Case Name in Immigration Case - Unavailable

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
VIKTAR MAKAREVICH,
Petitioner,
v. No. 1:25-cv-01002-KG-JHR
PAMELA BONDI, et al.,
Respondents.
ORDER
This matter is before the Court on Viktar Makarevich’s Habeas Petition under 28 U.S.C.
§ 2241, Doc. 1, and the Government’s Motion to Dismiss, Doc. 10. For the reasons below, the
Court grants the Government’s motion and dismisses the petition without prejudice.
Mr. Makarevich, a Belarusian citizen, “lawfully entered the United States” in 2019 “with
a B-2 visitor visa.” Doc. 1 at 3. In 2020, “he timely filed an I-589 Application for Asylum and
Withholding of Removal, which remains pending,” based on his “fear of future persecution in
Belarus due to his political opinion and opposition activities.” Id. Mr. Makarevich is employed
as a commercial truck driver and has “no criminal history.” Id.
On September 25, 2025, ICE arrested Mr. Makarevich and placed him in the Torrance
County Detention Facility in New Mexico. Doc. 1 at 2–3. During a bond hearing, an
Immigration Judge (“IJ”) denied Mr. Makarevich’s release, which he timely appealed with the
Board of Immigration Appeals (“BIA”). Doc. 1 at 4. Mr. Makarevich argues that his detention
violates his substantive and procedural due process rights. Doc. 1 at 5–7. The Government
responds that this Court lacks jurisdiction over the petition and that Mr. Makarevich has failed to
exhaust administrative remedies. Doc. 10 at 7–8.
Case 1:25-cv-01002-KG-JHR Document 12 Filed 12/17/25 Page 1 of 3

2
In reviewing a motion to dismiss, the Court “accept[s] as true all well-pleaded factual
allegations” and views them “in the light most favorable” to the petitioner. Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009). A habeas petition must plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. v. Twombly, 550 U.S. 544, 570
(2007); see also Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290 (10th Cir. 2001).
Under 8 U.S.C. § 1226(a), DHS may detain certain noncitizens “on a warrant issued by
the Attorney General” while removal proceedings are pending. Those detainees are entitled to a
bond hearing at which “the burden is on the noncitizen to demonstrate” that release is warranted.
Salazar v. Dedos, 2025 WL 2676729, at *6 (D.N.M.). An IJ’s bond determination is
“discretionary” and “not subject to review.” § 1226(e).
Here, Mr. Makarevich fails to allege facts that, if true, entitle him to relief. He
acknowledges that he received a § 1226(a) bond hearing. See Doc. 1 at 4. Any challenge to the
IJ’s bond determination seeks review of a discretionary judgment that § 1226(e) expressly bars.
Mr. Makarevich contends that, despite receiving a hearing, there is “no administrative
mechanism…to obtain” review of that bond decision “from a neutral arbiter” because ICE
exhibits “substantial bias.” Doc. 1 at 6. The Court disagrees. The IJ’s bond decision is subject
to review by the BIA, a neutral adjudicator within the Department of Justice’s Executive Office
for Immigration Review—indeed, Mr. Makarevich has filed a BIA appeal. See Doc. 1 at 4.
Furthermore, Mr. Makarevich alleges no facts connecting any alleged bias within ICE, a DHS
component, to the decision-making of the IJ or BIA, adjudicators under a separate executive
agency. He therefore fails to state a plausible procedural due process violation.
Mr. Makarevich’s substantive due process claim also fails. He alleges that there is “no
significant likelihood” he will be removed in the reasonably foreseeable future, Doc. 1 at 5, but
Case 1:25-cv-01002-KG-JHR Document 12 Filed 12/17/25 Page 2 of 3

3
that standard applies only to detention under 8 U.S.C. § 1231 after a final order of removal. Mr.
Makarevich is detained under § 1226(a), which governs pre-removal detention, and he alleges no
facts showing that such detention violates substantive due process.
For the reasons above, the Government’s motion, Doc. 10, is hereby GRANTED.
Mr. Makarevich’s habeas petition, Doc. 1, is DISMISSED without prejudice.
IT IS SO ORDERED.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the
NEF (Notice of Electronic Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
Case 1:25-cv-01002-KG-JHR Document 12 Filed 12/17/25 Page 3 of 3