Avila-Delgado v. Vergara et al

O
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
LIZZANDRA AVILA-DELGADO,
Petitioner,
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V. 	CIVIL ACTION NO. 5:26-CV-00854
MIGUEL VERGARA, ET AL.,
Respondents.
ORDER
Petitioner is currently detained in federal immigration custody in Texas. Before
the 	Court is Petitioner’s Petition for Writ of 	Habeas Corpus, (Dkt. No. 1), and
Respondents’ Motion for Summary Judgment, (Dkt. No. 6).
The Court finds that Petitioner’s deprivation of liberty without constitutionally
adequate procedures is a violation of her due process rights, and the failure to provide
due process warrants her release. For the reasons stated below, Petitioner’s Petition for
Writ of Habeas Corpus is granted in part. Respondents are ordered to release Petitioner
by July 6, 2026, at 5:00 p.m. The parties are ordered to notify the Court of the status
of Petitioner’s release by July 7, 2026, at 5:00 p.m.
I. BACKGROUND
A. Factual Background
Petitioner, a citizen of Cuba, challenges her ongoing detention without a bond
hearing. Petitioner entered the United States without inspection in 2022. (See Dkt. No.
1-2 at 3).1 After she entered, she was apprehended by immigration officials, served a
Notice to Appear, and released from custody. (Id.; Dkt. No. 6 at 2). Petitioner represents
that she has no criminal history, which is consistent with Respondents’ evidence. (See
Dkt. No. 1 at 6; Dkt. No. 6-2 at 2).
1 When citing to the page numbers of any document in the record, the Court will cite to the page
numbering of the Court’s internal CM/ECF docket system, and not to the page numbers in the underlying
documents.
United States District Court
Southern District of Texas
ENTERED
July 02, 2026
Nathan Ochsner, Clerk
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Petitioner represents that she has not received a bond hearing while she’s been
detained and Respondents do not submit evidence of a bond hearing or individualized
custody determination. (See Dkt. No. 1 at 6). While the Petition has been pending,
Petitioner was ordered removed. Automated Case Information, Exec. Off. Immigr. Rev.,
https://acis.eoir.justice.gov/en/caseinformation (last visited July 2, 2026). However, she
filed a timely appeal, which remains pending, so her removal order is not final. Id.; 8
C.F.R. § 1241.1.
B. Legal Background
The Department of Homeland Security (DHS) and Department of Justice (DOJ)
released interim guidance in July 2025, announcing a new legal position on detention
authorities for noncitizens. The guidance interpreted the mandatory detention provision
of Section 235 of the Immigration and Nationality Act (INA), or 8 U.S.C. § 1225, as
applying to the detention of all “applicants for admission,” including all noncitizens who
have not been admitted, whether they arrive at a port of entry or enter without
inspection. This position was adopted by the Board of Immigration Appeals (BIA) in
September 2025. Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
In the months following the shift in policy, federal district courts across the
country found the Government’s interpretation at odds with the text of the statute and
ordered bond hearings, or release, for noncitizens subject to mandatory detention under
the policy. See, e.g., Barco Mercado v. Francis, No. 25-CV-6582, 2025 WL 3295903, at
*4,n.22 (S.D.N.Y. Nov. 26, 2025) (collecting cases). In February 2026, the Fifth Circuit
held that Section 1225(b)(2) applies to all applicants for admission, regardless of whether
they are actively “seeking admission” when they are detained. Buenrostro-Mendez v.
Bondi, 166 F.4th 494, 502 (5th Cir. 2026). However, Buenrostro did not address the
validity of due process claims such as those raised by Petitioner in this case. See, e.g.,
Bonilla Chicas v. Warden, No. 5:26-CV-131, 2026 WL 539475, at *4–5 (S.D. Tex. Feb. 20,
2026); see also Padron Covarrubias v. Vergara, No. 5:25-CV-112, 2025 WL 2950097 (S.D.
Tex. Oct. 8, 2025), overruled by Buenrostro-Mendez, 166 F.4th 494 (explaining the Court’s
prior statutory interpretation of Section 1225).
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II. DISCUSSION
Petitioner filed the instant petition for a writ of habeas corpus, maintaining that
she is entitled to release from detention. In her petition, Petitioner asserts that her
detention violates the Due Process Clause of the Fifth Amendment. Petitioner requests,
among other things, that this Court issue an order immediately releasing her from
custody, or providing a bond hearing, and awarding reasonable attorney’s fees.
Respondents move for summary judgment, asserting that Petitioner is subject to
mandatory detention and that her detention does not violate due process. The Court finds
that Petitioner’s detention violates due process. The Court incorporates the legal
standards and analysis applied in its prior order granting a petition for a writ of habeas
corpus under similar facts. Lopez Moncebais v. Bondi, No. 5:26-CV-268, slip op. (S.D. Tex.
Mar. 27, 2026).
