Diaz Milan v. Noem et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DENNIS DIAZ MILAN, §
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Petitioner,
VS. CIVIL ACTION NO. 4:26-2001
WARDEN, JOE CORLEY PROCESSING
CENTER, et al.
Respondents.
MEMORANDUM OPINION AND ORDER
GRANTING WRIT OF HABEAS CORPUS
Petitioner Dennis Diaz Milan is detained in the custody of officials with
Immigration and Customs Enforcement (ICE). Through counsel, the petitioner filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2241 (Dkt. 1).
The petition and supporting documents state that the petitioner is a native and citizen
of Cuba; that he entered the United States on or about July 27, 2022; that officials then
released him on his own recognizance; and that officials detained him again on February
18, 2026, when he appeared at ICE offices for his scheduled appointment. He states that
he has no history of violence or criminal charges and is pursuing relief from removal. He
brings a a due-process claim, among others, and seeks immediate release or an
individualized custody hearing. Public online records reflect that his case for immigration
relief is pending before the Board of Immigration Appeals. See EOIR Automated Case
Information, available at https://acis.eoir.justice.gov/en/ (last visited July 17, 2026).
United States District Court
Southern District of Texas
ENTERED
July 21, 2026
Nathan Ochsner, Clerk
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On May 20, 2026, the federal respondents filed an answer to the petition and a
motion to continue or defer ruling pending guidance from the Fifth Circuit (Dkt. 5). The
petitioner is opposed (Dkt. 6). The respondents request deferral based on the Fifth Circuit’s
consideration of Sosnava Rodriguez v. Ortega, No. 26-50183. On July 2, 2026, a panel of
the Fifth Circuit granted relief for the petitioners in the case, and the en banc court then
vacated the opinion pending rehearing. See Sosnava Rodriguez v. Ortega, No. 26-50183,
2026 WL 1906557 (5th Cir. July 2, 2026), reh'g en banc granted, opinion vacated, No. 26-
50183, 2026 WL 2014647 (5th Cir. July 10, 2026). Because the rehearing will take an
unknown amount of time, and because the petitioner’s injury from continued detention is
ongoing, the respondents’ motion for deferral will be denied. The respondents do not
address the petitioner’s substantive claims and do not contest the material facts recited by
the petitioner.
On February 6, 2026, the Fifth Circuit held in Buenrostro-Mendez v. Bondi, 166
F.4th 494 (5th Cir. 2026), that two petitioners who has been present in the United States
for many years, and who had not been apprehended by immigration officials before the
detention at issue in the case, were subject to mandatory detention under 8 U.S.C.
§ 1225(b)(2). The Court does not base this opinion on the statutory text but instead turns
to the petitioner’s claim that his current detention violates her rights under the Due Process
Clause.
The Court previously addressed due-process claims in the context of 28 U.S.C.
§ 2241. See, e.g., Vilar Ruiz v. Warden, Montgomery Proc. Ctr., No. 4:26-cv-1307, 2026
WL 1707199 (S.D. Tex. June 12, 2026); Valdes Soria v. Warden, Houston Cont. Det.
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Facility, No. 4:26-cv-1272, 2026 WL 1658536 (S.D. Tex. June 8, 2026); Chowdhury v.
Warden, No. 26-cv-1126 (Dkt. 18) (S.D. Tex. June 4, 2026); Avila Perez v. Warden, Civil
Action No. 4:26-957 (S.D. Tex. Apr. 28, 2026); Gonzalez Monrreal v. Warden, Civil
Action No. 4:26-925 (S.D. Tex. Apr. 27, 2026); Barrera Leon v. Warden, Civil Action No.
4:26-1341 (S.D. Tex. Apr. 2, 2026); Gallegos Perez v. Noem, Civil Action No. 4:26-351
(S.D. Tex. Apr. 2, 2026); Cruz Osorio v. Noem, Civil Action No. 4:25-6390 (S.D. Tex.
