Moreno Sanchez v. Smith et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SEM MORENO SANCHEZ,
Petitioner,
versus
JOE M. SMITH, et al,
Respondents.
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CIVIL ACTION NUMBER
4:25-cv-05384
JUDGE CHARLES ESKRIDGE
OPINION AND ORDER ON DISMISSAL
Petitioner Sem Moreno Sanchez is a citizen of
Venezuela who entered the United States on March 5,
2024, using the CBP One app. Dkt 1 at ¶¶21, 23. He was
paroled that same day into the United States pursuant to
8 USC §1182(d)(5) pending removal proceedings. See
Dkts 1 at ¶¶23–24 & 9-1 at ¶10 (declaration of deportation
officer John Linscott); see also Dkts 1-4 (I-94 form) & 1-5
(notice to appear).
Petitioner appeared for hearing before an immigration
judge in New York on May 28, 2025. Dkt 1 at ¶30.
Immediately after, Enforcement and Removal Operations
took him into custody and terminated his parole under
§1182(d)(5). Dkts 1 at ¶¶30–31 & 9-1 at ¶¶12–13.
Petitioner was then transferred to the Joe Corley
Detention Center in Conroe, Texas, where he currently
remains. Dkts 1 at ¶15 & 9-1 at ¶14.
Pending is a petition for a writ of habeas corpus, by
which Petitioner challenges revocation of his parole and his
continued detention. See Dkt 1. It alleges violations of
(i) the Administrative Procedures Act, (ii) procedural due
process, and (iii) substantive due process. Id at ¶¶38–59.
United States District Court
Southern District of Texas
ENTERED
December 19, 2025
Nathan Ochsner, Clerk
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Pending also is a motion by the Government for
summary judgment. Dkt 9. It maintains that (i) 8 USC
§1252(a)(2)(B)(ii) bars jurisdiction to review revocation of
parole, and (ii) Petitioner’s detention is lawful under 8 USC
§1225. Ibid.
1. APA claim
Petitioner argues, “By categorically revoking [his]
parole, without considering his individualized facts and
circumstances, Respondents have violated the APA.” Dkt 1
at ¶42. The Government contends that §1252(a)(2)(B)(ii) is
a jurisdictional bar to review because parole decisions are
discretionary. Dkt 9 at 5–7.
Under 8 USC §1252(a)(2)(B), Congress precluded
judicial review as follows:
Notwithstanding any other provision of law
(statutory or nonstatutory), including
section 2241 of title 28, or any other habeas
corpus provision, and sections 1361 and
1651 of such title, and except as provided
in subparagraph (D), and regardless of
whether the judgment, decision, or action
is made in removal proceedings, no court
shall have jurisdiction to review—
. . .
(ii) any other decision or action of the
Attorney General or the Secretary of
Homeland Security the authority for which
is specified under this subchapter to be in
the discretion of the Attorney General or
the Secretary of Homeland Security, other
than the granting of relief under section
1158(a) of this title.
The provision governing parole, §1182(d)(5)(A), falls
within the referenced “subchapter.” See Kucana v Holder,
558 US 233, 239 n 3 (2010). It thus governs decision in this
case.
The Supreme Court holds that this jurisdictional bar
applies to any decision or action made discretionary by
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statute. Kucana, 558 US at 246–49. And the text of
§1182(d)(5)(A) clearly leaves such parole determinations to
the discretion of the Attorney General. It states with
emphasis added:
The Attorney General may . . . in his
discretion parole into the United States
temporarily under such conditions as he
may prescribe only on a case-by-case basis
for urgent humanitarian reasons or
significant public benefit any alien
applying for admission to the United
States, but such parole of such alien shall
not be regarded as an admission of the
alien and when the purposes of such parole
shall, in the opinion of the Attorney
General, have been served the alien shall
forthwith return or be returned to the
custody from which he was paroled and
thereafter his case shall continue to be
dealt with in the same manner as that of
any other applicant for admission to the
United States.
As such, Congress has stripped courts of jurisdiction to
review such parole determinations.
The APA doesn’t provide means by which to circumvent
that jurisdictional bar. The APA authorizes judicial review
of agency action “except to the extent that” “(1) statutes
preclude judicial review;” or “(2) agency action is
committed to agency discretion by law.” 5 USC §701(a).
