ROLDAN-CERDA v. VERGARA et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
LUIS ROLDAN-CERDA 	§
Petitioner, 	§
§
vs. 	§ 	CIV. NO. 7:26-cv-00122
§
MARKWAYNE MULLIN, Secretary of 	§
the U.S. Department of Homeland 	§
Security; DAVID VENTURELLA, 	§
Acting Director of the U.S. 	§
Immigration and Customs Enforcement; 	§
TODD BLANCHE, U.S. Attorney 	§
General, MIGUEL VERGARA, 	§
Enforcement and Removal Operations, 	§
Respondents.1 	§
REPORT AND RECOMMENDATION
Petitioner, Luis Roldan-Cerda, initiated this action by filing Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241 and Complaint for Declaratory & Injunctive Relief (“Petition”)
on March 7, 2026, against Respondents, Kristi Noem, Todd M. Lyons, and Pamela Bondi. (See
Dkt. No. 1). The Petition revolves around Petitioner’s allegedly unlawful removal from the United
States to Mexico. (See generally, id.).
Pending before the Court is Respondents’ Motion to Dismiss Petition for Writ of Habeas
Corpus and Advisory (“Respondents’ Motion”), filed on March 26, 2026. (See Dkt. No. 6). After
1 The initially named respondents in this action were Kristi Noem, Todd M. Lyons, Pamela Bondi, and
Miguel Vergara. 	In the time since this lawsuit was filed, Markwayne Mullin was sworn in as the U.S.
Secretary of Homeland Security, David Venturella has been named as the acting director of the United
States Immigration and Customs Enforcement, and Todd Blanche has taken over as the acting U.S. Attorney
General. 	Miguel Vergara remains in his role for U.S. Immigration and Customs Enforcement and
Enforcement and Removal Operations. Under Rule 25(d) of the Federal Rules of Civil Procedure, Mullin,
Venturella, and Blanche are automatically substituted as parties. The Clerk’s Office will so be advised to
update the civil docket.
United States District Court
Southern District of Texas
ENTERED
June 12, 2026
Nathan Ochsner, Clerk
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careful consideration of the filings and applicable law, and for reasons listed herein, the
undersigned recommends that Respondents’ Motion (Dkt. No. 6) be GRANTED and Petitioner’s
Petition (Dkt. No. 1) be DISMISSED as moot.
I. 	BACKGROUND
Petitioner has lived in the United States continuously for more than twenty-eight years, has
valid Deferred Action for Childhood Arrivals (“DACA”) status, and has a pending U Visa
derivative petition filed on behalf of his daughter. (Dkt. No. 1 at 1). On February 17, 2026, after
appearing for a biometrics appointment at the USCIS Application Support Center in McAllen,
Texas, Petitioner was detained and, within seven hours, physically walked across the McAllen-
Hidalgo International Bridge and subsequently delivered to Mexican authorities. (Id. at 2).
Petitioner filed this Petition on March 7, 2026. (See Dkt. No. 1). First, Petitioner argues
that a petition for writ of habeas corpus under 28 U.S.C. § 2241 is the proper vehicle for
challenging his removal because, while Petitioner is physically present in Mexico, “he remains
under the constructive custody and continuing control of Respondents.” 	(Id. at 11). 	Second,
Petitioner explains that the removal order was invalid by operation of law because a “removal
order cannot lawfully be executed against a person who holds valid DACA status that has not yet
been terminated in accordance with applicable regulations[,]” and Petitioner held valid, USCIS-
approved DACA status on February 17, 2026. 	(Id. at 12). 	Third, Petitioner suggests that ICE
violated the Accardi doctrine by failing to adhere to the termination procedures required by law,
rendering the removal unlawful. (Id. at 14). Fourth, Petitioner argues that his deportation violated
the Due Process Clause of the Fifth Amendment. (Id.). Fifth, Petitioner explains that his pending
U Visa Petition created an independent bar to removal. (Id. at 16). Sixth, Petitioner argues that
ICE’s actions were ultra vires and arbitrary and capricious. (Id. at 17). Finally, Petitioner claims
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the Government can and must facilitate Petitioner’s return. (Id. at 17-18). Accordingly, Petitioner
asks the Court to declare that Petitioner’s removal was unlawful, that Respondents violated the
Due Process Clause of the Fifth Amendment, that Respondents violated the Accardi doctrine, that
Respondents’ actions were ultra vires and arbitrary and capricious under the APA, and that
documents signed by Petitioner under duress and without counsel do not constitute valid waivers
of his rights. (Id. at 20-21). Petitioner further requests the Court order Respondents to facilitate
his immediate return to the United States, restore his DACA status and the processing of his
pending U Visa petition with priority, prevent Respondents from detaining Petitioner based on the
same removal order, issue a temporary restraining order and preliminary injunction prohibiting
Respondents from impairing Petitioner’s ability to return to the Untied States, and award Petitioner
reasonable attorney’s fees. (Id. at 21-22).
This Court held a status conference on March 12, 2026. (See Dkt. Entry, Dated March 12,
2026). The Court ordered Respondents to file a response by March 26, 2026, and Petitioner to file
a reply by April 2, 2026. (Id.).
