Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JEAN CARLOS ALEXI FIALLOS 	)
MANZANARES, 	)
)
Petitioner, 	)
)
v. 	) 	Case 2:25-cv-00798-KWR-KRS
)
JOSE ORTEZ, Field Office Director Immigration 	)
and Customs Enforcement (ICE) Department of 	)
Homeland Security, 	)
)
Respondent. 	)
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on pro se 1 Petitioner Jean Carlos Alexi Fiallos
Manzanares (“Petitioner”) Petition under 28 U.S.C. § 2241 for a Writ of Habeas Corpus
(“Petition”), (Doc. 1), which he filed through his sister Marily Fiallos (“Ms. Fiallos”), on August
8, 2025. On January 23, 2026, Respondent filed a response. (Doc. 11). Petitioner did not file a
reply by the February 13, 2026, deadline. (Doc. 5 at 2) (optional reply due twenty-one (21) days
after response filed).2 United States District Judge Kea W. Riggs referred this case to me pursuant
to 28 U.S.C. §§ 636(b)(1)(B) and (b)(3) “to conduct hearings, if warranted, including evidentiary
hearings, and to perform any legal analysis required to recommend to the Court an ultimate
disposition of the case.” (Doc. 6); see also Va. Beach Fed. Sav. & Loan Ass’n v. Wood, 901 F.2d
849 (10th Cir. 1990). Having considered the parties’ submissions, the relevant law, and the record
1 Petitioner is a pro se litigant and, as such, his “pleadings are to be construed liberally and held to a less stringent
stand than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). It is not the
proper function of this Court, however, to assume the role of pro se Petitioner’s advocate. Id.
2 Rule 5 of the Rules Governing § 2254 Cases provides that Petitioner may submit a reply to Respondent’s response
or answer within a time that the judge fixes.
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in this case, I conclude that Petition is not entitled to relief. I therefore recommend that the Court
DENY Petitioner’s Petition, (Doc. 1), without prejudice.
I. 	FACTUAL BACKGROUND
Petitioner, a 31-year-old citizen and national of Honduras, is a recipient of Deferred Action
for Childhood Arrivals (“DACA”), a status he has held since applying for the program in or around
November 29, 2022. (Doc. 11-2 at 1-2). The exact date of Petitioner’s arrival to the United States
is unknown, but it was approximately 24 years ago, when he was seven (7) years old. See (Doc. 1
at 4); see also (Doc. 11-2 at 2). Petitioner has lived continuously in the United States since his
arrival. (Doc. 1 at 4). While living in this country, Petitioner has become a father to two children
with his wife, a naturally born U.S. citizen. (Id.); see also (Doc. 1 at 14-17). On April 17, 2025,
the U.S. Citizenship and Immigration Services (“USCIS”) received Petitioner’s Form I-812D,
Consideration of DACA. (Doc. 1 at 11); see also (Doc. 11-6 at 1). The record does not state whether
Petitioner’s DACA status lapsed during the review period.
On May 30, 2025, a Homeland Security Investigations (“HSI”) special agent observed
Petitioner exiting a residence in Miami, Florida, and entering into a white Ford van. (Doc. 11-2 at
2). HSI, the Drug Enforcement Administration (“DEA”), and the Federal Bureau of Investigations
(“FBI”) conducted a vehicle stop of the white Ford van wherein Petitioner presented an expired
Florida driver’s license. (Id.) Petitioner was subsequently arrested and transported to a Miami
processing center where the Department of Homeland Security (“DHS”) issued a Notice to Appear
(“NTA”), commencing immigration proceedings against Petitioner based on an allegation that he
is an “arriving alien” subject to removal “ pursuant to the Immigration and National Act (“INA”)
§ 212(a)(6)(A)(i), codified at 8 U.S.C. § 1182(a)(6)(A)(i). (Id.); see also (Doc. 11-1 at 1); (Doc.
11-2 at 1). Petitioner was then transferred to Otero County Processing Center (“OCPC”) in
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Chaparral, New Mexico, where he is currently detained.3 (Doc. 1).
On or about June 13, 2025, an Immigration Judge (“IJ”) conducted an in custody
redetermination proceeding pursuant to 8 C.F.R. § 1236 and denied Petitioner’s request on the
basis that he did “not me[e]t his burden of showing that he is not a danger to the community.”
(Doc. 11-3 at 1).4 Petitioner’s appeal was due July 14, 2025. (Id. at 2). The record is void of any
evidence that Petitioner appealed the IJ’s bond decision.
On July 19, 2025, USCIS issued an Approval Notice of Petitioner’s Consideration of
DACA, valid from July 19, 2025, to July 18, 2027. (Doc. 11-6 at 1). The Approval Notice
specifically provided:
USCIS, the in the exercise of its prosecutorial discretion, has decided to defer action
in your case. Deferred action is an exercise of prosecutorial discretion by USCIS
not to pursue the removal of an individual from the United States for a specific
period. Deferred action does not confer or alter any immigration status.
Unless terminated, this decision to defer removal action will remain in effect for
the duration of the validity of the period noted above.
