NYLSSA PORTILLO MORENO v. UNITED STATES OF AMERICA (2026)

ORDER

Before the Court is the Motion to Dismiss filed by Defendants United States of America (“United States”); U.S. Department of Homeland Security (“DHS”); U.S. Citizenship and Immigration Services (“USCIS”); U.S. Immigration and Customs Enforcement (“ICE”); Markwayne Mullin,¹ in his official capacity as Secretary of the Department of Homeland Security; Joseph B. Edlow,² in his official capacity as Director, USCIS; and Todd M. Lyons, in his official capacity as Acting Director of ICE (collectively, “Defendants”). (Mot. to Dismiss, Dkt. 61). Plaintiff Nylssa Portillo Moreno (“Plaintiff”) responded, (Dkt. 76), and Defendants replied, (Dkt. 79).³ Having considered the parties' briefs, the evidence, and the relevant law, the Court will grant in part and deny in part the motion. Given that the Court relies in part on arguments and exhibits filed under seal, the Court files this Order under seal.

I. BACKGROUND

A. Plaintiff's Immigration History

This case arises out of Plaintiff's admittedly unlawful eight-month detention. (Am. Compl., Dkt. 56, at 2; Tr. of Nov. 2024 Hearing, Dkt. 54, at 14).⁴ Plaintiff states that she was brought to the United States in 1993 when she was eight years old, and she has lived in the United States ever since. (Am. Compl., Dkt. 56, at 2). “Unbeknownst to” Plaintiff, in April 1993, an immigration judge had ordered her and her mother deported and had denied her mother's applications for asylum, withholding of deportation, and voluntary departure. (Id. at 33). The Board of Immigration Appeals (“BIA”) dismissed Plaintiff and her mother's appeal of the immigration judge's decision, making Plaintiff's order of removal final. (Id.).

Subsequently, on January 7, 2003, Plaintiff was granted Temporary Protected Status (“TPS”).⁵ Plaintiff asserts, citing 8 U.S.C. §§ 1254a(a)(1)(A), (d)(4), that the government “has no discretion to detain individuals with TPS status,” as TPS provides recipients with protection from removal and from detention. The statute states: “An alien provided temporary protected status under this section shall not be detained by the Attorney General on the basis of the alien's immigration status in the United States.” 8 U.S.C. § 1254a(d)(4). Plaintiff submitted multiple TPS re-registrations “in at least March 2005, March 2012, March 2015, and August 2016.” (Am. Compl., Dkt. 56, at 34). She later learned that “each of these applications was rejected for including an incorrect fee amount,” though she “did not contemporaneously learn of the rejections or receive any notices regarding her TPS by mail or otherwise.” (Id.). Plaintiff alleges that USCIS “never issued a Notice of Intent to Withdraw [Plaintiff's] TPS Status, a required first step in revoking an individual's TPS Status,” and that as such she “maintained TPS Status throughout all times relevant to this Amended Complaint.” (Id. at 34–35).⁶

B. Plaintiff's Life in the United States

Plaintiff grew up in Houston, Texas, and Austin, Texas. (Id.). She is Jewish and observes a kosher diet. (Id. at 30). During high school, she was diagnosed with cancer; though her cancer is now in remission, she “developed a number of severe allergies and other immune conditions, including to gluten, lactose, raspberry, penicillin, certain meat products, sea salts, shampoo and personal care product ingredients, and some pain medicines” as a result of her chemotherapy treatments. (Id. at 30–31). She continues to require annual appointments to ensure her cancer remains in remission. (Id. at 31).

After completing her cancer treatment, Plaintiff earned her GED and attended community college. (Id. at 32). She is the “primary caregiver” for her mother, who has lived with her since 2010. (Id.). Plaintiff has worked a number of jobs at leasing offices, retail stores, and restaurants. (Id. at 30–31). In 2013, she started a business providing professional services (e.g., bookkeeping) to other small businesses. (Id. at 32). Through her business and a full-time job at a credit agency, Plaintiff was earning an average income of approximately $5,000 per month to support herself and her mother immediately prior to her detention. (Id.).

C. Plaintiff's Detention

On October 9, 2019, Plaintiff was pulled over in Harris County by a police officer because her vehicle registration had expired. (Id. at 35). The officer then informed her that there was an active warrant for her arrest for theft; Plaintiff was unaware of these “meritless” charges or of the arrest warrant. (Id. at 35, 37). She was later transferred from Harris County Jail to Travis County Jail. (Id. at 35–36). A Travis County District Court judge informed Plaintiff that she “had been charged with theft based on alleged incidents dating back to 2012,” when she had been working as an assistant manager at an apartment complex in Austin, Texas. (Id. at 36).

Around this time, on October 17, 2019, ICE “issued a Form I-247A Immigration Detainer – Notice of Action to the Travis County Jail requesting that the Travis County Jail notify ICE prior to releasing” Plaintiff. (Id. at 38). The Form I-247A stated: “DHS has determined that probable cause exists that the subject is a removable alien. This determination is based on ․ [b]iometric confirmation of the alien's identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.” (Immigr. Detainer, Dkt. 61-1, at 2). On that same date, ICE allegedly also issued a “substantially incomplete administrative arrest warrant for [Plaintiff] via a Form I-200, Warrant for Arrest of Alien.” (Am. Compl., Dkt. 56, at 38). According to Plaintiff, the Form I-200 was missing the “following required information: (1) certification from the officer that the warrant was served on the corresponding individual; (2) the location of arrest; (3) the date of service; (4) the language in which the warrant was read to the individual; and (5) the name and signature of the officer.” (Id.).⁷

A Travis County assistant district attorney subsequently “filed a motion on behalf of the State of Texas to dismiss the charges ․ in the interest of justice.” (Id. at 37–38). A judge granted the motion on December 13, 2019. (Id. at 38). Despite the alleged problems with the warrant, Travis County kept Plaintiff in jail for an additional two days to provide ICE with time to assume custody. (Id.).

“A few hours before the expiration of the ICE detainer,” ICE personnel took custody of Plaintiff “around 2:00 AM on December 15, 2019.” (Id.). She was taken to a “federal building in Austin, Texas,” and placed in a holding cell. (Id. at 39). On December 16, 2019, “an ICE Supervisory Detention and Deportation Officer issued a Form I-205, Warrant of Removal/Deportation” and “a Form I-213, Record of Deportable Alien/Inadmissible Alien” for Plaintiff. (Id.) The Form I-213 “reflects that ICE searched for [Plaintiff's records] in the ENFORCE, IDENT, and IAFIS databases.” (Id. at 39–40).

Once given an opportunity to speak with an ICE officer, Plaintiff pleads that she immediately told him about her having TPS and that she could not be detained or removed. (Id. at 51). She states that she provided him with her name, birth date, and social security number.⁸ (Id.). The officer looked at electronic records and told her that “the only thing he could find was a denial of asylum and deportation order issued by an immigration judge in 1993.” (Id. at 51–52). She reiterated that she had TPS and offered her mother's information as well, but the officer “refused to perform any additional searches or spend more time inquiring into her status.” (Id. at 52). The officer let her call her mother, who insisted over speakerphone that Plaintiff had TPS. (Id. at 53). The officer told Plaintiff's mother that Plaintiff would be deported. (Id.).

Plaintiff was subsequently transferred to the South Texas ICE Processing Center in Pearsall, Texas, located outside of San Antonio, Texas (“Pearsall”). (Id.). After two weeks in detention, she was allowed to speak with an ICE officer about her immigration status. (Id. at 55). When Plaintiff again tried to explain that she has TPS, the ICE officer purportedly told Plaintiff, “I don't have anything else to tell you. I have no more information. Everybody tells me they have some form of status.” (Id. at 55–56). About a week after that interaction, on January 8, 2020, the San Antonio Field Office created a Case Review Worksheet (“CRW”) for Plaintiff that noted she had been granted TPS on January 7, 2003, but that her application renewal was rejected in March 2005, such that “Plaintiff] was no longer in TPS status.” (Id. at 56; CRW, Dkt. 56-20, at 1). The CRW does not mention her subsequent applications for renewal.⁹

While in detention, Plaintiff pleads that personnel at Pearsall ignored her religious and medical needs.¹⁰ (Id. at 57). She states that she is Jewish and keeps kosher and that she has a number of severe allergies. (Id.). According to Plaintiff, she provided this information on intake documents at Pearsall and relayed the information to a nurse. (Id.). Nonetheless, Plaintiff “never saw any evidence that ICE, Pearsall, or Laredo had any record of her reported allergies and immune conditions.”¹¹ (Id.). When Plaintiff tried to address her dietary needs to staff at Pearsall, she was told that she would need to “make a kosher request to the clergy.” (Id. at 59). She filled out a request form “with the understanding that staff would pass her form on to the clergy,” but nobody ever referred her to the chaplain or issued her a “special-diet identification card.” (Id.). She continued to request a kosher diet “once a week” and ultimately “made a total of twenty-four dietary requests while she was detained at Pearsall.” (Id. at 59, 61) (emphasis in original). As a result of the Pearsall staff failing to provide her with a diet that was both kosher and free of allergens, she would “attempt to separate out the limited food she could safely consume from the kosher-incompatible and diet-incompatible food she was served. Most days this was just lettuce, carrots, and celery.” (Id. at 60). Additionally, she “had eight or nine allergic reactions while she was detained at Pearsall,” which caused hives and caused her throat to swell. (Id.).

