Acosta de Perez v. Frink et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SANDY ACOSTA de PEREZ, 	§
§
§
§
Petitioner,
vs.
MARTIN FRINK, et al.,
Respondents.
§ 	CIVIL ACTION NO. H-25-5357
§
§
§
§
MEMORANDUM OPINION AND ORDER
Through counsel, noncitizen Sandy Acosta de Perez filed a petition for writ
of habeas corpus under 28 U.S.C. § 2241, seeking her immediate release from
immigration detention. 	(Dkt. 1). 	The Court denied her immediate release, but
ordered an expedited answer from the respondents. 	(Dkt. 4 ). 	The respondents
answered with a motion to dismiss or, alternatively, for summary judgment. 1 (Dkt.
9). 	Acosta de Perez filed a response. 	(Dkt. 12). 	Having reviewed the petition, the
motion and response, the pleadings, and the law, the Court denies the respondents'
motion for summary judgment, grants Acosta de Perez's petition in part, and orders
the respondents to afford Acosta de Perez a bond hearing within seven days from the
date of this Order or else release her.
1The original answer and motion to dismiss or motion fo:r summary judgment was
filed on behalf of all respondents other than Warden Frick. (Dkt. 9). Warden Frick filed a
notice of joinder in the other respondents' answer and motions. (Dkt. 11 ).
United States District Court
Southern District of Texas
ENTERED
December 15, 2025
Nathan Ochsner, Clerk
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 1 of 12

I. 	BACKGROUND
The parties do not dispute the basic facts of this case. 	Acosta de Perez is a
native of El Salvador who entered the United States without inspection in 2006.
(Dkt. 1, p. 10). 	In September 2025, she was arrested by ICE officials in Waco,
Texas, as she arrived for work. (Id.). She was then charged with removability. (Id.).
She contends that she is entitled to seek permanent resident status under the
cancellation of removal statute, 8 U.S.C. § 1229(b). 	(Id. at 11 ). 	She also contends
that she is eligible to apply for a U visa because of her prior report of criminal activity
and her cooperation in the prosecution of her ex-partner's criminal charges. 	(Id.).
To date, however, she has not pursued either avenue to gain legal status in the United
States. 	(Id.).
In her habeas petition,. Acosta de Perez contends that her detention should be
governed by the discretionary detention provision of 8 U.S.C. § 1226 rather than the
mandatory detention provision of8 U.S.C. § 1225. 	(Id. at 5-10). 	She contends that
both the plain language of the statutes and longstanding precedent hold that § 1225
governs only noncitizens who are detained when they cross the border, while § 1226
governs noncitizens who are apprehended while already present in the country. (Id.).
She argues that the Department of Homeland Security has recently changed its
interpretation of the two statutes and that the new interpretation conflicts with both
the plain language of the statutes and Congressional intent. (Id.). She asks the Court
2/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 2 of 12

to find that the new interpretation of these statutes violates federal law and the
Constitution, and order that she be either immediately released or given a prompt
bond hearing. 	(Id. at 11-13).
The respondents answered the petition and moved for summary judgment.
(Dkt. 9). 	The respondents contend that because Acosta de Perez entered the United
States without inspection, she is subject to mandatory detention under§ 1225(b)(2).
(Id. at 4). 	They contend that this result is supported by the plain language of the
applicable statutes, the Board of Immigration Appeals' decision in Matter ofYajure
Hurtado, 29 I. & N. Dec. 216, 221-27 (BIA 2025), and persuasive decisions from
other district courts. 	(Id. at 4-l 0). 	Acosta de Perez filed a timely response to the
motion, challenging the respondents' legal reasoning and reasserting the claims
raised in her petition. (Dkt. 12).
II. 	DISCUSSION
This case is one of many filed across the country in the last several months
challenging the federal government's authority to require mandatory detention for
certain noncitizens while their removal proceedings are in progress. At issue in these
cases is the proper interpretation and application of§ 1225 (b) and § 1226(a). Acosta
de Perez contends that the plain language of the statutes and.longstanding precedent
place her within the discretionary detention provision of§ 1226(a). The respondents
contend that the plain language of the statutes shows that Acosta de Perez is subject
3/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 3 of 12

