Mosquera Montero v. Lyons et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOSE ALEJANDRO MOSQUERA
MONTERO,
Petitioner
v.
TODD M. LYONS, ACTING DIRECTOR
OF US ICE; MIGUEL VERGARA, SAN
ANTONIO FIELD OFFICE DIRECTOR,
US IMMIGRATION AND CUSTOMS
ENFORCEMENT; DAREN K.
MARGOLIN, DIRECTOR OF THE
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; AND
WARDEN, KARNES COUNTY
IMMIGRATION PROCESSING CENTER,
Respondents
§
§
§
§
§
§
§
Case No. SA-25-CA-01737-XR
ORDER GRANTING WRIT OF HABEAS CORPUS
On this date, the Court considered Jose Alejandro Mosquera Montero’s Petition for a Writ
of Habeas Corpus (ECF No. 1) and the Government’s response (ECF No. 4). After careful
consideration, the petition (ECF No. 1) is GRANTED.
BACKGROUND
I. Petitioner’s Entry, Release, and Re-Detention
Petitioner (A246438365) is a citizen of Venezuela who entered the United States without
inspection in April 2023. ECF No. 1 at 4. Immigration agents detained him shortly after entry. Id.
at 4. These agents determined Petitioner to be inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i)
because he was “an alien present in the United States without being admitted or paroled.” ECF
No. 1-1 at 2. They stated no other grounds for inadmissibility. See id. They then released Petitioner
on his own recognizance. Id.
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Petitioner had resided in the United States for over two years when Immigration and
Customs Enforcement (“ICE”) rearrested him at a routine check-in on November 19, 2025. Id.
at 6.
II. Arguments
Petitioner filed this habeas petition challenging his detention without a bond hearing. He
makes primary two main arguments. First, he contends that his detention without a bond hearing
violates due process. Second, he argues that 8 U.S.C. § 1225(b)(2) does not permit his detention.
But Respondents claim detention authority under § 1225(b)(1), not (b)(2). ECF No. 4 at 2.
§ 1225(b)(1) identifies aliens subject to expedited removal: certain “arriving” aliens and certain
aliens who have not “been physically present in the United States continuously for the 2-year
period immediately prior to the date” that they were determined inadmissible under § 1225(b)(1).
The subsection further requires mandatory detention for a subset of those aliens. See §
1225(b)(1)(B)(ii), (iii)(IV).
That said, Petitioner is not wrong to anticipate Respondents’ assertion of § 1225(b)(2).
Respondents have relied on this authority in several nearly identical cases before this Court. See,
e.g., Urquiza-Orozco v. Bondi et al., No. 5:25-cv-01428-XR (W.D. Tex. Nov. 20, 2025); Vega v.
Thompson et al., No. 5:25-cv-01439-XR (W.D. Tex. Nov. 21, 2025). And Respondents assert here
that “[e]ven if this Court were to order [Petitioner’s] release from custody, he would be subject to
re-arrest as an alien present within the United States without having been admitted.” ECF No. 4 at
2. The Court understands this to be a reference to arrest and detention under § 1225(b)(2). So both
§ 1225(b)(1) and (b)(2) have been raised.
The statutory question is thus whether § 1225(b)(1) or (b)(2) apply to Petitioner. If they do
not, then Respondents may only detain Petitioner under § 1226(a). This authority entitles Petitioner
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to a bond hearing. See, e.g., Belsai D.S. v. Bondi, No. 25-CV-3682 (KMM/EMB), 2025 WL
2802947, at *5 (D. Minn. Oct. 1, 2025).
