Judge Sets Sept. 30 Hearing, Orders Government to Answer in Austin ICE Shooting Case

Photo: Downtown Austin Skyline — Lady Bird Lake (Wikimedia Commons, CC BY 4.0) — Austin, where the shooting took place; the court hearing is in San Antonio.

A federal judge in San Antonio has set a Sept. 30 hearing on a request from Wilber Rafael Garces Perez’s lawyers to release him and stop his deportation, and has given the government seven days to answer specific questions about his immigration case. The judge has not ruled on that request. Garces Perez, 28, was shot by an ICE officer in Austin on Sunday while delivering for DoorDash, according to KUT.

What the court did

The case is Garces Perez v. Thompson, No. 5:26-cv-06038-OLG, filed Sept. 21, 2026, in the U.S. District Court for the Western District of Texas, San Antonio Division, before Judge Orlando L. Garcia. The filing is a petition for a writ of habeas corpus — a petition asking a federal judge to rule that someone’s detention is unlawful — under 28 U.S.C. § 2241, brought by attorney Kristin Etter. Alongside it, Garces Perez’s lawyers filed a motion for a temporary restraining order — an emergency order that freezes a situation until a judge can hear the arguments — and preliminary injunction asking the court to order “RELEASE AND A STAY OF REMOVAL PENDING FINAL JUDGMENT.” A stay of removal is a court order that stops a deportation from going ahead for now.

Judge Garcia issued two orders on Sept. 21. One, an order for service, directs the respondents to file a response to the petition “within 7 days of electronic service,” identifying “all pertinent factual and procedural background information,” including three listed items: “(a) the date Petitioner entered the United States; (b) whether Petitioner was previously apprehended and then released by immigration authorities; and (c) the status of Petitioner’s immigration and/or removal proceedings.” Garces Perez may reply within seven days after that response is filed.

The second order sets the TRO motion for argument rather than ruling on it. Its entire operative text reads: “This matter is set for an in-person hearing on Wednesday, September 30, 2026, at 12:00 p.m. in Courtroom C on the 2nd Floor of the United States Courthouse, 262 West Nueva Street, San Antonio, Texas, 78207. Petitioner must be present at the hearing.” The order does not use the words stay, block, enjoin or release, and it does not decide the motion.

KUT reported on Tuesday, Sept. 22, that a federal judge “ruled that Wilber Rafael Garces Perez will not face immediate deportation.” Both Sept. 21 orders were signed that day and entered on the docket Sept. 22 — the order for service quoted above and the order setting the Sept. 30 hearing quoted above are their own text, for the reader to weigh against that characterization.

Attorney Kate Lincoln-Goldfinch has said, per CBS News and Newsweek: “A federal judge has granted my emergency order to stop Wilber’s deportation.” Neither Sept. 21 order uses the words emergency, stop or deportation, and neither grants anything; the order for service directs the government to respond to the petition within seven days, and the order on the TRO motion only sets the Sept. 30 hearing. Put plainly: no public order expressly stays or blocks Garces Perez’s removal, as of the docket copy reviewed on the evening of Sept. 22, 2026. The requirement that he be present in person at the Sept. 30 hearing may nevertheless have the practical effect of keeping him available through that date, whatever its legal force. The respondents named in the case include Bobby Thompson, Secretary of Homeland Security Markwayne Mullin, DHS, ICE, the Department of Justice and several immigration officials; the government’s attorney of record, Fidel Esparza III, filed notice on Sept. 22 that he is representing the government in the case.

What a habeas petition does

A petition under 28 U.S.C. § 2241 — the form the federal judiciary publishes for it is AO 242 — is the standard vehicle immigration detainees use to challenge their custody in federal court. Filing one does not, by itself, stop a removal. A court has to separately order a stay, a point a Ninth Circuit court page makes about the habeas process generally, not about this case. Until that happens, or until Judge Garcia rules, the petition and the TRO motion remain pending.

