Reported / Citable
Background
Orlando Enrique Avila Romero, a citizen who acknowledged illegal entry into the United States, was detained pending removal proceedings under 8 U.S.C. § 1225(b)(2)(A), which subjects individuals present in the United States without lawful admission to mandatory detention as “applicants for admission.” A next friend filed an initial habeas petition on his behalf in May 2026, but it was stricken because the next friend lacked standing. The court granted Petitioner leave to file an amended petition, either pro se or through counsel, to identify individual circumstances or arguments supporting relief beyond those already resolved in prior decisions.
Avila Romero filed an amended petition pro se, arguing that his detention was unlawful under the Fifth Amendment’s Due Process Clause. He contended that he had complied with immigration requirements since his arrival, had no criminal history, posed no danger to the community, had a pending appeal of his removal order, and bore significant family responsibilities. His removal order had not yet become final at the time of the petition.
The case arose against the backdrop of the Fifth Circuit’s recent decision in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), which confirmed that § 1225(b)(2)(A) mandates detention for individuals present in the United States without legal admission. Judge Eskridge had reached the same statutory conclusion in prior cases and was bound by that Fifth Circuit precedent.
The Court’s Holding
The court denied the amended habeas petition and dismissed the action with prejudice. On the statutory claim, the court held that it was bound by Buenrostro-Mendez‘s interpretation of § 1225(b)(2)(A) and could not grant relief contrary to that controlling Fifth Circuit precedent. Petitioner’s disagreement with the statute’s application to him was not a basis for habeas relief.
On the due process claims, the court rejected both procedural and substantive arguments. Citing its own prior decision in Penafiel Clavijo v. Thompson, 2026 WL 923310 (S.D. Tex. 2026), the court held that procedural due process does not require an individualized custody determination beyond what § 1225(b)(2)(A) mandates. The court also held that pre-removal-order detention under § 1225(b)(2)(A) does not violate substantive due process even when detention exceeds the six-month period referenced in Zadvydas v. Davis, 533 U.S. 678 (2001), because that period applies only to post-final-order detention, and Petitioner’s removal order was not yet final.
The court further held that Petitioner’s personal circumstances — his compliance with immigration requirements, lack of criminal history, pending appeal, and family responsibilities — were relevant to whether he should ultimately be removed, but were legally irrelevant to whether he could be detained during the pendency of those proceedings. The court also denied Petitioner’s motion to prevent his transfer or deportation.
Key Takeaways
- Under Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), individuals present in the United States without lawful admission are subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A) as “applicants for admission,” and district courts in the Fifth Circuit are bound by that holding.
- The Zadvydas six-month presumptively constitutional detention limit applies only to post-final-order detention; it does not constrain pre-removal-order detention under § 1225(b)(2)(A), even for extended periods.
- Personal equities such as family ties, lack of criminal history, and compliance with prior immigration orders do not bear on the lawfulness of pre-removal-order detention and cannot support habeas relief on due process grounds.
- A district court cannot grant habeas relief contrary to binding circuit precedent absent an en banc reversal or a Supreme Court decision to the contrary.
Why It Matters
This decision reflects the growing body of district court authority in the Southern District of Texas applying Buenrostro-Mendez to deny habeas challenges to mandatory immigration detention. It underscores that, within the Fifth Circuit, neither procedural nor substantive due process requires individualized bond hearings or custody determinations for noncitizens detained under § 1225(b)(2)(A) during pending removal proceedings, regardless of the duration of detention or sympathetic personal circumstances.
For practitioners, the decision illustrates the limited scope of habeas review available to pre-removal-order detainees in this circuit. Arguments grounded in personal equities, family hardship, or the absence of a criminal record — while potentially relevant before an immigration judge or the Board of Immigration Appeals on the merits of removal — will not move a federal district court in the Fifth Circuit to find detention constitutionally infirm under current precedent.