LEGAL STANDARD
A habeas petitioner must show they are “in custody in violation of the Constitution or laws
or treaties of the United States.” Villanueva v. Tate, No. CV H-25-3364, 2025 WL 2774610, at *4
(S.D. Tex. Sept. 26, 2025) (quoting 28 U.S.C. § 2241(c)(3)). The petitioner “bears the burden of
proving that he is being held contrary to law; and because the habeas proceeding is civil in nature,
the petitioner must satisfy his burden of proof by a preponderance of the evidence.” Id. (quoting
Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) and citing Bruce v. Estelle, 536 F.2d
1051, 1058 (5th Cir. 1976)). “A court considering a habeas petition must ‘determine the facts, and
dispose of the matter as law and justice require.’” Id. (quoting 28 U.S.C. § 2243).
DISCUSSION
Petitioner claims that Respondents lack statutory authority to detain him without a bond
hearing and are depriving him of due process by doing so. See ECF No. 1. Because the Court
agrees with Petitioner’s statutory argument, it need not address his constitutional one.
I. This Court Has Jurisdiction
Respondents cite three statutory provisions that purportedly strip this Court of jurisdiction.
None do so.
A. 8 U.S.C. § 1225(b)(4) Does Not Preclude Jurisdiction
Respondents first argue that § 1225(b)(4) requires that Petitioner’s challenge “be raised
before an immigration judge in removal proceedings.” ECF No. 4 at 7. That provision states:
The decision of the examining immigration officer, if favorable to the admission of
any alien, shall be subject to challenge by any other immigration officer and such
challenge shall operate to take the alien whose privilege to be admitted is so
challenged, before an immigration judge for a proceeding under § 1229a of this
title.
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8 U.S.C. § 1225(b)(4). It is unclear how Respondents conclude from this that judicial review for
Petitioner is available only through the court of appeals following a final administrative order of
removal. Respondents themselves argue that Petitioner is an “applicant for admission.” ECF No.
4 at 4 (“Petitioner cannot plausibly argue that he is not an applicant for admission”). So there has
not been a “decision . . . favorable to the admission” of Petitioner. See § 1225(b)(4). Thus, §
1225(b)(4) does not apply.
B. 8 U.S.C. § 1252(g) Does Not Preclude Jurisdiction
Respondents next claim that § 1252(g) deprives the Court of jurisdiction. That subsection
provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C.
§ 1252(g).
But § 1252(g) “applies only to three discrete actions that the Attorney General may take:
her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.”
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis in original).
It “does not bar courts from reviewing an alien detention order, because such an order, while
intimately related to efforts to deport, is not itself a decision to execute removal orders and thus
does not implicate [S]ection 1252(g).” Santiago v. Noem, No. EP-25-CV-361-KC, 2025 WL
2792588, at *3 (W.D. Tex. Oct. 2, 2025) (cleaned up) (quoting Cardoso v. Reno, 216 F.3d 512,
516–17 (5th Cir. 2000)).
Here, Petitioner “does not challenge a decision to commence removal proceedings,
adjudicate a case against him, or execute a removal order. . . . He challenges the decision to detain
him.” Guevara v. Swearingen, No. 25 C 12549, 2025 WL 3158151, at *2 (N.D. Ill. Nov. 12,
2025). So § 1252(g) does not divest the Court of jurisdiction.
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C. 8 U.S.C. § 1252(b)(9) Does Not Preclude Jurisdiction
Respondents finally argue that 8 U.S.C. § 1252(b)(9) precludes jurisdiction. § 1252(b)(9)
provides:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken
or proceeding brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus . . . , or by any other provision of law (statutory or
nonstatutory), to review such an order or such questions of law or fact.
But once again, this provision “does not present a jurisdictional bar where those bringing
suit are not asking for review of an order of removal, the decision to seek removal, or the process
by which removability will be determined.” Dep’t of Homeland Sec. v. Regents of the Univ. of
Cal., 591 U.S. 1, 19 (2020) (cleaned up). It does not “‘sweep within its scope claims with only a
remote or attenuated connection to the removal of an alien’. . . [or] preclude review of claims that
‘cannot be raised efficaciously within the administrative proceedings’ already available.” Duron
v. Johnson, 898 F.3d 644, 647 (5th Cir. 2018) (quoting Aguilar v. I.C.E., 510 F.3d 1, 9 (1st Cir.