The government’s account

DHS issued a statement Sept. 22 headlined “Correct the Record: DHS Debunks False Narratives About Shooting of Illegal Alien in Austin, Texas.” In it, Secretary Mullin is quoted saying: “Contrary to their claims, this person is an illegal alien who has no legal status to be here and has been given some of the best medical care he’s ever received in his life.”

The release makes two separate assertions about his immigration status: that his work permit “expired in 2025,” and that a Department of Justice immigration judge had entered “a final order of removal” against him — the immigration court’s concluded decision that a person must leave — issued “in absentia,” meaning at a hearing he did not attend. DHS does not say one followed from the other. It also says he “was the subject of a targeted vehicle stop,” that he “is receiving medical care around the clock, including pain medication,” and that after being released from the hospital he “arrived at the detention facility just a few hours later, where he slept on a bed.” Garces Perez told reporters, per CBS News, that he was being held in a cold room with no bed. DHS’s own newsroom page carried the release as of Sept. 23; ICE’s separate newsroom index, checked the same day, listed nothing naming Austin or Garces Perez.

His account

Garces Perez was shot while driving for DoorDash in north Austin on Sunday afternoon, Sept. 20, according to KUT. He told CBS News: “I am not doing well, and I am not receiving the medical attention that I require.” His lawyers say he is being held with a bullet still in his back, that his clavicle was fractured, and that he remains in pain and is not getting the care he needs. He is being held at a detention facility in Pearsall, according to KUT, which reported in an editor’s note that he was briefly taken to a hospital Monday evening before being returned there. NBC News has reported that the officer had been issued a body camera and was not wearing it.

The videos

On Tuesday, Sept. 22, Austin’s mayor and police chief held a news conference, and the Austin Police Department released three videos: dashboard and cellphone footage from an off-duty Austin detective who saw federal agents stop Garces Perez about 14 minutes before the shooting, and body-camera footage from the first Austin police officer on the scene afterward, according to the department and reporting from CBS Austin and the Austin American-Statesman. Per the department, there was a vehicle pursuit through nearby neighborhoods during those 14 minutes, and it says it has no evidence of a foot chase. Investigators have not said what happened between the stop and the shooting.

What is disputed

Whether he tried to evade arrest. DHS describes “a targeted vehicle stop” and says Garces Perez was “resisting officers and evading arrest”; the Austin Police Department says it has no evidence of a foot chase, while confirming there was a vehicle pursuit through nearby neighborhoods in the minutes before the shooting.
His medical care. Garces Perez says he is not getting the care he needs; DHS says he is receiving around-the-clock care, including pain medication.
His immigration status. DHS says a final removal order was entered in absentia and, separately, that his work permit had expired. The court’s own service order directs the government to respond to the petition — including the status of his immigration and removal proceedings — within seven days of service, meaning that record is not yet before the court.
Whether the deportation was “blocked.” His attorney has said a judge granted “an emergency order to stop Wilber’s deportation”; no order in the docket uses those words, and the framing has circulated in headlines that attribute it to Garces Perez’s attorney.

What happens next

The order for service gives the government seven days from electronic service to respond to the petition, and gives Garces Perez seven days after that response is filed to reply. Rep. Greg Casar, D-Texas, sent a letter to DHS on Sept. 20 demanding the department’s cooperation with an “immediate, independent investigation,” the full release of any footage of the shooting, and accountability for any wrongdoing by the agent responsible, according to his own press release. Casar is also demanding that DHS and ICE brief him and his congressional colleagues by Monday, Sept. 28, on whether protocols were followed, and is demanding that ICE leave Austin. Judge Garcia has not indicated how he will rule.

This account is based on the public docket as reviewed on the evening of Sept. 22, 2026, the court’s Sept. 21 orders, DHS’s Sept. 22 statement, and reporting from KUT and CBS News; it does not reflect anything filed after that.