(Id.)
On September 22, 2025, an IJ issued an oral and written decision finding Petitioner
“inadmissible under the following Section(s) of the [INA]: (212)(1)(6)(A)(i). (Doc. 11-4 at 2-3).
The IJ further denied the cancellation of Petitioner’s removal for nonpermanent residents under
3 https://locator.ice.gov/odls/#/search last visited May 28, 2026.
4 The Court, sua sponte, takes judicial notice of Matter of Jonathan Javier Yajure Hurtado, 29 I. & N. Dec. 216
(BIA), 2025 WL 2674169 (Sept. 5, 2025), for the finding that Petitioner received a custody redetermination hearing
under 8 U.S.C. § 1226 approximately three (3) months prior to the holding in Matter of Hurtado. See Matter of
Jonathan Javier Yajure Hurtado, 29 I. & N. Dec. 216 (BIA), 2025 WL 2674169 (Sept. 5, 2025) (IJ holding that he
lacked jurisdiction to hear a bond request because the respondent was subject to mandatory detention). As this District
has explained in similar cases, a policy directive issued under the current executive administration led to a decision
from the BIA on September 5, 2025, in Hurtado, which held that immigration judges lack authority to hear bond
requests of noncitizens present in the United States without inspection and admission because those individuals were
classified under 8 U.S.C. § 1225(b)(2) and thus subject to mandatory detention. Like almost all courts to have
considered the issue, this District has rejected Hurtado. Nevertheless, the undersigned finds Hurtado is inapplicable
to the instant matter because Petitioner received a bond hearing prior to the BIA’s holding in Hurtado.
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INA § 240A(b)(1). (Id. at 4). Petitioner was therefore ordered removed to Honduras. (Id. at 5).
On October 17, 2025, USCIS notified Petitioner that it “will not defer” removal in his case
because “USCIS lacked the authority to approve [his] request because [he was] in immigration
detention as of the date of [USCIS’] adjudication” pursuant to 8 C.F.R. § 236.23(a)(2). (Doc. 11-
7 at 1). Consequently, Petitioner’s deferred action under DACA was denied and he was not
permitted to file an appeal or move to reopen USCIS’ decision under 8 C.F.R. § 236.23(c)(3). (Id.)
On October 22, 2025, Petitioner appealed the order of removal before the Board of
Immigration Appeals (“BIA”), which is currently pending.5 (Id. at 6); (Doc. 11-5 at 1-2).
Accordingly, the IJ’s September 22, 2025, order of removal is not administratively final. 6
II. 	PROCEDURAL BACKGROUND
On August 18, 2025, Ms. Fiallos filed the Petition on behalf of her brother, Petitioner.
Petitioner is currently detained at OCPC in Chaparral, New Mexico. (Doc. 1). Petitioner challenges
his detention on the ground that he has lawful status as an Approved DACA recipient. (Id. at 3-4)
(Count I). Petitioner seeks his immediate release based on his DACA status alone. (Id. at 10). The
Petition does not raise any other grounds for relief.
Respondent’s asserts four arguments in response. First, Ms. Fiallos should not be permitted
to proceed as “Next Friend” because she has not presented any evidence that Petitioner cannot
appear on his own behalf. (Doc. 11 at 7). Further, she has not shown that Petitioner lacks “a
complete inability to access the courts” as is required under Whitmore v. Ark., 495 U.S. 149, 164
(1990).(Id. at 8). Second, Petitioner has not exhausted his administrative remedies because his
appeal is still pending before the BIA and, hence, there is no final removal order. (Id. at 8-9). Third,
5 https://acis.eoir.justice.gov/en/caseInformation last visited May 28, 2026 (reflecting an appeal to the removal order
was filed on October 22, 2025, and no final order has been filed).
6 A removal order becomes “administratively final” when the order has been affirmed by the BIA or the time for
seeking review has expired. 8 U.S.C. § 1101(a)(47)(B); Riley v. Bondi, 606 U.S. 259, 267 (2025).
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Petitioner was detained under Section 1226 and received a custody redetermination hearing prior
to the Hurtado decision. (Id. at 9). Petitioner was not, and is not, being held under Section 1225.
(Id.) Further, on June 13, 2025, the IJ denied Petitioner’s request for bond finding that he failed to
meet his burden of showing he is not a danger to the community. (Id.) And fourth, the Court is
jurisdictionally barred to review the IJ’s “discretionary judgment[s] regarding the application of
[Section 1226].” (Id. at 10). In support, Respondent cites Section 1226(e), which provides, “[n]o
court may set aside any action or decision by [ICE] under this section regarding the detention of
any alien or the revocation or denial of bond or parole.” (Id.) (citing 8 U.S.C. § 1226(e)).
On May 13, 2026, Ms. Fiallos filed a Motion for Preliminary Injunction Seeking Immediate
Release from [United States Immigration and Customs Enforcement (“ICE”)] Detention (“Motion
for Prelim. Injunction”), (Doc. 13). Ms. Fiallos seeks Petitioner’s immediate release based on due
process violations and prolonged detention contradictory to the holdings of Zadvydas v. Davis and
Jennings v. Rodriguez. (Id. at 1). She initially argues that Petitioner’s detention is governed by
Section 1226(a) and, thus, “indefinite or unreasoned” detention is not permissible pursuant to
Zadvydas and Jennings. (Id. at 2).
