Roque Humberto Garcia-Garcia v. David Venturella et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ROQUE HUMBERTO GARCIA-
GARCIA,
Petitioner,
v.
DAVID VENTURELLA, Acting Director
of U.S. Customs and Border Protection, et
al.,
Respondents.
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EP-26-CV-02441-DB
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Petitioner Roque Humberto Garcia-Garcia’s
(“Petitioner”) “Emergency Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241;
Emergency Application for Temporary Restraining Order and Administrative Stay Prohibiting
Removal to El Salvador; Request for Expedited Hearing” (“Petition”). ECF No. 1. After due
consideration and for the reasons stated herein, the Court denies the Petition.
BACKGROUND
Petitioner is a native and citizen of El Salvador who entered the United States at an
unknown date. ECF No. 1 at 3; ECF No. 16-1 at 1. On July 17, 2026, Petitioner was convicted in
the United States District Court for the Central District of California as an alien in possession of
ammunition in violation of 18 U.S.C. 922(g)(5)(A) on July 17, 2026. ECF No. 1 at 5; ECF No.
16-1 at 1. On August 11, 2026, Petitioner was issued a final administrative order of removal to El
Salvador. See ECF No. 16-2.
On September 14, 2026, Petitioner filed his Petition in the United States District Court
for the Central District of California. See ECF No. 1. Therein, Petitioner makes clear that he is
not asking the Court “to invalidate his removal order or to permit him to remain permanently in
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the United States” and that he “accepts removal from the United States.” Id. at 1. Rather,
Petitioner asks this Court to order “that Respondents not physically remove him to El Salvador
before he has a meaningful opportunity to invoke and obtain adjudication of any protection from
removal . . . under the Convention Against Torture (“CAT”), its implementing statutes and
regulations, and the Due Process Clause.” ECF No. 1 at 1–2. The motivating reason for
Petitioner’s request of a stay of removal concerns the Government’s sentencing memorandum
identifying Petitioner “as a member or associate of MS-13 who goes by the moniker ‘El
Rocket.’” ECF No. 1 at 5; ECF No. 1-3 at 6 n.1. Petitioner fears that, without regard for the
characterization’s veracity, such characterization will be communicated to El Salvadorian
authorities and materially increase the danger he faces upon return to El Salvador. See ECF No. 1
at 2.
On September 23, 2026, the Honorable United States Magistrate Judge Rozella A. Oliver
of the United States District Court for the Central District of California transferred Petitioner’s
case to the Western District of Texas. See ECF No. 12. On September 30, 2026, Respondents
submitted their “Response in Opposition to Petitioner’s Writ of Habeas Corpus” (“Response”).
See ECF No. 16.
LEGAL STANDARD
The Constitution guarantees that the writ of habeas corpus is “available to every
individual detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004)
(citing U.S. CONST., Art. I, § 9, cl. 2). This includes immigration-related detention. Zadvydas v.
Davis, 533 U.S. 678, 687 (2001). The petitioner seeking habeas relief must demonstrate they are
in custody in violation of the Constitution or federal law. 28 U.S.C. § 2241(c)(3); Walker v.
Johnston, 312 U.S. 275, 285 (1941).
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ANALYSIS
Petitioner seeks a temporary restraining order (“TRO”) enjoining Respondents from
removing him to El Salvador so that he may present his fear-based claims to the immigration
court. See ECF No. 1 at 10. Respondents contend that this Court is without jurisdiction to
consider the Petition pursuant to 8 U.S.C. § 1252(g). See ECF No. 16 at 3. In light of the Fifth
Circuit’s recent decision in Gakou v. Warden of Prairieland Detention Center, this Court must
agree with Respondents. No. 26-10925, 2026 WL 3044209 (5th Cir. Oct. 10, 2026) (per curiam).
8 U.S.C. § 1252(g) provides that “no court shall have jurisdiction to hear any cause or
claim by or on behalf of any alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders against any alien under this
chapter.” The Supreme Court has explained that the jurisdictional bar found in Section 1252(g) is
limited to those “three discrete actions that the Attorney General may take: her ‘decision or
action’ to “commence proceedings, adjudicate cases, or execute removal orders.” Reno v. Am.-
Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 482 (1999). In Gakou, the Fifth Circuit
held that a noncitizen’s request for a stay of third-country removal constitutes a “challenge to a
removal order within the ambit of § 1252(g)’s jurisdiction-stripping effect.” 2026 WL 3044209,
at *1 (citing Imran v. Harper, No. 25-30370, 2026 WL 93131, at *1 (5th Cir. Jan. 13, 2026) (per
curiam) (unpublished)) (internal quotation marks omitted).
Here, Petitioner’s request is materially indistinguishable from the stay request at issue in
Gakou. Petitioner seeks a stay of removal enjoining Respondents from removing him to his
home country of El Salvador pending litigation of his CAT claims in immigration court. Because
the Fifth Circuit has expressly held that such a request falls within the ambit of Section 1252(g),
this Court finds it is without jurisdiction to entertain Petitioner’s request for a stay of removal.
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Further, even if the Court could reach the merits of the Petition, Petitioner would fail to
show that he will suffer irreparable harm were the Court to decline to issue a stay of removal. As
the Supreme Court has made clear, the irreparable harm prong for a TRO or a preliminary
injunction “requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is
likely in the absence of an injunction.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22
(2008) (citations omitted). Here, Petitioner argues that the relevant injury “is removal to a
country where Petitioner alleges he faces detention, torture, or severe mistreatment because of an
official gang designation.” ECF No. 1 at 9. Petitioner goes on to say that if removal occurs
before his fear-based claims may be raised, “later relief may be practically ineffective.” Id.
However, Petitioner has not demonstrated any evidence that his removal will occur
before he has a chance to raise his fear-based claims in immigration court. In fact, Respondents
recognize that Petitioner intends to raise fear-based claims regarding his removal to El Salvador
and state that “Petitioner will be provided with appropriate procedures provided to him under the
laws of the United States.” ECF No. 16 at 2. Respondents further state that “[u]pon information
and belief, Petitioner is currently pending a reasonable fear interview with USCIS after he
expressed a fear of returning to the country of return.” 1 Id. Petitioner’s conclusory assertions,
without more, are insufficient to sustain his burden. Petitioner is therefore not entitled to the
relief requested.
CONCLUSION
1 Petitioner filed a Traverse on October 14, 2026, ECF No. 17, adding that a fear interview was
conducted on October 9, 2026. Petitioner asks for a “prompt, sworn clarification rather than
assume the process is complete,” id. at 1, but this is an improper request at the habeas stage, and
the Court will accordingly decline to entertain such request.
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For the reasons stated above, Petitioner has not established that he is entitled to habeas
relief. Accordingly, IT IS HEREBY ORDERED Petitioner Roque Humberto Garcia-Garcia’s
“Emergency Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241; Emergency
Application for Temporary Restraining Order and Administrative Stay Prohibiting Removal to El
Salvador; Request for Expedited Hearing,” ECF No. 1, is DENIED.
IT IS FURTHER ORDERED that the Petition, ECF No. 1, is DISMISSED
WITHOUT PREJUDICE.
SIGNED this 15th day of October, 2026.
For HONORABLE DAVID BRIONES
SENIOR UNITED STATES DISTRICT JUDGE
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