Vargas v. Otero County Processing Center

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GUSTAVO VARGAS,
Petitioner,
v. No. 26-cv-0070-DHU-GBW
WARDEN, Otero County Processing Center;
MARY DE ANDA-YBARRA, Field Officer Director of
Enforcement and Removal Operations, El Paso
Field Office, Immigration and Customs
Enforcement; KRISTI NOEM, Secretary, U.S. Department
of Homeland Security; and PAMELA BONDI,
U.S. Attorney General,
Respondents,1
MEMORANDUM OPINION AND ORDER REQUIRING IMMEDIATE RELEASE
This matter is before the Court on Petitioner’s pro se Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2241 (Doc. 1) (Petition). Also before the Court is his Emergency Motion for
Immediate Release (Doc. 2) (Motion). Petitioner is in Immigration and Customs Enforcement
(ICE) custody at the Otero County Processing Center. On July 10, 2025, the Immigration Court
dismissed his removal proceeding. See Doc. 1 at 10. The Petition reflects the dismissal order was
not appealed and is final. Id. at 9. Despite the dismissal, Petitioner has not been released from
custody. Id. at 6. The Motion reflects there are no pending removal proceedings involving
1 While the form 28 U.S.C. § 2241 petition names the Warden, the Court adds the above-mentioned parties
as additional Respondents in this case. See Lowmaster v. Dir., Bureau of Prisons, 2024 WL 5135970, at *1
(D. Kan. Dec. 17, 2024) (“the Court notes that it routinely substitutes the” proper parties as “respondent in
habeas cases”); Danderson v. Page, 2024 WL 3913051, at *2 (E.D. Okla. Aug. 20, 2024) (substituting the
proper party respondent in a habeas case).
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Petitioner. See Doc. 2 at 1. Petitioner has not received a bond hearing, notice, or an opportunity to
be heard on why he remains in custody following the dismissal of his removal proceeding. Id.
Petitioner argues that the Government’s refusal to release him after the dismissal of his
removal proceeding violates the Due Process Clause. The Due Process Clause protects all persons,
including noncitizens, from deprivations of life, liberty, and property without due process of law.
U.S. CONST. amend. V; Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due Process Clause
applies to all ‘persons’ within the United States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent.”). In particular, “[f]reedom from imprisonment - from
government custody, detention, or other forms of physical restraint - lies at the heart of the liberty
that Clause protects.” Id. at 690. “[T]here is a high risk of erroneous deprivation of this liberty
interest when noncitizens are re-detained without a hearing” and after their removal proceedings
have been dismissed. Gil v. Warden, Otay Mesa Det. Ctr., 2025 WL 3675153, at *3 (S.D. Cal.
Dec. 17, 2025).
The Petition here provides compelling evidence that Petitioner is being held without due
process. The Petition attaches the Order dismissing Petitioner’s removal proceeding. See Doc. 1 at
10. The Petition and Motion further reflect he has not received any additional process, notice or a
hearing, or even an explanation on why he remains in detention after that dismissal. See Docs. 1,
2. On this record, Petitioner has established he is being detained in violation of the Due Process
Clause and without any ongoing effort to remove him from the United States. See Gil, 2025 WL
3675153, at *4 (S.D. Cal. Dec. 17, 2025) (ordering petitioner’s immediate release where the
respondents dismissed petitioner’s pending removal proceeding; failed to provide notice of any
intent to refile the proceeding; and still continued to detain petitioner). The Court also concludes
that emergency relief is warranted, particularly since the Petition attaches a copy of the order
dismissing Petitioner’s removal proceedings. See Doc. 1 at 10; cf Summary Order in Bahadorani
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v. Bondi, No. 25-6177 (10th Cir. Dec. 18, 2025) (ordering a release where petitioner made a
colorable showing that detention was unconstitutional).
The Court will grant the Petition (Doc. 1) and Emergency Motion for Immediate Release
(Doc. 2). The Clerk’s Office will forward a copy of this Order to the United States Attorney’s
Office (USAO) at USANM.Civil.Immigration@usdoj.gov. Respondents must release Petitioner
from custody within twenty-four hours of entry of this Order. The Court will also enter final
judgment, as the release from custody resolves the pending challenge to custody.
IT IS ORDERED that the Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241
(Doc. 1) and Emergency Motion for Immediate Release (Doc. 2) are GRANTED.
IT IS FURTHER ORDERED that Respondents are ordered to RELEASE Petitioner
Gustavo Vargas within twenty-four hours of entry of this Order. Upon release, Respondents are
restrained from re-detaining Petitioner unless they provide Petitioner with notice of new or
reinstated removal proceedings, and demonstrate at a pre-deprivation hearing before a neutral
arbiter that there is a basis for immigration custody and that Petitioner is a danger or flight risk.
IT IS FINALLY ORDERED that the Clerk’s Office shall forward a copy of the Petition
(Doc. 1); Motion (Doc. 2); and this Order to the United States Attorney’s Office at the following
email address: USANM.Civil.Immigration@usdoj.gov; and the Clerk’s Office shall ADD the
additional party Respondents set forth in the caption of this Order.
_______________________________________
HONORABLE DAVID HERRERA URIAS
UNITED STATES DISTRICT JUDGE
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