Reported / Citable
Background
Lena Atherton Lopez, a Cuban national, entered the United States without inspection in 2022. She subsequently obtained work authorization and was employed in Mesquite, Texas, while her parents — also Cuban citizens — lived in the United States. She had no criminal history. After her initial entry, she was released from immigration custody and spent more than three years living and working in the country without violating any conditions of her release.
On November 12, 2025, immigration officials re-detained Lopez. Following a policy shift by the Department of Homeland Security and the Department of Justice in July 2025 — and adopted by the Board of Immigration Appeals in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025) — the government took the position that all noncitizens who had not been formally admitted, including those who entered without inspection, were subject to mandatory detention under 8 U.S.C. § 1225. The Fifth Circuit upheld that statutory interpretation in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). Lopez was ordered removed, but filed a timely appeal that remained pending, meaning her removal order was not yet final.
Lopez received no bond hearing during her detention. She filed a petition for a writ of habeas corpus in the Southern District of Texas, arguing that her continued detention without any individualized custody determination violated her Fifth Amendment right to due process. Respondents — including DHS Secretary Kristi Noem and Attorney General Pamela Bondi — moved for summary judgment, contending that mandatory detention under § 1225 was lawful and raised no due process concerns.
The Court’s Holding
Judge John A. Kazen granted the habeas petition in part, holding that Lopez’s detention without a bond hearing or any individualized custody determination violated her procedural due process rights under the Fifth Amendment. The court relied on its earlier decision in Lopez Moncebais v. Bondi, No. 5:26-CV-268 (S.D. Tex. Mar. 27, 2026), applying the balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976), to conclude that the government’s failure to provide constitutionally adequate procedures could not be justified.
The court found that Lopez possessed a cognizable liberty interest sufficient to trigger due process protection. Two factors reinforced that interest: her residence in the United States since 2022, and her prior release from custody, which created a reasonable expectation that she would remain free — or at least be entitled to seek bond — during the pendency of her removal proceedings. The court cited Wilkinson v. Austin, 545 U.S. 209, 221 (2005), for the proposition that liberty interests may arise from expectations created by government policies, and noted that the government did not claim she had violated any conditions of her prior release.
Rather than ordering a bond hearing, the court ordered Lopez’s immediate release from custody by June 24, 2026, at 5:00 p.m. The court reasoned that a bond hearing would be an inadequate remedy: the Fifth Circuit had held that 8 U.S.C. § 1226(a) — the bond-hearing provision — does not apply to applicants for admission, and the BIA’s own position is that immigration judges lack jurisdiction to hold such hearings for persons detained under § 1225(b)(2). A retroactive hearing, the court further noted, would not cure the already-suffered deprivation of liberty. The court denied Lopez’s request for attorney’s fees under the Equal Access to Justice Act.
Key Takeaways
- The Fifth Circuit’s ruling in Buenrostro-Mendez — upholding mandatory detention under § 1225(b)(2) for all unadmitted noncitizens — does not foreclose as-applied Fifth Amendment due process challenges to that detention.
- A noncitizen’s prior release from immigration custody and years of lawful residence in the United States can create a constitutionally protected liberty interest requiring individualized justification before re-detention.
- Where immigration courts lack jurisdiction to conduct bond hearings (under BIA precedent) and the Fifth Circuit has foreclosed the § 1226(a) bond-hearing avenue, district courts exercising habeas jurisdiction may order outright release as the only meaningful remedy for a due process violation.
- The court denied attorney’s fees under the EAJA, consistent with its earlier ruling in Lopez Moncebais.
Why It Matters
This decision is part of a growing body of district court rulings — particularly within the Southern District of Texas — pushing back against the government’s expanded mandatory-detention policy for noncitizens who entered without inspection. By grounding relief in the Due Process Clause rather than statutory interpretation, courts are finding a path around the Fifth Circuit’s Buenrostro-Mendez holding. The result is a constitutional floor that limits the government’s ability to hold individuals indefinitely without any individualized review, regardless of how the mandatory detention statute is read.
The case also highlights a structural due process problem created by the government’s own litigation positions: by arguing simultaneously that § 1225(b)(2) mandates detention and that immigration judges have no jurisdiction to hold bond hearings under § 1226(a), the government has effectively closed the administrative safety valve that might otherwise satisfy due process. Courts facing this posture are increasingly concluding that outright release — not a futile bond-hearing order — is the constitutionally required remedy.