Olivero Nava et al v. Warden of Port Isabel Service Processing Center et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
BROWNSVILLE DIVISION
ROGELIO ALBERTO OLIVERO NAVA,
LUIS ENRIQUE BRUZUAL CARRION, and
JUAN CARLOS RUA CASTILLO,
Petitioners,
VS.
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CIVIL ACTION NO. 1:26-CV-230
WARDEN OF PORT ISABEL SERVICE
PROCESSING CENTER, et al.,
Respondents.
ORDER AND OPINION
Petitioners Rogelio Alberto Olivero Nava, Luis Enrique Bruzual Carrion, and Juan Carlos
Rua Castillo filed this action while detained by Immigration and Customs Enforcement at
immigration detention facilities within this Court’s jurisdiction. They request that the Court order
their release because they hold Temporary Protected Status. Petitioners acknowledge that in
January 2025, the then-Secretary of Homeland Security took steps that, if in effect, would mean
that Petitioners no longer possess TPS. But a federal district court in California has declared the
Secretary’s actions unlawful. Relying upon that decision, Petitioners argue that they retain TPS
and that 8 U.S.C. § 1254a(d)(4) prohibits their continued detention.
Respondents move to dismiss for lack of subject matter jurisdiction and for failure to state
a claim upon which relief can be granted, or, alternatively, for summary judgment. (Motion, Doc.
23)
For the following reasons, the Court concludes that it lacks subject matter jurisdiction as
to Petitioner’s non-constitutional claims, and that their cause of action based on the Due Process
Clause is not viable.
United States District Court
Southern District of Texas
ENTERED
October 15, 2026
Nathan Ochsner, Clerk
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I. Factual and Procedural Background
A. Temporary Protected Status
1. Background
In 1990, Congress created a humanitarian program to create a pathway to protection for
certain immigrants. Under 8 U.S.C. § 1254a, the Secretary of the Department of Homeland
Security may designate a country for TPS after determining that aliens within the United States
cannot safely return to that country due to extraordinary and temporary circumstances, such as
armed conflict or a natural disaster. See 8 U.S.C. § 1254a(b). The Secretary’s initial TPS
designation lasts from 6 to 18 months. See id. at § 1254a(b)(2).
Once the Secretary designates a country for the TPS program, individuals from that
country may apply for TPS, which, if granted, provides benefits that include protection from
removal and work authorization. See id. at § 1254a(a)(1). To receive TPS protection, an individual
must be “admissible as an immigrant” and have been “continuously physically present in the
United States since the effective date of the most recent [TPS] designation[.]” See id. at § 1254a(c).
The Secretary may extend or terminate a TPS designation, but must do so “at least 60 days
before the end of the initial period of designation, and any extended period of designation[,]” and
“shall determine whether the conditions for such designation under this subsection continue to
be met.” Id. at § 1254a(b)(3)(A). Additionally, the Secretary may “redesignate” a country for TPS,
initiating a new “effective date” for the designation and permitting a new group of nationals from
the designated country to become TPS beneficiaries.
2. TPS Designation for Venezuela
On March 8, 2021, then-Secretary Alejandro Mayorkas designated Venezuela for the TPS
program for an 18-month period. See 86 Fed. Reg. 13574, 13577 (Mar. 9, 2021) (“2021
Designation”). The designation lasted through September 2022, but in that month, Secretary
Mayorkas extended the designation through March 2024. See 87 Fed. Reg. 55024, 55027 (Sept.
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8, 2022). Then, in October 2023, he implemented a second extension, through September 2025.
See 88 Fed. Reg. 68130, 68131 (Oct. 3, 2023). These acts represented extensions under Section
1254a, meaning that the effective date under the 2021 Designation remained March 8, 2021.
On October 3, 2023, Secretary Mayorkas also redesignated Venezuela for TPS as an act
separate and apart from his extension of the 2021 Designation, creating a new effective date that
provided possible protection to Venezuelans who had entered the United States after March 8,
2021, but before October 3, 2023. See id. (“2023 Designation”). The 2023 Designation’s initial
term was through April 2025.
