Olmedo-Portillo v. Warden et al

O
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
ANGEL GABRIEL OLMEDO-
PORTILLO,
Petitioner,
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V. 	CIVIL ACTION NO. 5:26-CV-01068
WARDEN, et al.,
Respondents.
ORDER
Before the Court is Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241. (Dkt. No. 1). Petitioner, a citizen of El Salvador, challenges his ongoing
detention without a bond hearing. Petitioner has been detained in federal immigration
custody since March 17, 2026.
The Court finds that Petitioner’s deprivation of liberty without constitutionally
adequate procedures is a violation of his due process rights, and the failure to provide
due process warrants his 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 October 15, 2026, at 5:00 p.m. The parties are ordered to notify the Court of the
status of Petitioner’s release by October 17, 2026, at 5:00 p.m.
I. BACKGROUND
A. Factual Background
Petitioner entered the United States without inspection on or about December 23,
2021, and has resided in the country ever since. (Dkt. Nos. 1 at 6; 6-2). Petitioner was
thereafter processed pursuant to expedited removal proceedings with a credible fear
claim. (Dkt. No. 6 at 2). Petitioner was released on parole on March 10, 2022. (Dkt. No.
6-3). Petitioner traveled to Dallas, Texas, where he sought protection by filing an
Application for Asylum and Withholding of Removal (Form I-589) with U.S. Citizenship
and Immigration Services (“USCIS”). (Dkt. No. 1 at 6). On February 26, 2023, USCIS
acknowledged they had received his application on November 3, 2022, and that his
application was pending. (Dkt. No. 1-2).
United States District Court
Southern District of Texas
ENTERED
October 13, 2026
Nathan Ochsner, Clerk
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Petitioner was apprehended by immigration authorities on March 17, 2026 at the
Dallas ERO Field Office at a scheduled check-in appointment and placed in detention.
(Dkt. Nos. 1 at 6; 6 at 2; 6-2). On March 24, 2026, Petitioner was served with a Notice to
Appear. (Dkt. No. 6-3). Petitioner represents, and Respondents do not dispute, that he
has no criminal history. (Dkt. Nos. 1 at 6; 6-2). Petitioner has remained continuously
detained since March 17, 2026.
On June 25, 2026, Petitioner was ordered removed by an Immigration Judge. (Dkt.
No. 13-1). Petitioner filed a timely appeal of his removal order on July 6, 2026. (Id.).
Petitioner remains detained pending that appeal. (Id.). Petitioner has not received an
individualized bond hearing since his detention began on March 17, 2026. (See Dkt. Nos.
1 at 9–10; 6).
B. Legal Background
DHS and the 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
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, 811 F. Supp. 3d 487, 494–95 (S.D.N.Y.
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 Buenrostro-Mendez, 166 F.4th at 502–08
(focusing discussion exclusively on interpretation of 8 U.S.C. § 1225); see also Bonilla
Chicas v. Warden, 821 F. Supp. 3d 782, 790–91 (S.D. Tex. 2026) (clarifying that
Buenrostro-Mendez does not foreclose due process claims); Padron Covarrubias v.
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Vergara, No. 5:25-CV-112, 2025 WL 2950097 (S.D. Tex. Oct. 8, 2025), rev'd and remanded
sub nom Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026) (explaining the
Court’s prior statutory interpretation of Section 1225).
On July 2, 2026, the Fifth Circuit issued a panel decision in Sosnava-Rodriguez v.
Ortega, which addressed due process issues similar to those presently before the Court.
180 F.4th 702 (5th Cir. 2026). The Fifth Circuit panel held that noncitizens detained
under 8 U.S.C. § 1225(b)(2)(A) may not be detained for longer than ninety days without
a bond hearing. Id. at 727–28. On July 10, 2026, the Fifth Circuit granted its own motion
for rehearing en banc. Sosnava-Rodriguez v. Ortega, 181 F.4th 608 (5th Cir. 2026).
Consequently, the July 2 opinion was vacated and is no longer binding authority. Id.
On July 21, 2026, following the vacatur of the panel decision, the Fifth Circuit
issued a stay of the underlying district court judgments. Sosnava Rodriguez v. Ortega,
183 F.4th 387, 388 (5th Cir. 2026). Respondents argue that the stay order serves as
binding precedent on this Court as to the substantive issues in this case. However,
interim orders granting a stay are “not conclusive as to the merits,” but may “inform how
a court should exercise its equitable discretion in like cases.” Trump v. Boyle, 145 S. Ct.
2653, 2654 (2025). Here, the Fifth Circuit’s stay order does not address the scope of the
stay, nor does it provide reasoning or analysis explaining the stay. As such, the Court
finds that the stay order does not prevent the Court from ruling on the merits of this
case. While this Court must follow the Fifth Circuit’s binding precedent, the Court cannot
discern meaning from, and is not bound by, an unexplained stay order. Absent clearer
guidance from the Fifth Circuit, the Court will proceed to address the merits of these
cases pending before it. See, e.g., Mercado Leyva v. U.S. Dep’t of Just. Immigr. Court,
5:26-CV-01196, slip op. at 2–3 n.1 (S.D. Tex. July 23, 2026); Tolentino-Rodriguez v.
Blanche, 4:26-CV-05611, slip op. at 2 n.1 (S.D. Tex. July 23, 2026); Guerra Estrada v. De
Anda Ybarra, EP-26-CV-1897, 2026 WL 2168090, at *1 n.1 (W.D. Tex. July 28, 2026);
Rodriguez v. Blanche, 2026 WL 2221493, at *14 (W.D. Tex. Aug. 3, 2026); Tiquiram-Us
v. Dilley Immigr. Processing Ctr., 2026 WL 2242499, at *1 (W.D. Tex. July 31, 2026).
