PEREZ v. IMMIGRATION & NATURALIZATION SERVICES et al
OPINION. Signed by Judge Noel L. Hillman on 2/9/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IMMIGRATION & NATURALIZATION :
SERVICES, DEPARTMENT OF
JORGE HUMBERTO FELIPE PEREZ,
Civ. No. 18-384 (NLH)
Jorge Humberto Felipe Perez, No. 1137777
Southern State Correctional Facility
4295 Route 47, Unit 1-L, Compound A
Delmont, NJ 08314
Petitioner Pro se
HILLMAN, District Judge
Petitioner Jorge Humberto Felipe Perez, a prisoner
presently incarcerated at Southern State Correctional Facility
in Delmont, New Jersey, brings this action pursuant to 28 U.S.C.
§ 2241 to challenge his immigration hold/detainer.
ECF No. 1.
For the reasons that follow, the Petition will be dismissed
Petitioner filed the Petition on January 9, 2018, and paid
the requisite $5.00 filing fee on January 12, 2018.
ECF No. 1.
In the Petition, Petitioner explains that he is presently
serving a state sentence imposed by the Superior Court of New
Jersey on October 13, 2017. 1
ECF No. 1, Pet. at 1.
states that an immigration hold has been lodged against him.
The Petitioner seeks to challenge his immigration
hold/detainer and invoke his “rights to a quick and speedy
Id. at 2, 5, 6.
The Petitioner seeks the following
relief from the Court: “To take me into Federal Custody and
proceed with any and all DHS Immigration cases.”
Id. at 8.
STANDARD OF REVIEW
“Habeas corpus petitions must meet heightened pleading
McFarland v. Scott, 512 U.S. 849, 856 (1994).
Although the petitions of pro se litigants are held to less
stringent standards than those pleadings drafted by lawyers, see
Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010), the habeas
petition must “specify all the grounds for relief available to
the petitioner, “state the facts supporting each ground,” “state
the relief requested,” be printed, typewritten, or legibly
handwritten, and be signed under penalty of perjury.
§ 2254, Rule 2(c) (applicable to § 2241 petitions pursuant to
The New Jersey Department of Corrections Offender Search
webpage provides that Petitioner is currently in the custody of
New Jersey with a current maximum release date of August 30,
Habeas Rule 4 requires a judge to sua sponte dismiss a
habeas petition without ordering a responsive pleading “[i]f it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court.”
28 U.S.C. § 2254, Rule 4 (applicable to § 2241 petitions through
See also 28 U.S.C. § 2243 (“A court . . . shall
forthwith . . . issue an order directing the respondent to show
cause why the writ should not be granted, unless it appears from
the application that the applicant . . . is not entitled
“[A] district court is authorized to dismiss a
[habeas] petition summarily when it plainly appears from the
face of the petition and any exhibits annexed to it that the
petitioner is not entitled to relief in the district court.”
Lonchar v. Thomas, 517 U.S. 314, 320 (1996).
See McFarland, 512
U.S. at 856 (“Federal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its
The Petition must be summarily dismissed without prejudice
because Petitioner has failed to allege the ”in custody”
jurisdictional requirement of § 2241 habeas petitions.
to obtain habeas jurisdiction, the Petitioner must allege that
he is “in custody” pursuant to 28 U.S.C. § 2241(c)(3):
The writ of habeas corpus shall not extend to a
prisoner unless-. . .
He is in custody in violation of the Constitution
or laws or treaties of the United States.
28 U.S.C. § 2241(c)(3).
The district court only has subject-
matter jurisdiction under § 2241(c)(3) if both the “in custody”
and “in violation of the Constitution or laws or treaties of the
United States” requirements are met.
488, 490 (1989).
Maleng v. Cook, 490 U.S.
“Custody is measured as of the time that the
petition was filed.”
Henry v. Chertoff, 317 F. App’x 178, 179
(3d Cir. 2009).
Here, Petitioner alleges that he is presently incarcerated
pursuant to a sentence of imprisonment imposed by the courts of
See ECF No. 1, Pet. at 1.
The Petitioner also
alleges that he is challenging his immigration hold/detainer-not a removal proceeding or a final order of removal.
These allegations fail to satisfy the “in custody” requirement
necessary to confer subject-matter jurisdiction in an action
challenging an immigration hold or detainer.
App’x at 179.
See Henry, 317 F.
A petitioner incarcerated pursuant to a sentence
of imprisonment fails “to demonstrate that he was being held
pursuant to the detainer, that he was subject to a final order
of removal, or even that the removal proceedings had been
Under such circumstances, a petitioner is not
Id. (citing Zolicoffer v. U.S. Dep’t of Justice,
315 F.3d 538, 541 (5th Cir. 2003) (“agree[ing] with the majority
of the circuit courts considering this issue and hold[ing] that
prisoners are not ‘in custody’ for purposes of 28 U.S.C. § 2241
simply because the INS has lodged a detainer against them.”)).
Courts in this district have held similarly.
Abelenda v. Hollingsworth, No. 13-cv-5355, 2013 WL 5505639, at
*2 (D.N.J. Oct. 1, 2013); Cena v. Hollingsworth, No. 13-cv-4489,
2013 WL 4039024, at *1 (D.N.J. Aug. 7, 2013); Quattara v. U.S.
Citizenship & Immg. Svs., No. 12-cv-263, 2012 WL 395726, at *3
(D.N.J. Feb. 2, 2012).
Because the Petitioner has not satisfied
the “in custody” requirement of § 2241, the Petition must be
dismissed without prejudice.
Although the Court does not have jurisdiction over the
Petition, the Court notes that challenges to removal “shall be
filed with the court of appeals for the judicial circuit in
which the immigration judge completed the proceedings.”
U.S.C. § 1252(b)(2).
Whenever Petitioner’s immigration
proceedings have concluded, the Petitioner will be free to
challenge any final order of removal before the appropriate
For the reasons set forth above, the Petition will be
dismissed without prejudice. 2
An appropriate Order follows.
Dated: February 9, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
As the Third Circuit noted in Henry, a dismissal without
prejudice of a § 2241 petition will not prevent the Petitioner
from appropriately challenging his detention if the
circumstances warrant it in the future. Henry, 317 F. App’x at
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