2007)). Finally, it applies only “[w]ith respect to review of an order of removal.” 8 U.S.C.
§ 1252(b); accord Ozturk v. Hyde, 136 F.4th 382, 399 (2d Cir. 2025); Canal A Media Holding,
LLC v. U.S. Citizenship & Immigr. Servs., 964 F.3d 1250, 1257 (11th Cir. 2020); Hernandez v.
Baltazar, No. 1:25-CV-03094-CNS, 2025 WL 2996643, at *2 (D. Colo. Oct. 24, 2025).
Applied to this case, there are at least two bases on which to reject the argument that
§ 1252(b)(9) precludes jurisdiction. First, Petitioner claims that Respondents lack “legal authority
to subject him to mandatory detention under § 1225 instead of detention with a bond hearing under
§ 1226(a).” Beltran v. Noem, No. 25CV2650-LL-DEB, 2025 WL 3078837, at *3 (S.D. Cal. Nov.
4, 2025). He does not seek review of “an order of removal, the decision to seek removal, or the
process by which removability will be determined.” Id.; Aguilar, 510 F.3d at 11 (discussing
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legislative history indicating that § 1252(b)(9) does not preclude claims “independent” of removal,
including “habeas review over challenges to detention”). So § 1252(b)(9) “does not present a
jurisdictional bar” here. See Regents of the Univ. of Cal., 591 U.S. at 19.
Second, Petitioner cannot “efficaciously” raise his claims “‘within the administrative
proceedings’ already available.” Duron, 898 F.3d 647. The core of this dispute is whether
Respondents can detain Petitioner without a bond hearing—that is, with no administrative
opportunity to contest his detention. If § 1252(b)(9) precluded this habeas petition, Petitioner’s
detention would be “effectively unreviewable.” Jennings v. Rodriguez, 583 U.S. 281, 293 (2018)
(plurality). “By the time a final order of removal was eventually entered, the allegedly [illegal]
detention would have already taken place. And of course, it is possible that no such order would
ever be entered in a particular case, depriving that detainee of any meaningful chance for judicial
review.” Id.
The Court has jurisdiction.
II. Petitioner’s Detention Is an Unlawful Application of 8 U.S.C. § 1225(b)
Moving to the merits, the question is whether Respondents may detain Petitioner without
a bond hearing under § 1225(b). They may not.
A. § 1225(b)(1) Does Not Apply
Respondents primarily argue that Petitioner is detained under 8 U.S.C. § 1225(b)(1)(A)(iii).
ECF No. 4 at 2–3. This provision allows expedited removal of certain aliens who have not “been
physically present in the United States continuously for the 2-year period immediately prior to the
date” that they were determined inadmissible under § 1225(b)(1). § 1225(b)(1) specifies two
grounds for inadmissibility: § 1182(a)(6)(C) and § 1182(a)(7).
In sum, the authority that Respondents rely on can only apply here if Petitioner was
determined inadmissible under § 1182(a)(6)(C) or (a)(7) within two years of entering the country.
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But Respondents have not determined that Petitioner was inadmissible under §
1182(a)(6)(C) or (a)(7). See ECF 1-1 at 2 (noting that Petitioner was held inadmissible under §
1182(a)(6)(A)(i)); see generally ECF No. 4 (asserting no other grounds for inadmissibility). Nor
can Respondents make that determination now to assert § 1225(b)(1): Petitioner entered the
country more than two years ago. See id. (noting that Petitioner entered in April 2023). So §
1225(b)(1)(A)(iii) cannot apply to Petitioner.
Besides, § 1225(b)(1) requires detention of certain aliens undergoing expedited removal
proceedings. 8 U.S.C. § 1225(b)(1), (b)(1)(B)(ii), (b)(1)(B)(iii)(IV). But Respondents admit that
Petitioner is currently in “full” removal proceedings under 8 U.S.C. § 1229a. ECF No. 4 at 3, 8.
