Garcia Marcano v. Thompson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SAMUEL ALEJANDRO GARCIA
MARCANO, §
§
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§
§
§
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§
§
Petitioner, CIVIL ACTION NO. H-26-1898
v.
RAYMOND THOMPSON, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
Samuel Alejandro Garcia Marcano ("Petitioner"), a citizen of
Venezuela, entered the country without inspection on August 19,
2021.1 Petitioner applied for Temporary Protected Status ("TPS")
under the 2023 Venezuela designation, which was granted on May 17,
2024. 2 Petitioner's TPS was scheduled to expire on April 2, 2025.3
On January 19, 2025, before his status expired, Petitioner
reapplied for TPS.4 However, Petitioner's TPS was terminated when
the Department of Homeland Security terminated the 2023 Venezuela
1Petition
Docket Entry
identification,
at the top
system.
for
No.
all
the
2l_g_,_ at 7 en 24.
4Id. <JI 26.
Writ of Habeas Corpus ("Habeas Petition"),
1, p. 6 '][Cfi 21-22. For purposes of
page numbers refer to the pagination imprinted
page by the court's Electronic Case Filing
United States District Court
Southern District of Texas
ENTERED
May 21, 2026
Nathan Ochsner, Clerk
Case 4:26-cv-01898 Document 9 Filed 05/21/26 in TXSD Page 1 of 6

TPS designation on February 5, 2025. 5 TERMINATION OF THE OCTOBER 3, 2023
DESIGNATION OF VENEZUELA FOR TEMPORARY PROTECTED STATUS, 90 Fed. Reg. 9040,
9041 (Feb. 5, 2025).
On September 2, 2025, Petitioner was issued a Notice to
Appear, denying him admission into the United States. 6 On
October 27, 2025, Petitioner filed an amended application for
asylum. 7 The application was pretermitted by an immigration judge
on January 23, 2026. 8 That same day an order for Petitioner's
removal was issued by the immigration court. 9 On January 31, 2026,
Petitioner appealed his removal. 10
Petitioner was taken into immigration custody by Immigration
and Customs Enforcement ("ICE") under § 1225(b) (2) on February 3,
2026, "to await adjudication of his appeal. "11
immigration custody. 12
He remains in
5Respondent's Motion for Summary Judgment and Response to the
Petition for Writ of Habeas Corpus and Temporary Restraining Order
("Respondent's MSJ"), Docket Entry No. 7, p. 2.
6Habeas Petition, Docket Entry No. 1, p. 7 <JI 27.
7.Is;L_ at 8 <JI 28. Petitioner originally filed an application
for asylum on August 11, 2022. l.,Q._,_ at 6 <JI 23. He amended his
application when he was issued the Notice to Appear. Id. at 8
<_[<JI 28-29.
8 Id. at 8 <JI 29.
9 Id. <JI 30.
11Respondent's MSJ, Docket Entry No. 7, p. 3; Habeas Petition,
Docket Entry No. 1, pp. 8-9 <JI 31.
12Habeas Petition, Docket Entry No. 1, p. 9 ':II 33.
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Case 4:26-cv-01898 Document 9 Filed 05/21/26 in TXSD Page 2 of 6

Pending before the court is Petitioner's Habeas Petition
(Docket Entry No. 1). Petitioner argues that his detention without
a bond hearing violates (1) the Immigration and Nationality Act
("INA"), (2) the Fourth Amendment, (3) due process, and (4) the
Eighth Amendment.13 Petitioner also argues that because his TPS
application remains pending, his detention violates the INA. 14
Petitioner has also filed a Motion for Temporary Restraining Order,
Application for Preliminary Injunction, and Request for Expedited
Hearing (Docket Entry No. 5).
Also pending before the court is Respondent's MSJ (Docket
Entry No. 7). Respondent argues that Petitioner can legally be
detained under § 1225(b)(2) because he is an applicant for
admission.15 Petitioner has filed a reply. 16
Petitioner is subject to mandatory detention under
§ 1225(b)(2). As the Fifth Circuit explained in Buenrostro-Mendez
y. Bondi, 166 F.4th 494 (5th Cir. 2026), an alien that is present
without lawfully being admitted to the United States is an
applicant for admission and is therefore subject to mandatory
detention under § 1225(b)(2). Id. at 498, 502.
Circuit's analysis and holding applies in this case.
13..rs.L.. at 11 13 SISI 42-55; pp. 16-25 <Jf<.ll 67-102.
The fth
14.Is;;L_ at 13-16 <JISI 56-66 (citing 8 U.S.C. § 1254a(a)(4)(B)).
15Respondent's MSJ, Docket Entry No. 7, pp. 1-2.
16Petitioner's Response in Opposition to Respondent's Motion
for Summary Judgment ("Petitioner's Reply"), Docket Entry No. 8.
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Petitioner's detention does not violate 8 u.s.c.