On May 13, 2026, Ms. Fiallos also filed two untimely replies, (Docs. 1 and 15).7 In the
First Reply, (Doc. 14), Ms. Fiallos challenges Respondent’s contention that she does not satisfy
the “Next of Friend Standing requirements” set forth in Whitmore v. Ark., 495 U.S. 149, 164
(1990). (Doc. 14 at 1). Ms. Fiallos asserts, without evidence or legal citations, that she is
“Petitioner’s sister and closest available advocate outside detention” to ensure Petitioner receives
“due process,” “to defend his liberty,” and “prevent ongoing violations of law.” (Id. at 2). She
7 Fiallos titled (Doc. 14), “Supplemental Memorandum in Support of Next Friend Standing.” She titled the first page
of (Doc. 15) as, “Petition for Writ of Habeas Corpus.” (Doc. 15 at 1). The second page is titled, “Petitioner’s Reply to
Respondents’ Answer in Support of Habeas Corpus Relief.” (Id. at 2). For brevity and clarity purposes, the Court
refers to the untimely replies as “First Reply,” (Doc. 14), and “Second Reply,” (Doc. 15), respectively
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further summarily claims that Petitioner’s detainment “severely limits his ability to . . .
communicate consistently, prepare legal filings, respond to complex legal arguments, [and] protect
his own constitutional rights.” (Id. at 3).
In the 176-page Second Reply, (Doc. 15), Ms. Fiallos contends—for the first time—that
Petitioner is being detained in violation of the Fifth Amendment. (Doc. 15 at 2, 6). She maintains
her “Next Friend” status for the same reasons articulated in the Supp. Memorandum. (Id. at 3). She
next argues, for the first time, that Petitioner challenges his detention and not his removal and, for
this reason, the Court should waive the administration exhaustion prerequisite. (Id. at 3-4). In
support, she conclusory states that the Petitioner is suffering irreparable harm while he is detained
pending an administrative final order. (Id. at 4). Next, Ms. Fiallos asserts that USCIS’ revocation
of Petitioner’s DACA status is arbitrary and violates due process. (Id. at 4-5). With respect to
Petitioner’s July 2025 bond hearing, Ms. Fiallos claims Zadvydas v. Davis and Jennings v.
Rodriguez hold that Petitioner should be released because his detention is not reasonable nor
justified. (Id. at 5, 9). Finally, Ms. Fiallos contends Section 1226(e) does not bar habeas review
because Petitioner raised Fifth Amendment due process claims. (Id. at 6-7). As a direct result,
Petitioner should be entitled to a second bond hearing because he is not a danger to society or a
flight risk. (Id. at 6).
On May 18, 2026, Respondent responded to the Motion for Prelim. Injunction. (Doc. 16).
Respondent argues that a decision on the merits of the Petition is ripe for the Court and, hence, an
abbreviated process through a preliminary injunction is improper. (Id. at 1-2).
III. 	LEGAL STANDARD
This Court has jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to
immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). The Constitution guarantees
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that “absent suspension, the writ of habeas corpus remains available to every individual detained
within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const. art. I,
§ 9, cl. 2). A habeas petition under 28 U.S.C. § 2241 “challenges ‘the fact or duration of a prisoner’s
confinement and seeks the remedy of immediate release or a shortened period of confinement.’”
Leatherwood v. Allbaugh, 861 F.3d 1034, 1041 (10th Cir. 2017) (quoting McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)). “Habeas corpus is a civil proceeding and the burden
is upon the petitioner to show by a preponderance of the evidence that [she] is entitled to relief.”
Sa’Ra v. Raemisch, 536 F. App’x 783, 788 (10th Cir. 2013) (quoting Beeler v. Crouse, 332 F.2d
783, 783 (10th Cir. 1964)). A federal court may grant a writ of habeas corpus to a petitioner who
demonstrates that he is in custody in violation of the Constitution or federal law. 28 U.S.C. §
2241(c)(3). “Challenges to immigration detention are properly brought directly through habeas.”
Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas, 533 U.S. at 687-
88). Because Petitioner challenges the legality of his continued detention, his claim falls squarely
within the scope of § 2241.
IV. 	DISCUSSION
A. 	The Court Recommends Striking Petitioner’s Untimely Replies (Docs. 14 and
15) to the Extent Petitioner Attempts to Amend or Supplement the Petition
As a preliminary matter, to the extent Petitioner’s First Reply and Second Reply are
directed at Respondent’s response, (Doc. 11), the Court recommends considering those documents.
Otherwise, the Court recommends that any additional claims and new requests for relief in the
First Reply and Second Reply, be stricken as an attempt to improperly amend or supplement the
original Petition.
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial.
