govinfo:USCOURTS-txwd-1_26-cv-01548-0

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TEXAS 
AUSTIN DIVISION 
 
HERNAN REINERY OSORTO-DIAZ, § 
 § 
 Petitioner, § 
 § 
v. § 1:26-CV-1548-RP 
 § 
CHARLOTTE COLLINS, in her official capacity as § 
Warden, T. Don Hutto Detention Center, et al., § 
 § 
 Respondents. § 
 
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS 
Before the Court is Petitioner Hernan Reinery Osorto-Diaz’s (“Petitioner”) Petition for Writ 
of Habeas Corpus under 28 U.S.C. § 2241. (Dkt. 1). Pursuant to 28 U.S.C. § 2243, the Court ordered 
Respondents to show cause within three days as to why the petition should not be granted. (Dkt. 3). 
Respondents Todd Blanche, Markwayne Mullin, Todd M. Lyons, Miguel Eduardo Vergara-Lopez, 
and Sirce Owen (collectively, “Respondents”)1 filed a response in opposition, (Dkt. 4). Having 
considered the parties’ arguments, the evidence presented, and the relevant law, the Court will grant 
Petitioner’s Petition for Writ of Habeas Corpus. 
I. BACKGROUND 
 Petitioner, a citizen of Honduras, is detained at the T. Don Hutto Detention Center located 
in Taylor, Texas. (Pet., Dkt. 1, at 3). Petitioner entered the United States on or about December 17, 
2021 with his family. (Id. at 6). The Department of Homeland Security (“DHS”) initiated removal 
proceedings against him “by serving him with a Notice to Appear charging him as removable 
pursuant to INA § 212(a)(6)(A)(i) as an alien present in the United States without being admitted or 
paroled.” (Id.). On December 22, 2021, “DHS made an affirmative custody determination to release 
 
1 The Response is filed only on behalf of the federal employees in this action. (Resp., Dkt. 4, at 1 n.1). 

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Petitioner on his own recognizance pursuant to an Order of Release on Recognizance (Form I-
220A).” (Id.). Petitioner resided in the Austin, Texas area while his removal proceedings remained 
pending. (Id.). 
 On December 5, 2025, Petitioner was detained by U.S. Immigration and Customs 
Enforcement (“ICE”) following a traffic stop. (Id. at 7). On April 14, 2026, an Immigration Judge 
ordered Petitioner removed from the United States. (Id. at 8). Petitioner timely appealed that 
decision to the Board of Immigration Appeals (“BIA”) on April 28, 2026. (Id.). The appeal remains 
pending, and no final administrative decision has been issued by the BIA. (Id.). 
Respondents assert that Petitioner is subject to mandatory detention under 8 U.S.C. 
§ 1225(b)(2)(A). (Resp., Dkt. 4, at 2). Petitioner alleges that he is entitled to a writ because his 
detention violates his rights to due process under the Fifth Amendment. (Pet., Dkt. 1, at 28–31). 
II. DISCUSSION 
A. Administrative Exhaustion 
To the extent an administrative exhaustion requirement would normally apply in this 
situation, “[b]ecause Respondents argue the detention of Petitioner is mandatory, claiming no one, 
including the [immigration judge], can review the detention issue, any attempt to require Petitioner 
to exhaust any administrative remedies [would be] futile.” Lorenzo C. P., v. Noem, No. 1:25-CV-181, 
2025 WL 3684859, at *5 (S.D. Tex. Oct. 31, 2025); see also Shi v. Lyons, No. 1:25-CV-274, -- F. Supp. 
3d --, 2025 WL 3637288, at *4 n.6 (S.D. Tex. Dec. 12, 2025) (holding that administrative exhaustion 
would be futile in light of Matter of Yajure Hurtado). Respondents contend that Petitioner is subject to 
mandatory detention without a bond hearing. (Resp., Dkt. 4, at 2). By Respondents’ own 
interpretation of 8 U.S.C. § 1225 in Matter of Yajure Hurtado, Petitioner’s exhaustion of administrative 
remedies would be futile. 