On January 17, 2025, Secretary Mayorkas extended the 2023 Designation through
October 2, 2026. See 90 Fed. Reg. 5961 (Jan. 17, 2025). In this act, Secretary Mayorkas also
announced that “individuals registered under either the [2021 Designation] or the [2023
Designation]” could register under the extension of the 2023 Designation, to obtain protection
through October 2, 2026. See id.
In January 2025, Kristi Noem became Secretary of Homeland Security. The following
month, she implemented two relevant decisions. First, she vacated the January 2025 extension
of the 2023 Designation. See 90 Fed. Reg. 8805 (Feb. 3, 2025). Second, she terminated the 2023
Designation altogether, effective April 2, 2025. See 90 Fed. Reg. 9040 (Feb. 5, 2025) (collectively,
the Court refers to the two decisions as the “Secretary’s 2025 Actions”). Thus, after April 2, 2025,
only the 2021 Designation would remain in effect, and that designation would expire in September
2025.
B. Petitioners
Petitioners Luis Enrique Bruzual Carrion, Juan Carlos Rua Castillo, and Rogelio Alberto
Olivero Nava are Venezuelan nationals.
Bruzual arrived in the United States in 2021 after fleeing Venezuela because he “was being
threatened and harassed for [his] political opinions and [his] opposition to the current
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government and feared for [his] life.” (Bruzual Decl., Doc. 1–2, ¶ 4) In 2024, Bruzual received
TPS protection based on the 2023 Designation, and the following year he sought re-registration,
although the Court’s review of the record leaves unclear whether he received approval. In January
2026, immigration officials detained Bruzual and later transferred him to the Port Isabel
Detention Center.
In 2022, Rua arrived in the United States. In 2024, he received TPS approval under the
2023 Designation, and the following year he renewed his status. In November 2025, immigration
officials detained Rua at an ICE check-in. ICE subsequently transferred him to the Port Isabel
Detention Center.
Olivero arrived in the United States in 2023 after being tortured in Venezuela “because
[he] was a member of a political party that opposed the government.” (Nava Decl., Doc. 1–1, 2) In
2024, Nava received TPS approval based on the 2023 Designation and he re-registered in
September 2025. The following month, immigration officials took him into custody when he
reported for an ICE check-in.
Each Petitioner is a member of the National TPS Alliance (“NTPSA”), which is a member-
led organization that represents TPS holders in the country.
C. California Litigation
Petitioners request that the Court give preclusive effect to a declaratory judgment issued
in National TPS Alliance v. Noem, et al., No. 25-CV-01766-EMC, 2025 WL 3539156 (N.D. Cal.
Dec. 10, 2025) (“California Litigation”).
That matter began in February 2025, when NTPSA, along with seven of its members,
brought suit in the Northern District of California to challenge the Secretary’s 2025 Actions under
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the Administrative Procedure Act and the Equal Protection Clause of the Fourteenth Amendment.
NTPSA also sought a declaratory judgment that the Secretary’s 2025 Actions were unlawful.1
In March, the court issued preliminary injunctive relief in NTPSA’s favor. See Nat'l TPS
All. v. Noem, 773 F. Supp. 3d 807 (N.D. Cal. 2025) (“Postponement Order”). The court concluded
that NTPSA had demonstrated a substantial likelihood of success on its APA and Equal Protection
claims. As relief, the court granted “[p]laintiffs’ motion to postpone the agency actions at issue”
and applied the relief “nationwide.” Id. at 867. Based on the postponement, TPS remained in
effect for covered individuals under both the 2021 Designation and the 2023 Designation.
The Secretary appealed and sought a stay of the Postponement Order. After the Ninth
Circuit denied the request, the Secretary sought relief from the Supreme Court, which in May
2025 granted a stay of the Postponement Order. The stay remained in effect pending the
resolution of the appeal to the Ninth Circuit “and disposition of a petition for a writ of certiorari,
if such a writ is timely sought.” Noem v. Nat'l TPS All., 145 S. Ct. 2728, 2729 (2025).
