Andrusenko v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
FEDOR ANDRUSENKO,
Petitioner,
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V. 	CIVIL ACTION NO. 5:26-CV-00232
MARKWAYNE MULLIN, 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 Pursuant to 28 U.S.C. § 2241
and Complaint for Declaratory and Injunctive Relief, (Dkt. No. 1), and Respondents’
Motion for Summary Judgment, (Dkt. No. 12).
The Court finds that Petitioner’s deprivation of liberty without constitutionally
adequate procedures is a violation of his due process rights, and the failure to provide
due process warrants his 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 5, 2026, at 5:00 p.m. The parties are ordered to notify the Court of the status
of Petitioner’s release by June 8, 2026, at 5:00 p.m.
I. BACKGROUND
A. Factual Background
Petitioner, a citizen of Russia, challenges his ongoing detention without a bond
hearing. Petitioner entered the United States without inspection in April 2022. (See Dkt.
No. 1-3 at 2).1 Shortly after entering the United States, Petitioner was apprehended by
immigration officials and subsequently paroled. (Id.; Dkt. No. 1 at 6). Petitioner
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 04, 2026
Nathan Ochsner, Clerk
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represents that he has no criminal history and has complied with each of his conditions
of supervision. (Id. at 7; see also Dkt. No. 13 at 6). Since his parole into the United States,
he has filed an asylum application and received work authorization. (Dkt. No. 1 at 7).
On January 16, 2026, Petitioner was re-detained while driving through Texas for
work. (Id.). Petitioner is a father, and three months before his re-detention, his son
passed away in a car accident. (Id. at 8). He represents that “[h]is renewed detention has
caused him significant emotional distress, compounding the profound grief he continues
to endure.” (Id.). Petitioner has not received a bond hearing while he’s been detained.
(See id. at 3). On February 19, 2026, Petitioner was ordered removed. (Dkt. No. 17 at 1).
However, he filed a timely appeal, which remains pending, so his removal order is not
final. (Id.); 8 C.F.R. § 1241.1.
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,
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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
he is entitled to release from detention. In his petition, Petitioner raises several claims
for relief: a procedural due process claim under Mathews v. Eldridge, 424 U.S. 319 (1976);
violation of 8 U.S.C. Section 1226(a); violation of federal bond regulations; violation of
the Administrative Procedure Act; and violation of the Due Process Clause of the Fifth
Amendment. Petitioner requests, among other things, that this Court issue an order
declaring his detention unlawful, immediately release him from custody or provide a
bond hearing, and award reasonable attorney’s fees.
II. DISCUSSION
Respondents move for summary judgment, asserting that Petitioner is subject to
mandatory detention pursuant to Buenrostro and that his detention does not violate due
process. The Court principally addresses Petitioner’s procedural due process claim and
finds that his 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
2 Because the Court grants Petitioner’s requested relief without consideration of his other claims,
the Court will decline to address the merits of those claims.
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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
his 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 his detention is
safeguarded with constitutionally adequate procedures, including an individualized
determination of whether he should be detained.
Additionally, the Court has previously found that a prior release like Petitioner’s
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 his residence since 2022, that
he would be free from detention or at least entitled to seek bond while his removal
proceedings were pending. He was released from detention in 2022 and spent over three
years out of custody before he was re-detained. Respondents do not assert that Petitioner
violated any conditions of his release. That expectation interest strengthens his 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 his rights under the Due
Process Clause of the Fifth Amendment, he is entitled to relief, and the appropriate
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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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
Pursuant to 28 U.S.C. § 2241 and Complaint for Declaratory and Injunctive Relief, (Dkt.
No. 1), is GRANTED in part and DENIED in part. Respondents’ Motion for Summary
Judgment, (Dkt. No. 12), is DENIED.
Respondents are ORDERED to RELEASE Petitioner from custody by June 5,
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 8, 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 his release.
All other relief requested by Petitioner, including his 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 4, 2026.
______________________________
John A. Kazen
United States District Judge
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 his 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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