United States District Court, D. New Jersey
D. WIGENTON, U.S.D.J.
or about July 19, 2017, Petitioner Henry Alexander
Escoba-Bojorquez filed the instant petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 challenging
his ongoing immigration detention pending his removal from
the United States. (ECF No. 1). In his petition, Petitioner
essentially asserts that he has pending applications for
relief that may alleviate the order of removal under which he
has been held since July 11, 2017, and that he should
therefore be released from custody and his removal from the
United States, which is currently scheduled for July 20,
2017, should be stayed.
Because Petitioner has filed a habeas petition and has paid
the appropriate filing fee, this Court is required by Rule 4
of the Rules Governing Section 2254 Cases, applicable to
Section 2241 petitions through Rule 1(b), to preliminarily
review the petition and determine whether it “plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Pursuant to this
rule, a district court is “authorized to dismiss
summarily any habeas petition that appears legally
insufficient on its face.” McFarland v. Scott,
512 U.S. 849, 856 (1994).
Pursuant to 28 U.S.C. § 2241(c), habeas relief may
extend to a prisoner only when he is “in custody in
violation of the Constitution or laws or treaties of the
United States. 28 U.S.C. § 2241(c)(3). A federal court
has jurisdiction over such a habeas petition if the
petitioner is “in custody, that custody is allegedly
“in violation” of federal law, and the petitioner
is detained by a custodian who is also within the reach of
the Court's jurisdiction. See Id.; Maleng v.
Cook, 490 U.S. 488, 490 (1989); Braden v. 30th
Judicial Circuit Court, 410 U.S. 484, 494-95, 500
(1973); see also Zadvydas v. Davis, 533 U.S. 678,
699 (2001). The “warden of the [facility] where the
detainee is held . . . is considered the custodian for
purposes of a habeas action, ” not a more remote
supervisory figure such as a high level immigration official
or the Attorney General, regardless of the fact that such a
remote figure may have the authority to order the
petitioner's release. Yi v. Maugans, 24 F.3d
500, 507 (3d Cir. 1994); see also Rumsfeld v.
Padilla, 542 U.S. 426, 434-36 (2004). Habeas
jurisdiction will therefore only exist under § 2241
where this Court has jurisdiction over the warden of the
facility in which the petitioner is held. Yi, 24
F.3d at 507-08. It is likewise for that reason that the
warden, who is the sole proper respondent in a § 2241
matter, is an indispensable party to such an action, and a
petition failing to identify the proper respondent may be
dismissed as a result. Id. (warden is the sole
proper respondent); see also Saisi v. New Jersey Parole
Board, No. 08-6043, 2009 WL 1314814, *1-2 (D.N.J. May
12, 2009) (proper respondent is indispensable party to habeas
action); Saldana v. New Jersey, No. 10-4427, 2010 WL
3636259, *1-2 (D.N.J. Sep. 8, 2010) (same).
his petition, Petitioner directly states that he is being
held in “a staging center in Alexandria, Louisiana . .
. awaiting . . . deportation.” (ECF No. 1 at 2).
Although Petitioner states that he expects to eventually be
returned to New Jersey (Id. at 3), it is clear that,
at the time of the filing of his petition, he was not being
held within the jurisdiction of this Court, that the warden
of the facility in which he is being held is not subject to
the territorial jurisdiction of this Court, and that this
Court therefore lacks jurisdiction over this petition.
Yi, 24 F.3d 507-08. Likewise it is clear that
Petitioner has failed to name an indispensable party to this
action - the warden of the facility in Louisiana in which he
is being held. Petitioner's habeas petition must
therefore be dismissed without prejudice for lack of
jurisdiction and because Petitioner has failed to name an
indispensable party. Id.; Saldana, 2010 WL
3636259 at *1-2; Saisi, 2009 WL 1314814 at *1-2.
Court further notes that in his habeas petition Petitioner
requested that this Court enter an order staying his removal.
Pursuant to 8 U.S.C. § 1252(a)(5), this Court has no
authority or jurisdiction to review orders of removal, and as
a result lacks jurisdiction to consider a stay of removal
premised on the assertion that the removal order will be
overturned or is otherwise faulty. See Nkansah v.
Aviles, No. 15-2678, 2015 WL 4647988, at *3 (D.N.J. Aug.
5, 2015); see also Chuva v. Att'y Gen., 432
F.App'x 176, 177 (3d Cir. 2011). The limited stay that
was granted on July 29, 2017 is hereby vacated and
Petitioner's request for a stay of removal is denied.
Finally, by way of letter dated July 20, 2017, the Office of
Enforcement and Removal Operations (Newark Field Office), as
part of the US. Department of Homeland Security/U.S.
Immigration and Customs Enforcement (ICE), Petitioner's
application for a Stay of Deportation or Removal (Form I-246)
has been denied. In conclusion, Petitioner's petition for
a writ of habeas corpus is dismissed for lack of jurisdiction
and his ...