In August, the Ninth Circuit affirmed the district court’s decision to postpone the
Secretary’s 2025 Actions. See Nat'l TPS All. v. Noem, 150 F.4th 1000 (9th Cir. 2025). The court
explained that the Secretary’s 2025 Actions had “stripped” hundreds of thousands of people “of
[TPS] status and plunged [them] into uncertainty.” Id. at 1029. The court affirmed the
“postponement of agency action under the APA, effective nationwide,” finding such relief “both
permissible and necessary[.]” Id.
As the appeal of the Postponement Order progressed, proceedings also continued in the
district court. In September 2025, the district court granted summary judgment in NTPSA’s favor
as to the APA claim.2 The court concluded that “the Secretary’s decision to terminate the 2023
1 Although the California Litigation involved several plaintiffs, in this Order and Opinion, for ease of reference, the
Court refers to them collectively and in the singular person as “NTPSA.” The California Litigation also included claims
related to the TPS program and Haiti. Those issues do not bear relevance to the instant matter.
2 NTPSA did not move for summary judgment as to the Equal Protection claim. The defendants in the California
Litigation moved for summary judgment in their favor on this cause of action, but the California court denied that
motion. See Nat'l TPS All. v. Noem, 798 F. Supp. 3d 1108, 1158 (N.D. Cal. 2025).
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Designation was unlawful” under the APA. Nat'l TPS All. v. Noem, 798 F. Supp. 3d 1108, 1153
(N.D. Cal. 2025) (“Summary Judgment Order”). Based on that conclusion, the court “set[ ] aside,
or vacate[d], each of the [2025 Actions] made by Secretary Noem.” Id. at 1160; see also id. at 1164
(summarizing its findings and remedy: “It finds [the 2025 Actions] of Secretary Noem are
unlawful and sets aside each of those agency actions.”). After directing the Clerk of Court to enter
final judgment in NTPSA’s favor as to its APA claim, and aware that the Government would appeal
the decision, the court stayed the matter as to the Equal Protection claim. Id. at 1164.
On September 17, the Ninth Circuit denied the Government’s request to stay the relief
afforded through the Summary Judgment Order. See Nat'l TPS All. v. Noem, 163 F.4th 1152 (9th
Cir. 2025). But the following month, the Supreme Court granted such relief. Taking into account
its previous stay of the Postponement Order, the Supreme Court explained that “[a]lthough the
posture of the case has changed, the parties’ legal arguments and relative harms generally have
not. The same result that we reached in May is appropriate here.” Noem v. Nat'l TPS All., 146 S.
Ct. 23, 24 (2025). The Supreme Court rendered the stay effective “pending the disposition of the
Government’s appeal in the [Ninth Circuit] and disposition of a petition for a writ of certiorari, if
such writ is timely sought.” Id.
As the appeal of the Summary Judgment Order continued, NTPSA returned to the district
court and moved for a declaratory judgment. On December 10, the district court granted the
requested relief. The court explained that “Plaintiffs do not assert any new legal theory in support”
of a declaratory judgment, and that “the requested relief is essentially derivative of the earlier
[summary] judgment.” Nat'l TPS All. v. Noem, No. 25-CV-01766-EMC, 2025 WL 3539156, at *1
(N.D. Cal. Dec. 10, 2025) (“Declaratory Judgment”). In opposition, the Government relied on the
Supreme Court’s stay of the Summary Judgment Order. The district court rejected the argument,
reasoning that “there are several reasons why the Supreme Court could have stayed the Court’s
final judgment setting aside the agency actions but still left open the door to declaratory relief[.]”
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Id. Thus, “[b]ased on the merits analysis in its prior summary judgment order, the Court
declare[d] that (1) the vacatur of the January 17, 2025, TPS extension for Venezuela was unlawful
as was (2) the termination of Venezuela's 2023 TPS designation on February 5, 2025.” Id. at *3.
The court described the Declaratory Judgment as “a lesser form of remedy than that already
granted.” Id. at *1.
In January 2026, the Ninth Circuit affirmed the Summary Judgment Order. See Nat'l TPS
All. v. Noem, 166 F.4th 739 (9th Cir. 2026). The Government defendants filed a timely petition
for a writ of certiorari.