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B. Petitioner’s Petition for Writ of Habeas Corpus 
This Court previously interpreted 8 U.S.C. § 1225(b)(2) as not applying to noncitizens like 
Petitioner who have been residing in the country for years, as opposed to a noncitizen present in the 
United States who has recently arrived and is actively seeking admission. See, e.g., Guzman v. 
Bondi, 814 F. Supp. 3d 761 (W.D. Tex. Dec. 23, 2025). This interpretation was recently rejected by a 
Fifth Circuit panel. Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026). Buenrostro-Mendez 
addressed only statutory interpretation. By contrast, it did not examine whether Petitioner’s ongoing 
detention without access to a bond hearing violates the Constitution. Id.2 As such, the Court turns to 
Petitioner’s independent claim for release under the Due Process Clause. 
“Freedom from imprisonment – from government custody, detention, or other forms of 
physical restraint – lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. 
Davis, 533 U.S. 678, 690 (2001) (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Noncitizens are 
entitled to due process of the law under the Fifth Amendment. Trump v. J. G. G., 604 U.S. 670, 673 
(2025); Demore v. Kim, 538 U.S. 510, 523 (2003). 
Contrary to Respondents’ argument, (Resp., Dkt. 4, at 2–3), “Thuraissigiam does not foreclose 
[Petitioner’s] due process claims.” Ochoa v. Vergara, --- F. Supp. 3d ---, No. 1:26-CV-266-RP, 2026 
WL 482211, at *2 (W.D. Tex. Feb. 20, 2026) (quoting Hernandez-Fernandez v. Lyons, No. 5:25-CV-
00773-JKP, 2025 WL 2976923, at *7 (W.D. Tex. Oct. 21, 2025)). There are “two key points of 
distinction between Thuraissigiam and [Petitioner’s] case.” Lopez-Arevelo v. Ripa, 801 F. Supp. 3d 668, 
682 (W.D. Tex. 2025). First, unlike the petitioner in Thuraissigiam, Petitioner does not challenge the 
admission process in any way or assert a right to remain in the United States. See Dep’t of Homeland 
 
2 Indeed, the Government’s counsel stated during oral argument: “We have one issue before the Court now: 
the statutory question. . . . There’s not, in other words, a due process claim here.” Oral Argument, Buenrostro-
Mendez v. Bondi¸ No. 25-20496, at 44:56–45:11 (5th Cir. Feb. 3, 2026), available at 
https://www.ca5.uscourts.gov/OralArgRecordings/25/25-20496_2-3-2026.mp3. 

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Sec. v. Thuraissigiam, 591 U.S. 103, 140 (2020) (“For these reasons, an alien in respondent’s position 
has only those rights regarding admission that Congress has provided by statute.”) (emphasis added). 
Petitioner “merely seeks a chance to apply for release . . . [and] [n]othing in Thuraissigiam suggests 
[he] lacks such a due process right.” Hernandez-Fernandez, 2025 WL 2976923, at *8. A “second key 
point of distinction is that Thuraissigiam was stopped by Border Patrol ‘within twenty-five yards of 
the border,’ immediately detained, and never released.” Id. By contrast, Petitioner has lived in the 
United States for more than four years prior to his detention during a traffic stop. For constitutional 
purposes, Petitioner’s time living in the United States differentiates him from the petitioner in 
Thuraissigiam because “the Due Process Clause applies to all ‘persons’ within the United States, 
including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 
533 U.S. at 693. “Th[is] distinction between an alien who has effected an entry into the United States 
and one who has never entered runs throughout immigration law.”3 Id. 
Beyond their arguments based on Thuraissigiam and the “entry fiction,” Respondents also 
argue that Petitioner is raising a substantive due process claim rather than a procedural due process 
claim because individualized findings regarding flight risk and danger are irrelevant to § 1225(b)(2), 
and therefore—Respondents argue—under the reasoning in Wekesa v. United States Att orney, No. 22-
10260, 2022 WL 17175818 (5th Cir. Nov. 22, 2022) (per curiam) and Connecticut Department of Public 
Safety v. Doe, 538 U.S. 1 (2003), Petitioner has no procedural due process right to a bond hearing on 
flight risk or danger to the community.4 (Resp., Dkt. 4, at 3–5). 
 
3 See also Mendoza v. Noem, No. 5:26-CV-728-JKP (W.D. Tex. Feb. 26, 2026) (quoting Martinez v. Noem, No. 
EP-25-CV-430-KC, 2025 WL 2965859, at *4 (W.D. Tex. Oct. 21, 2025)). (“Further, even in circumstances 
like those here—lacking a prior detention, release, and re -detention—noncitizens already in the country who 
have ‘established a life here—albeit with out authorization,’ possess ‘a strong liberty interest in their freedom 
from detention.’”). 
4 Respondents also cite for support the cases Kaplan v. Tod, 267 U.S. 228 (1925) and Landon v. Plasencia, 459 
U.S. 21 (1982). Both cases are inapposite. The Supreme Court’s analysis in Kaplan focused on statutory 
construction, and it related to whether she could “be deported upon a warrant issued more than five years after 
her entry into the United States.” Kaplan, 267 U.S. at 230 (holding that the noncitizen had “never . . . been 

