From Judge Terry Doughty (W.D. La.) Tuesday in Lozano v. Ladwig:

Petitioner is a Mexican national, who lives in Knoxville, Tennessee. Twenty-two years ago, while a minor, Petitioner and his family entered the United States on a B-1 visa. They, however, overstayed their visas. In 2011, the Department of Homeland Security ("DHS") issued Petitioner a Notice to Appear, charging him removable for overstaying his visa. In 2013, an Immigration Judge administratively closed Petitioner's removal proceedings after finding Petitioner eligible for Deferred Action for Childhood Arrivals ("DACA"). His DACA status has since lapsed.

In 2024, Petitioner was charged in Tennessee state court for drug-related charges [and apparently convicted for possession of methamphetamine -EV]. On October 14, 2025, DHS issued a Warrant for Arrest of Alien against Petitioner. The next day, U.S. Immigrations and Customs Enforcement ("ICE") arrested Petitioner at a Tennessee state courthouse when Petitioner went there for a probation-related drug test.

Plaintiff sought habeas corpus, and a temporary restraining order against continued detention, arguing "that the government arrested him in retaliation for publicly criticizing the Trump administration's immigration policies." But the court rejected this claim:

The First Amendment "prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech. If an official takes adverse action against someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim." Nieves v. Bartlett (2019) (citation modified).

To prove First Amendment retaliation, Petitioner must show: (1) he engaged in constitutionally protected activity, (2) Respondents actions injured him such that a person of ordinary firmness would be chilled from engaging in that activity, and (3) Petitioner engaging in his constitutionally protected activity substantially motivated Respondents' retaliatory actions. Under Nieves, plaintiffs must also show the defendant had no probable cause to arrest the plaintiff. Only then may courts analyze the substantial motivation prong. But Nieves exempts the "no-probable cause" requirement when "officers have probable cause to make arrests but typically exercise their discretion not to do so." A plaintiff must present "objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."

Petitioner argues—for the first time in his reply—that the Court should not require him to show Respondents had no probable cause to arrest him, following the Ninth Circuit's approach in Bello-Reyes v. Gaynor (9th Cir. 2021). In , the Ninth Circuit ruled the plaintiff did not need to show the defendants had no probable cause for his immigration bond revocation.  The Ninth Circuit so ruled for two reasons. First, the Ninth Circuit noted that unlike , which arose from a § 1983 claim, involved a habeas petition.  And while it is necessary, in § 1983 suits, "to identify the particular state official or officials who violated the plaintiff's constitutional rights," not so in habeas. Since a habeas petitioner "need not identify a particular violator, only that his confinement is unconstitutional," the Ninth Circuit deemed the "problems of causation that may counsel for a no-probable cause standard are less acute in the habeas context."