Lopez v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
ROBERTO ESTEBAN FINOL 	§
LOPEZ, 	§
Petitioner, 	§
§
v. 	§ 	CIVIL NO. 3:26-CV-62-K-BN
§
KRISTI NOEM, et al., 	§
Respondents. 	§
MEMORANDUM OPINION AND ORDER
Before the Court are Petitioner Roberto Esteban Finol Lopez (“Petitioner”)
Petition for Writ of Habeas Corpus [Dkt. No. 1] (the “Petition”) and Emergency
Motion for Temporary Restraining Order and/or Preliminary Injunction [Dkt. No. 2]
(the “Motion for TRO”).
The Government filed a Response in Opposition [Dkt. No. 8] and Appendix in
Support [Dkt. No. 10] (together, the “Response”), and Petitioner filed a Reply [Dkt.
No. 11].
Having carefully considered the briefing, the relevant portions of the record, and
the applicable law, the Court GRANTS in part the Petition and DENIES the Motion
for TRO. And, consistent with this Memorandum Opinion and Order, the Court
DIRECTS Respondents to provide Petitioner Roberto Esteban Finol Lopez with a
bond 	hearing 	before 	an immigration judge 	or 	release 	him from custody, under
appropriate conditions of release.
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 1 of 8 PageID <pageID>

Page 2 of 8
I. 	Background
It’s undisputed that Petitioner, a native and citizen of Venezuela, entered the
Unted States in August 2022, was apprehended by U.S. Customs and Border Patrol
(“CBP”), and released from CPB custody on an order of his own recognizance. Compare
Dkt. No. 1 at 8, with Dkt. No. 8 at 10.
More recently, Petitioner “was detained at his ICE check-in on December 26,
2025, and is now being held without the possibility of a bond hearing at the Prairieland
Detention Center in Alvarado, Texas.” Dkt. No. 1 at 8.
And he brings this habeas action challenging “[h]is detention without the
possibility of a bond hearing [as violating] both the U.S. Constitution and the statutory
scheme governing detention of noncitizens.” Id.
II. 	Legal Analysis
This is one of many habeas petitions that challenge ICE’s mandatory detention
authority while removal proceedings are pending. Nearly all courts, including the
undersigned, have held that the government new policy, which deprives people of an
opportunity to seek release from an immigration court, violates the INA and Due
Process Clause. The Court is not persuaded to break from its earlier rulings here. See
Amelia C. P. v. Noem, No. 3:25-cv-2872-K-BK, 2025 WL 3653872 (N.D. Tex. Dec. 17,
2025); Flores Perez v. Noem, No. 3:25-cv-2920-K-BN, 2025 WL 3532430 (N.D. Tex.
Nov. 14, 2025), rec. accepted, 2025 WL 3530951 (N.D. Tex. Dec. 9, 2025); Parada-
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 2 of 8 PageID <pageID>

Page 3 of 8
Hernandez v. Johnson, No. 3:25-cv-2729-K-BN, 2025 WL 3465958 (N.D. Tex. Oct. 29,
2025), rec. accepted, No. 3:25-cv-2729-K-BN, 2025 WL 3463682 (N.D. Tex. Dec. 2,
2025).
As background, two statutes in the [INA] principally govern [these]
detention[s]: 8 U.S.C. §§ 1225 and 1226. Section 1226 provides the
general process for arresting and detaining noncitizens who are present in
the United States and eligible for removal. 8 U.S.C. § 1226. The Supreme
Court has explained that Section 1226(a) “sets out the default rule: The
Attorney General may issue a warrant for the arrest and detention of an
alien ‘pending a decision on whether the alien is to be removed from the
United States.” Jennings v. Rodriguez, 583 U.S. 281, 288 (2018) (quoting
§ 1226(a)). “[T]he Attorney General ‘may release’ an alien detained
under § 1226(a) ‘on bond or conditional parole.’” Id. (citation modified).
But “aliens who are covered by § 1225(b)(2) are detained pursuant to a
different process” and “‘shall be detained for a [removal] proceeding’ if
an immigration officer ‘determines that [they are] not clearly and beyond
a doubt entitled to be admitted’ into the country.” Id. (quoting §
1225(b)(2)(A)). Hence, “noncitizens detained under section 1225(b)(2)
must remain in custody for the duration of their removal proceedings,
while those detained under section 1226(a) are entitled to a bond hearing
before an IJ at any time before entry of a final removal order.” See, e.g.,
Rodriguez v. Bostock, 802 F. Supp. 3d 1297, 1306 (W.D. Wash. 2025).
Flores Perez, 2025 WL 3532430, at *2 (cleaned up; quoting Covarrubias v. Vergara, No.
5:25-CV-112, 2025 WL 2950097, at *2 (S.D. Tex. Oct. 8, 2025)).
The main issue in these cases “is whether [the habeas petitioner] has been
erroneously 	categorized 	as 	a 	detainee 	subject 	to 	8 	U.S.C. 	§ 	1225(b)(2), 	which
prescribes mandatory detention during removal proceedings, or if he [or she] is subject
to 8 U.S.C. § 1226(a), which provides for discretionary detention and a bond hearing
regarding whether the noncitizen is a flight risk or poses a danger to the community.”
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 3 of 8 PageID <pageID>

