Sorto Hernandez v. Tate et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ITALO RAUL SORTO HERNANDEZ, 	§
§
§
§
Petitioner,
vs.
RANDY TATE, et al. ,
Respondents.
§ 	CIVIL ACTION NO. 4:26-CV-03282
§
§
§
§
ORDER OF DISMISSAL
The petitioner, ltalo Raul Sorto Hernandez, 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 detention. Doc. No. 1.
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
The petition and attached exhibits reflect that Petitioner is a noncitizen who entered
the United States without inspection in 2003 	and has since been placed in removal
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 l(b) , Rules Governing§ 2254 Cases in the
United States District Courts.
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United States District Court
Southern District of Texas
ENTERED
May 15, 2026
Nathan Ochsner, Clerk
Case 4:26-cv-03282 Document 5 Filed 05/14/26 in TXSD Page 1 of 4

proceedings . Doc. No. 1 at 20. Petitioner do es not a ll ege or show that he has been lawfully
admitted into the United States. Because Petitioner entered without inspection and has not
obtained lawful status, he is an applicant for admission subject to 8 U.S.C. § 1225(b)(2).
S ee Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498 (5th Cir. Feb. 6, 2026). 	His
arguments regarding bond hearings under 8 U.S.C. 	§ 1226(a) and its implementing
regulations are foreclosed by Buenrostro-Mendez.
In addition, Petitioner 's Fifth Amendment due proc es s claims are precluded, at this
junctur e, 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").
Likewise, his Fifth Amendment equal protection claim is unavailing because he fails
to identify a similarly situated class that is treated more favorably than noncitizens who
entered the country without inspection, and he does not state facts to show that he falls
outside of the statutory definition of an applicant for admission under 8 U .S .C . § 1225(b)
as interpreted by the Fifth Circuit in Buenrostro-Mendez. 	See Reno v. Flores, 507 U.S.
292, 306 (1993) (rejecting equal protection claims regarding continued detention brought
by alien juveniles who did not have close relatives to serve as guardians because they were
distinct from alien juveniles with close relatives available to serve as guardians and
different from American juveniles in delinquency proceedings who were citizens).
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In addition, his 	claims under the Administrative Procedure Act ("AP A") fail
because an "adequate remedy in a court" is available via habeas corpus. 	5 U.S.C . § 704;
accord Jim enez v. Noem, Civ. A. No. H-25-5853, at Doc. No. 10 at 5 (S.D. Tex. Feb. 10,
2026) (holding that the petitioner was not entitled to relief under the AP A where he was
able to challenge his detention through habeas corpus); see also Trump v. JG.G., 604 U. S.
670, 674 (2025) (Kavanaugh, J. , concurring) (agreeing with the majority "that habeas
corpus, not the AP A, is the proper vehicle" where habeas corpus is an available remedy).
Similarly, his Suspension Clause claim is unavailing because habeas corpus is available to
challenge immigration detention.
Finally, his claims regarding the procedures used for his arrest under the Accardi
doctrine 2 fail. 	The regulation he invokes, 8 C.F.R. § 287 .8 , does not provide a cause of
action in federal court because § 287.12, outlining the scope of part 287, provides, in
relevant part: "These regulations do not, are not intended to, shall not be construed to, and
may not be relied upon to create any rights, substantive or procedural, enforceable at law
by any party in any matter, civil or criminal." 	8 C.F.R. § 287.12. 	Therefore, he has no
substantive claim in this habeas proceeding under Accardi regarding the procedures used
for his arrest.
2 See United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954) (asserting the principle
that agencies are bound to abide by their own regulations or internal procedures).
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Based on the foregoing, the Court ORDERS as follows:
1. 	The petition (Doc. No. 1) is DISMISSED.
2. 	All other pending motions, if any, are DENIED as MOOT.
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SIGNED this 	I 4 	day of May 2026.
J\blkANDREW S. HANEN
UNITED STATES DISTRICT JUDGE
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