ATHERTON-LOPEZ v. DHS et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
LENA ATHERTON LOPEZ,
Petitioner,
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V. 	CIVIL ACTION NO. 5:26-CV-00502
MIGUEL VERGARA, ET AL.,
Respondents.
MEMORANDUM OPINION AND ORDER
Petitioner is currently detained in federal immigration custody in Texas. Before
the 	Court is Petitioner’s Petition for Writ of 	Habeas Corpus, (Dkt. No. 1), and
Respondents’ Motion for Summary Judgment, (Dkt. No. 7).
The Court finds that Petitioner’s deprivation of liberty without constitutionally
adequate procedures is a violation of her due process rights, and the failure to provide
due process warrants her release. For the reasons stated below, Petitioner’s Petition for
Writ of Habeas Corpus is granted in part. Respondents are ordered to release Petitioner
by June 24, 2026, at 5:00 p.m. The parties are ordered to notify the Court of the status
of Petitioner’s release by June 25, 2026, at 5:00 p.m.
I. BACKGROUND
A. Factual Background
Petitioner, a citizen of Cuba, challenges her ongoing detention without a bond
hearing. Petitioner entered the United States without inspection in 2022. (Dkt. No. 7-2
at 1).1 While living in the United States, Petitioner obtained work authorization and was
employed in Mesquite, Texas. (Dkt. No. 9 at 2). Her mother and father are also citizens
of Cuba living in the United States. (Id.). She represents that she has no criminal history,
1 When citing to the page numbers of any document in the record, the Court will cite to the page
numbering of the Court’s internal CM/ECF docket system, and not to the page numbers in the underlying
documents.
United States District Court
Southern District of Texas
ENTERED
June 22, 2026
Nathan Ochsner, Clerk
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and that is consistent with Respondents’ evidence. (Id.; Dkt. No. 7-3 at 3).
On November 12, 2025, Petitioner was re-detained by immigration officials. (Id.).
Petitioner has not received a bond hearing while she’s been detained. (Dkt. No. 9 at 2).
Petitioner was ordered removed. (Dkt. No. 7-5). However, she filed a timely appeal, which
remains pending, so her removal order is not final. (Dkt. No. 7-6; Dkt. No. 9 at 2).
B. Legal Background
The Department of Homeland Security (DHS) and Department of Justice (DOJ)
released interim guidance in July 2025, announcing a new legal position on detention
authorities for noncitizens. The guidance interpreted the mandatory detention provision
of Section 235 of the Immigration and Nationality Act (INA), or 8 U.S.C. § 1225, as
applying to the detention of all “applicants for admission,” including all noncitizens who
have not been admitted, whether they arrive at a port of entry or enter without
inspection. This position was adopted by the Board of Immigration Appeals (BIA) in
September 2025. Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
In the months following the shift in policy, federal district courts across the
country found the Government’s interpretation at odds with the text of the statute and
ordered bond hearings, or release, for noncitizens subject to mandatory detention under
the policy. See, e.g., Barco Mercado v. Francis, No. 25-CV-6582, 2025 WL 3295903, at *4,
n.22 (S.D.N.Y. Nov. 26, 2025) (collecting cases). In February 2026, the Fifth Circuit held
that Section 1225(b)(2) applies to all applicants for admission, regardless of whether they
are actively “seeking admission” when they are detained. Buenrostro-Mendez v. Bondi,
166 F.4th 494, 502 (5th Cir. 2026). However, Buenrostro did not address the validity of
due process claims such as those raised by Petitioner in this case. See, e.g., Bonilla Chicas
v. Warden, No. 5:26-CV-131, 2026 WL 539475, at *4–5 (S.D. Tex. Feb. 20, 2026); see also
Padron Covarrubias v. Vergara, No. 5:25-CV-112, 2025 WL 2950097 (S.D. Tex. Oct. 8,
2025), overruled by Buenrostro-Mendez, 166 F.4th 494 (explaining the Court’s prior
statutory interpretation of Section 1225).
C. Procedural Background
Petitioner filed the instant petition for a writ of habeas corpus, maintaining that
she is entitled to release from detention. In her petition, Petitioner asserts that her
detention violates her Fifth Amendment right to due process because she is detained
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without meaningful review of her custody. Petitioner requests, among other things, that
this Court issue an order declaring her detention unlawful, immediately releasing her
from custody or providing a bond hearing, and awarding reasonable attorney’s fees.
II. DISCUSSION
Respondents move for summary judgment, asserting that Petitioner is subject to
mandatory detention and that her detention does not violate due process. The Court
principally addresses Petitioner’s procedural due process claim and finds that her
detention violates due process.2 The Court incorporates the legal standards and analysis
applied in its prior order granting a petition for a writ of habeas corpus under similar
facts. Lopez Moncebais v. Bondi, No. 5:26-CV-268, slip op. (S.D. Tex. Mar. 27, 2026).