On March 26, 2026, Respondents filed Motion to Dismiss Petition for Writ of Habeas
Corpus and Advisory.2 	(See Dkt. No. 6). 	Therein, Respondents informed the Court that “ICE
Enforcement and Removal Operations was facilitating Petitioner’s return to the United States
through the Hidalgo Port of Entry by March 27, 2026.” (Id. at 2). Thus, because Petitioner was
being returned immediately and would not be detained upon reentry, Respondents claimed no live
case or controversy remained. 	(Id.). Accordingly, Respondents claimed the matter is moot and
urge dismissal. (Id. at 2-3).
2 Respondents additionally filed Petitioner’s May 16, 2024, Notice to Appear. (See Dkt. No. 7).
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On April 1, 2026, Petitioner filed Petitioner’s Response in Opposition to Respondents’
Motion to Dismiss. 	(See Dkt. No. 8). 	First, Petitioner updated the Court as to the sequence of
events for added context:
March 24, 2026: Deportation Officer David Loera of the Harlingen/Edinburg Sub-
Office contacted Petitioner’s immigration counsel, Wendoli Rodriguez, to request
a Form G-28 so that ERO could process and coordinate Petitioner’s return, and the
G-28 was provided the same day.
March 26, 2026: Officer Loera confirmed that ICE was “actively coordinating with
CBP to facilitate the parole and return as soon as possible” and was “working
toward the earliest available date rather than scheduling further out[,]” and stated
he would notify counsel immediately once CBP confirmed.
March 26, 2026, at 8:21 a.m.: Officer Loera confirmed that ICE was “actively
working to facilitate the return” and was “aiming for tomorrow (Friday),” meaning
March 27, 2026.
March 26, 2026, at 3:47 p.m.: Respondents filed the Motion to Dismiss now
pending before this Court. 	The motion represented to this Court that “ICE
Enforcement and Removal Operations is facilitating Petitioner’s return to the
United States through the Hidalgo Port of Entry by March 27, 2026.” Dkt. No. 6
at 2. On the basis of that representation, Respondents argued the Petition is moot
and should be dismissed.
That same evening, March 26, 2026, at 6:42 p.m., Officer Loera sent a message to
Petitioner’s immigration counsel stating: “I wanted to let you know that we’ve
encountered an unexpected delay in the process. At this point, we cannot confirm
whether the return will occur tomorrow or if there may be further changes.”
March 27, 2026, passed without Petitioner’s return.
On March 30, 2026, Petitioner’s immigration counsel followed up with Officer
Loera requesting any updates on Petitioner’s status.
On March 31, 2026, Deportation Officer Monica L. Garcia of the Harlingen Field
Office responded on behalf of ICE, stating “I have been actively checking on the
status. 	It is still pending at this time. As soon as there is a change, I will email
you.”
As of April 1, 2026, the date of this filing, Petitioner Luis Roldan-Cerda remains in
Reynosa, Tamaulipas, Mexico. He has not been returned to the United States.
(Id. at 2-4).
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Then, Petitioner argues Respondents’ Motion “should be denied for a straightforward
reason: as of the date of this filing, April 1, 2026, Petitioner Luis Roldan-Cerda has not been
returned to the United States.” (Id. at 1). Additionally, Petitioner claims his residual claims remain
active. (Id. at 1-2). First, Petitioner claims the case is not moot because Petitioner has not been
returned, noting that “the Court cannot dismiss a habeas petition as moot when the writ has not
issued and the petitioner remains outside the United States.” (Id. at 4). Second, Petitioner argues
that even if Petitioner is returned, the voluntary cessation doctrine defeats mootness. 	(Id. at 5).
Petitioner suggests that his removal order remains on the books, nothing prevents ICE from re-
arresting Petitioner, and Respondents provide no assurance that the same conduct would not recur.
(Id.). Third, Petitioner argues the Court should retain jurisdiction “to Ensure Complete Relief and
Protect Petitioner from Recurrence.” (Id. at 6). At minimum, Petitioner urges the Court to: (1)
confirm that Petitioner has in fact been returned; (2) ensure that Petitioner’s DACA status and
pending U Visa petition are restored to the status they held on February 17, 2026; (3) ensure that
the government does not re-execute the removal order upon Petitioner’s return; and (4) address
Petitioner’s entitlement to attorney’s fees under the Equal Access to Justice Act, 28 U.S.C. § 2412.”
(Id.). Petitioner attaches the email-correspondence referenced within the Response. (See Dkt. No.
8-1 at 1-32; Ex. No. 1).
On April 10, 2026, Petitioner filed Petitioner’s Supplemental Advisory to the Court and
Amended Response in Opposition to Respondents’ Motion to Dismiss. 	(See Dkt. No. 9).
“Petitioner Luis Roldan-Cerda was returned to the United States on April 8, 2026, fifty days after
his unlawful deportation on February 17, 2026, and twelve days after the deadline that
Respondents themselves represented to this Court.” 	(Id. at 1). 	Petitioner again argues that
Respondents’ Motion should be denied because their assertion that Petitioner would be returned
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on March 27, 2026, turned out to be false, and that the voluntary cessation doctrine defeats
mootness. 	(Id. at 4). 	Additionally, Petitioner contends Respondents’ conduct is capable of
repetition yet evading review because the removal was executed within seven hours, a timeframe
in which no court could meaningfully intervene, and Petitioner’s removal order remains active so
there is a reasonable expectation that the same conduct could recur. (Id. at 5). Moreover, Petitioner
argues that, despite the case being filed under 28 U.S.C. § 2241, 28 U.S.C. § 1331 provides
independent jurisdiction over the Constitutional and statutory claims, because “[o]nce that
jurisdictional hook is set, the Court’s authority over the collateral constitutional and statutory
claims does not dissolve because the custodial aspect of the case resolves.” (Id. at 6). Likewise,
“Petitioner does not challenge the validity of his removal order[;]” rather, he “challenges the
manner of execution of that order against a DACA-protected individual in violation of the
Constitution, federal regulations, and the APA[,]” so the jurisdiction-stripping provisions of 8
U.S.C. § 1252 do not apply. (Id. at 6-7). Finally, Petitioner suggests he is entitled to attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). (Id. at 9).
