Osorio Toro v. U.S. Department of Homeland Security et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
NICOLAS T., 1 	§
Petitioner, 	§
§
v. 	§ 	CIVIL ACTION NO. 1:25-cv-313
§
KRISTI NOEM, et al., in their official 	§
capacities 	§
Respondents. 	§
REPORT AND RECOMMENDATION
TO GRANT PETITIONER’S HABEAS PETITION IN PART
Before the Court is Petitioner’s “Petition for Writ of Habeas Corpus” (Dkt. No. 1)
(“Petition”), Respondents’ “Response to Petition for Writ of Habeas Corpus and Motion for
Summary Judgment” (Dkt. No. 13) (“MSJ”), and Petitioner’s “Reply to Respondents’
Response to Order to Show Cause and Response in Opposition to Respondents’ Motion for
Summary Judgment” (Dkt. No. 15) (“Reply”). 	Petitioner is, by both parties’ account, an
alien who legally entered the United States through the Visa Waiver Program. Dkt. No. 1 at
3; Dkt. No. 13 at 2. Petitioner is now detained by Respondents and challenges this detention
on both statutory and constitutional grounds. See Dkt. No. 1 at 31.
Petitioner’s statutory claim is meritorious and sufficient to issue relief. Petitioner
rightly stresses that Respondents must identify a source of detention authority and offers 8
U.S.C. § 1226(a)—which allows for bond hearings2—as the default pre-removal detention
statute. Dkt. No. 1 at 20. Respondents do not invoke § 1226(a); instead, they argue that
Petitioner is subject to mandatory detention under 8 U.S.C. § 1187(c)(2)(E). Dkt. No. 13 at
1.
Respondents’ cited authority for detaining Petitioner, however, does not authorize
1 Due to significant privacy concerns in immigration cases and noting that judicial opinions are not subject to Federal
Rule of Civil Procedure 5.2, any opinion, order, judgment, or other disposition in this case will refer to the petitioner
only by first name and last initial.
2 Petitioners’ constitutional due process claims derive from the lack of a proper custody redetermination apparatus,
Dkt. No. 1 at 28, so a bond hearing under 8 U.S.C. 1226(a) would presumably moot those claims.
United States District Court
Southern District of Texas
ENTERED
March 30, 2026
Nathan Ochsner, Clerk
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detention. The text in full is as follows:
“The government of the country accepts for repatriation any citizen, former citizen,
or national of the country against whom a final executable order of removal is issued
not later than three weeks after the issuance of the final order of removal. Nothing in
this subparagraph creates any duty for the United States or any right for any alien with
respect to removal or release. Nothing in this subparagraph gives rise to any cause of
action or claim under this paragraph or any other law against any official of the United
States or of any State to compel the release, removal, or consideration for release or
removal of any alien.” 8 U.S.C. § 1187(c)(2)(E)
This provision does not contain language authorizing detention, much less mandatory
detention. Id. The Respondents seem to press on the last sentence, Dkt. No. 13 at 3, but as
the full text makes clear, that portion only foreswears giving additional rights to aliens; it
does not strip any existing right or block any existing cause of action. An earlier provision
cited by Respondents’ MSJ—8 U.S.C. § 1187(b)(2)—also does not authorize detention, for
it only commits the alien participating in the visa waiver program to “waive[] any right…to
contest, other than on the basis of an application for asylum, any action for removal of the
alien.” 8 U.S.C. § 1187(b)(2) (emphasis added). Since the statute Respondents are using to
detain Petitioner does not speak to detention, it does not authorize detention generally or to
Petitioner in particular. This is the same conclusion reached by other district courts on the
rare occasions this statute was invoked for this purpose, see, e.g., Neziri v. Johnson, 187
F.Supp.3d 211, 213 (D. Mass. 2016); Quispe v. Becerra, No. 1:25-CV-2002 CSK, 2025 WL
3774570 (E.D. Cal. Dec. 31, 2025), and it is one that, by the strength of the textual evidence,
renders Matter of A-W-, 25 I&N Dec. 45, 48 (BIA 2009) (holding “the statutory authority
for the applicant’s detention is contained in section 217(c)(2)(E) of the Act, 8 U.S.C.A. §
1187(c)(2)(E) (West Supp. 2008), not section 236 of the Act, 8 U.S.C. § 1226 (2006)”)
unpersuasive. See Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 412 (2024).
Since 	Respondents’ 	cited 	statutory 	provision 	does 	not 	authorize 	detention,
Petitioner’s detention is either ultra vires or lawful under 8 U.S.C. § 1226(a). It is therefore
recommended that the Court (1) GRANT the Petition (Dkt. No. 1) in part; (2) DENY the
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MSJ (Dkt. No. 13) as moot; (3) ORDER Respondents to cease applying 8 U.S.C. § 1187 as
a basis to detain Petitioner; (4) ORDER Respondents to submit a status update affirming
that they have either released Petitioner or detained him only under 8 U.S.C. § 1226(a); (5)
in the event that Respondents fail to comply with their obligations, ORDER Petitioner
released.
The parties have fourteen (14) days from the date of being served with a copy of this
Report and Recommendation in which to file written objections, if any, with the United
States District Judge assigned to the instant case. 28 U.S.C. § 636(b)(1). When filing an
objection, a party must object to specific facts or legal findings in this Report and
Recommendation. The District Judge is not required to consider frivolous, conclusive, or
general objections. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir.
1987).
If any party fails to timely object to any factual or legal findings in this Report and
Recommendation, the District Judge is not required to conduct a de novo review of the record
before adopting these findings. If the District Judge chooses to adopt such findings without
conducting a de novo review of the record, the parties may not attack those findings on
appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C.,
875 F.3d 243, 248 (5th Cir. 2017).
Signed on March 30, 2026.
Karen Betancourt
United States Magistrate
Judge
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