Plaintiff was then transferred to Laredo Detention Center (“Laredo”). (Id. at 65). Like at Pearsall, she continued to “make written requests for kosher food (compatible with her allergies),” but staff at Laredo informed her that they had no record of her dietary requests, and she was never referred to the Chaplain for a specific-diet consultation.¹² (Id. at 70). She was allowed to request “food modification ․ which entailed simplifying the meals normally provided to others,” but this often resulted in low-quality food (e.g., spoiled vegetables), and occasionally resulted in her still being provided non-kosher food. (Id. at 71). She also “continued to have allergic reactions.” (Id. at 72). Plaintiff alleges that “[b]ecause of the myriad failures to respect [her] dietary restrictions, [Plaintiff] lost over sixty pounds during her eight months in detention.” (Id. at 73).

Plaintiff also alleges consequences occurring at home due to her detention. Because she financially supported her mother, her detention caused her mother to be evicted from their shared apartment. (Id.). As a result of the eviction, they lost all of their belongings. (Id.). Plaintiff also lost all of her clients, was fired from her full-time job, and “was deprived of eight months of income.” (Id. at 77). By the time she was released from detention, she owed thousands of dollars in rent, and her car was repossessed. (Id.). The financial harm caused by her detention “has left her unable to afford” her annual cancer screening and checkup, so she “has now gone without her regular cancer screening for over five years.” (Id. at 79).

Ultimately, on August 4, 2020, after eight months of detention, ICE released Plaintiff from custody. (Id. at 75). She alleges that “[a]t no time, from when ICE issued the immigration detainer in October 2019 to when ICE released [her] ․ did ICE officers (or anyone else) conduct any post-order custody review for [her],” nor did they inform her that she could apply for TPS.¹³ (Id.) (citing Electronic Post Order Custody Review Website, Dkt. 56-29). When she was released, “her deportation officer handed her a USCIS notice of intent to withdraw her TPS Status. This was the first notice of intent to withdraw TPS Status that [Plaintiff] had ever received.” (Id.). Plaintiff states that she “was shocked to receive the notice because ICE had told her throughout her imprisonment that she did not have TPS Status, thus allowing them to detain her.” (Id. at 76).

On September 5, 2020, Plaintiff responded to USCIS's notice of intent and attached evidence of her attempts to repeatedly re-register and of good cause for failing to re-register successfully. (Id.). On October 28, 2021, USCIS re-approved her TPS Status, and she has successfully renewed her TPS Status since that time. (Id.). She now has an application for re-registration pending. (Id.).

D. Alleged ICE Policies Regarding Data and ICE's Alleged Deficient Searches and Recordkeeping

1. General Allegations

Plaintiff pleads that “ICE officers may not issue an immigration detainer based on the initiation of an investigation to determine whether a person is removable from the United States” and that they “must establish probable cause to believe that an individual is an alien who is removable from the United States before issuing a detainer.” (Id. at 40) (emphasis in original). She cites as support ICE Policy 10074.2: Issuance of Immigration Detainers by ICE Immigration Officers, (Dkt. 56-12), which is attached to Plaintiff's Amended Complaint.¹⁴ Nonetheless, Plaintiff points out that when United States Magistrate Judge Mark Lane asked why Plaintiff was in detention for eight months, counsel for United States “conceded that ‘basically, it was an investigation.’ ” (Am. Compl., Dkt. 56, at 41) (citing Tr. of Nov. 2024 Hearing, Dkt. 54, at 22–23).

Plaintiff alleges that noncitizens like herself are given a nine-digit “Alien Registration Number” (“A-Number”), which corresponds to an “A-File.” (Id. at 41–42). A noncitizen's A-File “is the official record that contains all transactions involving an individual and she passes through the U.S. immigration and inspection process.” (Id. at 42). Plaintiff alleges that “[i]n addition to A-Files, ICE officers also have access to several electronic databases maintained by DHS and other federal agencies.” (Id.). For example, Plaintiff claims that ICE owns and operates the Enforcement Integrated Database (“EID”), which “includes information derived from documents presented to or collected by DHS during immigration proceedings, such as TPS applications and renewals.” (Id. at 42–43). EID purportedly receives data from USCIS's Central Index System (“CIS”), which also “includes also includes data obtained directly from an individual requesting benefits under the Immigration and Naturalization Act, including on forms approved by the Office of Management and Budget, such as applications and renewals for TPS.” (Id. at 43–44). Finally, Plaintiff pleads that ICE “maintains and has access to the Criminal History and Immigration Verification database,” (“CHIVe”), which contains information about “immigration statuses” and “applications for immigration benefits.” (Id. at 44). Accordingly, Plaintiff claims that by using her “name, social security number, or A-Number, an ICE official could easily verify her immigration status, including through the use of EID, CHIVe, and/or CIS.” (Id. at 45).

Plaintiff relatedly alleges that ICE employees “must create and maintain A-files in accordance with ICE Directive No. 1-32.0, USCIS standards, and the Records Operations Handbook published by USCIS.” (Id. at 45). This Directive states that “when processing a case, an ICE employee shall first do a thorough search of all available databases and records to determine in an A-File already exists.” (Id.). She also asserts that ICE policy requires employees to do a number of additional system checks to verify case status prior to any enforcement action. (Id. at 46–47). Plaintiff therefore claims that ICE officers lack discretion to decide not to do a thorough search of all available databases when processing a case. (Id. at 45).

Additionally, Plaintiff alleges that federal regulations and ICE policies require various reviews of individuals' detention. She claims that “ICE Field Offices are responsible for completing a Risk Classification Assessment (RCA) for detainees as early in processing phase as possible,” and that next, an ICE Officer “agrees or disagrees with the RCA recommendation and submits their decision to a supervisory officer for review,” who then “renders a final decision to detain or release the noncitizen.” (Id. at 47). Plaintiff also alleges that regulations located at 8 C.F.R. § 241.4 require a post-order custody review ninety days after ICE assumes custody of a detainee and a review by Headquarters Post-Order Detention Unit (“HQPDU”) at the 180-day mark. (Id.).

2. Allegations Regarding Plaintiff

Plaintiff alleges that ICE officers “violated numerous policies when they failed to conduct a thorough search of all available databases and records to locate [Plaintiff's] A-file and failed to conduct mandatory system checks of” certain databases and “when they failed to include the results of such searches in her A-file.” (Id. at 86). Based on the results of a FOIA request, Plaintiff also pleads that her A-File was incomplete; the A-File produced by USCIS “included only two of [her] applications for TPS Status: (1) her original application, filed in 2001 and granted in 2003, and (2) a renewal application filed in March 2005.” (Id. at 50).

She additionally alleges that ICE (1) failed to “complete any post-order custody review during [Plaintiff's] eight-month detention ․ [which] violated numerous requirements of federal regulations intended to ensure that an individual's continued detention is justified and lawful”¹⁵ and (2) failed to complete an RCA for her.¹⁶ (Id. at 87, 90).

Based on the allegations described in this Section, Plaintiff claims Defendants are liable under the Federal Tort Claims Act (“FTCA”) for false imprisonment and negligence. (Id. at 82–94). She also brings claims under the Administrative Procedure Act. (Id. at 94–107). Defendants filed a motion to dismiss her claims for lack of jurisdiction based on sovereign immunity and for failure to state a claim. (Mot. to Dismiss, Dkt. 61).

II. LEGAL STANDARDS

A. Rule 12(b)(1)

Rule 12(b)(1) allows a party to assert lack of subject-matter jurisdiction as a defense to suit. Fed. R. Civ. P. 12(b)(1). Federal district courts are courts of limited jurisdiction and may only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

“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). “Accordingly, the plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” Id. A 12(b)(1) motion “should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.” Home Builders Ass'n of Miss., 143 F.3d at 1010 (citation omitted). In ruling on a Rule 12(b)(1) motion, the court may consider any one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in the record; or (3) the complaint, undisputed facts, and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008). A motion to dismiss under Rule 12(b)(1) must be considered before addressing any attack on the merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted).

B. Rule 12(b)(6)

Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a 12(b)(6) motion, a “court accepts ‘all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ ” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the plaintiff's grounds for entitlement to relief—including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.’ ” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “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 Twombly, 550 U.S. at 570).

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.” Id. “The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A court ruling on a 12(b)(6) motion may rely on the complaint, its proper attachments, “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citations and internal quotation marks omitted). A court may also consider documents that a defendant attaches to a motion to dismiss “if they are referred to in the plaintiff's complaint and are central to her claim.” Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004). But because the court reviews only the well-pleaded facts in the complaint, it may not consider new factual allegations made outside the complaint. Dorsey, 540 F.3d at 338. “[A] motion to dismiss under 12(b)(6) ‘is viewed with disfavor and is rarely granted.’ ” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Harrington v. State Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir. 2009)).