Respondents filed Respondents’ Reply in Support of Motion to Dismiss and Opposition to
Petitioner’s Supplemental Advisory and Amended Response on April 20, 2026. 	(Dkt. No. 10).
Respondents claim Petitioner’s return has been accomplished, no restraint on his liberty remains,
and no removal action is presently pending against him. (Id. at 1-2). First, Respondents argue that
the delay in Petitioner’s return, the process of which constituted no deliberate delay or
manipulation of the Court’s jurisdiction, is legally irrelevant to the mootness question, and as a
general proposition the relief the habeas petition sought has been obtained. 	(Id. at 2). 	Second,
Respondents 	contend 	that 	the 	voluntary 	cessation 	doctrine 	is 	inapplicable, 	because 	the
Government did not “cease” an ongoing practice of removing DACA recipients. (Id. at 3). Rather,
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the February 17, 2026, enforcement action “was a discrete act, not a continuing course of conduct.”
(Id.). Third, Respondents argue that the capable-of-repetition-yet-evading-review exception does
not apply. (Id. at 4). Respondents claim that Petitioner cannot show a reasonable expectation that
he will be subject to the same action again because his DACA status is valid and no new removal
proceedings are pending. (Id.). Fourth, Respondents claim Petitioner’s declaratory and injunctive
relief claims are moot because they all sought the goal of returning Petitioner and that goal has
been achieved. (Id.). Fifth, should the Court exercise jurisdiction over the matter, Respondents
request leave to file a responsive pleading addressing the merits. (Id. at 5). Finally, Respondents
contend that Petitioner is not entitled to attorney’s fees under because the Equal Access to Justice
Act does not authorize attorney’s fees for successful 28 U.S.C. § 2241 motions. (Id.).
Petitioner filed Petitioner’s Reply in Further Support of Petitioner’s Supplemental
Advisory and Amended Response in Opposition to Respondent’s Motion to Dismiss on April 27,
2026. 	(See Dkt. No. 11). 	Petitioner argues that the twelve-day delay shows that Respondents’
voluntary cessation argument cannot be trusted as reliable. (Id. at 2). Petitioner explains that the
declaratory and injunctive claims remain active, “and the twelve-day gap is relevant not as an
independent basis for relief but as evidence that Respondents’ voluntary conduct is precisely the
kind of unreliable cessation that courts refuse to treat as definitively resolving a controversy.” (Id.
at 3). Petitioner claims the voluntary cessation doctrine applies because the ongoing condition is
the unvacated removal order, not the February 17, 2026, act. 	(Id.). 	Petitioner suggests that the
Department of Homeland Security does not guarantee protection to DACA recipients, and the
Government has not ceased the challenged conduct. (Id. at 4).
Petitioner then argues that the case is capable of repetition yet evading review. (Dkt. No.
11 at 5). Petitioner contends that “ICE arrested Petitioner at a government-scheduled appointment,
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held him without counsel, and removed him within approximately twenty hours[,]” so the duration
is too short to be fully litigated prior to its cessation, and that because Petitioner has an active,
unvacated removal order on the docket, there is a reasonable expectation that he will be subject to
the same action again. (Id. at 5-6).
Next, Petitioner explains that each of the four counts “independently support relief that is
forward-looking and that operates on a concrete legal instrument that exists today.” (Dkt. No. 11
at 6). Count I seeks a declaration that the removal violated the Fifth Amendment’s Due Process
Clause, “which informs how the removal order must be treated going forward and whether its re-
execution would itself violate the Constitution.” (Id.). Count II seeks a declaration that 8 C.F.R.
§ 236.23(d)(1) required a Notice of Intent to Terminate DACA before any removal could proceed,
and that no such notice was ever issued, which binds ICE’s conduct the next time it encounters
Petitioner. (Id.). Count III seeks a declaration that execution of the order against an active DACA
recipient whose status was never lawfully terminated was ultra vires, which carries independent
legal force regardless of whether physical custody has been restored. (Id. at 6-7). Count IV seeks
a declaration that the removal was arbitrary and capricious because ICE disregarded Petitioner’s
DACA status, failed to follow termination procedures, and failed to consider his pending U Visa
derivative petition on behalf of his daughter, which “governs how ICE must weigh these factors in
any future enforcement decision.” (Id. at 7).
Petitioner then argues that the threat of re-removal is concrete, particularized, and
supported by judicial findings because Petitioner “has a named removal order, a specific and
existing legal instrument bearing his name, that ICE has already executed once in direct defiance
of his active DACA status.” 	(Dkt. No. 11 at 7-8). 	Petitioner characterizes his ask: “The relief
sought here operates on the same principle: not a retrospective judgment about a past event, but a
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declaration that governs the legal relationship between Petitioner and the removal order that exists
today.” (Id. at 8). Petitioner further suggests that Respondents’ request for leave to file a merits
response concedes that the merits remain live. (Id. at 9-10).