On June 25, the Supreme Court issued its decision in Mullin v. Doe, 609 U.S. 324 (2026),
which involved a consolidated challenge to the Secretary’s decision to terminate TPS as to Syria
and Haiti. The plaintiffs based their challenges upon the Administrative Procedure Act and the
Equal Protection Clause. The Supreme Court held that the TPS statute prohibits judicial review
of non-constitutional challenges, such as claims under the APA.3
On October 5, the Supreme Court granted certiorari in the California Litigation, vacated
the Ninth Circuit’s January 2026 judgment, and remanded the case to the Ninth Circuit “for
further consideration in light of Mullin v. Doe, 609 U. S. 324 (2026).” Mullin v. Nat'l TPS Alliance,
No. 26-48 (U.S. Oct. 5, 2026).
D. Procedural Background
In February 2026, Petitioners filed this habeas action, alleging that they enjoy TPS
protection and, based on that status, are entitled to immediate release because Section
1254a(d)(4) prohibits their detention based on their immigration status. Petitioners moved for
emergency injunctive relief on their claims.
The Court denied Petitioners’ request for a temporary restraining order and preliminary
injunction. (See Order and Opinion, Doc. 26) The Court concluded that collateral estoppel applied
3 The Supreme Court also concluded that plaintiffs’ claims under the Equal Protection Clause were without merit.
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to render the California Litigation preclusive, but found that the only effective relief from that
litigation was the declaratory judgment, which lacked any coercive element.
After the Supreme Court issued its decision in Mullin v. Doe, the Court ordered the parties
to submit supplemental briefing as to the impact of that case on the current matter. The parties
timely submitted their briefing. (See Supp. Brief, Doc. 34, Resp., Doc. 35)
II. Standard of Review
When considering motion under Federal Rule of Civil Procedure 12(b)(1), a court may
dismiss an action for lack of subject matter jurisdiction “on any one of three separate bases: (1)
the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record;
or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed
facts.” Spotts v. United States, 613 F.3d 559, 565–66 (5th Cir. 2010) (quoting St. Tammany Par.,
ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009)). “The burden
of proof for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction.” Ramming v.
United States, 281 F.3d 158, 161 (5th Cir. 2001). If a court determines that it does not have subject
matter jurisdiction over an action, the action is dismissed without prejudice. See, e.g., Hitt v. City
of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
“To survive a motion to dismiss [based on Federal Rule of Civil Procedure 12(b)(6)], a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
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III. Analysis
A. Non-Constitutional Claims
Respondents seek dismissal of Petitioner’s non-constitutional claims for lack of subject
matter jurisdiction, relying on the jurisdictional bar found in 8 U.S.C. § 1254a(b)(5)(A). Through
that provision, Congress established that “[t]here is no judicial review of any determination of the
[Secretary of Homeland Security] with respect to the designation, or termination or extension of
a designation, of a foreign state under this subsection.”4 Id. Respondents construe this language
broadly, so as to encompass Petitioner’s challenge of the Secretary’s 2025 Actions.
In Mullin v. Doe, the Supreme Court applied Section 1254a(b)(5)(A) to preclude non-
constitutional claims challenging the termination of TPS as to Haiti and Syria. The Court found
the statute’s text “clear, and its plain meaning very broad.” Mullin, 609 U.S. at 339. The
jurisdictional bar applied to the “final decision to terminate these countries’ TPS designations.”
Id. In addition, the language encompassed a challenge of the Secretary’s “decision to consult the
State Department in a particular manner and her decision that country conditions in Syria and
Haiti justified termination of their TPS designation.” Id. Based on this reasoning, the Supreme
Court held “that the TPS statute’s judicial-review bar applies to [the petitioners’] non-
constitutional claims.”5 Id. at 345.
In the present matter, the Court finds that the reasoning of Mullin v. Doe applies equally
to Petitioners’ non-constitutional claims. Petitioners allege that the “vacatur and termination of
TPS for Venezuela” is unlawful. (Pet., Doc. 1, 8) The jurisdictional bar of Section 1254a(b)(5)(A)
squarely applies under Mullin v. Doe to any claim regarding the termination of TPS for Venezuela.