III. DISCUSSION

A. Proper Defendants

Plaintiff has named as Defendants the United States, DHS, USCIS, ICE, Markwayne Mullin in his official capacity as Secretary of DHS, Joseph B. Edlow in his official capacity as Director of USCIS, and Todd Lyons in his official capacity as Acting Director of ICE. (Am. Compl., Dkt. 56, at 1). Defendants argue that, because the only proper defendant for FTCA claims is the United States, and because Plaintiff's APA claims solely concern ICE's conduct, the Court should dismiss Defendants DHS, USCIS, DHS Secretary Mullin, and USCIS Director Edlow. The Court agrees with Defendants. See Galvin v. Occupational Safety & Health Admin., 860 F.2d 181 (5th Cir. 1988) (“It is beyond dispute that the United States, and not the responsible agency or employee, is the proper party defendant in a Federal Torts Claims Act suit.”); 5 U.S.C. § 703 (mandating that APA claims “may be brought against the United States, the agency by its official title, or the appropriate officer”). Moreover, Plaintiff does not acknowledge this argument in her Response. See Black v. N. Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006) (explaining that a plaintiff's “failure to pursue [a] claim beyond her complaint constituted abandonment” where she did not oppose an argument in her response to a motion to dismiss). The Court will therefore dismiss Defendants DHS, USCIS, DHS Secretary Mullin, and USCIS Director Edlow. The sole remaining Defendants are the United States, ICE, and ICE Director Todd Lyons.

B. Rule 12(b)(1) Analysis

Defendants argue that Plaintiff's FTCA claims for false imprisonment and negligence are barred by sovereign immunity. (Mot. to Dismiss, Dkt. 61, at 7). The United States is immune from suit except to the extent that it consents to be sued. In cases where it consents, the “terms of its consent ․ define that court's jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941). “Congress provided, in the FTCA, an exclusive vehicle for the assertion of tort claims for damages against the federal government.” In re Supreme Beef Processors, Inc., 468 F.3d 248, 252 (5th Cir. 2006) (en banc). The FTCA allows a plaintiff to pursue tort actions against the federal government, holding the government liable as if it were a defendant in state court. Id. Plaintiffs “bear the burden of showing Congress's unequivocal waiver of sovereign immunity.” Spotts v. United States, 613 F.3d 559, 568 (2010).

However, the FTCA incorporates limitations and exceptions. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984) (“The Act did not waive the sovereign immunity of the United States in all respects, however; Congress was careful to except from the Act's broad waiver of immunity several important classes of tort claims.”). Defendants argue that, in this case, one of those exceptions—the discretionary function exception—applies, such that the United States retains its sovereign immunity. (Mot. to Dismiss, Dkt. 61, at 8). “The discretionary function exception withdraws the FTCA's waiver of sovereign immunity in situations in which, although a government employee's actions may have been actionable under state tort law, those actions were required by, or were within the discretion committed to, that employee under federal statute, regulation, or policy.” Spotts, 613 F.3d at 566 (citing 26 U.S.C. § 2680(a)).

For an official's actions to fall within the discretionary function exception, (1) the challenged “conduct must be a ‘matter of choice for the acting employee,’ ” and (2) the “judgment [must be] of the kind that the discretionary function exception was designed to shield.” Id. at 567–68 (first quoting Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988); and then quoting United States v. Gaubert, 499 U.S. 315, 322–23 (1991)). As to the first prong of the test, the “requirement of judgment or choice is not satisfied” where “the challenged actions in fact violated a federal statute, regulation, or policy” because “the employee has no rightful option but to adhere to the directive.”¹⁷ Id. at 567 (quoting Gaubert, 499 U.S. at 322, 324). At the motion to dismiss stage, Plaintiff bears the burden of “pleading facts that facially allege matters outside of the discretionary function exception.” Id. at 568 (citing St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 n.3 (5th Cir. 2009)).

1. Claims Regarding Plaintiff's Detention

Plaintiff pleads that the “government has no discretion to detain individuals with TPS.” (Am. Compl., Dkt. 56, at 34). She cites as support 8 U.S.C. § 1254a, which mandates: “An alien provided [TPS] under this section shall not be detained by the Attorney General on the basis of the alien's immigration status in the United States.” 8 U.S.C. § 1254a(d)(4). She additionally cites 8 C.F.R. § 244.14(b)(1), which provides that USCIS can only withdraw TPS by providing the noncitizen with written notice of intent to withdraw TPS, at which point the noncitizen has thirty days to “provide evidence of good cause for failure to reregister.” 8 C.F.R. § 244.14(b)(1). She similarly points to guidance issued by ICE to its officers stating that a noncitizen ordinarily cannot be detained or remove “[a]bsent an affirmative withdrawal of TPS by USCIS in writing.” (Guidance on TPS, Dkt. 56-1, at 2). She pleads that USCIS “never issued a Notice of Intent to Withdraw” her TPS, such that she maintained TPS at “all times relevant to this Amended Complaint.” (Am. Compl., Dkt. 56, at 34).

Defendants argue that the discretionary function exception nonetheless bars her claims. They assert that the statutory and regulatory commands cited by Plaintiff “fail[ ] to prescribe ‘specific direction’ as to what course of action an employee must follow.” (Mot. to Dismiss, Dkt. 61, at 8–9) (quoting Lopez v. U.S. Immigr. & Customs Enf't, 445 F. App'x 427, 433 (5th Cir. 2011)). They also cite Fifth Circuit case law stating that decisions related to investigations and prosecutions fall within the discretionary function exception, citing two cases involving the detention of noncitizens in which the Fifth Circuit found the discretionary function exception applied. See Tsolmon v. United States, 841 F.3d 378, 380–83 (5th Cir. 2016); Campos v. United States, 888 F.3d 724, 735 (5th Cir. 2018).

First, the Court rejects Defendants' argument that the lack of specific guidance in this context triggers the discretionary function exception. It strains credulity to believe that Congress, in enacting the FTCA and its exceptions, intended to allow agency employees to violate federal law and retain sovereign immunity so long as the relevant agency has refrained from providing step-by-step guidance on implementing that law.

Second, though decisions regarding investigations and prosecutions may typically fall within the discretionary function exception, such decisions cannot fall within the exception where those decisions “in fact violated a federal statute, regulation, or policy.” See Spotts, 613 F.3d at 567. Based on this guiding principle, Tsolman and Campos are highly distinguishable. In Tsolman, the plaintiff—who had an H-1B nonimmigrant worker visa—brought claims for false arrest and false imprisonment on the grounds that his detention was “without a warrant and without probable cause” and a claim for negligence due to the officers' failure to verify his immigration status for two days. Tsolman, 841 F.3d at 381. Tsolman, like Plaintiff, “did not have possession of any documentation showing his lawful status.” Id. at 380. In Campos, the plaintiff had a U-1 nonimmigrant visa and an Employment Authorization Document (“EAD”); she was detained despite presenting her EAD to Customs and Border Patrol agents. Campos, 888 F.3d at 728, 732. Both Tsolman and Campos claimed that their detentions were prohibited under 8 U.S.C. § 1357(a)(2), which “provides that to make an arrest without a warrant, an officer must: (1) have ‘reason to believe’ that a person is in the United States in violation of immigration law or regulation and (2) think that the person ‘is likely to escape before a warrant can be obtained for his arrest.’ ” Tsolman, 841 F.3d at 383–84; Campos, 888 F.3d at 733 (citing 8 U.S.C. § 1357(a)(2)). The Fifth Circuit reasoned that this statute, “with its judgment-laden ‘reasonable belief’ standard,” is not a statute that specifically directs officers to act in a certain way. Id. at 384.

The instant case, on the other hand, involves a substantially different type of statute—a statute that “specifically prescribes a course of action for an employee to follow,” see Spotts, 613 F.3d at 567, i.e., prohibiting the detention of a noncitizen with TPS. There is no “judgment” or “choice” here; ICE officers “shall not” detain those with TPS, and noncitizens retain TPS until revoked by USCIS in accordance with 8 C.F.R. § 244.14(b)(1). As the Tsolman Court itself acknowledged, “Acting in contravention of a statute not only takes conduct outside the permissible scope of discretion, it also often establishes negligence per se.” Tsolman, 841 F.3d at 383 n.3. Additionally, neither Tsolman nor Campos involved a statute explicitly prohibiting the detention of H1-B or U-1 visa holders, which further separates those cases from the instant case.

More specifically, regarding Plaintiff's claims surrounding her detention, it is true that, like in Tsolman, Plaintiff did not have proof of her TPS in her possession, and ICE officers initially could not find proof of Plaintiff's TPS. However, they soon after did find such evidence. On January 8, 2020—approximately three weeks after her detention and seven months prior to her release—the San Antonio Field Office created a CRW for Plaintiff noting that she had been granted TPS in 2003. (CRW, Dkt. 56-20, at 1). The CRW notes that her renewal application was rejected in 2005. (Id.). Nowhere, however, did ICE officers have evidence that USCIS had gone through the process of revoking her TPS. As such, ICE officers choosing to continue detaining Plaintiff was in violation of 8 U.S.C. § 1254a(d)(4), such that the discretionary function exception does not apply. See Spotts, 613 F.3d at 567–68. The discretionary function exception therefore does not bar Plaintiff's claims regarding her detention.

