De Luque-Roa v. Noem et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SANDRA ROCIO DE LUQUE ROA,
Petitioner,
v. Case No. 5:25-CV-1807-JKP
KRISTI NOEM, Secretary, U.S.
Department of Homeland Security, et al.,
Respondents.
ORDER GRANTING
PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is a Petition for Writ of Habeas Corpus (ECF No. 1) filed pursuant to 28
U.S.C. § 2241. Respondents (often referred to as “the Government”) have filed a response (ECF
No. 5). The Court finds no reason to wait for a reply. The petition is ready for ruling. After review-
ing the briefing, provided evidence, and applicable law, the Court grants the petition.
I. BACKGROUND
Respondents have held Petitioner in immigration custody since her arrest by Respondents
on November 18, 2025. They currently hold her subject to mandatory detention without bond un-
der 8 U.S.C. § 1225(b)(1).
Petitioner, a citizen of Venzuela, entered the United States without inspection in September
2021. At that time, Government authorities apprehended her upon her unlawful entry into the
United States; served her with a Notice to Appear (“NTA”) and released her under an Order of
Release on Recognizance pursuant to 8 U.S.C. § 1226. The Government charged her with being
present in the United States without having been inspected or admitted under Section 212(a)(6)(i)
of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1182(a)(6)(A)(i). The is-
sued NTA placed her in “full” removal proceedings before an immigration judge (“IJ”) and or-
dered her to appear on January 20, 2022 to show why she should not be removed. The NTA
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identified Petitioner as “an alien present in the United States who has not been admitted or pa-
roled”—not as an “arriving alien”—and charged her with (1) being present in the United States
without being admitted or paroled (under 8 U.S.C. § 1182(a)(6)(A)(i)), or (2) “who arrived in the
United States at any time or place other than as designated by the Attorney General.”
Nothing of record reveals any violation of the conditions of her release. When she arrived
at a routine check-in on November 18, 2025, she was arrested and taken into custody. When Im-
migration and Customs Enforcement (“ICE”) detained her, it provided no reason for her detention
and did not vacate or modify the release on her own recognizance. Petitioner is scheduled for a
hearing before an immigration judge on January 6, 2026.
In the instant habeas petition, Petitioner asserts various claims, including that her detention
violates (1) the due process clause of the Fifth Amendment and (2) provisions of the INA. Her
primary argument is that her detention violates the plain language of the INA because § 1225 does
not apply to individuals who previously entered and are now residing in the United States. Instead,
such individuals are subject to a different statute, § 1226(a) that (1) expressly applies to individuals
who are charged as inadmissible for having entered the United States without inspection and (2)
allows for release on conditional parole or bond. She contends that Respondents’ new legal inter-
pretation based on the BIA ruling, In re Yajure Hurtado, 29 I. & N. Dec. 216, 220 (BIA 2025), is
plainly contrary to the statutory framework and contrary to decades of agency practice applying §
1226(a) to people like her.
II. LEGAL STANDARD
Habeas petitioners must show they are “in custody in violation of the Constitution or laws
or treaties of the United States.” Villanueva v. Tate, ___ F. Supp. 3d ___, ___, No. CV H-25-3364,
2025 WL 2774610, at *4 (S.D. Tex. Sept. 26, 2025) (quoting 28 U.S.C. § 2241(c)(3)). They “bear[]
the burden of proving that [they are] being held contrary to law; and because the habeas proceeding
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is civil in nature, the petitioner must satisfy [this] burden of proof by a preponderance of the evi-
dence.” Id. (quoting Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) and citing Bruce
v. Estelle, 536 F.2d 1051, 1058 (5th Cir. 1976)). Courts “considering a habeas petition must ‘de-
termine the facts and dispose of the matter as law and justice require.’” Id. (quoting 28 U.S.C. §
2243).