Finally, Petitioner acknowledges that while the Fifth Circuit does not authorize attorney’s
fees under the EAJA for successful 28 U.S.C. § 2241 proceedings, he preserves this argument for
appeal and explains that this exclusion does not reach Petitioner’s declaratory and injunctive
claims brought under 28 U.S.C. § 1331 and 28 U.S.C. § 2201. (Id. at 10).
II. 	APPLICABLE LAW/ANALYSIS
A. 	Legal Standard
“Article III of the Constitution limits federal ‘Judicial Power,’ that is, federal-court
jurisdiction, to ‘Cases’ and ‘Controversies.’” United States Parole Comm’n v. Geraghty, 445 U.S.
388, 395 (1980). A case is considered moot “when the issues presented are no longer ‘live’ or the
parties lack a legally cognizable interest in the outcome.” Id. at 396 (citing Powell v. McCormack,
395 U.S. 486, 496 (1969)). “Generally, any set of circumstances that eliminates actual controversy
after the commencement of a lawsuit renders that action moot.” 	Ctr. for Individual Freedom v.
Carmouche, 449 F.3d 655, 661 (5th Cir. 2006). Therefore, the Court must determine whether an
actual controversy remains. “‘Th[e] case-or-controversy requirement subsists through all stages of
federal judicial proceedings, trial and appellate…. The parties must continue to have a ‘personal
stake in the outcome’ of the lawsuit.’” Wilfredo R. v. Noem, No. 3:25-CV-1702-D-BK, 2025 WL
3520307, at *1 (N.D. Tex. Nov. 4, 2025) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1989)), report
and recommendation adopted, 2025 WL 3517779 (N.D. Tex. Dec. 8, 2025). “‘This means that,
throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury
traceable to the defendant and likely to be redressed by a favorable judicial decision.’’” Id.
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B. Petitioner’s Claims
1. 	Mootness
Petitioner argues that because the entire Motion to Dismiss rested on the premise that
Petitioner would be returned by March 27, 2026, and he was not returned until April 8, 2026, the
motion should be denied. (Dkt. No. 9 at 3-4). Respondents respond that because Petitioner was
returned and is no longer detained, the case is moot. 	(Dkt. No. 10 at 2). 	Respondents further
suggest that the fact that the ultimate return of Petitioner came twelve days after the originally
anticipated return date,3 through no deliberate course of action, is legally irrelevant to the question
of mootness. (Id.).
In his original Petition, Petitioner asked the Court to order, among other things, that
“Respondents [] take all steps within their authority to facilitate Petitioner’s immediate return to
the United States[.]” (Dkt. No. 1 at 21). It is undisputed that Petitioner has been returned to the
United States. (See Dkt. No. 9 at 1). Petitioner is no longer in physical custody,4 and it appears
Petitioner does not argue as much.5 (Id.). As such, no actual, justiciable controversy remains in
this matter.6 The Fifth Circuit has found “that where an alien is granted the relief he requests, no
3 While Petitioner claims that the twelve-day gap is “evidence that Respondents’ voluntary conduct is
precisely the kind of unreliable cessation that courts refuse to treat as definitively resolving a
controversy[,]” Petitioner cites no authority for such a proposition. (Dkt. No. 11 at 3). The Court finds this
fact immaterial for purposes of this analysis, and thus an insufficient basis to deny Respondents’ Motion
outright.
4 Petitioner initially argued that his involuntary removal constituted custody for purposes of habeas
jurisdiction. (Dkt. No. 1 at 11 (“Although Petitioner is physically present in Mexico, he remains under the
constructive custody and continuing control of Respondents.”)). Because there is no dispute that Petitioner
is not currently in custody, and the Court may dispose of the case without doing so, the undersigned does
not decide whether Petitioner’s facts constitute custody for purposes of habeas corpus jurisdiction.
5 “The question is not whether the return mooted the custody component (and it did). The question is
whether the declaratory and injunctive claims remain live.” (Dkt. No. 11 at 3).
6 A District Court in the Southern District of New York found that a comparable petition filed under 28
U.S.C. § 2241 was not moot where the petitioner was released from ICE custody on bond. See Farez-
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‘case or controversy’ remains.’” Wilfredo R., 2025 WL 3520307, at *2 (citing Ortez v. Chandler,
845 F.2d 573, 575 (5th Cir. 1988)).
Petitioner cites Carafas v. LaVallee for the proposition that once federal habeas jurisdiction
attaches, it may not be defeated by a petitioner’s subsequent release from custody. (Dkt. No. 9 at
6 (“Once that jurisdictional hook is set, the Court’s authority over the collateral constitutional and
statutory claims does not dissolve because the custodial aspect of the case resolves.”)); see
Carafas, 391 U.S. 234, 238 (1968). However, Carafas concerned the consequences of a criminal
conviction that follow a defendant even after release, and, other than the “bald assertion that the
narrow holding in [Carafas] applies here[,]” Petitioner “cites no authority, and the Court has found
none, extending [Carafas] to alien detainees’ habeas corpus actions.” 	Wilfredo R., 2025 WL
3520307, at *2; see Carafas, 391 U.S. at 237-38 (“It is clear that petitioner’s cause is not moot. In
consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an
official of a labor union for a specified period of time; he cannot vote in any election held in New
York State; he cannot serve as a juror.”) (internal citations omitted). Similarly, Petitioner identifies
no 	facts 	or 	authority 	implicating 	this 	Court’s 	jurisdiction 	to 	review 	DHS’ discretionary
determination to commence removal proceedings.7 See El Gamal v. Noem, 790 F. Supp.3d 551,
Espinoza v. Napolitano, No. 08 Civ. 11060(HB), 2009 WL 1118098, at *1 (S.D.N.Y. Apr. 27, 2009).
