Licona Membreno v. Thompson

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JOSE 	DAGOBERTO 	LICONA
MEMBRENO,
Petitioner
v.
BOBBY THOMPSON, SOUTH TEXAS
DETENTION 	COMPLEX, 	FACILITY
WARDEN; AND MIGUEL VERGARA,
FIELD 	OFFICE 	DIRECTOR 	U.S.
IMMIGRATION 	AND 	CUSTOMS
ENFORCEMENT;
Respondents
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Case No. SA-25-CA-01845-XR
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
On this date, the Court considered Petitioner Jose Dagoberto Licona-Membreno’s Petition
for Writ of Habeas Corpus (ECF No. 1). After careful consideration, the Petition is GRANTED.
It is ORDERED that:
1. 	Respondents 	are 	DIRECTED 	to 	RELEASE 	Petitioner 	Jose 	Dagoberto
Licona-Membreno (file number 221 369 979) from custody, under conditions of release no more
restrictive than those in place prior to the detention at issue in this case, to a public place by no
later than 12:00 p.m. on January 9, 2026;
2. 	Respondents must NOTIFY Petitioner’s counsel by email1 of the exact location
and exact time of Petitioner’s release as soon as practicable and no less than two hours before
his release;
3. 	If Petitioner is re-detained pursuant to Section 1226, all applicable procedures must
be followed, including that he be afforded a bond hearing;
1 Gregory Vincent Gallagher, ecolunga@rudycastillolaw.com, (210) 777-1111.
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4. 	Respondents shall FILE a Status Report no later than 6:00 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.
BACKGROUND
Petitioner Jose Dagoberto Licona-Membreno is a native and citizen of Honduras who
entered the United States without inspection in February 2010. 	ECF No. 1 at 26. 	In
September 2025, ICE apprehended Petitioner and placed him into removal proceedings. See id.;
ECF No. 1 at 3. Petitioner has been detained since that apprehension. He is currently detained at
the South Texas Detention Complex in Pearsall, Texas.
In November 2025, an Immigration Judge granted Petitioner cancellation of removal under
8 U.S.C. Section 1229b(b)(1). ECF No. 1 at 4, 11. The Government has filed an appeal of that
determination with the Board of Immigration Appeals. ECF No. 4-2.
On December 8, 2025, an Immigration Judge denied Petitioner bond, based on a reading
of 8 U.S.C. Section 1225(b)(2)(A) that was recently adopted by the Board of Immigration Appeals
(“BIA”). Under that reading, Section 1225(b)(2)(A) would generally require the detention without
a bond hearing of every noncitizen who entered the country without inspection, unless they are
“clearly and beyond a doubt entitled to be admitted.” See Matter of Yajure Hurtado, 29 I. & N.
Dec. 216, 220 (BIA 2025); 8 U.S.C. § 1225(b)(2)(A).
DISCUSSION
I. 	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
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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).
II. Analysis
The parties dispute whether the Court has jurisdiction to order the relief Petitioner has
requested and whether Petitioner is entitled to that relief. 	The Court considers its jurisdiction
before turning to the merits.
a. 	Jurisdiction
As a general matter, the Court has jurisdiction over Petitioner’s habeas petition pursuant to
28 U.S.C. Sections 1331 and 2241. See Buenrostro-Mendez v. Bondi, No. CV H-25-3726, 2025
WL 2886346, at *1 (S.D. Tex. Oct. 7, 2025) (Rosenthal, J.) (“A district court may grant a writ of
habeas corpus if a petitioner is in federal custody in violation of the Constitution or federal law.”).
Respondents argue that 8 U.S.C. Sections 1252(g) and (b)(9) divest the Court of jurisdiction here.
The Court disagrees.
1. 	Section 1252(g)
Respondents first argue that Section 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). Section 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
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orders.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis in
original) (quoting 8 U.S.C. § 1252(g)). 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)). Petitioner “does not challenge a decision
to commence removal proceedings, adjudicate a case against him, or execute a removal order. . . .
[H]e 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 Section 1252(g) does not divest the Court of
jurisdiction.
2. 	Section 1252(b)(9)
Respondents 	next 	argue 	that 	8 	U.S.C. 	Section 	1252(b)(9) 	precludes 	jurisdiction.2
Section 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.
2 Respondents also cite 8 U.S.C. Section 1225(b)(4) for this argument. That section provides,
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 section 1229a of this title.
Respondents do not identify any decision “favorable to the admission of any alien” or allege that any “challenge” to
such a decision has “operate[d] to take [Petitioner] before an immigration judge.” 	8 U.S.C. § 1225(b)(4). 	The
relevance of this provision is not apparent.
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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); 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).
Respondents’ argument that Section 1252(b)(9) deprives this Court of jurisdiction over the
Petition fails for at least two reasons. 	First, Petitioner’s claim—that Respondents lack “legal
authority to subject [him] to mandatory detention under [Section] 1225 instead of detention with
a bond hearing under [Section] 1226(a)”—“is not a review [of] an order of removal, the decision
to seek removal, or the process by which removability will be determined.” Beltran v. Noem, No.