III. ANALYSIS1
Petitioner argues her continued detention by ICE is based on Respondents’ novel reading
of 8 U.S.C. § 1225, which was adopted by the Board of Immigration Appeals on September 5,
2025. See In re Yajure Hurtado, 29 I. & N. Dec. 216, 220 (BIA 2025).
Respondents assert that they properly detain Petitioner under § 1225(b)(1) and expressly
deny any detention under § 1225(b)(2). They characterize Petitioner as “an applicant for admis-
sion” who was “intercepted at or near the port of entry shortly after unlawfully entering” the United
States. They thus contend that she is properly described under § 1225(b)(1)(A)(iii)(II), and not
under the “catchall” provision of § 1225(b)(2)(A). According to Respondents:
The main difference between those described under § 1225(b)(1)(A)(iii)(II), and
not under the “catchall” provision (1225(b)(2)) is that the (b)(1) group is appre-
hended within two years of unlawful entry, and DHS has the discretion to either
place them into expedited removal proceedings or issue an NTA to place them into
“full” removal proceedings. Aliens detained under the catchall provision, however,
are not eligible to be placed into expedited removal proceedings and are subject
only to “full” removal proceedings.
As contended by Respondents, Petitioner is detained under § 1225(b)(1)(A)(iii)(II) because she
was apprehended the same day she unlawfully entered the United States and was not placed in
expedited removal proceedings. They contend that § 1225(b) allows indefinite detention without
1 In its analysis of the facts, issues, and arguments presented in this case, the Court notes close similarity to that
presented in many recent Petitions for Writ of Habeas Corpus filed in the Western District of Texas, and specifically,
the San Antonio Division. The Court finds the reasoning in these similar cases persuasive and finds the ultimate
determination based upon this reasoning correct. For that reason, and for the sake of expediency, the Court follows
these opinions closely. See, e.g., Acea-Martinez v. Noem, No. 5:25-CV-01390-XR (filed Oct. 28, 2025) (addressing §
1225(b)(2)); Guevara-Vasquez v. Thompson, No. 5:25-CV-01372-XR (filed Nov. 25, 2025) (addressing § 1225(b)(1)).
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a bond hearing. Further, given the plain language of § 1225(a)(1), Respondents contend Petitioner
cannot dispute that she is an applicant for admission, nor can she plausibly challenge the determi-
nation that she is “seeking admission” simply because she is not currently at the border requesting
to come into the United States. Respondents also challenge this Court’s jurisdiction. The Court
will address the jurisdictional challenges first.
A. Challenges to Jurisdiction
As a threshold matter, Respondents argue that 8 U.S.C. §§ 1252(g) and 1225(b)(4) preclude
review of Petitioner’s claims. The Court addresses each section in turn.
1. Section 1252(g)
Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or claim
by or on behalf of any alien arising from the decision or action by the Attorney General to com-
mence proceedings, adjudicate cases, or execute removal orders against any alien under [Chapter
12 of Title 8 of the United States Code].” The Supreme Court has emphasized that § 1252(g)
“applies only to three discrete actions that the Attorney general may take: her ‘decision or action’
to ‘commence proceedings, adjudicate cases, or execute removal orders.” Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482 (1999) (emphasis in original) (quoting 8 U.S.C. §
1252(g)). This provision “does not bar courts from reviewing an alien detention order, because
such an order, while intimately related to efforts to deport, is not itself a decision to execute re-
moval orders and thus does not implicate section 1252(g).” Santiago v. Noem, No. EP-25-CV-361-
KC, 2025 WL 2792588, at *3 (W.D. Tex. Oct. 2, 2025) (cleaned up) (quoting Cardoso v. Reno,
216 F.3d 512, 516–17 (5th Cir. 2000)).
Petitioner does not challenge a decision to commence removal proceedings, adjudicate a
case against her, or execute a removal order. She instead specifically challenges the decision, or
basis, to detain her. For this reason, § 1252(g) does not deprive the Court of jurisdiction under
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these facts and specific challenge. See Guevara v. Swearingen, No. 25 C 12549, 2025 WL
3158151, at *2 (N.D. Ill. Nov. 12, 2025).