Viewing the facts through the lens of the voluntary cessation and capable-of-repetition-yet-evading-review
doctrines, the court emphasized that the Government utilized a provision that expressly provided for the
authority to revoke the bond and re-detain the petitioner and, thus, a controversy remained. See Farez-
Espinoza, 2009 WL 1118098, at *7 (“Even if Farez-Espinoza’s habeas petition otherwise would have been
rendered moot by virtue of her release froM [sic] ICE custody, under the Government’s view, it has full
statutory authority to revoke the bond and re-detain her.”). In contrast, here, no such similar constraint
applies. Petitioner purportedly has valid DACA status, a repellant to any impermissible removal, through
April 30, 2027, so Petitioner has identified no slayer of mootness. (Dkt. No. 11 at 1). And, any argument
highlighting the quantity of alleged unlawful DACA removals is a political one, which exceeds the Court’s
scope of review. (Id. at 4 (“This is not an isolated act. Department of Homeland Security date reflects that
86 DACA recipients were deported from January 1, 2025, through November 19, 2025.”)).
7 Petitioner claims he does not challenge the validity of his removal order. (Dkt. No. 1 at 3). However,
Petitioner emphasizes the fact that the removal order remains active:
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557-58 (W.D. Tex 2025) (collecting cases finding federal courts lack authority over DHS’
discretionary decisions to detain aliens or seek their removal).
Moreover, District Courts in the Fifth Circuit have routinely dismissed petitions brought
under 28 U.S.C. § 2441 challenging immigration detention as moot where the petitioner was no
longer detained by the respondent. 	See, e.g., Ighekpe v. Sourkaris, No. 3-05-CV-2098-K, 2006
WL 297746, at *1-2 (N.D. Tex. Jan. 20, 2006) (recommending dismissal as moot where the
petitioner was physically deported by flight); Wal v. Gillis, No. 5:19-cv-70-DCB-MTP, 2020 WL
1536548, at *1 (S.D. Miss. Jan. 2, 2020) (recommending dismissal where the petitioner was
deported), report and recommendation adopted, 2020 WL 1529375 (S.D. Miss. Mar. 30, 2020);
Singh v. Gillis, No. 5:19-cv-148-DCB-MTP, 2020 WL 3163670, at *1-2 (S.D. Miss. Mar. 5, 2020)
(same), report and recommendation adopted, 2020 WL 3146820 (S.D. Miss. June 12, 2020);
Alvarez v. Gillis, No. 5:19-cv-123-DCB-MTP, 2020 WL 2843772, at *1 (S.D. Miss. Mar. 19, 2020)
(same), report and recommendation adopted, 2020 WL 2841783 (S.D. Miss. June 1, 2020); Coc-
Che v. Tate, NO. 4:26-CV-24, 2026 WL 1262999, at *2 (S.D. Tex. May 6, 2026) (“Thus, the
petition is now moot because the Court can no longer award Coc-Che any relief related to the
alleged due process and statutory violations.”), report and recommendation adopted, 2026 WL
The removal order that ICE used to deport Petitioner on February 17, 2026 remains on the
books. Respondents’ motion does not acknowledge that the order is non-executable during
the pendency of Petitioner’s valid DACA status. Respondents’ motion does not commit to
honoring DACA as a bar to removal. Respondents’ motion does not acknowledge that the
removal was unlawful. 	Respondents’ proposed order, if entered, would close this case
while leaving the removal order entirely intact and enforceable.
(Dkt. No. 9 at 4). But see Dkt. No. 11 at 3 (“Petitioner does not challenge a policy. He challenges a specific
legal instrument: the May 16, 2024, removal order that remains on the docket today, pointed at him by
name, executable without any further proceeding.”). As noted, the Court has no jurisdiction to attack the
validity of a removal order. See El Gamal, 790 F. Supp.3d at 557-58. And Petitioner’s request—whether
it be that the Court neutralize the removal order directly, order Respondents to acknowledge its
wrongfulness, or order Respondents to eliminate the removal on their own—carries a distinction sullied in
semantics and the Court will not trespass on the immigration courts’ prerogative.
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1277594 (S.D. Tex. May 7, 2026); Garcia-Villarroel v. Tate, NO. 4:26-CV-2651, 2026 WL
1486829, at *2 (S.D. Tex. May 12, 2026) (same), report and recommendation adopted, 2026 WL
1486587 (S.D. Tex. May 27, 2026).
Accordingly, because Petitioner has been returned to the United States, his habeas matter
is moot.
2. 	Voluntary Cessation
Petitioner claims the voluntary cessation doctrine bars dismissal. 	(Dkt. No. 9 at 4).
Petitioner explains that the removal order used to remove Petitioner remains on the books,
Respondents do not acknowledge that the order is non-executable during the pendency of
Petitioner’s valid DACA status, and Respondents do not acknowledge that the removal was
unlawful. (Id.). Thus, if the Court grants Respondents proposed order, the case would be closed
while leaving the removal order intact and enforceable. (Id.).