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See also 28 U.S.C. § 2242 (an application of writ of habeas corpus “may be amended or
supplemented as provided in the rules of procedure applicable to civil actions”); Rules 1(b) and 12
of the Rules Governing Section 2254 Proceedings for the United States District Courts (applying
the rules to other habeas corpus petitions and applying the Federal Rules of Civil Procedure).
Because more than 21 days has elapsed since the original petition was served and since Respondent
filed a response to the Petition, Rule 15(a)(1), which governs when a party may amend a pleading
as a matter of course, does not apply. Instead, Rule 15(a)(2) applies. Under Rule 15(a)(2),
Petitioner may amend his petition “only with the opposing party’s written consent or the court’s
leave.” Fed. R. Civ. P. 15(a)(2). Because Petitioner did not obtain the opposing party’s written
consent or leave of the Court, Rule 15(a)(2) does not apply. Nor does Petitioner or Ms. Fiallos cite
to any other rule or authority that would empower him to file a second habeas petition at this stage
of the proceedings and without consent of Respondent or this Court.
To the extent Petitioner is seeking to supplement his original Petition, I again recommend
rejecting his attempt. Under Rule 15(d), “on motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented.” Here, Petitioner did not
move to supplement his original Petition, instead simply filing two untimely documents, one of
which raises new claims under the Due Process Clause of the Fifth Amendment. Further, the First
Reply and the Second Reply do not appear to set out any transaction, occurrence, or event that
happened after the date of the original Petition. The Court, therefore, recommends not considering
Petitioner’s additional and new claims, including the Due Process Clause of the Fifth Amendment
set forth in the Second Reply, because they are filed in violation of Rule 15.
B. 	The Court Lacks Jurisdiction because the Petition Does Not Sufficiently
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Establish Next Friend Standing
Before proceeding to the merits of the Petition, the Court must also determine whether Ms.
Fiallos may proceed as the “Next Friend” of Petitioner. A petition for a writ of habeas corpus must
be in writing and “signed and verified by the person for whose relief it is intended or by someone
acting in [her] behalf,” known as a “next friend.” 28 U.S.C. § 2242; Whitmore, 495 U.S. at 163;
see also Advisory Committee Note to Habeas Corpus Rule 2(c)(5) (“The Committee envisions that
the courts would apply [the] . . . ‘next friend’ standing analysis [set forth in Whitmore] in deciding
whether the signer was actually authorized to sign the motion on behalf of the movant.”). “A ‘next
friend’ does not [herself] become a party to the habeas corpus action in which [she] participates,
but simply pursues the cause on behalf of the detained person, who remains the real party in
interest.” Whitmore, 495 U.S. at 163 (citations omitted). Next friend status, therefore, is an
exception to 28 U.S.C. § 1654, which states: “In all courts of the United States the parties may
plead and conduct their own cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein.” 28 U.S.C. § 1654.
To act on a detainee’s behalf, the putative next friend: (1) “must provide an adequate
explanation—such as inaccessibility, mental incompetence, or other disability—why the real party
in interest cannot appear on his own behalf to prosecute the action;” and (2) “must be truly
dedicated to the best interests of the person on whose behalf he seeks to litigate.” Whitmore, 495
U.S. 149 at 163. The putative next friend might demonstrate her dedication to the “best interests”
of the real party in interest by showing “some significant relationship” with that party. Id. at
164. The putative next friend must also clearly establish “the propriety of his [or her] status” in
order to “justify the jurisdiction of the court.” Id. (citations omitted). Standing to proceed as next
friend on behalf of a prisoner “is by no means granted automatically to whomever seeks to pursue
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an action on behalf of another.” Id. at 16
“[A] next-friend may not file a petition for a writ of habeas corpus on behalf of a detainee
if the detainee himself could file the petition.” Wilson v. Lane, 870 F.2d 1250, 1253 (7th Cir.
1989) (citing Weber v. Garza, 570 F.2d 511, 513 (5th Cir. 1978)). The putative next friend “must
clearly and specifically set forth facts sufficient to satisfy the[] Art[icle] III standing requirements”
because “[a] federal court is powerless to create its own jurisdiction by embellishing otherwise
deficient allegations of standing.” Whitmore, 495 U.S. at 155-56 (citation omitted). If the next
friend fails to adequately demonstrate why the petitioner is unable sign and verify the petition, the
Court is without jurisdiction to consider it. Id.; see also Jiron v. Swift, 671 Fed. App’x 705, 706
(10th Cir. 2016) (denying certificate of appealability and dismissing appeal of “next friend” who
failed to satisfy the Whitmore factors for next friend standing); see also Weber, 570 F.2d at 514
(finding the court is without jurisdiction to consider the habeas petition if “the application for
habeas corpus filed by a would be ‘next friend’ does not set forth an adequate reason or explanation
of the necessity for resort to the ‘next friend’ device putative next friend must); see also Whitmore,
495 U.S. at 163.
Here, there is no dispute that the next friend, Ms. Fiallos, has a significant relationship to
Petitioner and is dedicated to his best interests, as his sister. Rather, Respondent disputes whether
the first prong of the Whitmore test is met: he argues there is no evidence demonstrating that
Petitioner cannot appear on his own behalf and his “temporary unavailability” is insufficient to
establish inaccessibility. (Doc. 11 at 7-8) (citing J.B. ex rel. K.E. v. Charley, No. 21-632 MV-SCY,
2021 WL 5768907, at *2 (D.N.M. Dec. 6, 2021) (denying a mother “next friend” standing because
the court relied on the absence of a showing “a complete inability to access the courts”). The
Petition states Petitioner “remains detained” despite “[h]is immigration attorney . . . [advising] the
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Immigration Judge and the ICE attorney that [Petitioner’s] DACA has been approved . . . .” (Doc.