Implicitly recognizing this straightforward application, Petitioners attempt to distinguish Mullin
4 The Homeland Security Act of 2002 transferred the primary responsibility for enforcing immigration laws from the
Attorney General to the Secretary of Homeland Security. See Pub. L. No. 107-296, 116 Stat. 2135 §§ 441–46 (2022). The
United States Code, however, largely retains the old nomenclature.
5 The Court also reversed the district court’s granting of interim injunctive relief based on an Equal Protection claim,
concluding that plaintiffs had not demonstrated a substantial likelihood of succeeding on that claim. Id. at 350.
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v. Doe as to their attack on the Secretary’s vacatur of the January 2025 extension of the 2023
Designation. According to Petitioners, “[e]ven under Doe, vacatur challenges like NTPSA’s can
proceed.” (Supp. Brief, Doc. 34, 1)
The Court finds this proposed distinction unpersuasive. The Supreme Court construed
the plain meaning of Section 1254a(b)(5)(A) to be “very broad.” Mullin, 609 U.S. at 339. That
provision covers any decision by the Secretary “with respect to the designation, or termination or
extension of a designation” of TPS. Id. at 332. Congress’s use of “with respect to” “ensur[es] that
the scope of [the] provision covers not only its subject but also matters relating to that subject.”
Id. at 339. In the present matter, Petitioners challenge the Secretary’s decision to vacate a prior
extension of TPS. This vacatur decision was “with respect to” a TPS extension, and Section
1254a(b)(5)(A) precludes judicial review of this decision.
Petitioners highlight that “while termination of a country’s TPS is provided for in the
statute, see 8 U.S. Code § 1254a(b)(3)(B), vacatur is not.” (Supp. Brief, Doc. 34, 3 (emphasis in
original)) But even if Section 1254a does not expressly reference the “vacatur” of a Secretary’s
prior decision, Petitioners cannot refute that such a vacatur would be “with respect to” the
extension of TPS. And this connection between the vacatur and the prior extension triggers the
application of Section 1254a(b)(5)(A).
Petitioners also argue that because Section 1254a does not expressly or implicitly
authorize the Secretary to vacate a prior extension of TPS, the act was unlawful. (Id. at 4) Notably,
the current and immediately past administrations took positions inconsistent with Petitioners’
argument. As part of the Secretary’s 2025 Actions, the Secretary reasoned that the “TPS statute
does not limit the Secretary’s inherent authority under the INA to reconsider any TPS-related
determination, and upon reconsideration, to vacate or amend the determination.” See 90 Fed.
Reg. 8805, 8806 (Feb. 3, 2025). This argument mirrored the position by former Secretary
Mayorkas in his June 2023 decision to “rescind” the prior termination of TPS as to El Salvador.
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88 Fed. Reg. 40282, 40285 (June 21, 2023). Section 1254a does not expressly authorize the
Secretary to “rescind” a prior decision. But in his notice, Secretary Mayorkas explained the basis
of his authority:
An agency has inherent (that is, statutorily implicit) authority to revisit its prior
decisions unless Congress has expressly limited that authority. The TPS statute
does not limit the Secretary's inherent authority to reconsider any TPS-related
determination, and upon reconsideration, to change the determination. See INA
sections 244(b)(3), (b)(5)(A); 8 U.S.C. 1254a(b)(3), (b)(5)(A).
88 Fed. Reg. 40282, 40285 (June 21, 2023). And ample authority recognizes that agencies
possess inherent powers to fulfill their statutory obligations, as long as its exercise of power does
not conflict with a statutory provision. See, e.g., Macktal v. Chao, 286 F.3d 822, 825 (5th Cir.
2002) (“[I]t is generally accepted that in the absence of a specific statutory limitation, an
administrative agency has the inherent authority to reconsider its decision.”). Here, the
Secretary’s vacatur or rescission of a prior decision does not directly conflict with any provision
within Section 1254a.
Finally, Petitioners contend that despite Mullin v. Doe, this Court should continue to apply
collateral estoppel as to the Declaratory Judgment. (Supp. Brief, Doc. 34, 2) The Court disagrees.
