. Rivera v. Ashcroft, 394 F.3d 1129, 1138 (9th Cir. 2005), superseded by statute on
other grounds, REAL ID Act, Pub. L. No. 109–13, 119 Stat. 231, § 106(c) (2005);
Gutierrez v. Gonzales, 125 F. App’x 406, 409, 416 (3rd Cir. 2005) (unpublished).
To be “in custody” under § 2241, the petitioner must be restrained in some
material way—at least at the point in time when the petition is filed. See, e.g., Lopez, 332
F.3d at 510 (“[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.”). Having long been
physically removed to Mexico, Tamayo-Valle’s only contemporaneous allegations of
restraint relate to him “never [being] able to return [legally] to the United States.” Even
broadly construing the operative phrase, the Court is unable to conclude Tamayo-Valle
was “in custody” under § 2241 when he filed his petition.
Tamayo-Valle has also not sufficiently answered the Court’s questions about the
limitations on judicial review of removal orders set forth in 8 U.S.C. § 1252. Briefly
acknowledging those limitations, Tamayo-Valle notes that, in some circumstances,
§ 2241 may enable an individual to present a challenge to detention that is independent of
a challenge to his removal order. As Tamayo-Valle’s sees it, he “is not seeking review of
his final order of deportation (removal) . . . . Instead [he] is challenging his unlawful
detention and subsequent removal since the ordered [sic] would be rendered invalid if he
is allowed to reopen his removal case.”
Notwithstanding Tamayo-Valle’s assertion to the contrary, the Court is not
persuaded Tamayo-Valle’s amended petition presents a challenge to detention that is
independent of his order of removal.

Again, the only “detention” Tamayo-Valle

challenges is his inability to return to the United States to, as he puts it, “remedy [his]
unlawful deportation.” And he asks the Court to order the respondents to allow him “to
pursue relief from removal or in the alternative for a declaratory judgment allowing him

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to pursue immigration benefits, including waiver of removal.” Tamayo-Valle’s removal
order is at the heart of his amended petition.
In the Court’s view, Tamayo-Valle has not adequately addressed the complex
jurisdictional issues presented by his novel, post-removal petition for habeas relief under
§ 2241. Because Tamayo-Valle has not established this Court has jurisdiction to consider
his amended petition, the amended petition is dismissed without prejudice.
IT IS SO ORDERED.
Dated this 3rd day of April, 2017.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge

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