Defendants argue in their motion that, to the contrary, “ICE guidance preserved discretion to detain aliens who fail to renew TPS.” (Mot. to Dismiss, Dkt. 61, at 11). Defendants are referring to the CAP Policy,¹⁸ which states: “[I]f an alien's TPS status has expired and the subject has neglected to reapply for TPS and therefore failed to have his or her status extended, the alien is amenable to removal proceedings and can be processed as such.” (Am. Compl., Dkt. 56, at 95) (citing CAP Handbook, Dkt. 56-2, at 13). But the Court agrees with Plaintiff, (see Resp., Dkt. 76, at 25–26), that at least as applied to noncitizens like Plaintiff who were never served with a Notice of Intent to Withdraw TPS from USCIS, she has plausibly alleged that the CAP Policy violates federal law. See infra Section III(C)(3)(a). It therefore cannot be used as a crutch to retain the ICE officers' discretion. See Spotts, 613 F.3d at 568 (quoting Johnson v. Sawyer, 980 F.2d 1490, 1503 (5th Cir. 1992)) (“Actions taken to carry out a discretionary policy must be taken with sufficient caution to ensure that, at a minimum, some other federal law is not violated in the process.”). See also Util. Air Regul. Group v. E.P.A., 573 U.S. 302, 327 (2014) (reasoning that agencies can only adopt policies “within the bounds established by Congress”) (emphasis in original).¹⁹

2. Claims Regarding ICE's Failure to Properly Investigate

Next, specifically as to Plaintiff's claims based on ICE's investigation into her TPS, Plaintiff has alleged that ICE officers “violated numerous policies when they failed to conduct a thorough search of all available databases and records to locate [Plaintiff's] A-file and failed to conduct mandatory system checks of” certain databases and “when they failed to include the results of such searches in her A-file.” (Am. Compl., Dkt. 56, at 86). She cites to internal ICE policy documents prohibiting ICE officers from issuing a detainer based upon the initiation of an investigation to determine whether the subject is a removeable alien.” (ICE Policy 10074.2, Dkt. 76-11, at 3).

Much of Defendants' arguments on this point relate to the fact that these other database and records searches would have been “irrelevant,” since ICE did “locate[ ] [Plaintiff's] final order of removal and non-renewed TPS status.” (Mot. to Dismiss, Dkt. 61, at 15). At this stage of the Court's analysis, however, the Court is merely considering whether ICE's actions do or do not fall within the discretionary function exception. Defendants do not refute Plaintiff's allegation that the ICE officers did not follow certain policies to search specified databases. (See id.). The discretionary function exception “leaves officers unprotected only when a statute or policy specifically directs them to act in a particular manner but the officers use their discretion to act in violation of that statute or policy.” Campos, 888 F.3d at 734 (citing Tsolman, 841 F.3d at 384). The Court therefore finds that Plaintiff has met her burden to plausibly allege that ICE officers acted in violation of ICE policy when searching for her records, such that the exception does not apply and sovereign immunity does not bar her claim.²⁰

Because the Court has found that the discretionary function exception does not bar Plaintiff's FTCA claims relating to her detention or ICE's investigation into her immigration status, the Court will consider whether she has sufficiently pleaded the elements of these claims to survive Defendants' motion to dismiss under Rule 12(b)(6).

C. Rule 12(b)(6) Analysis

1. False Imprisonment

To sufficiently plead a claim of false imprisonment under the FTCA, Plaintiff must have plausibly alleged that a “private person [ ] would be liable to the claimant in accordance with ․ the law of the state where the tort took place.” Najera v. United States, 926 F.3d 140, 144 (5th Cir. 2019) (first citing 28 U.S.C. § 1346(b)(1); and then citing Johnson v. Sawyer, 47 F.3d 716, 727 (5th Cir. 1995)). “In order to establish a valid false imprisonment claim under Texas law, [Plaintiff] must show: ‘(1) willful detention, (2) without consent, and (3) without authority of law.’ ” See id. (quoting Davila v. United States, 713 F.3d 248, 262 (5th Cir. 2013)). For the purposes of the third element, which is the sole element at issue in this action, legal authority is “established either through the issuance of an arrest warrant or by demonstrating the presence of probable cause.” Jeanty v. Big Bubba's Bail Bonds, 72 F.4th 116, 119 (5th Cir. 2023) (citing Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 519 (Tex. App.—San Antonio 1996, writ denied)). A “facially valid warrant is a defense to a claim of false imprisonment even if the events that led to its issuance were ‘irregular, or void, or that the court did not have jurisdiction of the person of the defendant.’ ” Id. at 144–45 (quoting Pate v. Stevens, 257 S.W.2d 763, 767 (Tex. Civ. App.—Texarkana 1953, writ dism'd)). Legal authority to arrest is also “shown in the false imprisonment context ․ by a showing of probable cause.” Rogers v. City of Houston, 627 S.W.3d 777 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (citations omitted).

The alleged facts surrounding the process used to detain Plaintiff are complex and, at times, unclear.²¹ ICE Policy 10074.2, attached to Plaintiff's Amended Complaint, (Dkt. 56-12), states:

As a matter of policy, a detainer must be supported by probable cause based upon one of the following four categories of information:

1) A final order of removal against the alien;

2) The pendency of ongoing removal proceedings against the alien, including cases in which DHS has issued a charging document and served the charging document on the alien;

3) Biometric confirmation of the alien's identity and a records match in federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks lawful immigration status or, notwithstanding such status, is removable under U.S. immigration law; and/or

4) Statements made voluntarily by the alien to an ICE immigration officer and/or other reliable evidence that indicate the alien either lacks lawful immigration status or, notwithstanding such status, is removable under U.S. immigration law.

(ICE Policy 10074.2, Dkt. 56-12, at 5). Additionally, per ICE policy, a detainer is meant to be accompanied by either a Form I-200 (for “a removable alien who is not yet subject to a final order of removal) or a Form I-205 (when “the subject of the detainer is also the subject of a final order removal). (Id. at 6).

In October 2019, ICE issued a detainer requesting that Travis County notify ICE prior to Plaintiff's release (“the Detainer”). (Immgr. Detainer, Dkt. 61-1).²² The Detainer states: “DHS has determined that probable cause exists that the subject is a removeable alien. This determination is based on ․ [b]iometric confirmation of the alien's identity and a records check of federal databases that affirmatively indicate, by themselves or in addition to other reliable information, that the alien either lacks immigration status or notwithstanding such status is removable under U.S. immigration law.” (Id. at 2). Plaintiff alleges that ICE issued a “Form I-200 with [her] immigration detainer ․ [that was] facially invalid.”²³ (Am. Compl., Dkt. 56, at 84). She also alleges that the ICE officers who detained her “did not have probable cause for a warrantless arrest” and “did not have reason to believe that [she] was in violation of any immigration law or regulation” or “reason to believe that [she] was likely to escape before a warrant could be obtained for her arrest.” (Id. at 85).

On December 13, 2019, a judge dismissed the criminal charges against Plaintiff. (Id. at 38). Due to the Detainer, which Plaintiff claims was accompanied by a facially invalid Form I-200, Plaintiff alleges that Travis County “continued imprisoning [her] for two additional days to provide ICE time to assume custody.” (Id.). She alleges that she was taken into ICE custody on December 15, 2019. (Id.). She claims that it was not until the next day, December 16, 2019, that a facially valid I-205 was issued for her.²⁴ (Id. at 39). Based on these allegations, Plaintiff pleads that she was imprisoned without consent and without authority of law. (Id. at 83).

Defendants argue in their motion to dismiss that the “detainer found probable cause to detain [Plaintiff].” (Mot. to Dismiss, Dkt. 61, at 20). They also point to the CAP Policy and assert that, based on that guidance and on Plaintiff's TPS not being renewed, ICE officers had probable cause to believe she was removable. (Id.). Plaintiff responds that the officers acted without authority of law when they detained her because their actions violated 8 U.S.C. § 1254a(d), the Constitution, and mandatory ICE policies. (Resp., Dkt. 76, at 30–31). She also asserts that the Form I-205 issued the day after ICE assumed custody of her cannot fix the initial, allegedly facially invalid Form I-200, because the Form I-205 was issued two months after the detainer and a day after she was detained. The Court will address her false imprisonment claim as it relates to her detention both before and after the issuance of her Form I-205.

a. Prior to the Issuance of Form I-205

ICE officers lodging an immigration detainer are meant to attach “one of two ․ administrative warrants”—a Form I-200 or Form I-205. City of El Cenizo v. Texas, 890 F.3d 164, 187 (5th Cir. 2018). Plaintiff argues that her immigration detainer was accompanied by a facially invalid Form I-200, given that certain sections of the form were left blank.²⁵ (Am. Compl., Dkt. 56, at 38). She therefore claims that ICE's assumption of custody was without legal authority, as it was without a warrant.