1 at 4). Ms. Fiallos, however, contends a finding of “next friend” is warranted because Petitioner’s
“detention imposes substantial practical limitations on his ability to litigate this matter effectively
on his own behalf” because he “lacks meaningful access to legal resources.” (Doc. 14 at 2); see
also (Doc. 15 at 3) (arguing Petitioner’s detainment “inherently limits: access to legal resources,
ability to prepare filings, communication with the Court. Detention itself constitutes a sufficient
practical barrier.”).
The foregoing statements raise some concerns with this Court. On one hand, the Petition
intimates Petitioner has an “immigration attorney.” On the other hand, Petitioner’s replies assert
he is “inherently limit[ed]” to file on his own behalf because of a “lack of access” to legal resources
and the Court. Yet, on May 17, 2026, Petitioner filed a typed and signed letter with the Court. See
(Doc. 17). It is thus not clear why Petitioner must resort to a next friend when it appears he either
has access to an attorney and/or he can prepare a document and file with the Court on his own
behalf. For these reasons, The Court finds the Petition does not “clearly and specifically set forth
facts” to establish next friend standing. The Court thus recommends dismissal without prejudice
for failure to establish standing to file on behalf of Petitioner.8
C. 	USCIS Lawfully Exercised Its Discretionary Authority to Revoke Petitioner’s
DACA Status Pursuant to Section 236.23(a)(2)
Petitioner initially contends that he is entitled to immediate release because he is an
Approved DACA recipient and, pursuant to Section 1226(a), his continued detention is not
appropriate. (Doc. 1 at 3); (Doc. 15 at 4-6); see also (Doc. 13 at 2). Petitioner did not explicitly
8 Because the Court has determined that Ms. Fiallos lacks standing to bring the Petition the Court need not address
Petitioner’s additional arguments. The Court, however, will address Petitioner’s remaining arguments to ensure a
thorough review of the Petition.
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raise any constitutional arguments in the Petition. See (Doc. 1). In the Second Reply, however,
Petitioner argues for the first time that his DACA status is relevant because it “undermine[s] [the]
justification for detention” and violates his due process rights. (Doc. 15 at 4-5). Respondent
counters that an individual’s DACA status does not automatically confer a right “to remain in or
reenter the United States.” (Doc. 11 at 9). Moreover, the plain language of Section 236.23(a)(2)
provides that an individual’s DACA status may be revoked, without notice, if the individual is
detained by ICE prior to the USCIS’ decision. (Id.)
For the reasons previously addressed, the Court finds Petitioner’s untimely constitutional
arguments are improper and recommends striking them. See Section IV. A. The Court, however,
finds that Petitioner raised a timely claim as to whether USCIS’ revocation of his deferred action
was legally sufficient.
On June 15, 2012, the Secretary of DHS announced the DACA policy, authorizing deferred
action on a case-by-case based for certain individuals who were brought to the United States as
children, met specific educational and public-safety criteria, and passed background checks. Mem.
From Janet Napolitano, Sec’y of DHS, Exercising Prosecutorial Discretion with Respect to
Individuals Who Came to the United States as Children (June 15, 2012). Pursuant to DACA, ICE
“exercise[s] prosecutorial discretion [] on an individual basis . . . by deferring action for a period
of two years, subject to renewal.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S.
1, 10 (2020). Those who meet DACA’s criteria are thus granted ‘affirmative . . . relief’ from
removal.” Enriquez-Perdomo v. Newman, 54 F.4th 855, 863 (6th Cir. 2022) (citing Regents, 591
U.S. at 10).
Moreover, DACA recipients, like Petitioner, are treated as lawfully present for the period
of deferred action. 8 C.F.R. § 236.23(d) (2024); 87 Fed. Reg. at 53, 177-80; see also Texas v. United
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States, 809 F.3d 134, 166 (5th Cir. 2015), aff’d by an equally divided Court, 579 U.S. 547 (2016)
(“Deferred action . . . is much more than nonenforcement: It . . . affirmatively confer[s] ‘lawful
presence’ and associated benefits . . . .”).
In 2022, DHS promulgated a final rule codifying DACA’s structure, adjudicative standards,
collateral consequences, and termination procedure. Deferred Action for Childhood Arrivals, 87
Fed. Reg. 53, 152 (Aug. 30, 2022) (codified at 8 C.F.R. §§ 236.21-236.23). The rule defined
deferred action as “a form of enforcement discretion not to pursue removal 	of certain
[noncitizens],” or a “temporary forbearance from removal.” 8 C.F.R. § 236.21(c)(1).
