Franco v. NOEM et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
LAREDO DIVISION
SANDRA YANETH FRANCO,
Petitioner,
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v. 	CIVIL ACTION NO. 5:26-CV-00118
MARKWAYNE MULLIN, ET AL.,1
Respondents.
MEMORANDUM OPINION AND ORDER
Petitioner is currently detained in federal immigration custody in Texas. Before
the Court is Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241,
by a Person Subject to Unlawful Detention, (Dkt. No. 1), and Respondents’ Motion to
Dismiss and, in the Alternative, for Summary Judgment, (Dkt. No. 8).
The Court finds that Petitioner’s deprivation of liberty without constitutionally
adequate procedures is a violation of her due process rights, and the failure to provide
due process warrants her release. For the reasons stated below, Petitioner’s Petition for
Writ of Habeas Corpus is granted in part. Respondents are ordered to release Petitioner
by May 21, 2026, at 5:00 p.m. The parties are ordered to notify the Court of the status
of Petitioner’s release by May 22, 2026, at 5:00 p.m.
I. BACKGROUND
A. Factual Background
Petitioner, a citizen of Guatemala, challenges her ongoing detention without a
bond hearing. Petitioner entered the United States without inspection in 2018 and has
remained continuously present in the country since then. (See Dkt. No. 1 at 16).2 Shortly
1 Markwayne Mullin is automatically substituted for Kristi Noem in this case under Federal Rule
of Civil Procedure 25(d). Todd Blanche is automatically substituted for Pamela Bondi in this case under the
same rule. The Clerk of Court is DIRECTED to substitute these parties on the docket sheet.
2 When citing to the page numbers of any document in the record, the Court will cite to the page
numbering of the Court’s internal CM/ECF docket system, and not to the page numbers in the underlying
documents.
United States District Court
Southern District of Texas
ENTERED
May 20, 2026
Nathan Ochsner, Clerk
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after entering the United States, Petitioner was apprehended by immigration officials.
(See id.). She was subsequently released on her own recognizance and served a Notice to
Appear. (Id.; Dkt. No. 8 at 2). Petitioner represents that she has no criminal history. (Dkt.
No. 1 at 16). Her daughter is a U.S. lawful permanent resident. (Id.).
In October 2025, Petitioner was arrested at her ICE check-in appointment. (Id.;
Dkt. No. 8-1 at 3). Petitioner has not received a bond hearing since she’s been detained.
(See Dkt. No. 1 at 16).
B. Legal Background
The Department of Homeland Security (DHS) and Department of Justice (DOJ)
released interim guidance in July 2025, announcing a new legal position on detention
authorities for noncitizens. The guidance interpreted the mandatory detention provision
of Section 235 of the Immigration and Nationality Act (INA), or 8 U.S.C. § 1225, as
applying to the detention of all “applicants for admission,” including all noncitizens who
have not been admitted, whether they arrive at a port of entry or enter without
inspection. This position was adopted by the Board of Immigration Appeals (BIA) in
September 2025. Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025).
In the months following the shift in policy, federal district courts across the
country found the Government’s interpretation at odds with the text of the statute and
ordered bond hearings, or release, for noncitizens subject to mandatory detention under
the policy. See, e.g., Barco Mercado v. Francis, No. 25-CV-6582, 2025 WL 3295903, at *4,
n.22 (S.D.N.Y. Nov. 26, 2025) (collecting cases). In February 2026, the Fifth Circuit held
that Section 1225(b)(2) applies to all applicants for admission, regardless of whether they
are actively “seeking admission” when they are detained. Buenrostro-Mendez v. Bondi,
166 F.4th 494, 502 (5th Cir. 2026). However, Buenrostro did not address the validity of
due process claims such as those raised by Petitioner in this case. See, e.g., Bonilla Chicas
v. Warden, No. 5:26-CV-131, 2026 WL 539475, at *4–5 (S.D. Tex. Feb. 20, 2026); see also
Padron Covarrubias v. Vergara, No. 5:25-CV-112, 2025 WL 2950097 (S.D. Tex. Oct. 8,
2025), overruled by Buenrostro-Mendez, 166 F.4th 494 (explaining the Court’s prior
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statutory interpretation of Section 1225).
C. Procedural Background
Petitioner filed the instant petition for a writ of habeas corpus, maintaining that
she is entitled to release from detention. In her petition, she raised several claims for
relief: violation of the INA, violation of due process, and ICE’s violation of its own
regulations. Petitioner requests, among other things, that this Court issue an order
declaring her detention unlawful, immediately release her from custody or provide a bond
hearing, and award reasonable attorney’s fees.
The Court previously ruled on Petitioner’s petition. (Dkt. Nos. 1, 9). However, an
intervening change in the law occurred before the relief the Court ordered was completed.