Page 4 of 8
Id.
A. Exhaustion of Administrative Remedies is Not Required
First, 	the 	Court 	rejects 	any 	argument 	that 	Petitioner 	should 	exhaust 	his
administrative remedies before seeking habeas relief by seeking a bond determination
from the immigration judge (“IJ”). The BIA recently held in In Matter of Yajure Hurtado,
29 I&N Dec. 216, 220 (BIA 2025) that IJs lack authority to hear bond requests or
grant bond to noncitizens who are present in the United States without inspection and
admission, like Petitioner. So “[r]equiring [Petitioner] to request a bond hearing before
an IJ and (if bond were denied) appeal the decision ‘would be inappropriate because it
would exacerbate [the] alleged constitutional injury – detention without a bond
hearing.’” Flores Perez, 2025 WL 3532430, at *3 (citations omitted).
B. Detention Without a Bond Hearing Violates the INA
Second, the Court finds that detaining Petitioner without a bond hearing under
Section 1225(b) violates the INA for the reasons explained in Flores Perez, 2025 WL
3532430, at *3.
[Petitioner] contends that he is being detained under Section 1226(a)
and should have a bond hearing, but Respondents argue that [she] is
subject to mandatory detention under Section 1225(b)(2), and therefore,
not entitled to a bond hearing.
The difference in interpretation emanates from the Government’s recent
reevaluation of immigration detention authority. The Department of
Homeland Security (DHS) and Department of Justice (DOJ) released
interim guidance on July 8, 2025, announcing a new legal position on
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 4 of 8 PageID <pageID>

Page 5 of 8
detention and release authorities. The guidance interprets INA Section
235 (8 U.S.C. § 1225) as applying to the detention of all “applicants for
admission,” 	including 	all 	noncitizens 	who 	have 	not 	been 	admitted,
whether or not they arrive at a port of entry....
[W]hether [Petitioner] falls under Section 1226(a) or 1225(b)(2) is a
matter 	of 	statutory 	interpretation. 	Statutory 	interpretation 	is 	the
province of the courts, not agencies. Loper Bright Enters. v. Raimondo, 603
U.S. 369, 413 (2024).
The [undersigned] finds that Section 1226, not Section 1225, applies to
[Petitioner’s] detention. As almost every district court ... has concluded,
“the statutory text, the statute's history, Congressional intent, and §
1226(a)’s application for the past three decades” support application of
Section 1226. Buenrostro-Mendez v. Bondi, No. H-25-3726, 2025 WL
2886346, at *3 (S.D. Tex. Oct. 7, 2025) (Rosenthal, J.) (collecting cases).
Id. at *3 (quoting Covarrubias, 2025 WL 2950097, at *2).
The Court does acknowledge authority in this district reaching a different result,
but that authority is neither binding nor persuasive. See P. B. v. Bergami, No. 3:25-cv-
2978-O, 2025 WL 3632752, at *3-5 (N.D. Tex. Dec. 13, 2025); Garibay-Robledo v.
Noem, No. 1:25-cv-177-H, ___ F. Supp. 3d ____, 2026 WL 81679, at *3-9 (N.D. Tex.
Jan. 9, 2026).
And the Court notes that, while the United States Court of Appeals for the Fifth
Circuit 	has 	not 	ruled 	on 	this 	issue, 	the 	Seventh 	Circuit 	recently 	rejected 	the
government’s argument, in the context of a motion to stay pending appeal, finding that
Section 1226(a) applies to noncitizens discovered within the country. See Castañon-
Nava v. U.S. Dep’t Homeland Sec., 161 F. 4th 1048, 1061 (7th Cir. 2025) (holding ICE
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 5 of 8 PageID <pageID>