Defendants argue in their Motion to Dismiss that “When ICE issued [Plaintiff's] detainer, ICE confirmed [her] order of removal through biometrics․ ICE officers thus had probable cause to believe [she] was removable based on her final order of removal.” (Mot. to Dismiss, Dkt. 61, at 19–20). But the Detainer specifically does not have the box for “final order of removal” checked. (Immigr. Detainer, Dkt. 61-1, at 2). Rather, her detainer only stated that she is removable because she lacks immigration status. (Id.).

Tabular or graphical material not displayable at this time.

(Id.). The Court therefore finds that, at least on the record presently before the Court, Plaintiff having a final order of removal was not a basis for her initially being detained by ICE.

Moreover, even though the detainer form states that ICE has probable cause to believe she is removable, not all removable noncitizens are detainable without a warrant. See, e.g., 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney General, an alien may be arrested and detained ․”) (emphasis added); Id. § 1357(a)(2) (stating that ICE officers have the power to arrest noncitizens without a warrant “if he has reason to believe the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest”). Here, Plaintiff has alleged that no facially valid warrant was issued prior to her arrest, and nothing in the record states that ICE assumed custody of her from Travis County through a warrantless arrest due to her being a flight risk. Indeed, no plausible argument could be made that Plaintiff had been a flight risk given that she was in Travis County's custody. Thus, the discretionary detention provision in § 1226(a) and the warrantless arrest provision in § 1357(a) were also not bases on which Plaintiff was initially detained.

Finally, though Defendants may attempt to argue that the detainer itself was sufficient for Plaintiff's detention, the Fifth Circuit has explicitly stated: “It is undisputed that federal immigration officers may seize aliens based on an administrative warrant,” and noted that current ICE policy requires detainers “to be accompanied by one of such administrative warrants.” City of El Cenizo v. Texas, 890 F.3d 164, 187 (5th Cir. 2018) (emphasis added). A Form I-247 on its own is not an administrative warrant. Thus, taking Plaintiff's allegations as true, the Court finds that—for the one day between ICE taking Plaintiff into custody and issuing her a Form I-205—Plaintiff has sufficiently pleaded that her detention was willful, without consent, and without authority of law.

b. Subsequent to the Issuance of Form I-205

On December 16, 2019, ICE issued a Form I-205 for Plaintiff, which is a Warrant of Removal/Deportation. (Am. Compl., Dkt. 56, at 39, 84; Form I-205, Dkt. 60-1, at 2). ICE Policy Number 10074.2, which Plaintiff attached to her Amended Complaint, states that a Form I-205 is appropriate for noncitizens with a final order of removal. (ICE Policy No. 10074.2, Dkt. 56-12, at 6). On that same date, ICE issued a Form I-213 for Plaintiff, which is a Record of Deportable/Inadmissible Alien. (Am. Compl., Dkt. 56, at 39; Form I-213, Dkt. 60-2, at 2). The Form I-213 states that Plaintiff's “current administrative charge” is under § 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), codified at 8 U.S.C. § 1182(a)(6)(A)(i).²⁶ (Form I-213, Dkt. 60-2, at 3).

Defendants argue that the Form I-205 is a facially valid warrant, which Plaintiff significantly does not dispute. (Mot. to Dismiss, Dkt. 61, at 21; Tr. of Nov. 2024 Hearing, Dkt. 54, at 29). Plaintiff argues that, nonetheless, she was detained without authority of law based on 8 U.S.C. § 1254a(d)(4)'s ban on detaining noncitizens with TPS. (Resp., Dkt. 76, at 30–31).

The Court agrees with Defendants that the Form I-205 is a facially valid warrant, even though the “events that led to its issuance”—i.e., ICE assuming custody of Plaintiff based on a detainer lacking a facially valid Form I-200 or I-205—were “irregular [ ] or void.”²⁷ See Najera, 926 F.3d at 144–45 (quoting Pate, 257 S.W.2d at 767). An ICE officer with the authority to issue a Form I-205 certified that they had probable cause Plaintiff was an inadmissible alien with a final order of removal; as such, her Form I-205 was facially valid. See Lilley v. Minute Mkt., Inc., 501 S.W.2d 688, 689 (Tex. App.—El Paso 1973, writ ref'd n.r.e.) (“A detention under a warrant valid in form, issued by competent authority on a sufficient complaint, is not false imprisonment.”). Additionally, the Form I-205 would on its face support that Plaintiff could be detained, as a noncitizen with a final order of removal who is inadmissible under 8 U.S.C. § 1182 may be detained beyond the initial ninety-day detention period. See 8 U.S.C. § 1231(a)(6)(A) (“An alien ordered removed who is inadmissible under section 1182 of this title ․ may be detained beyond the removal period.).

Moreover, the Court's finding that Plaintiff's Form I-205 was facially valid is unchanged by ICE officers later finding records of Plaintiff being granted TPS. Even if the officers had known throughout her entire period of detention that she had been granted TPS, they nonetheless would have had “probable cause” for her detention and believed her warrant remained valid. See Rogers, 627 S.W.3d at 790–91 (explaining that probable cause negates the “legal authority” element of false imprisonment claims). Under the CAP Policy, and prior to the issuance of the guidance to ICE officers regarding TPS, ICE officers would reasonably believe that they could detain and remove noncitizens who had failed to renew TPS. (See Am. Compl., Dkt. 56, at 95). See Amores v. State, 816 S.W.2d 407, 413 (Tex. Crim. App. 1991) (en banc) (“Probable cause exists where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that a particular person has committed ․ an offense”). Moreover, ICE officers involved in Plaintiff's detention would have “reasonably presume[d]” her Form I-205—even if it had noted her history of TPS—was “valid.” See Groh v. Ramirez, 540 U.S. 551, 565 (2004) (explaining that warrants are “facially deficient” where “the executing officers cannot reasonably presume it to be valid”). Plaintiff's argument that she was statutorily prohibited from being detained at all times relevant to this action “challenges the grounds on which the warrant was issued, not the warrant's facial validity.” See Jeanty, 72 F.4th at 119. Accordingly, “there can be no cause of action for false imprisonment” once Plaintiff's Form I-205 was issued. See id. The Court will therefore grant Defendants' motion to dismiss Plaintiff's false imprisonment claim as it relates to her detention subsequent to the issuance of the facially valid Form I-205.

2. Negligence

To prevail on a common-law negligence claim in Texas, a plaintiff must prove three elements: “a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach.” Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (quoting D. Hous., Inc. v. Love, 92 S.W.3d 450, 457 (Tex. 2002)). To successfully plead a negligence claim under the FTCA, the alleged duty must be one recognized under the law of the state where the act or omission took place. Sawyer, 47 F.3d at 727 (citing Brown v. United States, 653 F.2d 196, 201 (5th Cir. 1981)). Merely alleging a breach of a federal statutory duty is not sufficient. Id. (citing Sellfors v. United States, 697 F.2d 1362, 1365 (11th Cir. 1983)). Plaintiff alleges two categories of negligence claims—(1) negligent investigation and maintenance of records and (2) negligent detention. (Am. Compl., Dkt. 56, at 90–93; Tr. of Nov. 2024 Hearing, Dkt. 54, at 34–35). The Court will analyze these claims in turn.

a. Negligent Investigation and Maintenance of Records

Plaintiff alleges that “Texas law imposed on the federal officers ․ a duty to [Plaintiff] to act with ordinary care and prudence so as not to cause any harm or injury to [her].” (Am. Compl., Dkt. 56, at 88) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)). She claims that that ICE officers' “exercise of ordinary care ․ requires compliance with ICE policies and procedures,” and that they failed to act with ordinary care when they “failed to conduct a sufficiently thorough search” to find evidence of Plaintiff's TPS. (Id. at 88–89). For instance, she alleges that ICE policy requires officers to “do a thorough search of all available databases,” but that they failed to do so for her. (Id. at 45, 92) (citing ICE Directive 1-32.0, Dkt. 56-14, at 4). Plaintiff relatedly alleges that ICE did not sufficiently maintain her records, despite failure to maintain records foreseeably leading to injury to detainees.²⁸ (Id. at 91).