See Buenrostro, 166 F.4th 494. Respondents moved for reconsideration of the Court’s
Order, which the Court granted. (Dkt. Nos. 11, 15). The Court set aside its prior Order
granting the petition. (Dkt. Nos. 9, 15). The Court’s prior Order, (Dkt. No. 9), granted the
Petition based on statutory interpretation of Section 1225(b)(2), but it did not address
Petitioner’s due process claim. Petitioner maintains that her petition still can be granted
on her due process claim, which Respondents have briefed and the Court considers now.
(Dkt. Nos. 16, 17).
II. DISCUSSION
Respondents move to dismiss and alternatively for summary judgment, asserting
that Petitioner is subject to mandatory detention pursuant to Buenrostro and that her
detention does not violate due process. The Court principally addresses Petitioner’s due
process claim and finds that her detention violates due process.3 The Court incorporates
the legal standards and analysis applied in its prior order granting a petition for a writ
of habeas corpus under similar facts. Lopez Moncebais v. Bondi, No. 5:26-CV-268, slip op.
(S.D. Tex. Mar. 27, 2026).
There, this Court found that Buenrostro does not foreclose due process challenges
to mandatory detention, a noncitizen subject to mandatory detention may bring an as-
applied due process challenge to 8 U.S.C. Section 1225(b)(2), Supreme Court precedent
3 Because the Court grants Petitioner’s requested relief without consideration of her other claims,
the Court will decline to address the merits of those claims.
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does not foreclose that type of challenge, and liberty interests in freedom from detention
must be protected by due process of law, including individualized justification for civil
detention. See id. The Court then applied the balancing test from Mathews v. Eldridge
and found that the petitioner’s procedural due process rights had been violated. Id. at 13
(citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). The Court ordered immediate
release for the due process violation. Id. at 17.4
The Court finds that the same reasoning applies to these facts, though Petitioner’s
length of presence in the United States is factually distinct from Lopez Moncebais.
Petitioner has resided in the United States since 2018. The Court’s reasoning in Lopez
Moncebais relied on the petitioner’s length of residence in the United States in evaluating
his liberty interest. Here, the Court finds that Petitioner’s residence in the United States
since 2018 still creates a sufficient liberty interest to require that her detention is
safeguarded with constitutionally adequate procedures, including an individualized
determination of whether she should be detained.
Additionally, the Court has previously found that a prior release like Petitioner’s
strengthens the liberty interest of a noncitizen because their release created an
expectation that they would be free from detention during the pendency of their removal
proceedings. Bonilla Barrios v. Noem, No. 5:26-cv-172, slip op. at 4 (S.D. Tex. Apr. 2,
2026). As the Court explained there, liberty interests “may arise from an expectation or
interest created by state laws of policies.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005).
In this case, Petitioner had an expectation, in addition to her residence since 2018, that
she would be free from detention or at least entitled to seek bond while her removal
proceedings were pending. She was released from detention in 2018 and spent nearly
seven years out of custody before she was re-detained. Respondents do not assert that
Petitioner violated any conditions of her release. Petitioner appeared for a standard ICE
check-in appointment and was taken into custody without any advance warning or
explanation. That expectation interest strengthens her liberty interest. The Court also
notes that several cases analyzed for their persuasive authority in Lopez Moncebais
similarly considered prior release as a factor strengthening the liberty interest of
4 The Court also denied attorney’s fees under the EAJA and incorporates that analysis here as well.
Lopez Moncebais, No. 5:26-CV-268, slip op. at 17.
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noncitizens detained under Section 1225(b)(2) without a bond hearing. See Lopez
Moncebais, No. 5:26-CV-268, slip op. at 7 n.6 (collecting cases).
For these reasons and the reasons discussed in the Court’s analysis in Lopez
Moncebais, the Court finds that Petitioner’s detention violates her rights under the Due
Process Clause of the Fifth Amendment, she is entitled to relief, and the appropriate
remedy is to order Petitioner’s immediate release from custody.
III. CONCLUSION
For the foregoing reasons, Petitioner’s Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, by a Person Subject to Unlawful Detention, (Dkt. No. 1), is
GRANTED in part and DENIED in part. Respondents’ Motion to Dismiss and, in the
Alternative, for Summary Judgment, (Dkt. No. 8), is DENIED.
Respondents are ORDERED to RELEASE Petitioner from custody by May 21,
2026, at 5:00 p.m., under reasonable conditions of release, and to submit a status report
to the Court confirming Petitioner’s release by May 22, 2026, at 5:00 p.m. Respondents
must notify Petitioner’s counsel of the exact time and location of Petitioner's release no
less than two hours prior to Petitioner’s release from custody. Respondents are ordered
to return Petitioner’s identity documents and personal effects upon her release.
All other relief requested by Petitioner, including her request for recovery of
attorney’s fees, is DENIED.
If Petitioner is re-detained, Petitioner must be afforded procedural due process as
guaranteed by the Due Process Clause of the Fifth Amendment.
A final judgment will follow.
It is so ORDERED.
SIGNED on May 20, 2026.
______________________________
John A. Kazen
United States District Judge
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