Reported / Citable
Background
Lazaro Liwisin Gattorno Gattorno, a Cuban national, entered the United States in December 2022, was placed in full removal proceedings under 8 U.S.C. § 1229a, and was released into the country with conditions of supervision. On April 2, 2026, he was arrested and re-detained at the Karnes County Immigration Processing Center in Karnes City, Texas—this time without any bond hearing.
The government’s position rested on a mid-2025 policy shift. ICE Acting Director Todd Lyons issued an internal memorandum (the “Lyons Memo”) reinterpreting the INA to treat all noncitizens who entered without inspection as “applicants for admission” subject to mandatory detention under 8 U.S.C. § 1225(b), rather than the discretionary detention provision, § 1226(a), under which they had been processed for nearly three decades. The Board of Immigration Appeals codified this position in Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025). Pursuant to that framework, the government argued Petitioner was entitled to no bond hearing whatsoever—release being available only through DHS’s discretionary parole authority.
In February 2026, the Fifth Circuit in Buenrostro-Mendez v. Bondi foreclosed statutory challenges to this detention framework but expressly left open constitutional due process claims. Petitioner filed a habeas corpus petition under 28 U.S.C. § 2241, arguing that indefinite detention without any individualized hearing violated his Fifth Amendment procedural due process rights.
The Court’s Holding
Judge Xavier Rodriguez granted the petition and ordered Petitioner released by June 3, 2026. The court held that the government’s “entry fiction”—borrowed from Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020)—does not strip procedural due process protections from noncitizens who have established substantial presence in the United States. The court drew two critical distinctions from Thuraissigiam: first, Petitioner challenged his detention, not the admission or removal process; second, unlike the petitioner in Thuraissigiam who was apprehended twenty-five yards from the border and never released, Petitioner had lived in the United States interior for over three years after being vetted and released by the government.
Applying the three-factor balancing test from Mathews v. Eldridge, 424 U.S. 319 (1976), the court found all factors supported Petitioner’s claim. Every noncitizen previously released into the interior had already received an individualized government finding that they posed neither a flight risk nor a danger to the community. Detaining such individuals again without any hearing to assess those same factors—flight risk and dangerousness—creates a serious risk of erroneous deprivation of liberty, the most fundamental protected interest. The court also noted that the government’s own regulations governing the revocation of parole and supervised release already contemplate individualized procedural safeguards.
The court explicitly departed from its own prior decisions in Canales-Melgar v. Noem and Goguev v. Noem, in which it had previously applied the entry fiction to detainees with substantial U.S. presence, citing a growing district-court consensus and further consideration of the applicable law. It also rejected the government’s argument that Buenrostro-Mendez foreclosed constitutional claims, noting the Fifth Circuit explicitly limited its ruling to the statutory question and remanded for further due process proceedings.
Key Takeaways
- Noncitizens who entered without inspection but have established substantial presence in the United States interior retain Fifth Amendment procedural due process rights with respect to their detention, even if they have no constitutional rights as to the admission process under the Thuraissigiam entry fiction.
- The Fifth Circuit’s Buenrostro-Mendez decision forecloses only statutory challenges to mandatory detention under § 1225(b); it does not resolve—and indeed expressly preserved—constitutional due process challenges, which must be addressed by district courts in the first instance.
- The government’s own individualized vetting that preceded a noncitizen’s initial release weighs heavily in the Mathews calculus: re-detaining someone previously found to be neither a flight risk nor a danger, without any opportunity to be heard, risks arbitrary deprivation of liberty.
- Courts must distinguish between a noncitizen’s rights regarding admission or removal proceedings (governed by statute and the entry fiction) and rights regarding physical detention (governed by the Fifth Amendment for all persons within U.S. territory).
Why It Matters
This decision reflects a widening rift between the executive branch’s aggressive use of § 1225(b) mandatory detention—formalized by the Lyons Memo and Matter of Yajure Hurtado—and the constitutional floor that federal district courts are increasingly finding applies to that practice. By departing from its own prior rulings and aligning with a growing consensus across the Western District of Texas and other circuits, Judge Rodriguez signals that the government’s attempt to eliminate bond hearings for the broad class of noncitizens who entered without inspection is unlikely to survive constitutional scrutiny as applied to those with meaningful ties to the U.S. interior.
The ruling has practical urgency for the thousands of noncitizens re-detained under the new § 1225(b) interpretation since mid-2025. Because the Fifth Circuit’s Buenrostro-Mendez decision left the constitutional question open, this case is part of a wave of district-court litigation that will shape whether—and under what conditions—individuals like Petitioner, who were vetted and released years ago, may be held indefinitely without a neutral decision-maker weighing flight risk and danger. Those questions will almost certainly reach the Fifth Circuit, and ultimately the Supreme Court, which has twice declined to resolve them.