Hernandez Alejandre v. Tate et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARIA DEL ROSARIO HERNANDEZ
ALEJANDRE,
§
§
§
§
§
Petitioner,
vs.
RANDY TATE, et al. ,
Respondents.
§ 	CIVIL ACTION NO. 4:26-CV-02305
§
§
§
§
MEMORANDUM AND ORDER OF DISMISSAL
Pending are Petitioner' s emergency 	motion 	for 	a temporary 	restraining 	order
("TRO") and stay of removal (Doc. No. 	14) and Respondents ' motion for summary
judgment (Doc. No. 12). 	The parties have responded to the respective motions, and this
case is ripe for adjudication. 	The Court has carefully considered the motions, responses,
evidence 	in the record, and applicable law and GRANTS 	Respondents ' 	motion for
summary judgment, DENIES Petitioner 's petition and motion for a TRO, and DISMISSES
this case for the reasons that follow.
I. 	BACKGROUND
Petitioner Maria del Rosario Hernandez Alejandre is a native and citizen of Mexico.
Doc. No. 1 at 7. She is a widow and the mother of eight United States citizen adult children,
one of whom recently and tragically died by a drug overdose that Petitioner believes was
precipitated by her recent re-detention. Id.; see also Doc. No. 6-3 .
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United States District Court
Southern District of Texas
ENTERED
May 15, 2026
Nathan Ochsner, Clerk
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Petitioner states that she entered the United States without inspection and without
encountering Border Patrol in 1987. 	Doc. No. 1 at 7. 	On December 15 , 2005 , an
Immigration Judge ("IJ") entered a final order of removal against her. 	Id. at 8. 	In 2009,
she was removed from the United States. Id.
Within a month of being removed, Petitioner reentered the United States a second
time unlawfully and without inspection. Id. 	In 2022, while driving from Corpus Christi to
Houston, Petitioner was apprehended by police during a routine traffic stop. 	Id. 	On
September 24, 2022, an IJ reinstated her removal order pursuant to 8 U.S.C . § 123 l(a)(5).
Doc. No. 12 at 1; Doc. No. 12-1 at 1. 	She was subsequently released on an Order of
Supervision ("OSUP") and asserts that she fully complied with the conditions in that
OSUP.
On February 5, 2026, while at a check-in to comply with her OSUP, Petitioner was
detained. 	The record indicates that she was provided a "Notice of Intent/Decision to
Reinstate Prior Order" on that date, but that she refused to sign the Notice. 	Doc. No. 12-
3. While in detention, Petitioner expressed fear of being returned to Mexico, and on March
2, 2026, she underwent a reasonable fear interview. Doc. No. 1 at 23. The Asylum Officer
issued a negative determination, and Petitioner appealed that finding to the Immigration
Court. Id. 	On April 24, 2026, the IJ affirmed the findings of the Asylum Officer. 	Doc.
No. 13-1 at 1. This determination is final and unappealable. See 8 C.F.R. § 1208.3l(g)(l)
("If the immigration judge concurs with the asylum officer's determination that the alien
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does not have a reasonable fear of persecution or torture, the case shall be returned to DHS
for removal of the alien. No appeal shall lie from the immigration judge's decision.")
Respondents inform the Court that no impediments to removal remain and that
Petitioner 's removal to Mexico is imminent. 	Petitioner does not contest that her removal
order is final and that the reasonable fear procedure has concluded but argues that the
revocation of her OSUP in February 2026 did not follow agency regulations or due process.
She further contends that the Respondents' stipulation that they would not remove the
Petitioner is still in effect and that removal is not likely in the reasonably foreseeable future.
II. 	LEGALSTANDARDS
A. 28 U.S.C. § 2241
Section 2241 (c)( 1) of Title 28 of the United States Code "applies to persons held
' in custody under or by color of the authority of the United States."' Muna/ v. Geren, 553
U.S. 674, 686 (2006) (citing § 224l(c)(l)). "An individual is held 'in custody' by the
United States when the United States official charged with his detention has 'the power to
produce' him." Id. (quoting Wales v. Whitney, 5 S. Ct. 1050, 1054 (1885); see also 28
U.S.C. § 2243 ("The writ ... shall be directed to the person having custody of the person
detained")).
Habeas corpus is available to a person challenging the legality of immigration-
related detention. Demore v. Kim, 538 U.S. 510, 517 (2003); Gudiel Polanco v. Garland,
839 F. App'x 804, 805 (4th Cir. 2021) (holding that where the alien challenged his
detention rather than any removal order, his challenge "must be brought pursuant to a
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habeas corpus petition" in district court). Courts retain jurisdiction to review an alien's
detention "insofar as that detention presents constitutional issues, such as those raised in a
habeas petition." Oyelude v. Chertojf, 125 F. App 'x 543, 546 (5th Cir. 2005) (unpublished
op.) (citation omitted). 	Where, as here, a habeas petition '"raises only issues of law, or
questions regarding the legal implications of undisputed facts,"' a court need not hold a
hearing to decide the case. See Tijerina v. Thornburgh, 884 F.2d 861, 866 (5th Cir. 1989)
(holding that the habeas proceeding could be resolved without a hearing because it
presented questions oflaw and facts were resolved in favor of the respondents).