Respondents answer that the voluntary cessation doctrine addresses a materially different
fact pattern, namely where a defendant abandons an ongoing policy or practice challenged in
litigation to avoid a court ruling while preserving the ability to resume the conduct once judicial
scrutiny is removed. 	(Dkt. No. 10 at 3). 	Respondents claim the Government did not cease a
practice of removing DACA recipients. 	(Id.). 	Instead, “ICE executed a single removal order
against Petitioner on a single occasion.” (Id.). Respondents explain that “[t]here is no policy of
disregarding DACA status in the removal context that the Government has suspended or could
resume.” (Id.). “[N]o new removal proceeding has been initiated, no notice of intent to terminate
DACA has been issued, and Petitioner is presently in the United States without any active
enforcement action pending against him.” (Id.).
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“It is well settled that ‘a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice.’” Wilfredo R., 2025
WL 3520307, at *3 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000)). 	The voluntary cessation exception requires Petitioner to establish: “(1) the
opposing party voluntarily ceased performing the allegedly unlawful action and (2) the petitioner
himself is likely to face the same allegedly unlawful action again.” Id. (citing Etuk v. Bondi, No.
3:24-CV-02640-B (BT), 2025 WL 1909738, at *4 (N.D. Tex. Apr. 22, 2025)) (emphasis in
original). 	“The voluntary cessation exception ‘traces to the principle that a party should not be
able to evade judicial review, or to defeat judgment, by temporarily altering questionable
behavior.’” Etuk v. Bondi, No. 3:24-cv-02640-B (BT), 2025 WL 1908738, at *3 (N.D. Tex. Apr.
22, 2025), report and recommendation adopted, 2025 WL 19081169 (N.D. Tex. July 10, 2025)
(citing Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 54
(1st Cir. 2013)). “This is to avoid a manipulative litigant immunizing itself from suit indefinitely,
altering its behavior long enough to secure a dismissal and then reinstating it immediately after.”
Id. With this in mind, the Court is not stripped of jurisdiction unless it is “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.” Id. (citing Buckhannon
Bd. and Care Home, Inc., v. W. Va. Dep’t of Health and Hum. Res., 532 U.S. 598 (2001)).
As a preliminary matter, Petitioner says the “voluntary cessation doctrine asks whether ‘it
is absolutely clear that the allegedly wrongful behavior could not be reasonably expected to
recur[,]’” and that the “burden to establish that absolute clarity rests entirely on Respondents.”
(Dkt. No. 11 at 3 (citing Friends of the Earth, Inc., 528 U.S. at 190)). 	“Government actors,
however, bear a lighter burden in proving their challenged conduct will not recur once the suit is
dismissed as moot.” 	Buckler v. Hegseth, 3:23-CV-00316-DCG, 2026 WL 377130, at *5 (W.D.
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Tex. Jan. 26, 2026) (“That is because courts presume that government actors, as public
representatives and not self-interested private parties, act in good faith.”) (citing Navy SEALs 1-26
v. Biden, 72 F.4th 666, 672 (5th Cir. 2023)); see Oldaker v. Johnson, NO.: 7:20-CV-00224 (WLS),
2021 WL 4254864, at *9 (M.D. Ga. Sept. 17, 2021) (“The law is well-established that ‘government
actors receive the benefit of a rebuttable presumption that the offending behavior will not recur[;]’
whereas ‘private citizens are not entitled to this legal presumption.’”) (alteration in original);
Jacksonville Prop Rights Ass’n, Inc. v. City of Jacksonville, 635 F.3d 1266, 1274 (11th Cir. 2011)
(“Hence, ‘the Supreme Court has held almost uniformly that voluntary cessation [by a government
defendant] moots the claim.’”) (citation omitted) (alteration in original). Thus, Petitioner must do
more than speculate as to potential future misbehavior as Respondents are entitled to the
presumption that any purported wrongdoing will not recur.
To summarize, Petitioner’s position8 is that because his removal order from 2024 remains
active, and Respondents have not removed it or promised not to enforce it, Respondents have failed
to meet their burden of showing “it is absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.” (Dkt. No. 11 at 3-4 (citing Friends of the Earth, Inc., 528
U.S. at 190)). While the Court is mindful of a litigant who has ceased its behavior in response to
8 In Petitioner’s reply to Respondents’ response, Petitioner repeatedly cites to Juarez v. Noem as persuasive
authority. (See Dkt. No. 11 at 4, 5, 6, 8); Juarez v. Noem, No. 2:26-cv-00801-DC-CKD (HC), 2026 WL
799976 (E.D. Cal. Mar. 23, 2026). That case has little spending money in the current matter. In Juarez, in
conjunction with a petition for writ of mandamus and complaint for declaratory and injunctive relief, the
petitioner sought a temporary restraining order. Juarez, 2026 WL 799976, at *1. Specifically, “Petitioner
challenges her February 19, 2026, removal to Mexico and seeks an order requiring her immediate return to
the United States with the same Deferred Action for Childhood Arrivals (“DACA”) program protections
provided to her before her removal.” Id. Like here, the petitioner alleged violation of due process, removal
without statutory authority, unlawful removal without notice, mandamus, and violation of the APA. Id.
