Hernandez Tapia v. Noem et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
FAUSTINO HERNANDEZ TAPIA,
Petitioner,
v.
KRISTI NOEM et al.,
Respondents.
____________________________/
Case No. 1:25-cv-1291
Honorable Hala Y. Jarbou
OPINION
Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. That
statute provides that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice
thereof, the district courts and any circuit judge within their respective jurisdictions.” 28 U.S.C.
§ 2241(a). Promptly after the filing of a petition for habeas corpus, the Court must undertake a
preliminary review of the petition to determine whether “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.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243.1 The Court is required to
conduct this initial review prior to the service of the petition. See Rule 4, Rules Governing § 2254
Cases. After undertaking the review required by Rule 4, the Court concludes that the petition must
be dismissed without prejudice for lack of subject matter jurisdiction.
1 The Rules Governing § 2254 Cases may be applied to petitions filed under § 2241. See Rule 1(b),
Rules Governing § 2254 Cases.
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Discussion
In Maleng v. Cook, 490 U.S. 488 (1989), the Supreme Court described an important limit
on the Court’s habeas jurisdiction:
The federal habeas statute gives the United States district courts jurisdiction to
entertain petitions for habeas relief only from persons who are “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3) (emphasis added); see also 28 U.S.C. § 2254(a). We have interpreted
the statutory language as requiring that the habeas petitioner be “in custody” under
the conviction or sentence under attack at the time his petition is filed. See Carafas
v. LaVallee, 391 U.S. 234, 238 (1968).
Maleng, 490 U.S. at 490–91 (parallel citations omitted). In Baidas v. Jenifer, 123 F. App’x 663
(6th Cir. 2005), in the context of considering a habeas challenge to the removal of a noncitizen,
the Sixth Circuit Court of Appeals explained further that “custody is considered only at the time
the petition is filed.” Baidas, at 667.
The petition states: “Petitioner is presently in Mexico, having been removed from the
United States on October 23, 2025.” (Pet., ECF No. 1, PageID.1.) The petition notes that, at some
time prior to his removal, he had been detained by United States Immigration and Customs
Enforcement (ICE) at the North Lake Processing Center, located in this district, in Baldwin,
Michigan. (Id.) But prior to Petitioner’s removal, “he was . . . transferred to several facilities for
purposes of travel before his removal.” (Id.) The petition was filed on October 24, 2025.
There are no factual allegations in the petition that support an inference that Petitioner was
in custody on the date the petition was filed. Accordingly, the Court does not have jurisdiction to
grant the habeas relief that Petitioner requests.
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Conclusion
Having conducted the review required under 28 U.S.C. § 2243 and Rule 4, Rules
Governing § 2254 Cases, for the reasons stated above, the Court will enter a judgment dismissing
the petition without prejudice for lack of subject matter jurisdiction.
Dated: January 5, 2026 	/s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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