Respondents have conceded in other cases that an alien cannot simultaneously be in both full and
expedited removal proceedings. Patel v. Tindall, No. 3:25-CV-373-RGJ, 2025 WL 2823607, at
*5 (W.D. Ky. Oct. 3, 2025) (collecting cases). In short, even if § 1225(b)(1) could—as a general
matter—apply to Petitioner, he is not currently subject to expedited removal proceedings and thus
is not subject to § 1225(b)(1)’s detention provisions. Respondents cannot detain Petitioner in
connection with expedited removal proceedings that do not exist.
For those reasons, Respondents may not detain Petitioner under § 1225(b)(1).
B. § 1225(b)(2) Does Not Apply
The remaining statutory question is whether § 1225(b)(2) applies to all aliens who, like
Petitioner, are already in the country but entered without inspection. If so, § 1225(b)(2) makes
Petitioner’s detention mandatory. If not, § 1226(a) applies, Petitioner’s detention is discretionary,
and he is entitled to a bond hearing if he remains detained. See, e.g., Belsai D.S., 2025 WL
2802947, at *5.
This is not the first case to present this issue; in recent months, courts all over the country
have rejected Respondents’ broad interpretation of § 1225(b)(2). See, e.g., Mboup v. Field Off.
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Dir. of N.J. Immigr. & Customs Enf’t, No. 2:25-CV-16882 (MEF), 2025 WL 3062791, at *1 &
n.3 (D.N.J. Nov. 3, 2025) (collecting cases); Lepe v. Andrews, No. 1:25-CV-01163-KES-SKO
(HC), 2025 WL 2716910, at *4 (E.D. Cal. Sept. 23, 2025) (same). This Court does the same.
Opinions rejecting Respondents’ interpretation rely on several rationales, from statutory
language and context to legislative history and longstanding agency practice. Rodriguez v.
Bostock, No. 3:25-CV-05240-TMC, 2025 WL 2782499, at *1 & n.3 (W.D. Wash. Sept. 30, 2025)
(collecting cases). The Court finds those opinions generally persuasive and will not restate every
rationale therein. See Buenrostro-Mendez v. Bondi, No. CV H-25-3726, 2025 WL 2886346, at *3
(S.D. Tex. Oct. 7, 2025) (“The court need not repeat the ‘well-reasoned analyses’ contained in
these opinions and instead simply notes its agreement.”). Instead, it will focus on the two factors
most commanding against the broad interpretation: § 1225(b)(2)’s plain language and the Supreme
Court’s interpretation of the relevant statutes.
1. § 1225’s Language Does Not Apply to Petitioner
To start, § 1225(b)(2)’s language is clear. It states, “in the case of an alien who is
an applicant for admission, if the examining immigration officer determines that an alien seeking
admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for”
removal proceedings. 8 U.S.C. § 1225(b)(2)(A). In other words, § 1225(b)(2) requires detention
if three conditions are met:
(1) the alien is an “applicant for admission”;
(2) the alien is “seeking admission”; and
(3) an “examining immigration officer determines” the alien “is not clearly and beyond a doubt
entitled to be admitted.”
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Id.; see, e.g., Lopez Benitez v. Francis, No. 25 CIV. 5937 (DEH), 2025 WL 2371588, at *6
(S.D.N.Y. Aug. 13, 2025).
Here, the first condition is met. The term “applicant for admission” includes an alien
“present in the United States who has not been admitted.” 8 U.S.C. § 1225(a)(1). “The terms
‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful entry of the alien into the
United States after inspection and authorization by an immigration officer.” Id. § 1101(a)(13)(A).
Because Petitioner is present in the United States and has not “lawful[ly] ent[ered] . . . after
inspection and authorization by an immigration officer,” he is an “applicant for admission.” Id.
§§ 1101(a)(13)(A); 1225(a)(1).