There, this Court found that Buenrostro does not foreclose due process challenges
to mandatory detention, a noncitizen subject to mandatory detention may bring an as-
applied due process challenge to 8 U.S.C. Section 1225(b)(2), Supreme Court precedent
does not foreclose that type of challenge, and liberty interests in freedom from detention
must be protected by due process of law, including individualized justification for civil
detention. See id. The Court then applied the balancing test from Mathews v. Eldridge
and found that the petitioner’s procedural due process rights had been violated. Id. at 13
(citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The Court ordered immediate
release for the due process violation. Id. at 17.3
The Court finds that the same reasoning applies to these facts, though Petitioner’s
length of presence in the United States is factually distinct from Lopez Moncebais.
Petitioner has resided in the United States since 2022. The Court’s reasoning in Lopez
Moncebais relied on the petitioner’s length of residence in the United States in evaluating
her liberty interest. Here, the Court finds that Petitioner’s residence in the United States
since 2022 still creates a sufficient liberty interest to require that her detention is
safeguarded with constitutionally adequate procedures, including an individualized
determination of whether she should be detained.
Additionally, the Court has previously found that a prior release like Petitioner’s
2 Because the Court grants Petitioner’s requested relief without consideration of her other claims,
the Court will decline to address the merits of those claims.
3 The Court also denied attorney’s fees under the EAJA and incorporates that analysis here as well.
Lopez Moncebais, No. 5:26-CV-268, slip op. at 17.
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strengthens the liberty interest of a noncitizen because their release created an
expectation that they would be free from detention during the pendency of their removal
proceedings. Bonilla Barrios v. Noem, No. 5:26-cv-172, slip op. at 4 (S.D. Tex. Apr. 2,
2026). As the Court explained there, liberty interests “may arise from an expectation or
interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
In this case, Petitioner had an expectation, in addition to her residence since 2022, that
she would be free from detention or at least entitled to seek bond while her removal
proceedings were pending. She was released from detention in 2022 and spent over three
years out of custody before she was re-detained. Respondents do not assert that
Petitioner violated any conditions of her release. That expectation interest strengthens
her liberty interest. The Court also notes that several cases analyzed for their persuasive
authority in Lopez Moncebais similarly considered prior release as a factor strengthening
the liberty interest of noncitizens detained under Section 1225(b)(2) without a bond
hearing. See Lopez Moncebais, No. 5:26-CV-268, slip op. at 7 n.6 (collecting cases).
For these reasons and the reasons discussed in the Court’s analysis in Lopez
Moncebais, the Court finds that Petitioner’s detention violates her rights under the Due
Process Clause of the Fifth Amendment, she is entitled to relief, and the appropriate
remedy is to order Petitioner’s immediate release from custody.4
III. CONCLUSION
For the foregoing reasons, Petitioner’s Petition for Writ of Habeas Corpus, (Dkt.
No. 1), is GRANTED in part and DENIED in part. Respondents’ Motion for Summary
4 A district court has equitable discretion in determining the appropriate remedy “as law and justice
require” for unlawful detention in a habeas petition. See Brown v. Davenport, 596 U.S. 118, 127–28 (2022).
The Court finds that the specific harm Petitioner suffered—unlawful deprivation of liberty without due
process—is remedied by granting her immediate release, rather than ordering a bond hearing. As explained
in Lopez Moncebais, “[t]he Court recognizes the weight of its decision to order Petitioner’s release from
custody.” No. 5:26-CV-268, slip op. at 16. Though, the Court reaches this conclusion for several reasons.
First, the Fifth Circuit has held that Section 1226(a), which provides for a bond hearing, does not apply to
any applicants for admission. Buenrostro-Mendez, 166 F.4th 494. Additionally, a hearing after Petitioner’s
unjustified deprivation of liberty does not cure the deprivation. See Bonilla Chicas, No. 5:26 CV-131, 2026
WL 539475, at *12. Finally, the Court finds that an Immigration Judge would be unlikely to hold the bond
hearing if ordered because the BIA’s position is that there is no jurisdiction to hold bond hearings for all
applicants for admission detained under Section 1225(b)(2). Matter of Yajure Hurtado, 29 I. & N. Dec. 216;
see also Rojas v. Noem, No. EP-25-CV-443, 2025 WL 3038262, at *4, n.2.
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Judgment, (Dkt. No. 7), is DENIED.
Respondents are ORDERED to RELEASE Petitioner from custody by June 24,
2026, at 5:00 p.m., under reasonable conditions of release, and to submit a status report
to the Court confirming Petitioner’s release by June 25, 2026, at 5:00 p.m. Respondents
must notify Petitioner’s counsel of the exact time and location of Petitioner’s release no
less than two hours prior to Petitioner’s release from custody. Respondents are ordered
to return Petitioner’s identity documents and personal effects upon her release.
All other relief requested by Petitioner, including her request for attorney’s fees,
is DENIED.
If Petitioner is re-detained, Petitioner must be afforded procedural due process as
guaranteed by the Due Process Clause of the Fifth Amendment.
A final judgment will follow.
It is so ORDERED.
SIGNED on June 22, 2026.
______________________________
John A. Kazen
United States District Judge
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