Cruz Marcelino v. Montgomery Processing Center et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DARVELIO CRUZ MARCELINO, §
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Petitioner,
v. CIVIL ACTION NO. H-26-4819
RANDY TATE, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
Darvelio Cruz Marcelino ("Petitioner"), who is a citizen of
Mexico, entered the United States without inspection on August 20,
2002.1 On January 21, 2026, Petitioner was detained by Immigration
and Customs Enforcement during a traffic stop.2 On January 22,
2026, Pet ioner was served with a Notice to Appear, charging him
with removability.3 Petitioner remains in immigration custody.'
Pending before the court is Petitioner's Habeas Petition
(Docket Entry No. 1). Petitioner argues that his detention without
1Verified Petition for Writ of Habeas Corpus And Declaratory
And Injunctive Relief for an Order to Show Cause ("Habeas
Petition"), Docket Entry No. 1, p. 1; Response to the Petition for
Writ of Habeas Corpus and Motion to Dismiss and, in the
Alternative, for Summary Judgment ("Respondents' MSJ"), Docket
Entry No. 5, p. 2. For purposes of identi cation, all page
numbers re to the pagination imprinted at the top of the page by
the court's Electronic Case ling system.
2Habeas Petition, Docket Entry No. 1, p. 2.
3Notice to Appear, Exhibit 1 to Respondents' MSJ, Docket Entry
No. 5-1, p. 1.
4Respondents' MSJ, Docket Entry No. 5, p. 2.
United States District Court
Southern District of Texas
ENTERED
July 27, 2026
Nathan Ochsner, Clerk
Case 4:26-cv-04819 Document 7 Filed 07/27/26 in TXSD Page 1 of 3

a bond hearing violates due process.5 Petitioner also argues that
his warrantless arrest violates the Fourth Amendment and 8 U.S.C.
§ 1357 (a) (2). 6 Also pending before the court is Respondents'
Motion for Summary Judgment (Docket Entry No. 5). Respondents
argue that Petitioner legally detained under § 1225 (b) (2)
because he is an applicant for admission.7 Petitioner has
reply.8
led a
Because "presence without admission deems [Petitioner] to be
[an] applicant [] for admission," Petitioner subject to mandatory
detention under § 1225 (b) (2). Buenrostro-Mendez v. Bondi, 166
F.4th 494, 498, 502 (5th . 2026). This mandatory detention
does not violate substantive or procedural due process. As
explained in Garcia De La Cruz v. Bondi, Civil Action No. H-25-
5577, 2026 WL 309939 (S.D. Tex. Feb. 5, 2026), the Supreme Court
has made clear that "'[d]etention during removal proceedings a
constitutionally permissible part of that process.' 11 l._g__,_ at *2
(quoting Demore v. Kim, 123 s. Ct. 1708, 1721-22 (2003)).
Moreover, as explained in Jacobo-Ventura v. Dickey, Civil Action
No. H-2 6117 (S.D. Tex. Feb. 19, 2026), because Petitioner only
5Habeas Petition, Docket Entry No. 1, pp. 10-12 ii 26-38.
6 Id. at 9-10 �1 20-25.
7Respondents' MSJ, Docket Entry No. 5, pp. 1-2.
8Pet ioner's Opposition to Respondents' Motion for Summary
Judgment and Motion to Deny as Premature; Renewed Motion to Grant
Petition Writ of Habeas Corpus as Unopposed or, in the
Alternative, to Compel Compliance, Docket Entry No. 6.
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has those rights regarding admission that Congress has provided by
statute, and because§ 1225(b)(2) mandates detention of applicants
for admission until cert proceedings have concluded, Pet ioner
is not entitled to a bond hearing as a matter of procedural due
process.
Although Petitioner leges he was arrested without a warrant
in violation of the Fourth Amendment and§ 1357(a)(2), "an il
arrest has no bearing on legality of detention following that
arrest." Carnesolta v. Tate, Civil Action Number 4:26-cv-01006,
2026 WL 948727, at *4 (S.D. Tex. Apr. 8, 2026).
For the reasons explained above, Respondents' Motion for
Summary Judgment (Docket Entry No. 5) is GRANTED, and Petitioner's
Verified Petition for Writ of Habeas Corpus And Declaratory And
Injunctive Relief for an Order to Show Cause (Docket Entry No. 1)
is DENIED.
The court will enter a final judgment in favor of Respondents.
SIGNED at Houston, Texas, on this 27th day of July, 2026.
SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE
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