Orozco Roman v. VERGARA et al

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Case 7:26-cv-00206 Document8 _ Filed 07/23/26 in TXSD

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS

Page 1 of 3

United States District Court
Southem District of Texas

ENTERED
July 23, 2026
Nathan Ochsner, Clerk

MCALLEN DIVISION
UVALDO OROZCO ROMAN, §
§
Petitioner, §
§ CIVIL ACTION NO. 7:26-CV-206
VS. §
§
MIGUEL VERGARA, et al., §
§
Respondents. §

REPORT AND RECOMMENDATION

Petitioner Uvaldo Orozco Roman, proceeding with retained counsel, has filed a petition for

writ of habeas corpus under 28 U.S.C. § 2241, challenging his detention by immigration officials.
(Docket No. 1.) Petitioner is a citizen of Cuba but claims that his “indefinite[ ] detention” is
unlawful “because there is not a significant likelihood that [he] will be removed to Cuba.” (/d. at
2.) Pending before the Court is Respondent’s “Motion to Dismiss.” (Docket No. 7.) Petitioner
has not responded to the dispositive motion.!

As discussed below, after reviewing pleadings, dispositive motion, and relevant law, the
undersigned concludes that the dispositive motion should be granted. Accordingly, the
undersigned recommends that this action be dismissed.

I. DISCUSSION

As noted, on April 28, 2026, Petitioner filed this § 2241 habeas petition, challenging his
continued detention by immigration officials.? (Docket No. 1.) Specifically, Petitioner explains

the basis for this action as follows:

' Petitioner’s failure to respond will be taken as non-opposition. S.D. Tex. LR 7.4 (“Failure
to respond to a motion will be taken as a representation of no opposition.”).

> This case was referred to the Magistrate Judge for a report and recommendation pursuant
to 28 U.S.C. § 636(b)(1).

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 7:26-cv-00206 Document8- Filed 07/23/26in TXSD Page2of3

This case challenges the government’s authority to indefinitely detain a noncitizen
without any finding of dangerousness or flight risk. Petitioner seeks release from
detention because there is not a significant likelihood that Petitioner will be
removed to Cuba in the reasonably foreseeable future and Petitioner has been
detained for over six (6) months.
(Id. at 2.) After an initial review of the Petition under Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts,> the Magistrate Judge ordered Respondent, as a
threshold matter, to show cause why the writ of habeas corpus should not be granted. (Docket No.
5.) In response, the Government filed the pending motion to dismiss. (Docket No. 7.)
Specifically, Respondent explains that Petitioner was admitted to the United States in 1990.
(Docket No. 7, at 1.) However, “[o]n November 9, 2021, Petitioner was convicted of one count
of Child Abuse,” which ultimately resulted in his deportation to Mexico. (/d. at 2.) “Petitioner
subsequently re-entered the United States on October 23, 2025, without applying for admission
and was detained,” and “[o]n October 24, 2025, a single-count criminal complaint was filed against
Petitioner charging him with illegal reentry into the United States in violation of 8 U.S.C. § 1326(a)
and (b)(1).”4 (d.) According to Respondent, Petitioner “is not in the custody of either named
Respondent”; rather, he “is detained by USMS pursuant to a pending federal criminal prosecution.”
(Id. at 3.) Respondent concludes that “[b]ecause Petitioner is not in civil immigration custody .. .
his habeas claim is premature as a matter of law,” and should be dismissed. (/d.)
The undersigned agrees. As Respondent makes clear, “[a] district court only has

jurisdiction over a § 2241 petition if it has jurisdiction over the immediate custodian.” (/d. at 2

(citing Gutierrez v. Garland, No. 1:20-CV-141, 2021 WL 2458349, at *2 (S.D. Tex. May 19,

> Rule 1(b) of the Rules Governing Section 2254 Proceedings in the United States District
Courts provides that those rules may apply to any petition for writ of habeas corpus, including
those under § 2241.

4 See United States v. Orozco-Roman, No. 1:25-cr-983-1 (S.D. Tex. 2025). After pleading
guilty, on June 2, 2026, Petitioner was sentenced to nine (9) months imprisonment. (/d. (Docket
Nos. 28, 29).)

Case 7:26-cv-00206 Document8- Filed 07/23/26in TXSD Page 3of3

2021)). As such, the undersigned now recommends that Petitioner’s § 2241 habeas petition, as
well as this civil action, be dismissed.

Il. CONCLUSION

For the foregoing reasons, the undersigned recommends that Respondent’s “Motion to
Dismiss” (Docket No. 7) bb GRANTED, that Petitioner’s Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (Docket No. 1) be DENIED, and that this action be DISMISSED. It is further
recommended that Petitioner be denied a certificate of appealability as unnecessary.°

NOTICE

The Clerk shall send a copy of this Report and Recommendation to the parties, who have
fourteen (14) days after receipt thereof to file written objections pursuant to 28 U.S.C. §
636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure. Failure to file timely written
objections shall bar an aggrieved party from receiving a de novo review by the District Court on
an issue covered in this Report and, except upon grounds of plain error, from attacking on appeal
the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.

SO ORDERED, the 23rd of July, 2026 at McAllen, Texas.

NA,
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NADIAVS. MEDRANO
United States strate Judge

> A petitioner “proceeding under § 2241 . . . is not required to obtain a certificate of
appealability to pursue [a direct] appeal.” Washington v. Chandler, 533 F. App’x 460, 461 (Sth
Cir. 2013) (citing Jeffers v. Chandler, 253 F.3d 827, 830 (Sth Cir. 2001)).

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