And, like here, the petitioner sought an order declaring the removal unlawful, requiring the respondents to
facilitate her return, and to restore her DACA protections upon arrival. Id. However, Petitioner omits a
key distinction: the petitioner in Juarez was actively still in Mexico, while Petitioner here has already been
returned to the United States. Thus, the arguments in Juarez did not include mootness, while here, mootness
is the sole point of contention.
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the present litigation, “which shows a greater likelihood that it could be resumed[,]” the
undersigned does not find that to be the case here. See Ashqar v. LaRose, No. 4:18 CV 1141, 2019
WL 1793000, at * (N.D. Ohio Mar. 26, 2019) (citing Northland Family Planning Clinic, Inc. v.
Cox, 487 F.3d 323, 342-43 (6th Cir. 2007)), report and recommendation adopted, 2019 WL
1790453 (N.D. Ohio Apr. 24, 2019). 	Rather, “a claim is not moot if the government remains
practically and legally ‘free to return to [its] old ways’ despite abandoning them in the ongoing
litigation.” Id. (citing Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033, 1039 (9th Cir. 2018))
(alteration in original). Here, Petitioner’s own briefing concedes that the Government is not free
to return to its allegedly unlawful behavior: Petitioner’s DACA status remains active until April
30, 2027. (Dkt. No. 1 at 1). Similarly, while Petitioner’s return was facilitated during the pendency
of this litigation, the Court identifies no evidence that Respondents undertook such a task to
deprive the Court of jurisdiction. As Respondents explain: “The February 17, 2026 enforcement
action was a discrete act, not a continuing course of conduct. Here, no new removal proceedings
have been initiated, no notice of intent to terminate DACA has been issued, and Petitioner is
presently in the United States without any active enforcement action pending against him.” (Dkt.
No. 10 at 3). Petitioner has offered no reason to undermine this contention.
Moreover, Petitioner is unable to show he himself is likely to be subject to the same
allegedly unlawful action in the future. While Petitioner urges examination of the active removal
order against him, the undersigned may not dissect the removal order in the way Petitioner would
prefer, and Petitioner points to no facts that illustrate a reasonable probability that Petitioner
himself would be subject to removal or detention again in the future, in contravention of his valid
DACA status. 	Petitioner’s pleas amount, to an extent, to unsubstantiated fearmongering. 	(See
Dkt. No. 9 at 5 (“There is every reason to believe, and Respondents have provided no assurance
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to the contrary, that the same conduct could recur.”). 	This is insufficient to instill the Court’s
confidence that Petitioner is in danger of recurrence. 	See Etuk, 2025 WL 1908738, at *4 (“But
this potential chain of events is too speculative to invoke the voluntary cessation exception.”);
Ashqar, 2019 WL 1793000, at *10 (“Therefore, absent a violation of his conditions of release, or
‘changed circumstances’ demonstrating a ‘significantly likelihood that [he] may be removed in the
reasonably foreseeable future’, Petitioner may not be re-detained.”) (alteration in original).
Accordingly, the doctrine of voluntary cessation does not resuscitate Petitioner’s moot
claim.
3. 	Capable of Repetition but Evading Review
Petitioner claims that Respondents’ actions are capable of repetition yet may evade review
because “the removal on February 17, 2026, was accomplished in approximately seven hours from
arrest to expulsion[,]” and no court could reasonably intervene in that time frame, and Petitioner’s
removal order remains active, his DACA status is set to expire on April 30, 2027, and ICE has
shown a willingness to act in defiance of DACA’s protections. (Dkt. No. 9 at 5). Thus, Petitioner
concludes there is a reasonable expectation that the same conduct could recur. (Id.).
Respondents respond that Petitioner cannot make a showing that there is a reasonable
expectation or a demonstrated probability that he will be subjected to the same action again. (Dkt.
No. 10 at 3-4). Respondents note that Petitioner’s DACA status is valid through April 30, 2027,
no notice of intent to terminate has been issued, no removal proceedings are pending, and the only
basis for predicting said recurrence is conjecture about what could happen if the DACA status
lapses or is challenged in the future. (Id. at 4).
To satisfy the capable-of-repetition-yet-evading-review exception, Petitioner bears the
burden of showing “‘either a ‘demonstrated probability’ or a ‘reasonable expectation’’ that he
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would find himself back in immigration detention.” Wilfredo R., 2025 WL 3520307, at *2 (citing
Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002)). The “standard is not ‘mathematically precise’
and requires only a ‘reasonable likelihood’ of repetition.” Id. (quoting Oliver, 276 F.3d at 741).
The exception applies only when: “(1) the challenged action [is] in its duration too short to be fully
litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same
complaining party would be subjected to the same action again.” Id. (citing Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 481 (1990)) (alterations in original).
First, as reflected in the voluntary cessation analysis above, Petitioner has not shown that
there is a reasonable expectation that he would be subjected to the same action again. See Etuk,
2025 WL 1908738, at *4; Ashqar, 2019 WL 1793000, at *12. This exception may collapse on this
ground alone.