First, Defendants argue that Plaintiff has failed to state a negligence claim because federal law cannot form a basis for liability under the FTCA. (Mot. to Dismiss, Dkt. 61, at 22–23). As stated above, however, Plaintiff has alleged—citing case law from the Supreme Court of Texas—that there is a “general duty to exercise reasonable care to avoid foreseeable injury to others” under Texas law. (Am. Compl., Dkt. 56, at 88) (citing Poole, 732 S.W.2d at 311). The Court also finds persuasive Plaintiff's argument that her Amended Complaint identifies numerous “federal statutes, regulations, and policies ․ [to] inform the standard of care against which to assess the government's conduct,” rather than alleging that federal law creates independent duties under the FTCA. (See Resp., Dkt. 76, at 33). Finally, under Texas law, “foreseeability of the risk” is the “foremost and dominant consideration” in determining whether an actor had a duty, and Plaintiff has repeatedly alleged that her injuries were foreseeable. See Doe v. SmithKline Beecham Corp., 855 S.W.2d 248, 255 (Tex. App.—Austin 1993), aff'd as modified, 903 S.W.2d 347 (Tex. 1995) (citations omitted) (“More recent cases have described duty as a function of several interrelated factors—the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct—of which the foremost and dominant consideration is the foreseeability of the risk.”); (Am. Compl., Dkt. 56, at 90, 91, 92, 94) (alleging foreseeability). Plaintiff has therefore plausibly alleged the duty element of her negligence claim.

Second, Plaintiff has alleged that ICE breached its duty of care by failing to maintain accurate immigration records for her, failing to conduct required A-file and database checks to verify that she has TPS, and “failing to investigate despite repeated assertions from [Plaintiff], her attorney, and her mother that [Plaintiff] had TPS.” (Am. Compl., Dkt. 56, at 88–93). Defendants argue that, to the contrary, ICE officers did verify her TPS—and that it had expired. (Mot. to Dismiss, Dkt. 61, at 24).

The Court agrees with Defendants that the breach element cannot be satisfied by allegations relating to the officers' failure to find proof of her TPS, as ICE officers found proof of that within three weeks of her eight-month detention. Plaintiff's CRW, created about three weeks after ICE assumed custody of her, shows that Plaintiff had been granted TPS on January 7, 2003, and that her application renewal was denied in 2005, such that she was “no longer in TPS status.” (CRW, Dkt. 56-20, at 1).

On the other hand, viewing the allegations in the light most favorable to Plaintiff, the Court finds it plausible that an ICE officer exercising reasonable care in reviewing Plaintiff's custody status and/or in managing Plaintiff's records would (1) have searched all required databases ²⁹ and found documentation over many years of Plaintiff attempting to renew her TPS, rather than only the first denial in 2005; (2) would investigate, in accordance with 8 C.F.R. § 244.14, whether USCIS had affirmatively completed the process necessary to revoke Plaintiff's TPS; and (3) would ensure new records created for Plaintiff, e.g., her Form I-213, were correct. For instance, it is plausible that an ICE officer exercising reasonable care would have found Plaintiff's TPS renewal applications in 2005, 2012, 2015, and 2016, and considered that—given Plaintiff continued to file these re-registrations and given that she had never been removed from the country despite having a final order of removal in place since 1993—her TPS in fact was still a barrier to her detention and removal. Of course, a jury may ultimately find that the investigation done by the ICE officers was sufficient to meet their duty of care. At this stage of the litigation, however, the Court accepts Plaintiff's pleading that the alleged failures related to ICE's investigation into her immigration status and maintenance of her records amount to failures to exercise ordinary care despite foreseeable injury under Texas law.

Finally, Plaintiff pleads that as a result of Defendants' negligence, she suffered “substantial damages, including, but not limited to, monetary damages, loss of earnings, loss of property, damage to property, pain and suffering, and emotional distress.” (Am. Compl., Dkt. 56, at 93). Defendants do not move to dismiss for failure to plausibly allege this element, and the Court finds this pleading to be sufficient. Accordingly, Plaintiff has sufficiently stated a negligence claim under the FTCA for failure to properly investigate or maintain her records.

b. Negligent Detention

Next, Plaintiff alleges that it was negligent for the ICE officers to detain her for eight months “for the purpose of investigating her immigration status” in violation of ICE policy ³⁰ and to detain her for eight months without conducting a post-order custody review as required by the INA's implementing regulations.³¹ (Am. Compl., Dkt. 56, at 75, 92). She points to the transcript from the November 2024 hearing, at which counsel for Defendants conceded that Plaintiff had been detained for eight months because ICE officials “were continuing to research the TPS issue ․ So, basically, it was an investigation.” (Tr. of Nov. 2024 Hearing, Dkt. 54, at 23). She also cites to electronic post-order custody review records showing “No records found.” (ePOCR Records, Dkt. 56-29).

First, Defendants again argue that Plaintiff has failed to sufficiently plead a duty under Texas law. The Court again disagrees. See Section III(C)(2)(a), supra. ICE officers were under a duty to exercise reasonable care to avoid foreseeable injury to Plaintiff. See Poole, 732 S.W.2d at 311–12.

Second, regarding breach, Defendants do not squarely address Plaintiff's contention that, given ICE's policy to not issue a detainer for noncitizens pending an investigation into their immigration status, it was a breach of the duty of care to detain her for eight months while completing an investigation. The Court agrees that it would be reasonably foreseeable that detaining someone for eight months while investigating whether their detention is lawful in the first place could cause injury, such that an ICE officer exercising reasonable care would follow the agency's policy and not detain someone for this purpose. See Doe, 855 S.W.2d at 255. Plaintiff has therefore sufficiently alleged that the officers had a duty to not detain her for eight months pending an investigation and that they breached that duty.

Next, Defendants address Plaintiff's allegations relating to their alleged failure to complete post-order custody reviews (“POCR”). (Mot. to Dismiss, Dkt. 3, at 4). They claim that the normal POCR process did not apply because she filed a motion to reopen her case with the BIA in January 2020, which triggered an automatic stay of removal. (Id. at 13). Defendants also claim that, nonetheless, “in a process not unlike those detailed by ICE's post-order custody review (“POCR”) regulations, ICE reviewed whether Plaintiff should be detained during her stay of removal.” (Mot. to Dismiss, Dkt. 61, at 4–5) (citing May 2020 CRW, Dkt. 60-9, at 3–5; June 2020 CRW, Dkt. 60-10, at 2–4)). Plaintiff responds that Defendants are incorrect that her motion to reopen triggered an automatic stay of removal; “Defendants' cited CFR section applies only to in absentia removal orders—which [Plaintiff's] was not.” (Resp., Dkt. 76, at 23–24) (citing EOIR Memorandum, Dkt. 76-14, at 2 (stating that Petitioner was represented by an attorney at her 1993 deportation hearing)). As such, according to Plaintiff, her motion to reopen did not result in a stay of removal, such that POCR requirements continued to apply to her. (Id. at 24).

Based on the allegations in this case and on the relevant regulations,³² the Court finds that the POCR regulations should have been applied to Plaintiff. Moreover, the Court disagrees with Defendants that the scant reviews of Plaintiff's custody determination done by ICE officers in May 2020 and June 2020, (Dkts. 60-9, 60-10), were “a process not unlike those detailed by ICE's” POCR regulations. (See Mot. to Dismiss, Dkt. 61, at 4–5). As an example, after Plaintiff had been held for ninety days, “all further custody determinations” should have been “made by the Executive Associate Commissioner, acting through the [Headquarters Post-Order Detention Unit (“HQPDU”)].” 8 C.F.R. § 241.4(c)(2). Based on the documents in the record, HQPDU does not appear to have made any determinations regarding Plaintiff's custody. Additionally, given the evidence in the record that ICE believed there was not a significantly likelihood of removal,³³ the “special review procedures” located at 8 C.F.R. § 241.13 should have applied to her. It is highly foreseeable that failing to adhere to these procedures would lead to Plaintiff's extended detention and to injuries, yet ICE officers nonetheless failed to follow them. The Court therefore finds that Plaintiff has plausibly alleged a breach of the duty of care related to ICE's failure to properly review her custody status.

Lastly, as in Section III(C)(2)(a), Defendants do not dispute that Plaintiff has plausibly alleged damages, and the Court finds that this element of her claim is met. Accordingly, Plaintiff's two negligence claims based on ICE's negligent investigation and maintenance of her records and on ICE's negligently detaining her survive the motion to dismiss.

3. Administrative Procedure Act

Finally, Plaintiff alleges seven separate violations of the Administrative Procedure Act (“APA”). Defendants “summarize [these claims] into two general claims.” (Mot. to Dismiss, Dkt. 61, at 24). “First, [she] alleges that the CAP Policy is unconstitutional, contrary to the INA, and violates the APA.”³⁴ (Id.). “Second, [she] alleges that ICE failed to ‘maintain and consult accurate records' regarding her immigration status.” (Id.). The Court will address these two categories of APA claims in turn.

a. CAP Policy

Plaintiff alleges that the CAP Policy is contrary to the law (specifically, the INA and its implementing regulations), such that as final agency action it violates the APA; that the CAP Policy is arbitrary and capricious in violation of the APA; that ICE did not undergo the required rule-making procedures prior to adopting the CAP Policy; that the CAP Policy violates separation-of-powers principles and exceeds ICE's statutory authority; that the CAP Policy is contrary to the Fourth Amendment rights of Plaintiff and other TPS holders; and that the CAP Policy is contrary to the Fifth Amendment rights of Plaintiff and other TPS holders. (Am. Compl., Dkt. 56, at 94, 103, 104, 106, 107). Defendants argue that Plaintiff does not have standing to bring these claims because (1) she lacks standing to challenge the CAP Policy because she fails to allege a concrete, impending injury; (2) her APA claims are not redressable because they are based on past harm; and (3) she lacks standing to assert claims on behalf of noncitizen TPS holders. (Mot. to Dismiss, Dkt. 61, at 25–29). Defendants do not otherwise attack of the merits of Plaintiff's APA claims related to the CAP Policy.