Apr. 2, 2026); Rozo-Teran v. Bondi, Civil Action No. 4:26-243 (S.D. Tex. Mar. 16, 2026);
Navarette-Garcia v. Bradford, Civil Action No. 4:26-1503 (S.D. Tex. Mar, 16, 2026);
Delgado-Rodriguez v. Tate, Civil Action No. 4:26-650 (S.D. Tex. Feb. 25, 2026). All of
these opinions applied the three-part test from Mathews v. Eldridge, weighing and
balancing the following factors: (1) the private interest that will be affected by the official
action; (2) the risk of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural safeguards; and, (3)
the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
For the reasons stated in the Court’s opinions cited above, and based on all
authorities cited in those opinions, the Court determines that the petitioner in this case is
detained without due process of law. He has been present in the country for nearly four
years, was previously released on his own recognizance, has no criminal history, and is
pursuing relief from removal. He has a protected liberty interest under the Due Process
Clause, and the respondents do not argue that flight risk, danger to the community, or other
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weighty government interest justifies his detention. Additionally, the respondents identify
no procedures available to the petitioner to provide notice, ans opportunity to be heard, or
any individualized determination regarding the reason for his current detention. Therefore,
based on the authorities cited in the Court’s prior opinions, all three Mathews factors weigh
in the petitioner’s favor.
The Court concludes, in accordance with numerous other courts considering the
question, that detention under § 1225(b)(2) as applied to this petitioner, without an
individualized assessment or any notice or opportunity to be heard, violates the petitioner’s
right to procedural due process. The petition for a writ of habeas corpus will be granted. 28
U.S.C. § 2241; 28 U.S.C. § 2243; see Brown v. Davenport, 596 U.S. 118, 128 (2022)
(“federal courts may grant habeas relief as law and justice require”) (cleaned up).
“Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren,
553 U.S. 674, 693 (2008). The remedy for unlawful detention “is, of course, release.” Id.;
see Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (based on statutory language of 28
U.S.C. § 2241(c)(3) and the common-law history of the writ, “the essence of habeas corpus
is an attack by a person in custody upon the legality of that custody, and that the traditional
function of the writ is to secure release from illegal custody”). Because the respondents do
not acknowledge any process available to the petitioner, “there is no process to await.” See
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Aroca v. Mason, 819 F. Supp. 3d 517, 548 (S.D.W. Va. 2026) (cleaned up) (collecting
cases).1 After reviewing the authorities and all matters of record, the Court determines that
release is the appropriate habeas relief for the unlawful detention in this case.
The Court therefore ORDERS as follows:
1. The respondents’ motion to continue or defer (Dkt. 5) is DENIED.
2. The petitioner’s petition for habeas relief (Dkt. 1) is GRANTED in part.
3. The respondents are ORDERED to RELEASE the petitioner from custody to a
public location, under conditions of release no more restrictive than those in
place prior to the detention at issue in this case, within 48 hours of this order.
4. The respondents are further ORDERED to inform the petitioner and petitioner’s
counsel of the time and location of release at least three hours before the
release.
5. The respondents are further ORDERED to return to the petitioner, at the time
of release from custody, any and all identification documents taken from the
petitioner at the time of or during detention.
6. Any possible or anticipated removal or transfer of the petitioner under this
present detention is PROHIBITED and ENJOINED.
7. The respondents may not re-detain the petitioner during the pendency of the
petitioner’s removal proceedings absent a pre-detention hearing before an
1 In light of the Fifth Circuit’s holding in Buenrostro-Mendez, and because the respondents
do not argue that 8 U.S.C. § 1226(a) applies, the Court does not order a bond hearing under
§ 1226(a). See Ahmed M. v. Bondi, No. 25-CV-4711 (ECT/SGE), 2026 WL 25627, at *3 (D.
Minn. Jan. 5, 2026) (collecting cases).
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immigration judge at which the government demonstrates, by clear and
convincing evidence, that the petitioner is a flight risk or a danger to the
community. See Giri v. Lyons, No. 5:26-CV-00149, ___ F. Supp. 3d _____,
2026 WL 1361557, at *13 (S.D. Tex. May 12, 2026) (collecting authorities).
8. The respondents are further ORDERED to file a status report updating the Court
within 72 hours of this order.
9. All other pending motions are DENIED as moot.
The Clerk will provide a copy of this order to the parties.
SIGNED at Houston, Texas, on , 2026.
__________________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE
July 21
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