The regulations also lay out specific procedures by which an alien’s DACA protections
may be terminated. 8 C.F.R. § 236.23(d). USCIS has exclusive jurisdiction to consider DACA
applications, and it alone may terminate an alien’s DACA protections. 8 C.F.R. § 236.23(a)(2), (d).
With very few exceptions for national security and public safety offenses not applicable to
Petitioner, USCIS may only terminate a non-detainee’s grant of DACA protections after providing
them with a Notice of Intent to Terminate and an opportunity to respond prior to termination. 8
C.F.R. § 236.23(d)(1). Relevant here, however, USCIS in its sole discretion “may not [] approve”
an application or renewal for DACA if the alien applicant is in immigration detention at the time
USCIS issues a decision on the DACA request or renewal. 8 C.F.R. § 236.23(a)(2).
In this matter, USCIS received Petitioner’s Form I-821D Consideration of DACA renewal
application on May 17, 2025. (Doc. 1 at 11). Petitioner has been detained since May 30, 2025. (Id.
at 4). USCIS issued an Approval Notice of Deferred Action on July 19, 2025, that was valid to
July 18, 2027. (Id. at 11). The Approval Notice of Deferred Action provides, in relevant part,
Unless terminated, this decision to defer removal action will remain in effect for
the duration of the validity period noted above. . . .
NOTICE: USCIS and [DHS] reserve the right to verify the information submitted
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in this request and/or supporting documentation to ensure conformity with
applicable laws, rules, regulations, and other authorities. . . . Information obtained
during the course of the verification will be used to determine whether termination
of deferred action and/or removal proceedings are appropriate . . . .”
(Id.). On October 17, 2025, USCIS issued a Decision terminating Petitioner’s DACA status
without an opportunity to be heard. (Doc. 11-7). In the Decision, USCIS determined that, pursuant
to Section 236.23(a)(2), it lacked authority to approve Petitioner’s Form I-821D, Consideration of
DACA because he was “in immigration detention as of the date of this adjudication [July 17,
2025].” (Id.) Further, based on “its unreviewable discretion,” Petitioner had not demonstrated that
he warranted “a favorable exercise of prosecutorial discretion” to “defer action” in Petitioner’s
case. (Id.)
Petitioner has not proffered, and the Court has not found any authority, supporting
Petitioner’s contention that USCIS’ discretionary revocation of Petitioner’s DACA status under
the circumstances in this case warrants habeas relief. The undisputed facts in the record establish
that USCIS revocation complied with Section 236.23(a)(2). Accordingly, the Court recommends
denying the Petition as to Petitioner’s claim that his DACA status prohibited detainment.9
D. 	Petitioner has Not Exhausted His Administrative Remedies Nor has He
Demonstrated Exhaustion is Futile
To begin, to the extent Respondents argue that a detainee is required to exhaust his
administrative remedies before a court can order habeas relief, this Court is not persuaded.
Petitioners are ordinarily required to exhaust their administrative remedies prior to seeking a writ
9 The Court notes that in this District, the Courts have found petitioners have granted habeas petitions and/or motions
for temporary restraining orders for DACA recipients who were detained while they had a valid Notice of Deferred
Action. See Hernandez-Cruz v. Anda-Ybarra, No. 26-0486 JB/LF, 2026 LX 123127 (D.N.M. Mar. 31, 2026) (adopting
Proposed Findings and Recommended Disposition in Hernandez-Cruz v. Anda-Ybarra, No. 2:26-cv-00486-JB-LF,
2026 LX 145006 (D.N.M. Mar. 23, 2026)); see also Gamez Lira v. Noem, No. 1:25-CV-00855-WJ-KK, 2025 U.S.
Dist. LEXIS 173818, 2025 WL 2581710 (D.N.M. Sept. 5, 2025). Those cases are distinguishable, however, because
the petitioners properly and timely raised procedural and substantive due process claims. Hence, the Court
recommends denying the Petition without prejudice to allow Petitioner to reassess his constitutional claims.
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under 28 U.S.C. § 2241, but exhaustion is not a statutory requirement. Garza v. Davis, 596 F.3d
1198, 1203 (10th Cir. 2010); see also Soberanes, 388 F.3d at 1310–11 (Although appealing to the
BIA normally is required to obtain subsequent judicial review, exhaustion deficiencies do not affect
habeas jurisdiction over challenges to immigration detention.). As another court within the Tenth
Circuit recently explained in the context of an immigration habeas matter, “exhaustion is typically
nonjurisdictional, and courts treat a rule as jurisdictional only if Congress clearly states that it is.”
Salvador F.-G. v. Noem, No. 25-CV-0243-CVE-MTS, 2025 WL 1669356, at *6 (N.D. OK. June
12, 2025) (citation modified) (quoting Santos-Zacaria v. Garland, 598 U.S. 411, 416–17 (2023)).