First, the Court disagrees with Defendants that Plaintiff has failed to plead that the CAP Policy remains a threat to Plaintiff. Plaintiff pleads that she has a pending application to re-register her TPS, and Defendants themselves state in their Motion to Dismiss that a “nonrenewed TPS is sufficiently uncertain to preserve ICE discretion.” (Am. Compl., Dkt. 56, at 76; Mot. to Dismiss, Dkt. 61, at 34). Plaintiff also pleads that she “remains at risk of detention and removal while ICE's unlawful CAP Policy remains in effect.” (Am. Compl., Dkt. 56, at 96). Moreover, courts around the country—including this Court—are seeing writs of habeas corpus filed by detainees who allege currently having TPS, let alone expired TPS. See Fuentes Moreno v. Bondi, 1:26-CV-229-RP (W.D. Tex. Jan. 29, 2026) (petitioner alleging in a writ of habeas corpus before this Court that he was detained despite having valid TPS). See also, e.g., Sanchez Puentes v. Garite, 780 F. Supp. 3d 682, 698, 704 (W.D. Tex. 2025) (granting a habeas petition where petitioners' TPS has expired but they were within the time to file an appeal); Jean v. Patterson, No. 6:25-CV-00970, 2025 WL 2345086, at *1–2 (W.D. La. July 16, 2025) (granting a writ of habeas corpus where the petitioner contended he had a current grant of TPS); Echeverria v. Janecka, No. 1:25-CV-01832-KES-SAB (HC), 2026 WL 44896, at *3–4 (E.D. Cal. Jan. 7, 2026) (same); H.F.S.R. v. Francis, No. 1:26-CV-238-AT, 2026 WL 160542, at *6–8 (N.D. Ga. Jan. 20, 2026) (same); Ceballos v. Hardin, No. 2:26-CV-00658-SPC-NPM, 2026 WL 799366, at *2–3 (M.D. Fla. Mar. 23, 2026 (same).³⁵ Moreover, the Court's analysis is not changed by the fact that ICE issued additional guidance on TPS to its officers after Plaintiff's detention, informing ICE officers that noncitizens whose TPS has not been affirmatively withdrawn cannot be detained. (Guidance on TPS, Dkt. 56-1, at 2). This guidance was sent to ICE officers in October 2020, and TPS holders nonetheless continue to be detained, as described above. The Court therefore finds that, even though Plaintiff currently has TPS and has a pending application to re-register her TPS, she has plausibly alleged a concrete risk of unlawful detention pursuant to the CAP Policy.³⁶

Next, the Court also disagrees that the requested relief would not redress any of Plaintiff's stated injuries. Though Defendants argue that Plaintiff “does not allege any harm after her release, and she thus fails to allege an ongoing, redressable injury,” (Mot. to Dismiss, Dkt. 61, at 28), Plaintiff did allege that she “remains at risk of detention and removal while ICE's unlawful CAP Policy remains in effect.”³⁷ (Am. Compl., Dkt. 56, at 96). A court order declaring that the CAP Policy violates the APA and enjoining ICE from enforcing the CAP Policy would prevent this alleged threat to her liberty.

Finally, though Defendants notably do not address Plaintiff's pleading that the CAP Policy violates the INA and its implementing regulations, the Court holds that she has plausibly alleged that the CAP Policy violates 8 U.S.C. § 1254a(d)(4) and 8 C.F.R. § 244.14(b)(1). Moreover, because the Court has found that Plaintiff herself has standing to challenge the CAP Policy, the Court will not address Defendants' argument that she “lacks standing to assert APA claims on behalf of ‘other noncitizen TPS holders.’ ” (See Mot. to Dismiss, Dkt. 61, at 28). Her APA claims related to the CAP Policy's unlawfulness survive the Motion to Dismiss.

b. Claims Related to Plaintiff's Records

Plaintiff's last type of claim is an APA claim related to ICE's failure to consult and maintain accurate records. She claims that it was arbitrary and capricious for ICE to fail “to consult and maintain accurate records in violation of ICE policy.” (Am. Compl., Dkt. 56, at 102). She also alleges that “ICE policies imposed on ICE officers a duty to maintain and consult ICE records with such accuracy, relevance, timeliness, and completeness as is necessary to ensure fairness in such determinations.” (Id. at 97). The related remedies she seeks are damages for Defendants' failure to maintain DHS databases with accurate records; a declaration that Defendants have violated “her rights under the [APA] by failing to search DHS databases and correct all derogatory information contained therein as a result of their wrongful imprisonment of Plaintiff”; and an injunction ordering ICE to update all applicable systems of record to reflect her TPS and correct any other erroneous information regarding Plaintiff in all ICE systems of record. (Id. at 108).

The Court agrees with Defendants that Plaintiff has failed to plausibly allege an injury based on these acts or omissions that could be redressed by the Court. For one, Plaintiff cannot receive monetary damages under the APA for an agency's failure to maintain her records. See 5 U.S.C. § 702; Lulac E. Park Place Tr. v. U.S. Dep't of Hous. & Urban Dev., 32 F. Supp. 2d 418, 421 (W.D. Tex. 1998) (noting that the APA excludes claims for money damages from its waiver of sovereign immunity). Nor is it clear how a declaratory judgment or injunction could remedy a past failure to consult her records or accurately maintain those records, especially given that Plaintiff does not allege that her records continue to be inaccurate at this point in time or allege that there is an imminent risk her records will become inaccurate. See Stringer v. Whitley, 942 F.3d 715, 720 (5th Cir. 2019) (first quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 108 (1998); and then citing City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)) (“Because injunctive and declaratory relief ‘cannot conceivably remedy any past wrong,’ plaintiffs seeking injunctive and declaratory relief can satisfy the redressability requirement only by demonstrating a continuing injury or threatened future injury.”). The Court will therefore dismiss her APA claim based on ICE's failure to consult and maintain accurate records.

IV. CONCLUSION

For these reasons, IT IS ORDERED that Defendants' Motion to Dismiss, (Dkt. 61), is GRANTED IN PART AND DENIED IN PART, such that:

• Defendants DHS, USCIS, Markwayne Mullin, and Joseph B. Edlow are DISMISSED;

• Defendants' motion to dismiss Plaintiff's claim for false imprisonment is GRANTED IN PART AND DENIED IN PART, such that her false imprisonment claim based on ICE taking her into custody on December 15, 2019, until the issuance of her Form I-205 on December 16, 2019, survives, and her false imprisonment claim based on her detention after the issuance of her Form I-205 is dismissed;

• Defendants' motion to dismiss Plaintiff's negligence claims is DENIED; and

• Defendants' motion to dismiss Plaintiff's APA claims is GRANTED IN PART AND DENIED IN PART, such that her APA claims regarding the CAP Policy survive, and her claim regarding ICE's failure to consult and maintain accurate records is dismissed.

SIGNED on March 25, 2026.

FOOTNOTES

1.   Markwayne Mullin, current Secretary of Homeland Security, is automatically substituted in as Defendant. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party.”).

2.   Joseph B. Edlow, current Director of USCIS, is automatically substituted in as Defendant. See Fed. R. Civ. P. 25(d).

3.   A sealed version of the Amended Complaint is located at Dkt. 57; a sealed version of the Motion to Dismiss is located at Dkt. 62; and a sealed version of Plaintiff's Response is located at Dkt. 78.

4.   An Assistant United States Attorney acknowledged at a hearing before United States Magistrate Judge Mark Lane that Plaintiff “should not have been detained” pursuant to statutory and regulatory mandates. (Tr. of Nov. 2024 Hearing, Dkt. 54, at 14).

5.   USCIS may grant TPS to noncitizens who cannot return to their home country due to, inter alia, an environmental disaster that has caused the “foreign state [to be] unable, temporarily, to handle adequately the return of the state of aliens who are nationals of the state.” 8 U.S.C. § 1254a(b)(1)(B). Plaintiff alleges that El Salvador was initially designated for TPS status in 2001 following two severe earthquakes and has maintained TPS status due to “conditions that have slowed El Salvador's recovery.” (Am. Compl., Dkt. 56, at 33–34).

6.   8 C.F.R. § 244.14(B)(1) provides: “Withdrawal of an alien's status under paragraph (a) of this section shall be in writing and served by personal service pursuant to 8 CFR 103.8(a)(2). If the ground for withdrawal is 8 CFR 244.14(a)(3), the notice shall provide that the alien has thirty (30) days within which to provide evidence of good cause for failure to register.”