But at the time of Petitioner’s re-detention, he was not “seeking admission.” Again,
admission refers to “lawful entry . . . into the United States after inspection and authorization by
an immigration officer.” Id. § 1101(a)(13)(A). When ICE detained him in 2025, Petitioner was
not seeking entry, much less “lawful entry . . . after inspection and authorization.” See Martinez
v. Mukasey, 519 F.3d 532, 544 (5th Cir. 2008), as amended (June 5, 2008) (“Under th[e] statutory
definition, ‘admission’ is the lawful entry of an alien after inspection, something quite different,
obviously, from post-entry adjustment of status.” (Emphasis in original)); Lopez Benitez, 2025
WL 2371588, at *6 (noting that Respondents’ interpretation “would render the phrase ‘seeking
admission’ in [Section] 1225(b)(2)(A) mere surplusage”). Because Petitioner is not “seeking
admission,” ICE may not detain him under § 1225(b)(2).
2. § 1226 Applies to Petitioner According to Jennings
If that were not enough, the Supreme Court recently discussed the relationship between §
1225 and § 1226: “In sum, U.S. immigration law authorizes the Government to detain certain
aliens seeking admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the
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Government to detain certain aliens already in the country pending the outcome of removal
proceedings under § 1226(a) and (c).” Jennings, 583 U.S. at 289.
The Court clarified how these provisions applied to different categories of aliens: Ҥ 1226
applies to aliens already present in the United States.” Id. at 303. On the other hand, “the language
of §§ 1225(b)(1) and (b)(2) is quite clear”: “§ 1225(b) applies primarily to aliens seeking entry
into the United States (‘applicants for admission’ in the language of the statute).” Id. at 297, 303.
Respondents may argue that this Jennings language is dicta. Even if it is, courts in the Fifth
Circuit “are generally bound by Supreme Court dicta, especially when it is recent and detailed.”
McRorey v. Garland, 99 F.4th 831, 837 (5th Cir. 2024) (quoting Hollis v. Lynch, 827 F.3d 436,
448 (5th Cir. 2016)). So § 1225(b)(2) applies to aliens “seeking admission,” and § 1226 applies
to aliens “already in the country.”
Respondents may not detain Petitioner pursuant to § 1225(b)(2).
III. Appropriate Remedy
Because Petitioner cannot be detained under § 1225(b), the remaining option is § 1226.
Respondents do not claim that Petitioner’s current detention is under § 1226. In fact, they assert
that the only relief available to him is release from custody. ECF No. 4 at 2. As such, “the Court
sees no reason to consider” § 1226 as a basis for Petitioner’s current detention. See Martinez v.
Hyde, 792 F. Supp. 3d 211, 223 n.23 (D. Mass. 2025). His detention is unlawful, and habeas relief
is proper.
IV. Attorney Fees
Petitioner requests attorney fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d)(1)(A). Because fees under this law are not available in habeas corpus proceedings like
this one, that request is denied. Barco v. Witte, 65 F.4th 782. (5th Cir. 2023).
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CONCLUSION
For the foregoing reasons, the Petition for a Writ of Habeas Corpus (ECF No. 1) is
GRANTED. It is ORDERED that:
(4) Respondents shall RELEASE Petitioner (A246438365) from custody, under conditions of
release no more restrictive than those in place before the detention at issue in this case, to
a public place by no later than 12:00 p.m. on January 8, 2026.
(5) Respondents shall NOTIFY Petitioner’s counsel by email (joseph@jkmlaw.cc) of the time
and place of Petitioner’s release as soon as possible and no less than two hours before his
release;
(6) If Petitioner is re-detained under to Section 1226, all applicable procedures must be
followed, including that he be afforded a bond hearing;
(7) Respondents shall FILE a Status Report no later than 5:00 p.m. January 9, 2026,
confirming that Petitioner has been released under conditions of release no more restrictive
than those in place prior to the detention at issue in this case;
A final judgment will issue separately.
It is so ORDERED.
SIGNED this 6th day of January, 2026.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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