25CV2650-LL-DEB, 2025 WL 3078837, at *3 (S.D. Cal. Nov. 4, 2025); Aguilar, 510 F.3d at 11
(“[T]he legislative history indicates that Congress intended to create an exception for claims
‘independent’ of removal.”).
Second, Petitioner cannot “efficaciously” raise his claims “‘within the administrative
proceedings’ already available.” Duron, 898 F.3d 647 (quoting Aguilar, 510 F.3d at 10). The core
of this dispute is whether Petitioner can be detained with no bond hearing—that is, with no
administrative opportunity to contest his detention—pending a removal determination. 	If
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Section 1252(b)(9) precluded this habeas petition, Petitioner’s detention would be “effectively
unreviewable,” Jennings v. Rodriguez, 583 U.S. 281, 293 (2018) (plurality), especially considering
the BIA’s novel position that immigration judges lack authority to even entertain bond requests,
Matter of Hurtado, 29 I. & N. Dec. at 220. “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.” Jennings, 583 U.S. at 293.
In short, the Court has jurisdiction to consider Petitioner’s claims.
b. 	Merits
The remaining issue is whether Respondents can lawfully detain Petitioner without a bond
hearing, pursuant to Section 1225(b)(2). 	Petitioner claims that Respondents lack statutory
authority to detain him without a bond hearing and that Respondents are violating his constitutional
rights by doing so. 	See ECF No. 1. 	Because the Court agrees that Respondents lack statutory
authority to detain Petitioner without a bond hearing, it need not address his other arguments.
Petitioner argues that Section 1225(b)(2) does not permit his detention and that he may
only be detained under 8 U.S.C. Section 1226(a), in which case he is entitled 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). 	Respondents 	contend, 	on 	the 	other 	hand, 	that 	Petitioner 	falls 	under
Section 1225(b)(2) because he is an “applicant for admission,” which includes a noncitizen
“present in the United States who has not been admitted.” 8 U.S.C. § 1225(a)(1).
The question is whether Section 1225(b)(2) applies to all noncitizens who, like Petitioner,
are already in the country but entered without inspection. 	If so, Section 1225(b)(2) makes
Petitioner’s detention mandatory. 	If not, Section 1226(a) applies, Petitioner’s detention is
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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 generally rejected Respondents’ broad interpretation of Section 1225(b)(2). See, e.g., Mboup
v. Field Off. 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. 	See 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, 2025 WL 2886346, at *3 (“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 that most clearly command against Respondents’ broad
interpretation: Section 1225(b)(2)’s plain language and the Supreme Court’s interpretation of the
relevant statutes.
To start, Section 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). 	That is to say, Section 1225(b)(2) requires
someone to be detained if three conditions are met: (1) the person is an “applicant for admission”;
(2) the person is “seeking admission”; and (3) an “examining immigration officer determines” the
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person “is not clearly and beyond a doubt entitled to be admitted.” 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).
The term “applicant for admission” includes a noncitizen “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 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 Section 1225(b)(2).
If that were not enough, the Supreme Court recently discussed the relationship between
Sections 1225 and 1226: “In sum, U.S. immigration law authorizes the Government to detain
certain aliens seeking admission into the country under [Sections] 1225(b)(1) and (b)(2). It also
authorizes the Government to detain certain aliens already in the country pending the outcome of
removal proceedings under [Section 1226].” Jennings, 583 U.S. at 289. Courts in the Fifth Circuit
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“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 Section 1225(b)(2) applies to noncitizens “seeking admission,” and Section 1226
applies to noncitizens “already in the country.” 	Respondents may not detain Petitioner under
Section 1225(b)(2).
As Respondents do not claim that Petitioner is being detained under Section 1226, “the
Court sees no reason to consider” Section 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. See also ECF No. 4 at 2 (Respondents’ statement that “[t]he only relief
available to Petitioner through habeas is release from custody”).
CONCLUSION
For the foregoing reasons, the Petition for Habeas Corpus (ECF No. 1) is GRANTED. It
is ORDERED that:
1. 	Respondents 	are 	DIRECTED 	to 	RELEASE 	Petitioner 	Jose 	Dagoberto
Licona-Membreno (file number 221 369 979) from custody, under conditions of release no more
restrictive than those in place prior to the detention at issue in this case, to a public place by no
later than 12:00 p.m. on January 9, 2026;
2. 	Respondents must NOTIFY Petitioner’s counsel by email3 of the exact location
and exact time of Petitioner’s release as soon as practicable and no less than two hours before
his release;
3. 	If Petitioner is re-detained pursuant to Section 1226, all applicable procedures must
be followed, including that he be afforded a bond hearing;
3 Gregory Vincent Gallagher, ecolunga@rudycastillolaw.com, (210) 777-1111.
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4. 	Respondents shall FILE a Status Report no later than 6:00 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.
It is so ORDERED.
SIGNED this 7th day of January, 2026.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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