B. Summary Judgment
To be entitled to summary judgment, the pleadings and summary judgment evidence
must show that there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. 	FED. R. Crv. P. 56. 	The moving party bears the
burden of initially pointing out to the court the basis of the motion and identifying the
portions of the record demonstrating the absence of a genuine issue for trial. 	Duckett v.
City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992). Thereafter, "the burden shifts
to the nonmoving party to show with 'significant probative evidence' that there exists a
genuine issue of material fact." 	Hamilton v. Seque Software, Inc ., 232 F.3d 473 , 477 (5th
Cir. 2000) (quoting Conkling v. Turner, 18 F.3d 1285 , 1295 (5th Cir. 1994 )). "Because this
case arises in a summary judgment posture, [the court] view[s] the facts in the light most
favorable to [Petitioner], the nonmoving party." Canady v. Davis, 687 F. App'x 362, 365
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(5th Cir. 2017) (quoting City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1769
(2015)).
III. 	DISCUSSION
Petitioner seeks release on the same conditions that she had with her previous
OSUP, contending that her re-detention and revocation of her OSUP violated immigration
regulations, the Administrative Procedure Act, and due process. 	She further contends that
her detention is unconstitutional under Zadvydas v. Davis , 533 U.S. 678 (2001), because
there is no significant likelihood that she will be removed in the reasonably foreseeable
future. 	Respondents state that Petitioner' s removal is imminent because there 1s no
impediment to her removal now that the IJ has denied her credible fear claim. 	They
represent that she can be removed to Mexico at any time pursuant to her valid and
enforceable removal order.
A. The revocation of the OSUP did not violate regulations or other law.
Petitioner contends that Respondents violated regulations when they revoked her
OSUP by not providing her notice of the reasons and affording her an opportunity to
respond. 	Because her current detention is best understood as occurring "beyond the
removal period" under 8 U.S.C. § 123 l(a)(6), it is subject to 8 C.F.R. § 241.4. 	Alam v.
N ielsen, 312 F. Supp.3d 574, 582 (S.D. Tex. 2018).
Respondents argue that § 241.4(1)(2) governs the revocation of an OSUP where, as
here, Petitioner did not violate any of the conditions of her supervision, but ICE officials
nonetheless determined in their discretion that "[i]t is appropriate to enforce a removal
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order or to commence removal proceedings against an alien." 	8 C.F.R. § 241.4(1)(2)(iii);
see also Alam, 312 F. Supp.3d at 582 (holding that§ 214.4(1)(2)(iii) applies where the
proper official determines, in their discretion, that it is appropriate to enforce a removal
order).
Petitioner contends that this case is governed by § 241.4(1)(1) and that she did not
receive notice or reasons for her re-detention and an opportunity to respond. Contrary to
Petitioner' s contentions, however, the record reflects that Respondents provided the reason
that her OSUP was revoked, that is , to effectuate her removal, and gave her notice of an
opportunity 	to 	contest 	the 	determination. 	See 	Doc. 	No. 	12-2 	("Warrant 	of
Removal/Deportation" indicating that she was subject to removal and authorizing removal
pursuant to Immigration and Nationality Act§ 241(a)(5)); and Doc. No. 12-3 ("Notice of
Intent/Decision to Reinstate Prior Order" indicating that the petitioner could "contest this
determination by making a written or oral statement to an immigration officer" and
reflecting that Petitioner did not wish to make such a statement and refused to sign).
Respondents further point out that the Field Office Director, Gabriel Martinez, is an
appropriate official to make the determination to revoke an OSUP under § 241.4(1)(2),
citing the definitions section in 8 C.F.R. § 1.2, which provides that, after March 1, 2003 ,
the terms "Director or assistant director" include "field office director." 	See 8 C.F.R. §§
1.2, 241.4(1)(2). Petitioner does not raise a fact issue that ICE violated its own regulations
or other law in revoking her OSUP to effectuate her removal.
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Finally, and as explained below, Respondents have shown that Petitioner's removal
is significantly likely to occur in the reasonably foreseeable future because her credible
fear proceedings are resolved. Because Petitioner does not raise a fact issue regarding the
field office director's discretionary decision to re-detain her for the purposes of effectuating
her removal, this claim must be dismissed.