Further, the Tenth Circuit has not addressed whether the exhaustion requirement applies in the
immigration context, and the INA only explicitly requires exhaustion of administrative remedies
when challenging a final removal order. See 8 U.S.C. § 1252(d)1); see also Gonzales v. O’Connell,
355 F.3d 1010, 1016 (7th Cir. 2004) (explaining that administrative exhaustion applies to
challenges of final orders of removal but not to challenges to preliminary custody or bond
determinations). “[W]here Congress [has] not clearly required exhaustion, sound judicial
discretion governs.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (requiring courts to weigh
the institutional interests in exhaustion against the individual interests in prompt judicial review).
“A narrow exception to the exhaustion requirement applies if a petitioner can demonstrate that
exhaustion is futile.” Garza, 596 F.3d at 1203.
Petitioner brings this habeas Petition while appeal of his removal order is pending before
the BIA. Notably, Petitioner does not raise any futility arguments in the Petition. In the Second
Reply, for the first time, Petitioner argues exhaustion is futile but offers only conclusory statements
that “prolonged detention is unconstitutional” and “detention [may not] continue by default.” (Doc.
15 at 6). The Court concurs with Respondent that Petition has failed to exhaust his administrative
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remedies and sufficiently establish that exhaustion is futile. The Court thus recommends denying
the Petition on this ground.
E. 	The Court Lacks Jurisdiction over Discretionary Bond Denial Decisions under
§ 1226 and Petitioner Has Not Properly Pled a Constitutional Challenge
The INA establishes distinct detention regimes depending on whether a noncitizen is
“seeking admission” to the United States. See Jennings v. Rodriguez, 583 U.S. 281, 288-89 (2018).
Relevant here, Section 1226(a) authorizes the arrest and detention, “on a warrant issued by the
Attorney General,” of noncitizens “pending a decision on whether [they are] to be removed.”
Noncitizens detained under this second detention regime are “entitled to individualized bond
hearings at the outset of detention.” Salazar v. Dedos, 806 F. Supp. 3d 1231, 1239 (D.N.M. 2025).
It is undisputed that Petitioner is being detained pursuant to Section 1226. See (Doc. 11 at
9); see also (Doc. 13 at 2). Petitioner also acknowledges that an IJ conducted a bond hearing on
June 13, 2025, and denied bond because Petitioner did not meet his burden of proof that he is not
a danger to society. (Doc. 15 at 5). He further concedes that he cannot seek habeas relief based on
discretionary bond denial decisions. (Id.) Nevertheless, in the Second Reply, Petitioner argues he
has timely raised a constitutional challenge to his bond hearing because he is subject to an
“indefinite detention” pending his removal appeal. (Id. at 5-6). Construing the Second Reply
liberally, Petitioner summarily argues that Respondent has not met his burden to establish
Petitioner is a danger to society or flight risk. (Id. at 6).
Section 1226(e) states: “the Attorney General’s discretionary judgment regarding the
application of this section shall not be subject to review.” This language permits courts to review
the constitutionality of “legislation authorizing [a petitioner’s] detention without bail.” See Demore
v. Kim, 538 U.S. 510, 517 (2003) (The “clear text [of § 1226(e)] does not bar respondent’s
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constitutional challenge . . . .”); see also Jennings v. Rodriguez, 583 U.S. 281, 295 (2018)
(Observing that “§ 1226(e) does not preclude ‘challenges [to] the statutory framework that permits
[the alien’s] detention without bail.’“) (alternations in original); Mwangi v. Terry, 465 F. App’x
784, 787 (10th Cir. 2012); Hernandez-Lara v. Lyons, 10 F.4th 19, 41 (1st Cir. 2021). But this Court
lacks jurisdiction under § 1226(e) to review discretionary judgments in bond hearings. Jennings,
583 U.S. at 295 (“As we have previously explained, § 1226(e) precludes an alien from
‘challeng[ing] a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that the Attorney
General has made regarding his detention or release.’“) (alteration in original); Mwangi, 465 F.
App’x at 787 (“[T]o the extent [the petitioner] challenges the agency’s discretionary bond decision,
the magistrate judge was correct that the court lacked jurisdiction.”).
As an initial matter, the Court reaffirms its prior recommendation to strike Petitioner’s due
process claims raised—for the first time—in the untimely Second Reply. See Section IV.A.
Accordingly, the Court recommends denying the Petition on this ground.
Notwithstanding, the Court further finds Petitioner does not challenge the constitutionality
of his bond hearing or the statutory framework. Petitioner attempts to frame his argument as an
attack on the constitutionality of his “indefinite detention.” See (Doc. 15 at 5-6). But the Court
finds his argument is properly understood as a request to review whether the IJ properly weighed
the government’s evidence—or lack thereof. (Id. at 6) (asserting lack of new evidence warranting
denial of a bond versus evidence in support of granting a bond). That is a challenge to the
discretionary decision of the IJ, not a constitutional challenge. The Court also may not take on the
role of advocate and craft arguments pertaining to the constitutionality of Petitioner’s bond hearing
or the statutory framework. See United States v. Hernandez, 627 F.3d 1331, 1335 (10th Cir. 2010);
see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Hence, the Court recommends
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finding Petitioner’s claim for relief based on detention without a second bond hearing is
jurisdictionally barred pursuant to Section 1226(e).