§ 1254a(a) (4)(B) because the Department of Homeland Security has
terminated the 2023 Venezue TPS designation.17 Although the
Northern District of California has vacated the Department of
Homeland Security's termination of the 2023 Venezuela TPS
designation, the Supreme Court has stayed the decision, allowing
the termination to take immediate effect.18 Noem v. National TPS
Alliance, 145 s. ct. 2728, 2729 (2025); Noem v. National TPS
Alliance, 146 S. ct. 23, 24 (2025).
Pet ioner's detention without a bond hearing does not violate
substantive or procedural due process. As explained in Garcia
De La Cruz v, Bondi t Civil Action No. H-25-5577, 2026 WL 309939
(S.D. Tex. Feb. 5, 2026), the Supreme Court has made clear that
"' [d] etention during removal proceedings is a constitutionally
permissible part of that process.'" Id. at *2 (quoting Demore v.
178 U.S.C. § 1254a(a) {4) {B) prohibits removal of an alien while
their TPS application is pending.
18 On March 31, 2025, the Northern District California
vacated the termination of the Venezuela TPS status. National TPS
Alliance v. Noem, 773 F.Supp.3d 807 {N.D. Cal. 2025). The Northern
District of California's vacatur was stayed by the Supreme Court.
Noem v. National TPS Alliance, 145 s. Ct. 2728, 2729 (2025). After
the Ninth Circuit affirmed the district court's vacatur, the
district court entered summary judgment against the Government.
That decision was also stayed by the Supreme Court. Noem v.
National TPS Alliance, 146 s. Ct. 23, 24 (2025). Despite the fact
the Supreme Court has stayed these cases, the Northern District of
California entered a declaratory judgment in favor of the
plaintiffs on December 10, 2025. National TPS Alliance y. Noem,
Case No. 25-cv-01766-EMC, 2025 WL 3539156 {N.D. Cal. Dec. 10,
2025). Given the Supreme Court's stays, the court declines to
enforce the Northern District of California's declaratory judgment.
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Kim, 123 S. Ct. 1708, 1721-22 (2003)). Moreover, as explained in
Jacobo-Ventura v. Dickey, Civil Action No. H-25-6117 (S.D. Tex.
Feb. 19, 2026) (Memorandum Opinion and Order, Docket Entry No. 14,
pp. 3-4), because Petitioner only has those rights regarding
admission that Congress has provided by statute, and because
§ 1225(b)(2) mandates detention of applicants for admission until
certain proceedings have concluded, Petitioner is not entitled to
a bond hearing as a matter of procedural due process.
As explained in Portillo v. Tate, Civil Action No. H-26-0158
(S.D. Tex. Feb. 25, 2026) (Memorandum Opinion and Order, Docket
Entry No. 8, pp. 2-3), Petitioner's Fourth Amendment claim is
foreclosed because it relies on the assertion that the Government
lacks the authority to detain him under § 1225.19 Moreover,
although Petitioner argues he was arrested without a warrant, ICE
executed an arrest warrant for Petitioner on February 3, 2026.20
Finally, Petitioner's detention does not violate the Eighth
Amendment.21 As the Supreme Court has explained, detention without
19Petitioner's Reply, Docket Entry No. 8, p. 14.
20warrant for Arrest of Alien, Exhibit 1 to Respondent's MSJ,
Docket Entry No. 7-1. Petitioner also argues that his warrantless
arrest violates the Accardi doctrine because 8 C.F.R.
§ 287.8(c)(2)(ii) requires a warrant unless the immigration officer
has reason to believe the person is likely to escape before a
warrant can be obtained. Petitioner's Reply, Docket Entry No. 8,
pp. 13-14. However, as discussed above, ICE executed a warrant
before arresting Petitioner.
21Although Respondent failed to address Petitioner's Eighth
Amendment claim in its Motion for Summary Judgment, Respondent is
entitled to summary judgment under Rule 56(e)(3) of the Federal
(continued...)
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a bond hearing during immigration proceedings does not violate the
Eighth Amendment because Congress may "def in[ e] the classes of
cases in which bail shall be allowed in this country" and because
"[d]etention is necessarily a part th[e] deportation procedure."
Carlson v. Landon, 72 S. Ct. 525, 537-38 (1952) (further discussed
and affirmed by United States v. Salerno, 107 s. Ct. 2095, 2105
(1987)).
For the reasons explained above, Respondent's Motion for
Summary Judgment (Docket Entry No. 7) is GRANTED. Accordingly,
Petitioner's Petition for Writ of Habeas Corpus (Docket Entry
No. 1) and Motion for Temporary Restraining Order, Application for
Preliminary Injunction, and Request for Expedited Hearing (Docket
Entry No. 5) are DENIED.
The court will enter a final judgment in favor of Respondent.
SIGNED at Houston, Texas, on this the 21st day of May, 2026.
21 ( •••continued)
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
Rules of Civil Procedure because Petitioner has failed to show that
detention during removal proceedings violates the Eighth Amendment.
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