Page 6 of 8
and DHS were “not likely to succeed on the merits of their argument that those
individuals, whom ICE arrested in Chicago without a warrant, are subject to mandatory
detention under § 1225(b)(2)(A)”).
C. Detention Without a Bond Hearing also Violates Due Process
Third, the Court holds that Petitioner is entitled to procedural protections under
the Fifth Amendment’s Due Process Clause and that detaining him without a bond
hearing violates his rights under the Fifth Amendment. See Flores Perez, 2025 WL
3532430, at *4.
Because 	Petitioner 	is 	“erroneously 	categorized 	as 	detained 	under 	Section
1225(b)(2),” the Court “reject[s] Respondent’s related argument that, because Section
1225 ‘says nothing ‘whatsoever about bond hearings’ … [n]o procedural due process
claim is stated.” Id.; see Dkt. No. 8 at 17 (quoting Jennings v. Rodriguez, 583 U.S. 281,
297 (2018)).
And, insofar as Respondents rely on Department of Homeland Sec. v. Thuraissigiam,
591 U.S. 103 (2020), as a basis to deny Petitioner’s due process claim, the Court rejects
that argument too. See Flores Perez, 2025 WL 3532430, at *4 (collecting district court
cases within the Fifth Circuit and concluding Thuraissigiam is distinguishable when
applied to petitioners who have resided in the United States).
The Court also finds that all three factors in Mathews v. Eldridge, 424 U.S. 319
(1976) favor Petitioner for the reasons stated in Flores Perez, 2025 WL 3532430, at *4-
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 6 of 8 PageID <pageID>

Page 7 of 8
5. And, so, the Court holds that denying Petitioner a bond hearing under § 1225(b)(2)
deprives him of procedural due process protections under the Fifth Amendment.
D. Motion for TRO is Denied
Finally, to the extent that Petitioner’s Motion for TRO seeks the same ruling on
the merits as the habeas petition, the Court denies the Motion as “improperly seek[ing]
ultimate relief” for the reasons outlined in Flores Perez, 2025 WL 3532430, at *6-7.
E. Remedy
Most courts, including this Court, confronting the issues here have determined
that the appropriate relief is a bond hearing. Flores Perez, 2025 WL 3532430, at *6-7
(collecting cases). Accordingly, the Court ORDERS that Petitioner be given a bond
hearing before an IJ. The Court declines to award any other relief at this time.
III. 	Conclusion
For all these reasons, the Petition for Writ of Habeas Corpus is GRANTED in
part and the Motion for Temporary Restraining Order is DENIED.
By 	12:00 	p.m. 	Central 	Time, 	February 	2, 	2026, 	Respondents 	are
DIRECTED to: (1) provide Petitioner Roberto Esteban Finol Lopez with a bond
hearing before an immigration judge at which the government shall bear the burden of
justifying, by clear and convincing evidence of dangerousness or flight risk, Petitioner’s
continued detention; or (2) release Petitioner Roberto Esteban Finol Lopez from
custody, under appropriate conditions of release, to a public place.
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 7 of 8 PageID <pageID>

Page 8 of 8
Respondents are further DIRECTED to file a notice, by 5:00 p.m. Central
Time, February 2, 2026, that informs the Court whether Petitioner Roberto Esteban
Finol Lopez has been released from custody. If Petitioner Roberto Esteban Finol Lopez
has not been released from custody, Respondents shall inform the Court whether and
when 	a 	bond 	hearing 	was 	held 	in 	accordance 	with 	the 	preceding 	paragraph.
Respondents 	shall 	further 	inform 	the 	Court, 	in 	detail, 	of 	the 	reasons 	for 	the
immigration judge’s decision.
Finally, if Petitioner Roberto Esteban Finol Lopez is released, Respondents are
DIRECTED to notify Petitioner Roberto Esteban Finol Lopez’s counsel of the exact
location and exact time of his release as soon as practicable and no less than two
hours before his release.
SO ORDERED.
Signed January 26th , 2026.
_____________________________________
ED KINKEADE
UNITED STATE DISTRICT JUDGE
Case 3:26-cv-00062-K-BN Document 12 Filed 01/26/26 Page 8 of 8 PageID <pageID>