2. Section 1225(b)(4)
Respondents’ arguments under 8 U.S.C. § 1225(b)(4) fare no better. Section 1225(b)(4)
provides:
The decision of the examining immigration officer, if favorable to the admission of
any alien, shall be subject to challenge by any other immigration officer and such
challenge shall operate to take the alien whose privilege to be admitted is so chal-
lenged, before an immigration judge for a proceeding under section 1229a of this
title.
This section is not relevant in cases like this one involving “an ‘applicant for admission’
who has not received a favorable determination of his admissibility.” Erazo Rojas v. Noem, No.
EP-25-CV-443-KC, 2025 WL 3038262, at *2 (W.D. Tex. Oct. 30, 2025). Nor does it pose a juris-
dictional bar in such cases. Id.; accord Ordonez-Lopez v. U.S. Dep’t of Homeland Sec., No. EP-
25-CV-470-KC, 2025 WL 3123828, at *2 (W.D. Tex. Nov. 7, 2025) (rejecting same argument).
While Respondents may have intended to refer to 8 U.S.C. § 1252(b)(4), to the extent they
“intended to refer to § 1225(b)(4) as a jurisdictional bar to Petitioner’s claims, the Court finds
nothing in that subsection that bars its jurisdiction here.” Cardona-Lozano v. Noem, No. 1:25-CV-
1784-RP, 2025 WL 3218244, at *1 n.2 (W.D. Tex. Nov. 14, 2025). And “to the extent that Re-
spondents invoke § 1252(b)(4), that section fails to assert a valid jurisdictional bar.” Id. at *2.
“Because Petitioner does not assert a challenge to an order of removal, nothing in that subsection
bars Petitioner from seeking relief from his continued detention in this case.” Id.
Similarly, to the extent Respondents merely intend to use § 1225(b)(4) to bolster a juris-
dictional argument under § 1252(b)(9), the Court will restate its position on the § 1252(b)(9) ju-
risdictional issue beginning with the next paragraph. But “their appeal to § 1225(b)(4) does not
alter the Court’s prior conclusion that § 1252(b)(9) does not bar it from hearing a habeas
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petitioner’s challenge to their detention.” Erazo Rojas, 2025 WL 3038262, at *2.
3. Section 1252(b)(9)
To the extent Respondents contend that 8 U.S.C. § 1252(b)(9) presents a jurisdictional bar,
the Court rejects the contention. Section 1252(b)(9) provides:
Judicial review of all questions of law and fact, including interpretation and appli-
cation of constitutional and statutory provisions, arising from any action taken or
proceeding brought to remove an alien from the United States under this subchapter
shall be available only in judicial review of a final order under this section. Except
as otherwise provided in this section, no court shall have jurisdiction, by habeas
corpus . . . or by any other provision of law (statutory or nonstatutory), to review
such an order or such questions of law or fact.
Section 1252(b)(9) “does not present a jurisdictional bar where those bringing suit are not
asking for review of an order of removal, the decision to seek removal, or the process by which
removability will be determined.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591
U.S. 1, 19 (2020) (cleaned up); accord Nielsen v. Preap, 586 U.S. 392, 402 (2019). This provision
“does not . . . ‘sweep within its scope claims with only a remote or attenuated connection to the
removal of an alien’ . . . [or] preclude review of claims that ‘cannot be raised efficaciously within
the administrative proceedings’ already available.” Duron v. Johnson, 898 F.3d 644, 647 (5th Cir.
2018) (quoting Aguilar v. ICE, 510 F.3d 1, 10 (1st Cir. 2007)).
Courts have found that “certain claims are excluded from the sweep of section 1252(b)(9)
by virtue of legislative intent and judicial precedent.” Aguilar, 510 F.3d at 11. For example, chal-
lenging a decision to deny a bond hearing does not present circumstances that manifest a jurisdic-
tional bar under § 1252(b)(9). Preap, 586 U.S. at 402. And the provision’s “legislative history
indicates that Congress intended to create an exception for claims ‘independent’ of removal.”