F. 	Petitioner’s Continued Detention Arguments Lack Merit10
Petitioner briefly, and without authority, alleges that under Zadvydas v. Davis and Jennings
v. Rodriguez his continued detention is unconstitutional. (Doc. 15 at 5-6). As explained by Chief
Judge Gonzales,
Under the Immigration and Nationality Act (“INA”), when a noncitizen is ordered
removed, the Government must execute the removal within a 90-day “removal
period.” 8 U.S.C. § 1231(a)(1)(A). “During the removal period, the Attorney
General shall detain the alien.” § 1231(a)(2). As relevant here, the “removal period
begins” when the removal order “becomes administratively final.” § 1231(a)(1)(B)
Although the Government may continue to detain an “inadmissible” noncitizen
beyond the 90-day removal period, see § 1231(a)(6), it may not detain them
“indefinitely.” Zadvydas, 533 U.S. at 699. A six-month detention is “presumptively
reasonable.” Id. at 680. This period runs only while the noncitizen is actually
“detained.” Callender v. Shanahan, 281 F. Supp. 3d 428, 435 (S.D.N.Y. 2017); see
also Ke Chen v. Holder, 783 F. Supp. 2d 1183, 1192 (N.D. Ala.) (“Zadvydas time”
cannot run “while a petitioner is not in custody”); Chun Yat Ma v. Asher, 2012 WL
1432229, at *3 (W.D. Wash.) (same). After six months, if the noncitizen “provides
good reason to believe that there is no significant likelihood of removal in the
reasonably foreseeable future,” the burden shifts to the Government to rebut that
showing. Zadvydas, 533 U.S. at 680.
Jiang v. Bondi, No. CIV 25-0922 KG/GBW, 2025 WL 3281819, at *2 (D.N.M. Nov. 25, 2025).
Here, however, Zadvydas does not currently apply to Petitioner’s detention because he does
not have a final removal order. It is undisputed that Petitioner appealed his removal order to the
BIA and that appeal is currently pending. See, e.g., (Doc. 11-5). Because this appeal is pending,
Petitioner’s removal order has not become administratively final and the removal period under
Zadvydas has not started to run. See 8 C.F.R. § 1241.1 (“An order of removal made by the
10 The Court maintains its prior findings that Petitioner’s constitutional challenges raised for the first time in the
untimely Second Reply are improper and should be stricken. See Section IV. A.
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immigration judge at the conclusion of proceedings under section 240 of the Act shall become
final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals.”).
Petitioner also summarily argues that his prolonged detention violates Jennings v.
Rodriguez.” (Doc. 15 at 5-6). In Jennings, the Supreme Court rejected the argument that Section
1225(b)(1), 1225(b)(2), or 1226(c) only allow for detention during the pendency of the applicable
proceeding (such as removal proceedings) for a maximum of six months before a bond hearing is
required. 583 U.S. 281, 298-301 (2018). And further, the Court rejected the argument that Section
1226(a) requires periodic bond hearings every six months. Id. at 306. Accordingly, Jennings does
not support Petitioner’s argument that his continued detention is unlawful. This Court therefore
recommends that Petitioner’s request for relief under Zadvydas and Jennings be denied without
prejudice.
V. 	RECOMMENDATION
For the reasons stated above, the Court respectfully recommends as follows:
1. 	Petitioner Jean Carlos Alexi Fiallos Manzanares’ Petition under 28 U.S.C. § 2241
for a Writ of Habeas Corpus, (Doc. 1), should be DENIED and DISMISSED
without prejudice; and
2. 	Petitioner Jean Carlos Alexi Fiallos Manzanares’ Motion for a Preliminary
Injunction, (Doc. 13), should be DENIED as moot.
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__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
WITHIN FOURTEEN (14) DAYS AFTER A PARTY IS SERVED WITH A COPY
OF THESE PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, THAT
PARTY MAY, PURSUANT TO 28 U.S.C. § 636(B)(1), FILE WRITTEN OBJECTIONS TO
SUCH PROPOSED FINDINGS AND RECOMMENDED DISPOSITION. A PARTY MUST
FILE ANY OBJECTIONS WITH THE CLERK OF THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW MEXICO WITHIN THE FOURTEEN (14) DAY
PERIOD ALLOWED IF THAT PARTY WANTS TO HAVE APPELLATE REVIEW OF
THE 	PROPOSED 	FINDINGS 	AND 	RECOMMENDED 	DISPOSITION. 	IF 	NO
OBJECTIONS 	ARE 	FILED, 	NO 	APPELLATE 	REVIEW 	WILL 	BE 	ALLOWED.
PURSUANT TO FED. R. CIV. P. 72(B)(2), A PARTY MAY RESPOND TO ANOTHER
PARTY’S OBJECTIONS WITHIN FOURTEEN (14) DAYS AFTER BEING SERVED
WITH A COPY OF THE OBJECTIONS.
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