This Court has granted 	habeas relief 	to noncitizens subject to 	mandatory
detention under Section 1225(b) when they have acquired protected liberty interests.
Lopez Moncebais v. Bondi, 	No. 	5:26-CV-268, 	slip 	op. 	(S.D. 	Tex. 	Mar. 	27, 	2026);
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Khamitsaev v. Vasquez, No. 26-CV-00112, 2026 WL 2086038 (S.D. Tex. July 20, 2026). In
Lopez Moncebais, 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, 424 U.S. 319 (1976), and found that the petitioner’s procedural due process
rights had been violated. Id. at 13 (citing Mathews, 424 U.S. at 333). The Court ordered
immediate release for the due process violation. Id. at 17.
Then, in Khamitsaev, the Court considered the same issues as to a petitioner who
was paroled upon entry as an arriving alien. The Court found that such an individual
could acquire a protected liberty interest even in light of the entry fiction. Khamitsaev,
2026 WL 2086038, at *5. The Court determined that, in those circumstances, the
mandatory detention of a petitioner, without any individualized determination, is a
deprivation of liberty that must be safeguarded with adequate procedures. Id.
II. DISCUSSION
Petitioner filed the instant petition for a writ of habeas corpus, maintaining that
he is entitled to release from detention. In his petition, Petitioner asserts claims alleging
violation of the INA and violation of the Due Process Clause of the Fifth Amendment.
Petitioner requests, among other things, that this Court issue an order immediately
releasing him from custody and awarding reasonable attorney’s fees. (Dkt. No. 1 at 11–
12).
Respondents argue that Petitioner is subject to mandatory detention and that his
detention does not violate due process. The Court principally addresses Petitioner’s
procedural due process claim and finds that his detention violates due process.1 The
Court incorporates the legal standards and analysis applied in its prior orders granting
a petition for a writ of habeas corpus under similar facts. Khamitsaev v. Vasquez, No. 26-
1 Because the Court grants Petitioner’s requested relief without consideration of his other claims,
the Court declines to address the merits of those claims.
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CV-00112, 2026 WL 2086038 (S.D. Tex. July 20, 2026); Lopez Moncebais v. Bondi, No.
5:26-CV-268, 2026 WL 1862153 (S.D. Tex. Mar. 27, 2026).
As the Court explained above, in Lopez Moncebais and Khamitsaev, this Court
found: 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; 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. The Court also
found that the entry fiction does not bar due process. The Court then found that the
petitioner’s 	procedural 	due 	process 	rights 	had 	been 	violated. 	The 	Court 	ordered
immediate release for the due process violation.2
The Court finds that the same reasoning applies to these facts. Here, Petitioner
has resided in the United States since 2021, which the Court finds sufficient to create a
liberty 	interest 	requiring 	that 	his 	detention 	is 	safeguarded 	with 	constitutionally
adequate procedures, including an individualized determination of whether he should be
detained.
Additionally, the Court has previously found that a prior release or humanitarian
parole 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 so long as they were in compliance with all
conditions of release. Bonilla Barrios v. Noem, No. 5:26-cv-172, slip op. at 4 (S.D. Tex.
Apr. 2, 2026); Khamitsaev, 2026 WL 2086038, at *4–5, *8. 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 his residence since 2021, that he would be free from detention
or at least entitled to seek bond while his removal proceedings were pending. He spent
several years out of custody before he was re-detained. Respondents do not assert that
Petitioner violated any conditions of his release. That expectation interest strengthens
his liberty interest. The Court also notes that several cases analyzed for their persuasive
2 The Court also denied attorney’s fees under the EAJA and incorporates that analysis here as well.
Lopez Moncebais, 2026 WL 1862153, at *11.
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authority in Lopez Moncebais similarly considered prior release as a factor strengthening
the liberty interest of noncitizens detained under Section 1225(b) without a bond hearing.
See Lopez Moncebais, 2026 WL 1862153, at *4 n.6 (collecting cases).
The Court notes that Petitioner has now been in custody for over six months, and
he would otherwise remain in detention while his BIA appeal is pending. His detention
is not based on conviction for a crime—it is civil in nature—and he has never received an
individualized hearing to determine whether he is a danger to the community or a flight
risk. For these reasons and the reasons discussed in the Court’s analysis in Lopez
Moncebais and Khamitsaev, Respondents are not entitled to judgment as a matter of law.
Petitioner’s detention violates his rights under the Due Process Clause of the Fifth
Amendment, he is entitled to relief, and the appropriate remedy is to order Petitioner’s
immediate release from custody.3
III. CONCLUSION
For the foregoing reasons, Petitioner’s Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, (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
October 15, 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 October 17, 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.
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 his 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.” 2026 WL 1862153, at *10 n.20; see also Khamitsaev, 2026 WL 2086038, at *10. 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 v. Bondi, 166 F.4th 494,
504–05 (5th Cir. 2026). Additionally, providing a hearing after Petitioner’s unjustified deprivation of liberty
does not cure the deprivation. See Bonilla Chicas v. Warden, 821 F. Supp. 3d 782, 799–800 (S.D. Tex. 2026).
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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Respondents are ordered to return Petitioner’s identity documents and personal effects
upon his release.
All other relief requested by Petitioner or Respondents, including any 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 October 13, 2026.
John A. Kazen
United States District Judge
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