Aguilar, 510 F.3d at 11.
Notably, § 1252(b) merely sets forth nine applicable requirements “[w]ith respect to review
of an order of removal under subsection (a)(1).” Ozturk v. Hyde, 136 F.4th 382, 399 (2d Cir. 2025)
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(quoting introductory text of § 1252(b)). The circumstances of this case do not place any order of
removal at issue. “Contrary to the government’s position, the mere fact that a noncitizen is detained
does not deprive district courts of jurisdiction under § 1252(b)(9).” Id. As stated by the Supreme
Court: “The question is not whether detention is an action taken to remove an alien but whether
the legal questions in this case arise from such an action.” Jennings v. Rodriguez, 583 U.S. 281,
295 n.3 (2018) (plurality op.) (emphasis in original); accord Ozturk, 136 F.4th at 399 (recognizing
that “the discussion of § 1252(b)(9) in Jennings is not part of the plurality opinion of the Court,”
while also recognizing that “the relevant part of Jennings does not support the conclusion that §
1252(b)(9) bars jurisdiction over habeas challenges to detention” and that part “in fact rejected the
government’s ‘expansive interpretation of § 1252(b)(9)’”).
Petitioner specifically challenges Respondents’ legal authority to subject her to mandatory
detention under § 1225, instead of detention with a bond hearing under § 1226(a). This specific
challenge does not constitute “a review [of] an order of removal, the decision to seek removal, or
the process by which removability will be determined.” Beltran v. Noem, No. 25-CV-2650, 2025
WL 3078837, at *3 (S.D. Cal. Nov. 4, 2025). Thus, § 1252(b)(9) provides no jurisdictional bar in
this case.
In addition, Petitioner does not have the opportunity to “efficaciously” present her claims
“‘within the administrative proceedings’ already available.” Duron, 898 F.3d 647 (quoting Agui-
lar, 510 F.3d at 11). Under these procedural facts, the core of this dispute is whether Petitioner can
be detained with no bond hearing, that is, with no administrative opportunity to contest her deten-
tion pending a removal determination. If § 1252(b)(9) precluded this habeas petition, Petitioner’s
detention would be effectively unreviewable, especially considering the BIA’s novel position that
immigration judges lack authority to entertain bond requests. See Jennings, 583 U.S. at 293; In re
Yajure Hurtado, 29 I. & N. Dec. at 220. “By the time a final order of removal was eventually
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entered, the allegedly [illegal] detention would have already taken place. And of course, it is pos-
sible that no such order would ever be entered in a particular case, depriving that detainee of any
meaningful chance for judicial review.” Jennings, 583 U.S. at 293.
4. Conclusion Regarding Jurisdiction
For the reasons stated, the Court concludes Respondents’ jurisdictional challenges fail, and
the Court has jurisdiction to consider the arguments presented in the instant habeas petition.
B. Review of Substantive Merits
Under Respondents’ arguments concerning § 1225(b)(1), Petitioner is currently mandato-
rily detained because she was detained upon entering the United States and released as an exercise
of prosecutorial discretion rather than placed into expedited removal proceedings, which would
have invoked a mandatory detention provision. The arguments seem to ignore that she was released
on her own recognizance. ICE detained Petitioner in November 2025, more than two years after
she entered the United States without inspection. To date, furthermore, there appears to be no
determination of inadmissibility. Reliance on § 1225(b)(1)(A)(iii)(II) is foreclosed under the facts
of this case if Petitioner “has been physically present in the United States continuously for the 2-
year period immediately prior to the date of the determination of inadmissibility under [subpara-
graph (b)].”
Section 1225(b)(1) requires detention of two categories of noncitizens who are subject to
expedited removal: (a) “arriving” aliens and (b) aliens who have not “been physically present in
the United States continuously for the 2-year period immediately prior to” being determined inad-
missible under subparagraph (b). Through § 1225(b)(1)(A), subparagraph (b) identifies only two
bases for determining the noncitizen to be inadmissible—8 U.S.C. § 1182(a)(6)(C) (discussing
aliens who seek admission by fraud or willful misrepresentation) and 8 U.S.C. § 1182(a)(7) (dis-
cussing required documentation for admission of immigrants and nonimmigrants).