to mandatory detention under§ 1225(b).
Section 1225, entitled "Inspection by immigration officers; expedited removal
of inadmissible arriving aliens; referral for hearing," provides,
Subject to subparagraphs (B) and (C), in the case of 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 	a
proceeding under [8 U.S.C. § 1229a].
8 U.S.C. § 1225(b)(2) (emphasis added).
In contrast,§ 1226, entitled "Apprehension and detention of aliens," provides,
in pertinent part:
On a warrant issued by the Attorney General, an alien may be arrested·
and detained pending a decision on whether the alien·is to be removed
from the United States. 	Except as provided in subsection (c) and
pending such decision, the Attorney General-
(1) 	may continue to detain the arrested alien; and
(2) 	may release the alien on -
(A) 	bond of at least $1,500 with security approved by,
and containing conditions prescribed by, the Attorney General; or
(B) 	conditional parole; but
(3) 	may 	not 	provide 	the 	alien 	with 	work 	authorization
(including 	an 	"employment 	authorized" 	endorsement 	or 	other
appropriate work permit) unless the alien is lawfully admitted for
permanent resident or otherwise would (without regard to removal
proceedings) be provided such authorization.
8 U.S.C. § 1226(a).
For decades, the Department of Homeland Security has applied § 1226(a),
rather than § 1225(b), to noncitizens who are apprehended while already present in
the United States without having been admitted or paroled.· See, e.g., Savane v.
4/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 4 of 12

Francis, No. 1:25-cv-6666-GHW, 2025 WL 2774452, at :*:5 (S.D.N.Y. Sept. 28,
2025) (citation omitted). 	The Department's own regulations concerning asylum
procedures adopt this interpretation and application of§ 1225(b) and § 1226(a). See
Inspection & Expedited Removal of Aliens; Detention and Removal of Aliens;
Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323
(proposed Mar. 6, 1997) ("Despite being applicants for admission, aliens who are
present without having been admitted or paroled (formerly referred to as aliens who
entered without inspection) will be eligible for bond and bond redetermination.").
Likewise, the Supreme Court has stated that the government is authorized to detain
"aliens seeking admission into the country" under § 1225(b) while detaining "aliens
already in the country" under§ 1226(a). 	See Jennings v. Rodriguez, 583 U.S. 281,
300 (2018). 	Under this longstanding precedent, Acosta de Perez would be subject
to discretionary detention under § 1226(a) and so would be entitled to a hearing at
which her request for release on bond would be considered.
However, the respondents have recently "revisited [their] legal position on
detention and release authorities" under § 1225(b) and 	§ 1226(a). 	ICE Memo:
Interim Guidance Regarding Detention Authority for Applications for Admission,
available at https://perma.cc/4Q6X-GAZC (last visited Dec. 5, 2025). This Interim
Guidance states that the Department of Homeland Security has now "determined
that [§ 1225] 	of the [INA], rather than [§ 1226], is the· applicable immigration
5/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 5 of 12

detention authority for all applicants for admission." Id. 	The Interim Guidance goes
on to explain this newly adopted position:
An "applicant for admission" is an alien present in the United States
who has not been admitted or who arrives in the United States, whether
or not at a designated port of arrival. 	Effective immediately, it the
position of DHS that such aliens are subject to detention under
[§ 1225(b)(2)(A)] and may not be released from ICE custody except
by [§ 1182] parole . ... 	For custody purposes, these aliens are now
treated in the same manner that "arriving aliens" have historically been
treated. 	The only aliens eligible. for a custody determination and
release 	on 	recognizance, 	bond, 	or 	other 	conditions 	under
[§ 1226(a)] during removal proceedings are aliens admitted to the
United States ... with the exception of those subject to mandatory
detention under[§ 1226(c)].
Id. ( emphasis in original).
Acosta de Perez contends that because she entered the United States without
authorization, was not inspected or detained when she arrived, and was apprehended
long after she arrived, 	she is neither an "arriving alien" nor is she "seeking
admission," and so she is not subject to § 1225(b ). 	In contrast, the respondents
contend that Acosta de Perez falls squarely within§ 1225(b). The respondents assert
that in the context of§ 1225(b)(2), the phrases "seeking admission" and ",applying
for admission" are "plainly synonymous." 	(Dkt. 9, p. 5). 	Therefore, "[r]ead
properly, a person 'seeking admission' is just another way of describing a person
applying for admission, meaning [s]he is an applicant for admission, which includes
both those individuals arriving in the United States and those already present without
admission." 	(Id.). 	The Court disagrees with the respondents' position for several
6/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 6 of 12

