Reported / Citable
Background
Jorkaeff Josue Henriquez-Herrera, a Venezuelan national, entered the United States without inspection in September 2023. Immigration authorities detained him, placed him in removal proceedings under 8 U.S.C. § 1229a, and then released him into the country—a release that, under governing regulations, required an individualized finding that he posed neither a flight risk nor a danger to the community. He lived freely in the United States for roughly two and a half years before being re-arrested on April 27, 2026, and transferred to the Karnes County Immigration Processing Center in Texas without any bond hearing.
His re-detention reflected a significant policy reversal by the government. For nearly three decades, ICE had treated noncitizens who entered without inspection as being subject to discretionary detention under 8 U.S.C. § 1226(a), which entitled them to bond hearings. In July 2025, ICE Acting Director Todd Lyons issued an internal memorandum abandoning that position, declaring that all such individuals were instead “applicants for admission” subject to mandatory detention under 8 U.S.C. § 1225(b)—with no bond hearings permitted. The Board of Immigration Appeals codified this shift in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). The Fifth Circuit subsequently upheld the statutory interpretation in Buenrostro-Mendez v. Bondi, No. 25-20496 (5th Cir. Feb. 6, 2026), but expressly did not address constitutional due process challenges, remanding for further proceedings.
Henriquez-Herrera filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, arguing that his detention without a bond hearing violated both the Immigration and Nationality Act and his Fifth Amendment due process rights. The government opposed, contending that the INA stripped the court of jurisdiction, that petitioner failed to exhaust administrative remedies, and that the Fifth Circuit’s Buenrostro-Mendez ruling foreclosed his claims.
The Court’s Holding
Judge Xavier Rodriguez granted the petition and ordered petitioner released by June 3, 2026. The court first confirmed subject-matter jurisdiction, reiterating that INA provisions stripping review of removal proceedings (§§ 1252(g) and (b)(9)) do not apply to challenges to detention, and that § 1226(e)’s bar on review of discretionary decisions does not reach mandatory detention under § 1225(b). The court also found that exhaustion of administrative remedies was excused—both because BIA precedent made any appeal futile and because constitutional challenges to detention procedures need not be exhausted.
On the merits, the court held that Buenrostro-Mendez resolved only the statutory question; during oral argument in that case, government counsel expressly conceded there was “not a due process claim” before the Fifth Circuit. The court then applied the Mathews v. Eldridge balancing test and rejected two government arguments for avoiding constitutional review. First, the court distinguished Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020), on dual grounds: unlike the petitioner there, Henriquez-Herrera challenges his detention, not the admission process, and—critically—he entered the country years ago and established a substantial presence in the United States, whereas the petitioner in Thuraissigiam was apprehended twenty-five yards from the border and never released. Second, the court rejected the government’s argument that Thuraissigiam‘s “entry fiction” eliminates all due process rights for anyone classified as an “applicant for admission,” holding that such circular reasoning cannot override constitutional guarantees.
Applying Mathews, the court concluded that all three factors—the serious private interest in liberty, the significant risk of erroneous deprivation without any individualized assessment, and the relatively low burden of conducting a bond hearing—favor requiring that noncitizens with substantial U.S. presence receive an individualized hearing before being detained. Notably, the court explicitly departed from its own prior rulings in Canales-Melgar v. Noem and Goguev v. Noem, in which it had applied the “entry fiction” to detention, concluding that a growing consensus of district courts within the Fifth Circuit warranted the change.
Key Takeaways
- The Fifth Circuit’s Buenrostro-Mendez decision resolved only the statutory question of whether § 1225(b) mandates detention for EWI noncitizens; it left open—and does not foreclose—constitutional due process challenges.
- Noncitizens who entered without inspection but have lived in the United States for substantial periods are constitutionally distinct from those apprehended at the border: the Due Process Clause protects all persons “within the territory of the United States,” and years of lawful-ish presence cannot be erased to eliminate constitutional rights.
- Thuraissigiam‘s “entry fiction” applies to challenges to the admissibility process, not to independent challenges to detention; a noncitizen seeking only a bond hearing—not the right to remain in the country—falls outside Thuraissigiam‘s scope.
- The government’s prior release of a noncitizen already included an individualized finding of no flight risk and no danger; re-detaining that person indefinitely without any hearing to revisit those findings creates a constitutionally significant risk of erroneous deprivation.
- If a petitioner is re-detained after release under this order, a bond hearing is required.
Why It Matters
This decision is part of a widening wave of federal district court rulings—predominantly within the Fifth Circuit’s jurisdiction—that have rejected the government’s post-2025 mandatory-detention policy as applied to noncitizens with long-standing U.S. ties. Judge Rodriguez’s opinion is especially significant because he explicitly overrules his own prior precedent, signaling that even judges who initially sided with the government’s broader reading of Thuraissigiam are revisiting that position as the constitutional arguments are more fully briefed. The ruling reinforces the emerging consensus that the statutory authority to detain without a hearing does not, by itself, answer the constitutional question of whether such detention is permissible.
For practitioners, the decision maps a clear litigation path for similarly situated clients: frame the challenge as a procedural due process claim under Mathews v. Eldridge, distinguish Thuraissigiam on both the removal-versus-detention axis and the substantial-presence axis, and demonstrate that Buenrostro-Mendez‘s statutory holding does not extend to the constitutional arena. Given that the Fifth Circuit remanded Buenrostro-Mendez for further proceedings on due process, circuit-level guidance on these questions is likely forthcoming—and this district court opinion will be among the decisions shaping that record.