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Respondents insist Petitioner is detained under 8 U.S.C. § 1225(b)(1)(A)(iii)(II) because,
she was detained at the border in September 2021, issued an NTA, and released. Not only is Re-
spondents’ position inconsistent with the NTA and release, it conflicts with the plain language of
§ 1225(b)(1).
As reflected in the NTA issued for Petitioner, she has not been designated as an “arriving
alien.” Thus, to contend that her present detention is authorized under § 1225(b)(1), Respondents
must show that Petitioner was determined to be inadmissible under either 8 U.S.C. § 1182(a)(6)(C)
or 1182(a)(7) within two years of her entry into the United States. But Petitioner has not yet been
deemed inadmissible under any provision let alone the two specific bases identified in subpara-
graph (b) of § 1225. The NTA charges her under 8 U.S.C. § 1182(a)(6)(A)(i), or alternatively as a
noncitizen “who arrived in the United States at any time or place other than as designated by the
Attorney General.” Respondents identify no other charge of inadmissibility. Nor do they contend
that Petitioner has been deemed inadmissible yet.
Respondents have made no admissibility determination under § 1225(b)(1)(A). Section
1226 applies under the facts here, i.e., the Petitioner was initially detained more than two years
ago, was released on her own recognizance, and “has been present without a determination of
inadmissibility within two years of Petitioner’s entry.” See Lopez v. Lyons, No. 2:25-CV-03174-
DJC-CKD, 2025 WL 3124116, at *2 (E.D. Cal. Nov. 7, 2025). Lopez aptly states:
Respondents seek to categorize Petitioner’s initial 2022 contact with immigration
officials as a “determination of inadmissibility” for purposes of section 1225(b)(1).
But the Order of Release on Recognizance specifically states that Petitioner was
released pursuant to section 1226. Thus, the claim that Petitioner should now be
subject to expedited removal over three years after his initial entry into the United
States when he was initially released under section 1226 is inconsistent with the
facts and law.
Id. (footnote and citations omitted). This is precisely Respondents’ position in this case. But, in
general, § 1225(b)(1) “does not apply to aliens who are already present in the country.” Id.
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(quoting Rico-Tapia v. Smith, ___ F. Supp. 3d ___, ____, 2025 WL 2950089, at *7 (D. Haw. Oct.
10, 2025). Furthermore, mere “unlawful presence” under § 1182(a)(6)(A)(i) cannot, as a textual
matter, serve as grounds for the necessary inadmissibility determination required by §
1225(b)(1)(A).
Moreover, § 1225(b)(1) requires detention for certain aliens undergoing expedited removal
proceedings. See 8 U.S.C. § 1225(b)(1), (b)(1)(B)(ii), (b)(1)(B)(iii)(IV). But Respondents admit
that Petitioner is currently in “full” removal proceedings. Respondents have conceded in other
cases that a noncitizen cannot simultaneously be in both full and expedited removal proceedings.
See Patel v. Tindall, No. 3:25-CV-373-RGJ, 2025 WL 2823607, at *5 (W.D. Ky. Oct. 3, 2025)
(collecting cases). Thus, even if § 1225(b)(1) could apply, as a general matter, to Petitioner, she is
not subject to expedited removal proceedings and, therefore, is not subject to the detention provi-
sions of § 1225(b)(1). Respondents cannot detain Petitioner in connection with expedited removal
proceedings that do not exist.
Stated simply, Respondents may not detain Petitioner under § 1225(b)(1). Because that
provision is inapplicable under the facts, Petitioner’s present detention necessarily falls under 8
U.S.C. § 1226, which entitles her to a bond hearing. See, e.g., Belsai D.S. v. Bondi, No. 25-CV-
3682 (KMM/EMB), 2025 WL 2802947, at *5 (D. Minn. Oct. 1, 2025) (addressing § 1225(b)(2)).