reasons.
First, a basic canon of statutory construction is that "differences in language
... convey differences in meaning." 	Ysleta Del Sur Pueblo v. Texas, 596 U.S. 685,
698 (2022) (quoting Henson v. Santander Consumer USA Inc., 582 U.S. 79, 86
(2017)); see also Padron Covarrubias v. 	Vergara, No. 5:25-CV-112, 2025 WL
2950097, at *4 (S.D. Tex. Oct. 8, 2025) ("[w]hen two different phrases are used in
a statute, a variation in terms suggests a variation in meaning" (citing A. Scalia & B.
Gamer, Reading Law: 	The Interpretation 	of Legal Texts 	170 (2012))). 	The
respondents' argument that the Court should treat the different phrases within the
statute as synonymous contradicts this maxim.
Second, well-established principles of statutory construction require courts to
give meaning to each phrase in a statute rather than construing the statute in a way
that renders parts of it superfluous. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31
(2001) {"It is a cardinal principle of statutory construction that a statute ought, upon
the whole, to be so construed that, if it can be prevented, no clause, sentence, or word
shall be superfluous, void, or insignificant") (cleaned up); 	United States ex rel.
Polansky v. Exec. Health Res., Inc., 599 U.S. 419, 432 (2023) ("every clause and
word of a statute should have meaning") (cleaned up). 	But the respondents'
interpretation of§ 1225(b) would make certain portions of it superfluous. 	As one
court has recently explained:
7/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 7 of 12

I !
I :
	I
' '
I '	
I '
: I
' ;
If, as Respondents argue, § 1225(b)(2)(A) were intended to apply to all
"applicant[s] for admission," there would be no ne~d to include the
phrase "seeking admission" in the statute. 	That is, rather than stating
that mandatory detention is required for any "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,"
§ 1225(b)(2)(A) (emphasis added), the statute would instead provide
for mandatory 	detention for 	any "applicant for 	admission, 	if the
examining immigration officer determines that [the] 	alien seeking
admission is not clearly and beyond a doubt entitled to be admitted."
Lopez Benitez v. 	Francis, 	No. 25-CIV-5937(DEH), 2025 	WL 	2371588, at 	*6
(S.D.N.Y. Aug. 	13, 2025) (emphasis and strike-through in original); see also
Castanon-Nava 	v. 	US. 	Dep 't 	of Homeland Security, 	No. 	25-3050, 2025 	WL
3552514, at *8-9 (7th Cir. Dec. 	11, 2025) (rejecting the respondents' proffered
construction of§ 1225(b)(2)(A) as "violating one of the cardinal rules of statutory
construction"). 	This Court likewise rejects the respondents' efforts to violate this
well-established principle.
Third, courts may consider the titles 	of statutes when interpreting their
provisions. See, e.g., Fla. Dep't ofRevenue v. Piccadilly Cafeterias, Inc., 554 U.S.
33, 47 (2008) ("[S]tatutory titles and section headings are tools available for the
resolution of a doubt about the meaning of a statute." (quoting Porter v. Nuss le, 534
U.S. 516, 528 (2002))); see also United States v. Moore, 71 F .4th 392, 397 (5th Cir.
2023). 	Here, the title of§ 1225 states that it applies to the "expedited removal of
inadmissible arriving aliens." In contrast, the title of§ 1226 states that it applies to
the "apprehension" of noncitizens who are already present in the country. 	These
8/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 8 of 12

I '
titles contradict the respondents' argument that § 1225 applies to noncitizens who
have been present in the country for years and instead support the government's
longstanding interpretation that § 1225 applies to noncitizens intercepted at the
border while § 1226 applies to noncitizens apprehended away from the border years
' 	after they entered.
Based on these three principles of statutory construction, this Court, like many
others, is not persuaded by the respondents' argument that their current interpretation
of the statutes is guided by their plain language. See e.g., Castanon-Nava, 2025 WL
3552514, at *10 (affirming the respondents' motion to stay the release of the
petitioner because the respondents "are not likely to succeed on the merits of their
argument"). 	The respondents are not entitled to summary judgment in their favor
on the basis of the plain language of the statutes.
In the alternative, the respondents contend that this Court should defer to the
BIA's recent decision in Matter ofYajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025),
but the Court need not do so. 	The Administrative Procedures Act "specifies that
courts, not agencies, will decide 'all relevant questions of laws' arising on review of
agency action ... and set aside any such action inconsistent with the law as they
interpret it." Loper Bright Enters. v. Raimondo, 603 U.S. 369, 392 (2024) (quoting
5 U.S.C. § 706) (emphasis in original). The Court finds thatHurtado's interpretation
of§ 1225 and§ 1226 is inconsistent with the language of the statutes themselves, as
9/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 9 of 12