Both exceptions apply here. Section 1252(a)(2)(B)
precludes judicial review of such parole decisions, which
Congress has committed to executive discretion under
§1182(d)(5)(A). Judicial review is thus unavailable under
the APA.
Beyond this, Petitioner didn’t respond to the
Government’s contention that he’s lawfully detained under
8 USC §1225. See Dkts 9 at 3–5 (Government response) &
11 (Petitioner supplemental filing). But for the avoidance
of doubt, Petitioner is lawfully detained under §1225(b)(1)
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for reasons stated in the Government’s response. See Dkt 9
at 3–5. In short, his parole didn’t confer legal status upon
him. See §1182(d)(5)(A) (stating that “such parole of such
alien shall not be regarded as an admission”); see also
Duarte v Mayorkas, 27 F4th 1044, 1058 (5th Cir 2022):
“[P]arole creates something of legal fiction; although a
paroled alien is physically allowed to enter the country, the
legal status of the alien is the same as if he or she were still
being held at the border waiting for his or her application
for admission to be granted or denied.” The decision by
DHS to revoke parole thus simply returned Petitioner to
his pre-parole status—an arriving alien subject to
mandatory detention under §1225(b)(1).
It’s further noted by the Government that, generally,
individuals subject to §1225(b)(1) are in expedited removal
proceedings. Dkt 9 at 4. As explained below, that isn’t the
case here. But even if Petitioner doesn’t fall within the
ambit of §1225(b)(1) for that reason, he would instead be
an “applicant for admission” under §1225(b)(2)(A). See also
§1225(a)(1): “An alien present in the United States who has
not been admitted . . . shall be deemed for purposes of this
chapter an applicant for admission.” The result would be
the same, being that he is not at present unlawfully
detained.
2. Procedural due process
Arguments by Petitioner as to procedural due process
arise from objection to his placement in expedited removal
proceedings. See Dkt 1 at ¶¶44–50. The Government
confirmed that, although it initially attempted to place
Petitioner in such proceedings, an immigration judge
denied such attempt. Dkt 9 at 8.
Petitioner thus remains in standard removal
proceedings under §1229a. Dkt 9 at 7–8. This means in
turn that this contention is moot.
3. Substantive due process
Petitioner also contends that detention is unjustified in
light of the twin goals of immigration detention, being the
prevention of flight and the mitigation of danger to the
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community. See Dkts 1 at ¶¶52–59, citing Zadvydas v
Davis, 533 US 678, 690 (2001).
The Supreme Court states, “It is well established that
the Fifth Amendment entitles aliens to due process of law
in deportation proceedings.” Demore v Kim, 538 US 510,
523 (2003), quoting Reno v Flores, 507 US 292, 306 (1993).
But it further observes, “In the exercise of its broad power
over naturalization and immigration, Congress regularly
makes rules that would be unacceptable if applied to
citizens.” Demore, 538 US at 521, quoting Mathews v Diaz,
426 US 67, 79–80 (1976). It’s thus the “longstanding view”
of the Supreme Court that “the Government may
constitutionally detain deportable aliens during the
limited period necessary for their removal proceedings.”
Demore, 538 US at 526.
Petitioner argues that mandatory detention at this
stage violates his due process rights. He cites Zadvydas v
Davis for its proposition that freedom from imprisonment,
including government detention, is central to the liberty
protected by the Fifth Amendment. See Dkt 1 at ¶47, citing
533 US at 690. But the Supreme Court in Zadvydas
explicitly distinguished post-removal-period detention
(which has no obvious termination point, thus requiring a
constitutional constraint on unbounded detention) from
“detention pending a determination of removability.”
Zadvydas, 533 US at 697; see also Demore, 538 US at 523
(recognizing such distinction in Zadvydas). Zadvydas thus
doesn’t suggest that detention during removal proceedings
itself violates due process. Instead, as the Supreme Court
in Demore later stated, “Detention during removal
proceedings is a constitutionally permissible part of that
process.” 538 US at 531.
As such, his present detention isn’t contrary to due
process of law.
4. Conclusion
The motion for summary judgment by the Government
is GRANTED. Dkt 9.
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The petition for writ of habeas corpus by Petitioner
Sem Moreno Sanchez is DENIED. Dkt 1.
This action is DISMISSED.
This is a FINAL JUDGMENT.
SO ORDERED.
Signed on December 19, 2025, at Houston, Texas.
__________________________
Honorable Charles Eskridge
United States District Judge
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