Despite Respondents’ reliance on § 1225(b)(1), rather than § 1225(b)(2), this Court sees no mate-
rial difference between the facts of this case and the numerous other habeas cases that raise the
question of whether § 1225(b)(2) applies to all noncitizens who, like Petitioner, are already in the
country but entered without inspection. Under the facts here, whether the Government premises
detention on § 1225(b)(1) or (2), the issues surrounding the mandatory detention are essentially
the same. If § 1225(b) applies to Petitioner under the facts of this case, then it makes detention
mandatory for Petitioner. If not, § 1226(a) applies, thereby making detention discretionary.
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As already stated, § 1226(a) applies here. Absent an assertion by Respondents that they are
detaining Petitioner under § 1226, the Court has no need to consider whether § 1226 is a valid
basis for Petitioner’s current detention. See Martinez v. Hyde, 792 F. Supp. 3d 211, 223 n.23 (D.
Mass. 2025). The same can be said regarding potential detention under § 1225(b)(2).2 In addition,
the Court will not consider any specific constitutional or other challenge presented. While the
Court recognizes that Respondents’ interpretation and application of §§ 1225(b) and 1226(a) may
be the subject of a nationwide class action in the Central District of California, see Maldonado
Bautista v. Santacruz, ___ F. Supp. 3d ___, ___, No. 5:25-CV-01873-SSS-BFM, 2025 WL
3288403, at *9 (C.D. Cal. Nov. 25, 2025) (certifying proposed nationwide bond eligible class), the
Court does not view that case as precluding it from granting habeas relief in this case at this time.
There is no reason to delay Petitioner’s release.
Although Petitioner invokes jurisdiction under 28 U.S.C. §§ 1331 and 2241 and seeks at-
torney fees in her petition, the Court treats the instant action solely as a habeas action under §
2241. Petitioner does not specifically bring any non-habeas claim and has not paid the required
filing fee for any such claim. “The payment of the $5 habeas filing fee relegates this action to
habeas relief only. One cannot pay the minimal habeas fee and pursue non-habeas relief.” Ndudzi
v. Castro, No. SA-20-CV-0492-JKP, 2020 WL 3317107, at *2 (W.D. Tex. June 18, 2020). Be-
cause fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, are not available in habeas
corpus proceedings like this one, see Barco v. Witte, 65 F.4th 782, 785 (5th Cir. 2023), the Court
denies any request for fees in this case.
Under the facts and circumstances of this case, this Court must conclude Petitioner’s de-
tention is unlawful, and habeas relief is proper.
2 Nevertheless, this Court agrees that: “Overwhelmingly, courts have rejected the interpretation . . . that § 1225(b)(2)
requires the detention of all noncitizens living in the country who are ‘inadmissible’ because they entered the United
States without inspection.” Belsai D.S. v. Bondi, No. 25-CV-3682 (KMM/EMB), 2025 WL 2802947, at *5 (D. Minn.
Oct. 1, 2025) (collecting cases).
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IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the Petition for Habeas Corpus (ECF No.
1). It is ORDERED that:
1. Respondents are DIRECTED to RELEASE Petitioner Sandra Rocio De Luque Roa
from custody, under appropriate conditions of release, to a public place by to a public place no
later than 11:00 a.m., January 8, 2026.
2. Respondents must NOTIFY Petitioner’s counsel of the exact location and exact time of
her release as soon as practicable and no less than two hours before her release.
3. Any possible or anticipated removal or transfer of Petitioner under this present detention
is PROHIBITED.
4. If Petitioner is re-detained pursuant to 8 U.S.C. § 1226, all applicable procedures must
be followed, including that she be afforded a bond hearing.
5. The parties shall FILE a Joint Status report no later than 11:00 a.m., January 9, 2026,
confirming that Petitioner has been released.
A final judgment will be issued separately.
IT IS SO ORDERED this 6th day of January 2026.
JASON PULLIAM
UNITED STATES DISTRICT JUDGE
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