There, this Court found that Buenrostro does not foreclose due process challenges
to mandatory detention, a noncitizen subject to mandatory detention may bring an as-
applied due process challenge to 8 U.S.C. Section 1225(b)(2), Supreme Court precedent
does not foreclose that type of challenge, and liberty interests in freedom from detention
must be protected by due process of law, including individualized justification for civil
detention. See id. The Court then applied the balancing test from Mathews v. Eldridge
and found that the petitioner’s procedural due process rights had been violated. Id. at 13
(citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The Court ordered immediate
release for the due process violation. Id. at 17.2
The 	Court finds that the 	same reasoning applies to 	these 	facts, 	though
Petitioner’s length of presence in the United States is factually distinct from Lopez
Moncebais. Petitioner has resided in the United States since 2022. The Court’s reasoning
in Lopez Moncebais relied on the petitioner’s length of residence in the United States in
evaluating her liberty interest. Here, the Court finds that Petitioner’s residence in the
United States since 2022 still creates a sufficient liberty interest to require that her
detention 	is 	safeguarded 	with 	constitutionally 	adequate 	procedures, 	including 	an
individualized determination of whether she should be detained.
2 The Court also denied attorney’s fees under the EAJA and incorporates that analysis here as well.
Lopez Moncebais, No. 5:26-CV-268, slip op. at 17.
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Additionally, the Court has previously found that a prior release like Petitioner’s
strengthens the liberty interest of a noncitizen because their release created an
expectation that they would be free from detention during the pendency of their removal
proceedings. Bonilla Barrios v. Noem, No. 5:26-cv-172, slip op. at 4 (S.D. Tex. Apr. 2,
2026). As the Court explained there, liberty interests “may arise from an expectation or
interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
In this case, Petitioner had an expectation, in addition to her residence since 2022, that
she would be free from detention or at least entitled to seek bond while her removal
proceedings were pending. She was released from detention in 2022 and spent years out
of custody before she was re-detained. Respondents do not assert that Petitioner violated
any conditions of her release. That expectation interest strengthens her liberty interest.
The Court also notes that several cases analyzed for their persuasive authority in Lopez
Moncebais similarly considered prior release as a factor strengthening the liberty
interest of noncitizens detained under Section 1225(b)(2) without a bond hearing. See
Lopez Moncebais, No. 5:26-CV-268, slip op. at 7 n.6 (collecting cases).
For these reasons and the reasons discussed in the Court’s analysis in Lopez
Moncebais, Respondents are not entitled to judgment as a matter of law. The Court finds
that Petitioner’s detention violates her rights under the Due Process Clause of the Fifth
Amendment, she is entitled to relief, and the appropriate remedy is to order Petitioner’s
immediate release from custody.3
3 A district court has equitable discretion in determining the appropriate remedy “as law and justice
require” for unlawful detention in a habeas petition. See Brown v. Davenport, 596 U.S. 118, 127–28 (2022).
The Court finds that the specific harm Petitioner suffered—unlawful deprivation of liberty without due
process—is remedied by granting her immediate release, rather than ordering a bond hearing. As explained
in Lopez Moncebais, “[t]he Court recognizes the weight of its decision to order Petitioner’s release from
custody.” No. 5:26-CV-268, slip op. at 16. Though, the Court reaches this conclusion for several reasons.
First, the Fifth Circuit has held that Section 1226(a), which provides for a bond hearing, does not apply to
any applicants for admission. Buenrostro-Mendez, 166 F.4th 494. Additionally, a hearing after Petitioner’s
unjustified deprivation of liberty does not cure the deprivation. See Bonilla Chicas, No. 5:26 CV-131, 2026
WL 539475, at *12. Finally, the Court finds that an Immigration Judge would be unlikely to hold the bond
hearing if ordered because the BIA’s position is that there is no jurisdiction to hold bond hearings for all
applicants for admission detained under Section 1225(b)(2). Matter of Yajure Hurtado, 29 I. & N. Dec. 216;
see also Rojas v. Noem, No. EP-25-CV-443, 2025 WL 3038262, at *4, n.2.
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III. CONCLUSION
For the foregoing reasons, Petitioner’s Petition for Writ of Habeas Corpus, (Dkt.
No. 1), is GRANTED in part and DENIED in part. Respondents’ Motion for Summary
Judgment, (Dkt. No. 6), is DENIED.
Respondents are ORDERED to RELEASE Petitioner from custody by July 6,
2026, at 5:00 p.m., under reasonable conditions of release, and to submit a status report
to the Court confirming Petitioner’s release by July 7, 2026, at 5:00 p.m. Respondents
must notify Petitioner’s counsel of the exact time and location of Petitioner’s release no
less than two hours prior to Petitioner’s release from custody. Respondents are ordered
to return Petitioner’s identity documents and personal effects upon her release.
All other relief requested by Petitioner, including her request for attorney’s fees,
is DENIED.
If Petitioner is re-detained, Petitioner must be afforded procedural due process
as guaranteed by the Due Process Clause of the Fifth Amendment.
A final judgment will follow.
It is so ORDERED.
SIGNED on July 2, 2026.
John A. Kazen
United States District Judge
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