I
i ',
I •
I
'
well 	as 	with 	the 	Department 	of 	Homeland 	Security~s 	own 	longstanding• ·1
interpretation and application of those statutes. 2 See Castanon-Nava, 2025 WL
3552514, at *9 n.13 ("It also does not escape our notice that Defendants' recent
reliance on § 1225(b)(2)(A) to detain noncitizens discovered within the United
States upends decades of practice."). Because the Hurtado decision utterly ignores
the Department's about-face on the proper interpretation and application of§ 1225
and§ 1226, the Court finds that decision to be unpersuasive.
Finally, the respondents argue that the Court should consider "persuasive
decisions from other district courts." 	(Dkt. 9, p. 8). 	The respondents suggest that
this Court "reconsider" its earlier rulings that found in favor of Acosta de Perez's
position and instead adopt the respondents' position. 	(Id. 	at 10). 	However, the
respondents offer no new persuasive authority that would tend to show that their
position is correct. They do not plausibly distinguish the authorities upon which this
2 The Department issued its Interim Guidance setting forth its new interpretation of
§ 1225 without providing a notice-and-comment period that would in most cases be
required by 5 U.S.C. § 553(b) for agency rulemaking. Nevertheless, the Court recognizes
that "interpretive rules," which are "issued by an agency to advise the public of the
agency's construction of the statutes and rules which it administers" are not subject to the
notice-and-comment requirement. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 96-97
(2015). 	Such interpretive rules may also be amended without providing a notice-and-
comment period under§ 553(b). Id. at 102. The respondents do not address whether their
new interpretation of§ 1225 constitutes only an interpretive rule.· But assuming that to be
the case, the convenience of avoiding the notice-and-comment requirement "comes as a
price: Interpretive rules 'do not have the force and effect oflaw and are not accorded that
weight in the adjudicatory process.'" Id. at 97 (quoting Shala/a v. Guernsey Mem 'l Hosp.,
514 U.S. 87, 99 (1995)). 	The Court is therefore not bound by the Department's new
"interpretive rule," assuming it qualifies as such.
10/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 10 of 12

II .
1 I
Court relies, nor do they provide a plausible explanation fof the recent change in
their interpretation and application of the relevant statutes. Nothing in their motion
leads the Court to believe that its independent analysis of the statutes, case law, and
legislative 	and 	administrative 	history 	is 	incorrect. 	The 	Court 	declines 	the
respondents' invitation to reverse itself.
Based on the analysis and principles set out above, the Court finds that the
question of whether Acosta de Perez's detention should be continued is governed by
§ 1226(a) rather than § 1225(b). 	Acosta de Perez is not an "arriving alien"; she
arrived in this country almost ten years ago. 	She therefore does not fall under the
plain language of § 1225(b ). 	Instead, she was apprehended while present in the
country, and she is being detained pending a decision on whether she is to be
removed. As such, she falls under§ 1226(a).
However, under § 1226(a), Acosta de Perez is not entitled to immediate
release; instead, under these circumstances, "[m]any courts have 	... found it
appropriate to give the Government a short window in which to complete the bond
hearing, or else release the petitioner." Lopez-Arevelo v. Ripa, No. EP-25-CV-337,
2025 WL 2691828, at* 13 (W.D. Tex. Sept. 22, 2025) (citing Valasquez Salazar v.
Dedos, 	No. 	1:25-cv-835, 2025 	WL 	2676729, at 	*9 	(D.N.M. 	Sept. 	17, 	2025)
. i
(collecting cases)). 	At that hearing, the respondents will hav_e the burden to show
. I 	-
by clear and convincing evidence that Acosta de Perez eithfr presents a danger to
11/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 11 of 12

the community or is a flight risk.
Ill. 	CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
I. 	The respondents' motion for summary judgment, (Dkt. 9), is DENIED.
2. 	Acosta de Perez's petition for writ of habeas corpus, (Dkt. 	I), is
GRANTED in part.
3. 	The respondents are ORDERED to provide Acosta de Perez with an
individualized bond hearing under 8 U.S.C. § 1226(a) within seven (7) days of the
date of this Order or else immediately release her from custody.
4. 	Until the bond hearing is held, the respondents are PROHIBITED
from transferring Acosta de Perez outside of the Southern District of Texas.
5. 	Acosta de Perez's motion for immediate release under 28 	U.S.C.
§ 2243, (Dkt. 8), is DENIED for the reasons set forth in the Court's previously
issued Order for Expedited Answer (Dkt. 4).
The Clerk of Court will provide a copy of this Order to the parties.
SIGNED at Houston, Texas on 	~ 	fZ-- 	, 2025.
DAVID HITTNER
UNITED STATES DISTRICT JUDGE
12/12
Case 4:25-cv-05357 Document 13 Filed on 12/12/25 in TXSD Page 12 of 12