Lopez Diaz v. Dickey et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRJCT OF TEXAS
HOUSTON DIVISION
ELIAS MOISES LOPEZ DIAZ , 	§
§
§
§
Petitioner,
VS.
GRANT DICKEY , et al.,
Respondents.
§ 	CIVIL ACTION NO. 4:26-CV-00723
§
§
§
§
ORDER OF DISMISSAL
The petitioner, Elias Moises Lopez Diaz , is a detainee in the custody of United
States Department of Homeland Security, Immigration and Customs Enforcement ("ICE ")
officials. 	Through counsel, petitioner filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241 , challenging his continued detention. Doc. No. 1.
While this case was pending, the Fifth Circuit decided Buenrostro-Mendez v. Bondi,
--- F.4th ----, No. 25-20496, 2026 WL 323330 (5th Cir. Feb. 6, 2026). 	The Court may
dismiss a habeas petition on the pleadings "[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts (authorizing preliminary review and
summary dismissal of habeas petitions on the pleadings). 1
1 A district court may apply any of the rules governing habeas petitions filed under 28 U.S.C.
§ 2254 to those filed under 28 U.S.C. § 2241. See Rule 1(b ), Rules Governing § 2254 Cases in the
United States District Courts.
1 / 3
United States District Court
Southern District of Texas
ENTERED
February 26, 2026
Nathan Ochsner, Clerk
Case 4:26-cv-00723 Document 4 Filed 02/26/26 in TXSD Page 1 of 3

The petition and attached exhibits reflect that Petitioner is a noncitizen who entered
the United States in 2021 and is in removal proceedings, where ICE alleges that he is an
"applicant for admission." Doc. No. 1 at 2. Petitioner pleads no facts to show that he has
been admitted lawfully into the United States. 	However, Petitioner contends that he was
not "seeking admission" and therefore is entitled to a bond hearing under 8 U.S.C. §
1226(a), the statute permitting discretionary bond. 	He contends that Respondents have
erroneously 	categorized 	him 	as 	an 	"applicant for 	admission" 	subject to 	mandatory
detention under 8 U.S.C. § 1225(b ).
Petitioner's arguments regarding sections 1225 and 1226 and their implementing
regulations are foreclosed by Buenrostro-Mendez, supra. 	Likewise, his Fourth and Fifth
Amendment claims that he is being held under the wrong statutory authority are also
foreclosed by Buenrostro-Mendez. 	Additionally, Petitioner's Fifth Amendment Due
Process Clause claims are precluded, at this juncture, by Demore v. Kim, 538 U.S . 510, 531
(2003 ), because "( d]etention during removal proceedings is a constitutionally permissible
part of that process." Id. (citations omitted); see also Jennings v. Rodriquez, 583 U.S. 281 ,
297 (2018) (explaining that "§§ 1225(b)(l) and 1225(b)(2) thus mandate detention of
applicants for admission until certain proceedings have concluded").
Accordingly, the Court ORDERS as follows:
1. 	The petition (Doc. No. 1) is DENIED.
2. 	This case is DISMISSED without prejudice.
3. 	All other pending motions, if any, are DENIED as MOOT.
2 / 3
Case 4:26-cv-00723 Document 4 Filed 02/26/26 in TXSD Page 2 of 3

3 / 3
4. 	If the Fifth Circuit, en bane, or the United States Supreme Court enters a decision
that is contrary to the decision in Buenrostro-Mendez v. Bondi, supra, Petitioner
is granted leave to file a motion for reconsideration or initiate a separate petition.
SO ORDERED.
SIGNED this 	~ (;, -b- 	day of February 2026.
ANDREW S. HANEN
UNITED STATES DISTRICT JUDGE
Case 4:26-cv-00723 Document 4 Filed 02/26/26 in TXSD Page 3 of 3