GUTIERREZ v. MULLIN, et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JOSE IGNACIO GUTIERREZ,
Petitioner,
v.
MARKWAYNE MULLIN, IN HIS
OFFICIAL CAPACITY AS
SECRETARY OF THE U.S.
DEPARTMENT OF HOMELAND
SECURITY; TODD BLANCHE, IN HIS
OFFICIAL CAPACITY AS ACTING
ATTORNEY GENERAL OF THE
UNITED STATES; TODD LYONS, IN
HIS OFFICIAL CAPACITY AS
ACTING DIRECTOR AND SENIOR
OFFICIAL PERFORMING THE
DUTIES OF THE DIRECTOR OF U.S.
IMMIGRATION AND CUSTOMS
ENFORCEMENT; MARY DE ANDA-
YBARRA, IN HER OFFICIAL
CAPACITY AS FIELD OFFICE
DIRECTOR OF THE EL PASO FIELD
OFFICE OF U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT,
ENFORCEMENT AND REMOVAL
OPERATIONS; AND WARDEN, EL
PASO PROCESSING CENTER, IN
HIS/HER OFFICIAL CAPACITY,
Respondents.
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No. 3:26-CV-01818-LS
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS
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This is one of more than 700 habeas corpus petitions filed in this Court in which a petitioner
seeks release from immigration custody during removal proceedings. Petitioner in this case is a
citizen of Venezuela, in removal proceedings, and has no final order of removal.1
Habeas Corpus under 28 U.S.C. § 2241
The primary habeas corpus statute, 28 U.S.C. § 2241, authorizes a petitioner to plead in
federal court that he or she is “in custody in violation of the Constitution or laws or treaties of the
United States.”2 This Court has jurisdiction over § 2241 claims challenging pre-removal order
immigration detention.3
8 U.S.C. §§ 1225 and 1226
On February 6, 2026, the Fifth Circuit Court of Appeals issued its opinion in Buenrostro-
Mendez v. Bondi. That opinion is now binding precedent on the district courts in Texas, Louisiana,
and Mississippi and forecloses any argument that Petitioner is “in custody in violation of the
Constitution or laws . . . of the United States” for want of a bond hearing under 8 U.S.C. § 1226(a).4
Petitioner, in removal proceedings, is not “clearly and beyond a doubt entitled to be admitted” and
is therefore subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A).5
Due Process
1 The parties have not informed the Court that Petitioner became subject to a final order of removal after
this lawsuit was filed, nor that Petitioner has been removed or otherwise released. If any of these
circumstances occurred, the Court denies the petition as moot. See Ortez v. Chandler, 845 F.2d 573, 575
(5th Cir. 1988) (holding that a habeas petition becomes moot when the habeas relief requested “can no
longer be effected”).
2 28 U.S.C. § 2241(c)(3).
3 See Buenrostro-Mendez v. Bondi, 166 F.4th 494, 508 (5th Cir. 2026) (assuming jurisdiction over, and
reversing and remanding, district court orders granting § 2241 challenges to pre-removal order detention);
see also Demore v. Kim, 538 U.S. 510, 517 (2003) (“Having determined that the federal courts have
jurisdiction to review a constitutional challenge to [a different section of 8 U.S.C. § 1226] . . . .”).
4 Buenrostro-Mendez, 166 F.4th at 498 (reversing district court orders granting § 2241 habeas petitions
seeking bond hearings and release under 8 U.S.C. § 1226(a)(2)).
5 Id. (“[W]e conclude that the government’s position is correct” that petitioners “shall be detained” under
8 U.S.C. § 1225(b)(2)(A) during their removal proceedings because neither showed they were “clearly and
beyond a doubt entitled to be admitted”).
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In 2001, the Supreme Court held in Zadvydas v. Davis6 that indefinitely detaining persons
ordered removed, because no country will accept them, violates the Fifth Amendment’s Due
Process Clause.7 Such “indefinite civil detention” raises “a serious constitutional problem.”8
Importantly, the Court distinguished persons with removal orders from those still in removal
proceedings, and found that “post-removal-period detention, unlike detention pending a
determination of removability or during the subsequent 90-day removal period, has no obvious
termination point.”9 Two years later, in Demore v. Kim, the Supreme Court reiterated that the post-
removal order detention periods in Zadvydas ran afoul of the Fifth Amendment because they were
“indefinite” and “potentially permanent.”10 Like Petitioner in this case, the petitioner in Demore
was in removal proceedings with no final order of removal.11 Accordingly, the Court held the
detention period in Demore did not violate any due process right because it had a “definite
termination point” and was neither “indefinite” nor “potentially permanent”12—the detention
period would necessarily terminate when the removal proceedings concluded, either through
deportation within the 90-day removal period13 or release because of the government’s failure to
secure a removal order. “Zadvydas . . . made clear that limited civil detention, without bond, is
constitutional as applied to deportable aliens,”14 and the Supreme Court made explicitly clear in
6 533 U.S. 678 (2001).
7 See id. at 702.
8 Id. at 690.
9 Id. at 697 (emphasis added).
10 538 U.S. at 528.
11 Id. at 513.
12 Id. at 528–29, 531.
13 8 U.S.C. § 1231(a)(1)(A) (“[W]hen an alien is ordered removed, the Attorney General shall remove the
alien from the United States within a period of 90 days . . . .”).
14 Ly v. Hansen, 351 F.3d 263, 267–68 (6th Cir. 2003) (emphasis in original).
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Demore that “[d]etention during removal proceedings is a constitutionally permissible part of that
process.”15
As in Demore, Petitioner’s detention is neither “indefinite” nor “potentially permanent”
because there is a “definite termination point”: the conclusion of the removal proceedings and
subsequent removal, or alternatively, release for want of a removal order. And just as there was no
due process violation when the Demore petitioner was detained under a mandatory detention
statute16 during removal proceedings, so too is there no due process violation in this case when
Petitioner is detained during removal proceedings under a similar mandatory detention statute.17
As all binding Supreme Court and Fifth Circuit precedent confirms that mandatory detention
without a bond hearing during removal proceedings passes constitutional muster, Petitioner’s due
process argument fails.
Conclusion
The petition for a writ of habeas corpus [ECF No. 1] is DENIED. Any and all pending
motions are DENIED AS MOOT and the Clerk shall CLOSE THE CASE.
SO ORDERED.
SIGNED and ENTERED on October 15, 2026.
______________________________
LEON SCHYDLOWER
UNITED STATES DISTRICT JUDGE
15 538 U.S. at 531 (emphasis added).
16 8 U.S.C. § 1226(c).
17 8 U.S.C. § 1225(b)(2)(A).
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