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The Court finds this argument to be unpersuasive. First, the Court finds that Doe is highly 
distinguishable. In that case, the litigant was challenging the requirement for him to register as a sex 
offender without a hearing on the topic of whether he was “currently dangerous,” though the 
statutory scheme at issue did not consider that factor. Doe, 538 U.S. at 4. The Supreme Court held 
that, because the determination sought by the litigant in such a hearing would have no bearing on 
the outcome, he had no procedural due process right to such a hearing. Id. at 7–8. The Court finds 
this reasoning to be inapplicable to this case for two reasons. For one, as a sister court in this 
District has already noted, Doe “arose in an entirely different context” than “an immigration 
detainee’s challenge to their detention without a bond hearing.” Hernandez, v. ICE Field Off. Dir., No. 
EP-26-CV-67-KC, 2026 WL 503958, at *2 (W.D. Tex. Feb. 23, 2026). Given that “[f]reedom from 
imprisonment . . . lies at the heart of the liberty that [the Due Process] Clause protects,” Zadvydas, 
533 U.S. at 690, this Court similarly does not find that a case about registering as a sex offender is 
directly on point. Second, whether or not Petitioner is a flight risk or a danger is relevant to 
Petitioner’s detention. Though Respondents frequently describe detention under 8 U.S.C. § 1225(b) 
as “mandatory detention,” noncitizens who are detained under § 1225(b) may be released on parole 
for “humanitarian reasons or significant public benefit,” so long as they “present neither a security 
risk nor a risk of absconding.”
5 See 8 U.S.C. § 1182(d)(5)(A); 8 C.F.R. § 212.5(b). Thus, a 
 
dwelling in the United States within the meaning of the Act” and stating that the two questions presented were 
whether the noncitizen became a citizen by the naturalization of her father and whether she could be 
deported five years after entering the country) (emphasis added). As to Landon, that case involved the due 
process rights of a noncitizen who was “outside the United States, seeking admission into the United States, 
based on established ‘ties’ to the country.” D.V.D. v. U.S. Dep’t of Homeland Sec., --- F. Supp. 3d ---, No. CV 
25-10676-BEM, 2026 WL 521557, at *30 n.78 (D. Mass. Feb. 25, 2026) (citing Landon, 459 U.S. at 32–34). 
Thus, neither of these cases are relevant to the Court’s analysis. 
5 See Aguilar v. Bondi, 811 F. Supp. 3d 815, 820 n.1 (W.D. Tex. 2025) (“The Court recognizes that, while the 
phrase ‘mandatory detention’ is often used to describe detention under 8 U.S.C. § 1225(b), the phrase is 
somewhat of a misnomer, as courts have acknowledged that one detained under § 1225(b) may still obtain 
release through parole for ‘urgent humanitarian reasons or significant public benefit.’”). 

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determination that Petitioner is neither a flight risk nor a danger is in fact not irrelevant, unlike in 
Doe.6 
Second, Respondents’ argument based on Wekesa is similarly unavailing. As a sister court in 
this District has explained, the Fifth Circuit only “fleetingly noted that Wekesa raised a due process 
challenge, [but] it did not address that argument or the facts underlying the case in its brief order, 
and neither did the district court.” Lopez-Arevelo, 801 F. Supp. 3d at 683. Moreover, Wekesa is an 
unpublished opinion with no binding precedential value, and like the Lopez-Arevelo Court, this Court 
finds it unpersuasive. See id. The Court makes this determination particularly due to the fact that 
Wekesa involved a “due process challenge to prolonged, mandatory detention under § 1226,” while 
this case “challenges the decision to subject [Petitioner] to mandatory detention under § 1225(b) at 
all, without any process or individualized reasons, after he spent [more than four] years” at liberty 
within the United States. See id. at 683–84. 
Because Petitioner validly makes a due process argument, the Court will address whether 
Petitioner has succeeded on his procedural due process claim under Mathews v. Eldridge, 424 U.S. 319 
(1976). “To determine whether a civil detention violates a detainee’s due process rights, courts apply 
the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976).” Martinez v.
 Noem, No. 5:25-
CV-1007-JKP, 2025 WL 2598379, at *2 (W.D. Tex. Sept. 8, 2025). Those factors are: (1) “the private 
interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such 
interest through the procedures used, and the probable value, if any, of additional or substitute 
procedural safeguards”; and (3) “the Government’s interest, including the function involved and the 
 
6 The Court also agrees with the reasoning of its sister court that the distinction between substantive and 
procedural due process in this context is not helpful, as “the two concepts are not mutually exclusive, and 
their protections often overlap.” See Valencia Reyes v. Noem, 5:25-CV-1921-XR, at *9–10 (W.D. Tex. Feb. 25, 
2026) (quoting Albright v. Oliver, 510 U.S. 266, 302 (1994) (Souter, J., concurring)). 