However, Petitioner also fails to show that, should his worst-case scenario come to fruition,
it would be too short in its duration to be fully litigated. Indeed, Petitioner here was returned to
the United States, despite the unfortunate administrative delay, thirteen days after Petitioner’s
counsel submitted the appropriate documentation, and thirty-two days after the initial filing of his
writ. 	(Dkt. No. 9 at 2-3). 	The undersigned believes that Petitioner, should his skepticism be
realized and he be subjected to the same action in the future, would have the ability to file a new
petition for writ of habeas corpus and/or seek an injunction preventing removal. 	See Oldaker,
2021 WL 4254864, at *8 (“[I]f ICE were to redetain a Petitioner for deportation, Petitioners’
counsel could promptly move the Court at that time for an injunction.”); Ashqar, 2019 WL
1793000, at *13 (“Petitioner would then be free to bring a new habeas petition based on such new
facts and circumstances.”); see Kordia v. Noem, No. 3:25-cv-01072-L-BT, 2026 WL 773087, at *1
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(N.D. Tex. Mar. 19, 2026) (finding capable-of-repetition-yet-evading-review exception did not
apply because the petitioner was not precluded from filing a successive petition in the future).
Accordingly, the capable-of-repetition-yet-evading-review exception to the mootness
doctrine offers no refuge for Petitioner’s claims.
4. 	Declaratory and Injunctive Relief
Petitioner argues that this action was brought not only as a petition under 28 U.S.C. § 2241,
but as a combined petition that invokes federal question jurisdiction over Petitioner’s constitutional
and statutory claims, which are independent of the custody requirement of § 2241. (Dkt. No. 9 at
6). 	Petitioner claims that “[o]nce that jurisdictional hook is set, the Court’s authority over the
collateral constitutional and statutory claims does not dissolve because the custodial aspect of the
case resolves.” (Id.).
Respondent answers that the title of Petitioner’s claims are separate from their form. (Dkt.
No. 10 at 4). 	“[W]hether styled as habeas, declaratory, injunctive, [the claims] were directed
toward a single objective: securing Petitioner’s return to the United States.” 	(Id.). 	Now that
Petitioner has been returned, there is no prospective injury to enjoin and no concrete relief to
award. (Id.).
As the Court has concluded Petitioner’s habeas matter is moot and none of the exceptions
to the mootness doctrines are applicable, the undersigned finds no alternative basis for jurisdiction
to consider his claims for declaratory and injunctive relief. See Kordia, 2026 WL 773087, at *2
(“Any request for the court to ‘declare’ that Petitioner’s detention violated the First Amendment
or Fifth Amendment is not a proper request in a habeas action.”) (citing Jennings v. Rodriguez,
583 U.S. 281, 325-26 (2018) (Thomas, J., concurring).; see also Jennings, 583 U.S. at 325-26
(“Respondents’ suit for declaratory and injunctive relief, in sum, is not a habeas petition.”); Diallo
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v. Adducci, 444 F.Supp.3d 815, 822 (N.D. Ohio 2020) (“Petitioner has not alleged or provided
evidence that ICE will take him back into custody in the imminent future, or that there is a
substantial risk that the detention will be indefinite. 	Because petitioner has not made such a
showing, petitioner lacks standing to seek such relief.”); Oldaker, 2021 WL 4254864, at *9
(“Moreover, ‘[p]ast exposure to illegal conduct does not constitute a present case or controversy
involving injunctive relief if unaccompanied by any continuing, present adverse effects.’”) (citing
Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir. 1985)) (alteration in original); Andrade, 2026 WL
686485, at *3 (“Judicial review of the legality of his past detention would constitute an advisory
opinion.”) (citing Vaupel v. Ortiz, 244 F. App’x 892, 896 (10th Cir. 2007); Ashqar, 2019 WL
1793000, at *15 (“The Court cannot predict the circumstances of any future, hypothetical,
detention, and thus it would be improper to make a ruling regarding any such detention.”); Etuk,
2025 WL 1908738, at *5 (“However, because Etuk’s underlying habeas petition is moot, his
request for injunctive relief is also moot and should be denied.”).
Accordingly, Petitioner’s claims for declaratory and injunctive relief should be denied.
5. 	28 U.S.C. § 2412
Petitioner claims he is entitled to attorney’s fees under the Equal Access to Justice Act.
(Dkt. No. 9 at 9). 	While Petitioner acknowledges that the EAJA does not reach successful 28
U.S.C. § 2241 proceedings, the remainder of this action, since the habeas matter has been resolved,
is civil in nature and is thus attorney’s fees are warranted. (Dkt. No. 11 at 11).
Respondent alleged that the EAJA does not authorize attorney’s fees for successful 28
U.S.C. § 2241 motions, and Petitioner is not entitled to such relief. (Dkt. No. 10 at 5).
Because the Court recommends the dismissal of the case as moot, the undersigned does not
determine whether Petitioner would be entitled to attorney’s fees under the EAJA.
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CONCLUSION
Recommended Disposition
Accordingly, the Court recommends Respondents’ Motion to Dismiss (Dkt. No. 6) be
GRANTED. 	In doing so, the Court further recommends Petitioner’s Petition (Dkt. No. 1) be
DISMISSED as moot.
Notice to the Parties
The Clerk shall send copies of this Report and Recommendation to counsel for Petitioner
and counsel for Respondents, who have fourteen (14) days after receipt thereof to file written
objections pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil
Procedure. Failure to file timely written objections shall bar an aggrieved party from receiving a
de novo review by the District Court on an issue covered in this Report and, except upon grounds
of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. See Douglas v. United Serv. Auto Ass’n, 79 F.3d 1415,
1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1).
DONE at McAllen, Texas, on 12th day of June 2026.
__________________________________
Juan F. Alanis
United States Magistrate Judge
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