Although the Court in its consideration of Petitioner’s request for emergency injunctive relief
previously applied collateral estoppel effect to the Declaratory Judgment, that determination
occurred before Mullin v. Doe. The Court finds that the reasoning of the Supreme Court’s decision
negates the jurisdictional analysis within the Declaratory Judgment. And no authority suggests
that a court should continue to apply a district court decision that is contrary to governing
Supreme Court precedent.6
For these reasons, the Court concludes that Section 1254a(b)(5)(A) applies and precludes
Petitioners’ non-constitutional claims.
6 In addition, even if the Court accepted the Declaratory Judgment as preclusive, doing so would not entitle Petitioners
to relief. The Declaratory Judgment includes no coercive element, much less one that would support the release of
Petitioners.
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B. Constitutional Claims
Plaintiffs also allege that their ongoing detention represents a “[d]eprivation of
constitutional rights” under the Fifth Amendment’s Due Process Clause. (Id. at 5; see also Pet.,
Doc. 1, ¶¶ 52–54) The substance of the claim, however, is that Respondents have no legal
authority to detain them because of their TPS status. (See Resp., Doc. 24, 9 (“Because the NTPSA
Declaratory Judgment is a final and binding judgment with respect to the rights of the parties,
Petitioners have TPS.”)) As previously explained, the Court finds this premise unfounded, as the
Secretary’s 2025 Actions remain in effect, rescinding TPS as to Venezuela for individuals in
Petitioners’ circumstances. And this finding necessarily defeats any due process claim based on
the (faulty) argument that Respondents enjoy TPS protection.
For their part, Respondents represent that they detain Petitioners under 8 U.S.C.
§ 1225(b)(2)(A). (See Motion, Doc. 23, 24) And Petitioners do not contest that this statute applies,
and that the Fifth Circuit has foreclosed any statutory arguments regarding mandatory detention
under that statute. (See Resp., Doc. 24, 10) They note that some courts have concluded that
mandatory detention under Section 1225(b)(2)(A) violates an alien’s rights under the Due Process
Clause. (Resp., Doc. 24, 10 n.3 (citing cases)) But other courts have considered and rejected
similar arguments. See, e.g., Zuniga v. Lyons, 814 F. Supp. 3d 685, 696 (N.D. Tex. 2025);
Guzman-Diaz v. Noem, No. 3:25-CV-3008-X-BN, 2026 WL 309938, at *8 (N.D. Tex. Feb. 5,
2026); Giron v. Noem, No. 4:26-CV-00086, 2026 WL 252370, at *2 (S.D. Tex. Jan. 28, 2026);
see also Castellano v. Strong, No. 6:26-CV-125-H, __ F.Supp.3d __, 2026 WL 2225137, *6 (N.D.
Tex. Aug. 3, 2026) (“The Due Process Clause does not require the United States to release aliens
in ongoing removal proceedings after a certain period of time.”). These decisions applied the
Supreme Court’s jurisprudence recognizing that for aliens seeking admission, due process is
satisfied through the procedures and rights that Congress elects to enact through legislation. See,
e.g., Demore v. Kim, 538 U.S. 510, 523 (2003); Dep't of Homeland Sec. v. Thuraissigiam, 591
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U.S. 103, 138 (2020); Reno v. Flores, 507 U.S. 292, 306 (1993). The Court finds the reasoning in
these decisions to be persuasive. As a result, Petitioners fail to present a meritorious claim for
relief under the Due Process Clause.
IV. Conclusion
For these reasons, it is:
ORDERED that Respondents’ Partial Motion to Dismiss for Lack of Jurisdiction, and
Motion to Dismiss for Failure to State a Claim (Doc. 23) is GRANTED;
ORDERED that Petitioners’ Verified Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (Doc. 1) is DENIED.
In addition, in light of this Order and Opinion, it is also ORDERED that Respondents’
Motion to Reconsider (Doc. 29) is DENIED as moot.
Signed on October 15, 2026.
____________________________
Fernando Rodriguez, Jr.
United States District Judge
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