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fiscal and administrative burdens that the additional or substitute procedural requirement would 
entail.” Mathews, 424 U.S. at 335. 
All three Mathews factors weigh in Petitioner’s favor. First, “[b]ecause he spent [more than 
four years] at liberty in the United States, [Petitioner] possesses a cognizable interest in his freedom 
from detention.” Hernandez-Fernandez v. Lyons, No. 5:25-CV-00773-JKP, 2025 WL 2976923, at *9 
(W.D. Tex. Oct. 21, 2025). This interest “deserves great weight and gravity.” Vieira v. De Anda-
Ybarra, No. EP-25-CV-00432-DB, 2025 WL 2937880, at *6 (W.D. Tex. Oct. 16, 2025) (citations 
omitted). The second factor—the risk of erroneous deprivation—also weighs strongly in favor of 
Petitioner. Petitioner lacks any opportunity to contest the reasonableness of his detention, meaning 
the risk of erroneous deprivation lies in this “automatic continued deprivation of liberty for a 
noncitizen.” Id. at *7. As to the third factor, “Respondents, of course, have a generalized interest in 
ensuring noncitizens appear for their removal hearings and do not pose a risk to the communities in 
which they live.” Id. at *6. “In any event, if such concerns exist, they would be squarely addressed” 
at a bond hearing. Lopez-Arevelo, 801 F. Supp. 3d at 687. Regardless, the government “conducted 
[bond hearings] for decades until its reinterpretation of the law earlier this year,” reducing any 
purported interest in ceasing to hold bond hearings. Id. (citations omitted). As such, all three factors 
favor Petitioner, and the Court finds that Petitioner’s detention without any opportunity to challenge 
his detention through a bond hearing violates the Due Process Clause. 
Federal district courts in Texas, including this Court, have likewise found that similar 
instances of detention violated a Petitioner’s right to procedural due process. See, e.g., id.; Ochoa, ---F. 
Supp. 3d ---, No. 1:26-CV-266-RP, 2026 WL 482211, at *2–4; Vieira, 2025 WL 2937880, at *7 (“In 
sum, Section 1225(b)(2) as applied to Petitioner violates his Fifth Amendment Due Process rights.”); 
Martinez v. Noem, No. EP-25-CV-430-KC, 2025 WL 2965859, at *3 (W.D. Tex. Oct. 21, 2025) 
(“[T]he Court does not reach the statutory interpretation question because, assuming without 

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finding that the Government’s new interpretation is correct, [petitioner] is entitled to due process 
and succeeds in his as-applied challenge.”); Ortega-Aguirre v. Noem, No. 4:25-CV-04332, 2025 WL 
3684697, at *3 (S.D. Tex. Oct. 10, 2025) (“Here, the Court finds that Petitioner is likely to prevail on 
the merits of his due process claim because he ‘has been detained since August of 2025 without any 
individualized assessment of flight risk or dangerousness.’”); Cordova v. Noem, No. 3:26-CV-97-K-
BN, 2026 WL 218938, at *3 (N.D. Tex. Jan. 28, 2026) (“[T]he Court holds that denying Petitioner a 
bond hearing under § 1225(b)(2) deprives him of procedural due process protections under the Fifth 
Amendment.”); Camacho-Gutierrez v. Thompson, No. 5:25-CV-01876-MA, 2026 WL 195758, at *5 
(W.D. Tex. Jan. 16, 2026) (“[T]he Court finds that Petitioner’s detention without any notice or an 
individualized assessment deprives her of the constitutional right to procedural due process”); 
Hernandez-Fernandez v. Lyons, No. 5:25-CV-00773-JKP, 2025 WL 2976923, at *10 (W.D. Tex. Oct. 
21, 2025) (finding “that detaining [petitioner] without any individualized assessment of his flight risk 
and dangerousness deprives him of his constitutional right to procedural due process,” and 
collecting cases); George v. Noem, No. 3:25-CV-2935-S-BW, 2025 WL 3852946, at *4 (N.D. Tex. Dec. 
19, 2025), report and recommendation adopted, No. 3:25-CV-02935-S-BW, 2026 WL 30829 (N.D. Tex. 
Jan. 5, 2026) (“[D]etaining [petitioner] without a bond hearing violates his Fifth Amendment 
rights.”). Federal district courts in Texas have also made this finding subsequent to the Fifth Circuit 
issuing its opinion in Buenrostro-Mendez. See, e.g., Hassen v. Noem, No. EP-26-CV-00048-DB, 2026 WL 
446506, at *2 & n.1 (W.D. Tex. Feb. 9, 2026) (holding that Buenrostro-Mendez “does not change this 
case’s outcome on procedural due process grounds”); Clemente Ceballos v. Garite, No. EP-26-CV-
00312-DB, 2026 WL 446509, at *2 & n.2 (W.D. Tex. Feb. 10, 2026) (same); Marceau v. Noem, No. 
EP-26-CV-237-KC, 2026 WL 368953 (W.D. Tex. Feb. 9, 2026) (“The Court’s conclusion is not 
changed by the Fifth Circuit’s recent decision in Buenrostro-Mendez . . . Buenrostro-Mendez has no 
bearing on this Court’s determination of whether [petitioner] is being detained in violation of [his] 

