Unreported / Non-Citable
Background
Hans Leonardo Sandoval Rocha, a Chilean citizen, entered the United States under the Visa Waiver Program (VWP) and was authorized to remain through July 10, 2024. He overstayed that authorization and was arrested on April 14, 2025, in Van, Texas, for public order crimes. He was immediately transferred to immigration custody, and ICE issued a notice of intent to remove him — and then an order of removal — on April 16, 2025, based on his overstay.
Sandoval Rocha filed an application for asylum on June 11, 2025. ICE referred him to asylum processing in October 2025, but his first hearing before an immigration judge did not occur until February 26, 2026, with his asylum application still pending at the time of this ruling. Throughout this period, ICE retained his passport to facilitate removal if the immigration judge were to deny relief.
Sandoval Rocha filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241, arguing he was entitled to a bond hearing under 8 U.S.C. § 1226(a) and that continued detention without such a hearing violated due process. The government opposed the petition, contending that his failure to exhaust administrative remedies barred review and that he was subject to mandatory detention under 8 U.S.C. § 1187(c)(2)(E), the Visa Waiver Program’s detention provision.
The Court’s Holding
Senior U.S. District Judge Sim Lake granted the habeas petition in part and denied it in part. The court rejected the government’s exhaustion argument, reasoning that because Sandoval Rocha was not asking the court to review the merits of his asylum claim, his failure to appeal to the Board of Immigration Appeals did not constitute an impermissible failure to exhaust administrative remedies.
On the core detention question, the court held that 8 U.S.C. § 1187(c)(2)(E) does not authorize detention at all — let alone mandatory detention. The statute addresses a country’s obligation to accept repatriation of its nationals within three weeks of a final removal order, but contains no language authorizing the United States to detain the individual. The court followed the reasoning of a recent sister-court decision, Nicolas T. v. Noem, No. 1:25-cv-313 (S.D. Tex. Mar. 30, 2026), in rejecting the government’s reliance on that provision.
The court ordered the government to either release Sandoval Rocha or provide him a bond hearing by June 4, 2026, and directed the parties to file a status report by June 11, 2026. The court separately denied Sandoval Rocha’s motion for appointment of counsel under the Criminal Justice Act, finding no extraordinary circumstances warranting counsel in a civil habeas proceeding.
Key Takeaways
- 8 U.S.C. § 1187(c)(2)(E), the Visa Waiver Program provision requiring receiving countries to accept repatriation within three weeks of a final removal order, does not authorize — let alone mandate — detention of the alien during that period.
- A VWP overstayer with a pending asylum application who challenges the legality of his detention (rather than the merits of his asylum claim) need not exhaust administrative remedies before seeking habeas relief in federal district court.
- There is no constitutional or statutory right to appointed counsel in a civil habeas corpus proceeding absent extraordinary circumstances.
- Courts in the Southern District of Texas have now reached consistent conclusions that § 1187(c)(2)(E) cannot serve as a standalone basis for mandatory immigration detention.
Why It Matters
This decision continues a developing line of authority in the Southern District of Texas pushing back against the government’s use of the Visa Waiver Program’s repatriation provision as a basis for mandatory detention. Because VWP nationals — who waive certain legal rights, including the right to contest removal before an immigration judge in most circumstances — are a large and growing detainee population, the question of what statutory authority supports their prolonged detention carries significant practical stakes for both the government and detainees with pending protection claims.
The ruling also signals that courts will scrutinize mismatches between a statute’s actual text and the government’s claimed detention authority, particularly where the statutory language is silent on detention. Attorneys representing VWP nationals in removal and asylum proceedings should take note that the mandatory-detention argument under § 1187(c)(2)(E) has now been rejected by multiple judges in this district, potentially opening a viable path to bond hearings for similarly situated clients.