Reported / Citable
Background
Fedor Andrusenko, a Russian national, entered the United States without inspection in April 2022, was briefly apprehended, and was then paroled into the country. He subsequently filed for asylum and obtained work authorization, remaining in the United States without incident for nearly four years. On January 16, 2026, he was re-detained by immigration authorities while driving through Texas for work. He had no criminal history and had complied with all conditions of his prior supervision. An immigration judge ordered him removed on February 19, 2026, but Andrusenko filed a timely appeal, leaving the removal order non-final and his proceedings still pending at the time of the court’s decision.
The government’s basis for detention was the mandatory detention provision of INA § 235(b)(2), 8 U.S.C. § 1225(b)(2), which DHS and DOJ reinterpreted in July 2025 interim guidance to apply to all noncitizens who had not been formally admitted — including those, like Andrusenko, who entered without inspection and were later paroled. The Board of Immigration Appeals adopted that position in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), and the Fifth Circuit upheld the statutory interpretation in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). Under that framework, Andrusenko received no bond hearing during his detention.
Andrusenko petitioned for a writ of habeas corpus under 28 U.S.C. § 2241, asserting, among other claims, a procedural due process violation under Mathews v. Eldridge, 424 U.S. 319 (1976). The government moved for summary judgment, arguing that Buenrostro-Mendez compelled his mandatory detention and that no due process violation had occurred.
The Court’s Holding
Judge John A. Kazen denied the government’s motion for summary judgment and granted the habeas petition in part, ordering Andrusenko’s release by June 5, 2026. The court held that Buenrostro-Mendez, while settling the statutory question of who is subject to § 1225(b)(2) mandatory detention, does not foreclose as-applied procedural due process challenges to that detention. Applying the Mathews v. Eldridge balancing test — as it had done in the closely analogous Lopez Moncebais v. Bondi, No. 5:26-CV-268 (S.D. Tex. Mar. 27, 2026) — the court found that Andrusenko’s prolonged detention without any individualized bond determination violated the Fifth Amendment’s Due Process Clause.
The court identified two reinforcing liberty interests. First, Andrusenko’s four years of residence in the United States since 2022 created a cognizable liberty interest in freedom from detention sufficient to require constitutionally adequate procedures. Second, his prior release from custody in 2022 generated an expectation interest — rooted in Wilkinson v. Austin, 545 U.S. 209, 221 (2005) — that he would remain free or at least be entitled to seek bond during his removal proceedings, an interest the government did not undermine by alleging any violation of his release conditions.
The court ordered outright release rather than a bond hearing, reasoning that (1) the Fifth Circuit has held § 1226(a)’s bond-hearing mechanism does not apply to applicants for admission detained under § 1225(b)(2); (2) a belated hearing would not cure the already-inflicted deprivation of liberty; and (3) the BIA’s position in Matter of Yajure Hurtado means an immigration judge would likely decline jurisdiction to conduct such a hearing even if ordered. The court denied all other relief, including attorney’s fees under the Equal Access to Justice Act.
Key Takeaways
- The Fifth Circuit’s ruling in Buenrostro-Mendez that § 1225(b)(2) mandatory detention applies to all unadmitted noncitizens does not extinguish individualized, as-applied due process challenges to that detention.
- A noncitizen’s multi-year residence in the United States and prior release from immigration custody are cognizable liberty interests that, under Mathews v. Eldridge, may require individualized procedural protections before prolonged civil detention.
- Where a bond hearing is legally unavailable or practically illusory — because the BIA denies jurisdiction and the Fifth Circuit limits § 1226(a) — a district court may order immediate release as the appropriate habeas remedy rather than a futile referral for a hearing.
- The court’s order expressly provides that if Andrusenko is re-detained, he must be afforded Fifth Amendment procedural due process, signaling an ongoing judicial constraint on future detention without individualized review.
Why It Matters
This decision is part of a growing body of Southern District of Texas rulings — building on the court’s own precedent in Lopez Moncebais and Bonilla Barrios v. Noem — that carve out constitutional space for due process challenges even within the government’s expansive post-2025 mandatory detention regime. By holding that statutory authorization to detain does not automatically satisfy the Fifth Amendment, the court imposes a floor of individualized review that the executive branch’s policy changes cannot simply legislate away.
For immigration practitioners, the decision highlights a viable habeas strategy for noncitizens detained under § 1225(b)(2) who have substantial ties to the United States or a history of prior release: even where the bond-hearing route is foreclosed by circuit precedent and BIA policy, a direct due process challenge may yield release. The split between district courts willing to grant this relief and the government’s mandatory detention posture sets up questions that could eventually require Fifth Circuit or Supreme Court resolution.