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constitutional right to procedural due process.”); Mendoza v. Noem, No. 5:26-CV-728-JKP, at *7 
(W.D. Tex. Feb. 26, 2026) (holding that Buenrostro-Mendez “only addresses a statutory claim” and 
“did not address and does not preclude consideration of constitutional and other claims”). This 
Court agrees with the Due Process Clause analysis in the above cases, and finding a constitutional 
violation, it need not reach the other issues briefed by the parties. 
Turning to relief, in habeas cases where the Court finds an ongoing detention unlawful, “the 
typical remedy for such detention is, of course, release.” Munaf v. Geren, 553 U.S. 674, 693 (2008). 
“In recent months, courts across the country have ordered the release of detainees in similar 
situations.” Moctezuma v. Henkey, No. 1:25-CV-00741-BLW, 2026 WL 18809, at *5 (D. Idaho Jan. 2, 
2026) (ordering immediate release and collecting cases across jurisdictions); Cruz-Reyes v. Bondi, 5:26-
CV-60, 2026 WL 332315, at *13 (S.D. Tex. Feb. 3, 2026) (“[D]ue process concerns weigh heavily in 
favor of granting immediate release.”); Santiago v. Noem, No. EP-25-CV-361, 2025 WL 2792588, at 
*13−14 (W.D. Tex. Oct. 2, 2025) (collecting cases and finding that “immediate release appropriately 
remedies Respondents’ violation of [Petitioner’s] due process rights through her continued 
detention.”); Mendoza v. Noem, No. 5:26-CV-728-JKP, at *16–18 (W.D. Tex. Feb. 26, 2026) (quoting 
Rodriguez-Acurio v. Almodovar, 811 F. Supp. 3d 274, 319–20 (E.D.N.Y. 2025)) (explaining, after 
finding a due process violation, that release is the proper remedy rather than a bond hearing because 
“a post-deprivation bond hearing before a DHS officer or even an immigration judge would provide 
no genuine opportunity to relief because the detention without adequate pre-deprivation procedures 
has already been carried out.”). The Court agrees that the appropriate remedy for unlawful detention 
is release and will order Petitioner’s immediate release. 

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III. CONCLUSION 
The foregoing order constitutes the Court’s findings of fact and conclusions of law. For the 
reasons discussed above, IT IS ORDERED that Petitioner’s Petition for Writ of Habeas Corpus is 
GRANTED as follows. All relief not granted is DENIED. 
1. Upon receipt of this order, Respondents shall immediately release Petitioner from 
custody; 
2. Respondents shall release Petitioner under conditions no more restrictive than those 
in place prior to the detention at issue in this case; 
3. As soon as is practicable, and no less than two hours before release, Respondents 
shall notify Petitioner’s counsel by email
7 of the exact location and time of 
Petitioner’s release; 
4. Respondents are enjoined from further detaining Petitioner without first conducting 
a bond hearing, scheduled with notice to Petitioner’s attorneys and set at a date 
agreed upon by both parties. At such a hearing, Respondents bear the burden of 
justifying, by clear and convincing evidence of dangerousness or flight risk, 
Petitioner’s detention. 
IT IS FURTHER ORDERED that Respondents shall provide a status report on or 
before June 22, 2026, detailing their compliance with this Order. 
 
 
7 Jesus Dario Elizondo, jesus.d.elizondo.sanchez@gmail.com 
 SIGNED on June 18, 2026. 
 
 
_____________________________________ 
 ROBERT PITMAN 
UNITED STATES DISTRICT JUDGE 

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