B. Respondents' previous stipulation does not provide an avenue for relief.
Petitioner next argues that the Respondents previously stipulated that they would
not remove her until these proceedings ended. However, that misreads the stipulation. The
stipulation stated:
Undersigned counsel has conferred multiple times with DHS since filing the
Notice of Imminent Removal, and DHS indicates that the indication of
imminent removal was a clerical error. DHS does not have imminent plans
to remove Petitioner, as she will not be removed pending final resolution
of her 	claim 	to 	fear 	of 	persecution 	or 	torture. 	Thus, 	the 	Federal
Respondents stipulate herein that Petitioner will not be removed pending
finality of that determination. And if/when the Government intends to
remove Petitioner at a future date, it will provide anew the 5-day notice
requirement set forth by the Court.
Doc. No. 9 at 1 (emphases added). 	A plain reading of the stipulation indicates that
Respondents would not remove Petitioner until there was a final determination on her
credible fear claim. 	The IJ made that final determination on April 24, 2026, when the IJ
affirmed the asylum officer 's negative credible fear finding. Doc. No. 13-1. As promised,
the Respondents did not remove Petitioner and provided 5 days ' notice that her removal
was imminent after the credible fear proceedings concluded. 	The stipulation does not
provide an avenue for relief for Petitioner.
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C. Petitioner does not state a Zadvydas claim.
Petitioner generally asserts that there is no likelihood that she will be removed in
the reasonably foreseeable future. 	Petitioner does not contest that she is subject to a final
order of removal. 	Doc. No. I at 23. 	The record reflects that an IJ denied Petitioner' s
credible fear claim on April 24, 2026, removing the final impediment to her removal. See
Doc. No. 13-1. Petitioner does not dispute that her credible fear claim has been denied by
an IJ and that her removal order is final pursuant to 8 C.F.R. § 1208.3 l(g)(l).
The Due Process Clause of the Fifth Amendment to the United States Constitution
provides that no person shall be "deprived oflife , liberty, or property, without due process
of law." U.S. Const. amend. V. 	In Zadvydas , the Supreme Court held that the INA does
not authorize "indefinite, perhaps permanent, detention" of noncitizens subject to final
orders of removal. 533 U.S. at 699. The Court explained that " [a] statute permitting
indefinite detention of an alien would raise a serious constitutional problem" and that
"[f]reedom from imprisonment- 	from government custody, detention, or other forms of
physical restraint- 	lies at the heart of the liberty that Clause protects." Id. (citing Foucha
v. Louisiana, 504 U .S. 71, 80 (1992)).
"When an alien has been found to be unlawfully present in the United States and a
final order of removal has been entered, the Government ordinarily secures the alien's
removal during a subsequent 90-day statutory 'removal period,' during which time the
alien normally is held in custody." 	Zadvydas, 533 U.S. at 682 . Inadmissible noncitizens
or those with certain criminal convictions may be detained beyond the removal period, 8
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U.S.C. § 123 l(a)(6), but the statute "limits an alien's post-removal-period detention to a
period reasonably necessary to bring about that alien's removal from the United States,"
and "does not permit indefinite detention." Id. at 689. 	The Court established a "6-month
presumption" of reasonableness following the issuance of a removal order. Id. at 701.
After 	the 	six-month 	period 	of "presumptively 	reasonable" 	detention 	ends, 	a
petitioner seeking release from detention must show there is "good reason to believe that
there is no significant likelihood of removal in the reasonably foreseeable future." Id.; see
also Andrade v. Gonzales, 459 F.3d 538, 543-44 (5th Cir. 2006) (denying aZadvydas claim
where petitioner offers "nothing beyond conclusory statements"). Once a petitioner meets
this burden, the burden shifts to the respondents to "respond with evidence sufficient to
rebut that showing." Zadvydas, 533 U.S. at 701.
Assuming that Petitioner has shown that she has been detained for more than six
months after her removal order was final, she does not meet her burden to show that there
is good reason to believe that her removal is not likely to occur in the reasonably
foreseeable future. 	She offers no more than conclusory statements, which are insufficient
to meet her initial burden. 	See Andrade, 459 F.3d 543-44. Respondents present evidence
indicating that they are planning to remove her imminently and that all impediments to her
removal have been removed with the IJ's recent denial of her reasonable fear claim. 	See
Doc. No. 13 at 1-2. Petitioner does not contest that her removal order is final and that the
IJ's denial of her reasonable fear claim is not appealable. 	Further, although Petitioner
generally claims that removal is not reasonably foreseeable, she points to no present
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impediment to the execution of her removal order. 	Accordingly, Petitioner does not meet
her burden to show that there is reason to believe that removal is not likely to occur in the
reasonably foreseeable future, and her claims regarding her detention fail.
IV. 	CONCLUSION AND ORDER
Therefore, the Court ORDERS as follows:
1. 	The Respondents ' motion for summary judgment (Doc. No. 12) is GRANTED.
2. 	Petitioner's renewed motion for a TRO (Doc. No. 14) is DENIED.
3. 	All other pending motions, if any, are DENIED as MOOT.
4. 	This habeas petition is DISMISSED.
-t'--
SIGNED this 	I 4 day of May 2026.
)~~::J~
ANDREWS. HANEN
UNITED STATES DISTRICT JUDGE
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