7.   Defendants conceded at a hearing before United States Magistrate Judge Mark Lane that her detainer should have been accompanied by a Form I-205 rather than a Form I-200, as she is someone with a final order of removal. (Tr. of Nov. 2024 Hearing, Dkt. 54, at 19). Defendants nonetheless argued at the hearing that her detainer being accompanied with a Form I-205 is merely ICE policy and not statutorily required. (Id. at 20).

8.   Plaintiff later alleges that she could not remember her social security number. (Id. at 52).

9.   See Am. Compl., Dkt. 56, at 34 (alleging that she filed applications for TPS renewal in March 2012, March 2015, and August 2016).

10.   At a hearing before United States Magistrate Judge Mark Lane, Plaintiff stated that her allegations related to her conditions of confinement are alleged to prove damages “suffered as a result of ICE's wrongful detention,” rather than to prove liability. (Tr. of Nov. 2024 Hearing, Dkt. 54, at 34). The Court therefore will not state these allegations in detail.

11.   After her release from detention, ICE produced documents that recorded “some, but not all,” of Plaintiff's reported allergies and immune conditions. (Id. at 58).

12.   One officer at Laredo purportedly told her that it was “too expensive to provide Kosher meals for just one person.” (Id. at 71).

13.   See 8 U.S.C. § 1254a(a)(3)(C) (“If, at the time of designation of a foreign state under subsection (b), an alien (who is a national of such state) is in a removal proceeding under this subchapter, the Attorney General shall promptly notify the alien of the temporary protected status that may be available under this section.”).

14.   “[A]s a matter of policy, all detainers issued by ICE must be accompanied by either: (1) a properly completed Form 1-200 (Warrant for Arrest of Alien) signed by an authorized ICE immigration officer; or (2) a properly completed Form 1-205 (Warrant of Removal/Deportation) signed by an authorized ICE immigration office.” ICE Policy 10074.2, Dkt. 56-12, at 3. “An ICE immigration officer may not issue a detainer based on the initiation of an investigation to determine whether the subject is a removable alien.” (Id.).

15.   Plaintiff attaches to her Amended Complaint a screenshot of DHS's Electronic Post Order Custody Review records for Plaintiff. (ePOCR Records, Dkt. 56-29). The database shows “No records found.” (Id.).

16.   Defendants argue in their Motion to Dismiss that an RCA was completed for Plaintiff; they attach the RCA as an exhibit. (Mot. to Dismiss, Dkt. 61, at 3; RCA, Dkt. 60-4). Plaintiff's Response does not address the attached RCA, though she herself cites to it. (See Resp., Dkt. 76, at 24) (citing the RCA as “Defendants' own evidence [that Plaintiff's] removal was not significantly likely to occur in the reasonably foreseeable future,” because the RCA states “No” in response to the question: “If the final [removal] order date is outside 90 days of the current date, is the alien's removal likely in the reasonably foreseeable future?”).

17.   Notably, the test turns on whether the actions “in fact violated a federal statute, regulation, or policy,” rather than on the facial validity of the officers' actions or the officers' beliefs. Compare Spotts, 613 F.3d at 567, with Pate v. Stevens, 257 S.W.2d 763, 767 (Tex. Civ. App.—Texarkana 1953, writ dism'd) (explaining that in the context of false imprisonment claims, “a warrant legal on its face is sufficient justification for the arrest even though the proceedings back of its issuance were irregular, or void, or that the court did not have jurisdiction of the person of the defendant.”).

18.   The CAP Policy is located within the Criminal Alien Program (“CAP”) Handbook. (See CAP Handbook, Dkt. 56-2, at 2).

19.   Defendants specifically argue in their Motion to Dismiss that “[t]o balance resource constraints with ever-changing public safety concerns, the Executive Branch considers many factors when enforcing immigration laws.” (Mot. to Dismiss, Dkt. 61, at 9). But the Supreme Court has explicitly held: “An agency confronting resource constraints may change its own conduct, but it cannot change the law.” Util. Air Regul. Grp., 573 U.S. at 327.

20.   The Court also finds that Plaintiff's allegations distinguish this case from Nguyen v. United States, in which the Fifth Circuit applied the discretionary function exception and noted the officers did not “engage in any conduct that could be described as in bad faith” and there [was] no allegation ․ of intentional misconduct.” 65 F. App'x 509, at *2 (5th Cir. 2003) (per curiam). Here, Plaintiff has alleged intentional conduct by the officers. (See, e.g., Am. Compl., Dkt. 56, at 101) (alleging officers' failure to “consult accurate records was ․ willfully contrary to internal ICE policies”).

21.   (See, e.g., Tr. of Nov. 2024 Hearing, Dkt. 54, at 19) (Counsel for Defendants stating: “What we have is ․ it appears as though [what] happened is it was just a detainer without any warrant attached. I don't know.”); (id. at 22) (Counsel for Defendants stating: “There's some discrepancies in the dates of the paperwork, whether [she was taken into custody] December 15th or 16th. I'm not sure why there's a discrepancy there.”).

22.   The Court agrees with Defendants that the mere issuance of a detainer is not equivalent with ICE taking custody of Plaintiff. See Zolicoffer v. U.S. Dep't of Justice, 315 F.3d 538 (5th Cir. 2003) (holding that, in the related context of habeas petitions, a detainee is not “in custody” under a detainer).

23.   The Court notes, as Defendants do, (Mot. to Dismiss, Dkt. 61, at 21), that Plaintiff does not attach this allegedly deficient Form I-200 to her Amended Complaint. Nor does she attach it to her Response, (Dkt. 76).

24.   Plaintiff agreed at the November 2024 hearing before United States Magistrate Judge Mark Lane that the I-205 issued on December 16, 2019, was facially valid. (Tr. of Nov. 2024 Hearing, Dkt. 54, at 29).

25.   As stated in footnote 23, supra, Plaintiff did not attach the Form I-200 to her Amended Complaint or Response.

26.   “An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.” 8 U.S.C. § 1182(a)(6)(A)(i).

27.   The Fifth Circuit has applied the “facially valid warrant” defense to warrants issued by ICE officers. See Najera, 926 F.3d at 144–45.

28.   For instance, Plaintiff alleges that her Form I-213 contains serious misstatements of fact. It states that she “claimed to be in good health” and “expressed no fear in returning to El Salvador.” (Am. Compl., Dkt. 56, at 100). Neither of these statements are true, and the Court finds them significant, as an ICE officer reviewing Plaintiff's detention may have considered these factors when deciding whether to continue her detention or release her.

29.   As noted above, Plaintiff alleges that ICE officers failed to search all required databases. (Am. Compl., Dkt. 56, at 92).

30.   (See ICE Policy No. 10074.2, Dkt. 76-11, at 3, 4) (“An ICE immigration officer may not issue a detainer based upon the initiation of an investigation to determine whether the subject is a removable alien.”).

31.   Plaintiff also alleged that it was negligent for ICE officers to not complete a Risk Classification Assessment (“RCA”) for her. (Am. Compl., Dkt. 56, at 90). But Defendants attach an RCA to their motion to dismiss created on the date she was taken into custody, which Plaintiff does not address in her Response. (RCA, Dkt. 60-4). The Court therefore considers her RCA allegation to be waived. See Black 461 F.3d at 588 n.1 (explaining that a plaintiff's “failure to pursue [a] claim beyond her complaint constituted abandonment” where she did not oppose an argument in her response to a motion to dismiss).

32.   The Court may, “of course, take judicial notice of federal regulations.” Sawyer, 47 F.3d at 733 n.36.

33.   Plaintiff's Risk Classification Assessment answered “No” to the question “If the final order of removal is outside 90 days of the current date, is the alien's removal likely in the reasonably foreseeable future?” (RCA, Dkt. 60-4, at 2).

34.   As stated previously, the CAP Policy states: “[I]f an alien's TPS status has expired and the subject has neglected to reapply for TPS and therefore failed to have his or her status extended, the alien is amenable to removal proceedings and can be processed as such.” (Am. Compl., Dkt. 56, at 95) (citing CAP Handbook, Dkt. 56-2, at 13).

35.   The Court may “take judicial notice of another court's judicial action,” as the “fact that a judicial action was taken is indisputable and is therefore amenable to judicial notice.” Gray ex rel. Rudd v. Beverly Enterprises-Miss., Inc., 390 F.3d 400, 407 n.7 (5th Cir. 2004).

36.   Defendants also submit to the Court a DHS record indicating that Plaintiff cannot be removed at this time because she was granted TPS. (EARM Case Summary, Dkt. 60-12). This record does not change the Court's holding that Plaintiff has plausibly stated an ongoing injury, as Plaintiff currently has re-registration of her TPS pending. Should her pending re-registration be denied, but her TPS again not affirmatively revoked by USCIS, it is plausible that Plaintiff could be unlawfully detained again.

37.   Based on this allegation of ongoing risk of detention and removal, Defendants' citation to Malik v. United States Department of Homeland Security, 78 F.4th 191 (5th Cir. 2023), which solely discusses declaratory and injunctive relief related to past harms, is inapposite. (See Mot. to Dismiss, Dkt. 61, at 27).

ROBERT PITMAN UNITED STATES DISTRICT JUDGE