4:26-cv-00723•Lopez Diaz v. Dickey et al
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRJCT OF TEXAS
HOUSTON DIVISION
ELIAS MOISES LOPEZ DIAZ , §
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Petitioner,
VS.
GRANT DICKEY , et al.,
Respondents.
§ CIVIL ACTION NO. 4:26-CV-00723
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§
§
§
ORDER OF DISMISSAL
The petitioner, Elias Moises Lopez Diaz , is a detainee in the custody of United
States Department of Homeland Security, Immigration and Customs Enforcement ("ICE ")
officials. Through counsel, petitioner filed a petition for a writ of habeas corpus under 28
U.S.C. § 2241 , challenging his continued detention. Doc. No. 1.
While this case was pending, the Fifth Circuit decided Buenrostro-Mendez v. Bondi,
--- F.4th ----, No. 25-20496, 2026 WL 323330 (5th Cir. Feb. 6, 2026). The Court may
dismiss a habeas petition on the pleadings "[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts (authorizing preliminary review and
summary dismissal of habeas petitions on the pleadings). 1
1 A district court may apply any of the rules governing habeas petitions filed under 28 U.S.C.
§ 2254 to those filed under 28 U.S.C. § 2241. See Rule 1(b ), Rules Governing § 2254 Cases in the
United States District Courts.
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United States District Court
Southern District of Texas
ENTERED
February 26, 2026
Nathan Ochsner, Clerk
Case 4:26-cv-00723 Document 4 Filed 02/26/26 in TXSD Page 1 of 3The petition and attached exhibits reflect that Petitioner is a noncitizen who entered the United States in 2021 and is in removal proceedings, where ICE alleges that he is an "applicant for admission." Doc. No. 1 at 2. Petitioner pleads no facts to show that he has been admitted lawfully into the United States. However, Petitioner contends that he was not "seeking admission" and therefore is entitled to a bond hearing under 8 U.S.C. § 1226(a), the statute permitting discretionary bond. He contends that Respondents have erroneously categorized him as an "applicant for admission" subject to mandatory detention under 8 U.S.C. § 1225(b ). Petitioner's arguments regarding sections 1225 and 1226 and their implementing regulations are foreclosed by Buenrostro-Mendez, supra. Likewise, his Fourth and Fifth Amendment claims that he is being held under the wrong statutory authority are also foreclosed by Buenrostro-Mendez. Additionally, Petitioner's Fifth Amendment Due Process Clause claims are precluded, at this juncture, by Demore v. Kim, 538 U.S . 510, 531 (2003 ), because "( d]etention during removal proceedings is a constitutionally permissible part of that process." Id. (citations omitted); see also Jennings v. Rodriquez, 583 U.S. 281 , 297 (2018) (explaining that "§§ 1225(b)(l) and 1225(b)(2) thus mandate detention of applicants for admission until certain proceedings have concluded"). Accordingly, the Court ORDERS as follows: 1. The petition (Doc. No. 1) is DENIED. 2. This case is DISMISSED without prejudice. 3. All other pending motions, if any, are DENIED as MOOT. 2 / 3 Case 4:26-cv-00723 Document 4 Filed 02/26/26 in TXSD Page 2 of 3
3 / 3 4. If the Fifth Circuit, en bane, or the United States Supreme Court enters a decision that is contrary to the decision in Buenrostro-Mendez v. Bondi, supra, Petitioner is granted leave to file a motion for reconsideration or initiate a separate petition. SO ORDERED. SIGNED this ~ (;, -b- day of February 2026. ANDREW S. HANEN UNITED STATES DISTRICT JUDGE Case 4:26-cv-00723 Document 4 Filed 02/26/26 in TXSD Page 3 of 3
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