Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DONALD FRANCISCO GARAY-MERCADO,
Petitioner,
v.
Case No. 2:26-cv-01119-MIS-KK
DORA 	CASTRO, 	Warden 	of 	the 	Otero
County Processing Center; TODD LYONS,
Acting 	Director, 	U.S. 	Immigration 	and
Customs 	Enforcement; 	MARKWAYNE
MULLIN, Secretary, U.S. Department of
Homeland 	Security; 	TODD 	BLANCHE,
Acting 	Attorney 	General 	of 	the 	United
States; and MARY DE ANDA-YBARRA, El
Paso Field Office Director, Immigration and
Customs Enforcement,
Respondents.
ORDER GRANTING PETITIONER’S EMERGENCY MOTION TO ENFORCE COURT
ORDER
THIS MATTER is before the Court on Petitioner Donald Francisco Garay-Mercado’s
Emergency Motion to Enforce Court Order (“Motion”), ECF No. 10, filed May 4, 2026.
Respondents Mary De Anda-Ybarra, Todd Lyons, Todd Blanche, and Markwayne Mullin (“Federal
Respondents”),1 filed a Response on May 12, 2026, ECF No. 11.
Petitioner argues that he received a constitutionally deficient bond hearing that did not
comply with the requirements identified by this Court in its Order granting his Petition for Writ of
Habeas Corpus. Mot. at 1, ECF No. 10. Respondents argue this Court lacks jurisdiction to review
1 	Respondent Dora Castro did not file a response or otherwise appear in this case. It has become
standard practice in these habeas cases for the warden of the relevant detention center to either appear and adopt the
federal respondents’ arguments, see, e.g., Intriago-Sedgwick v. Noem, Case No. 1:25-cv-01065-MIS-LF, Notice of
Joinder In USA Respondents’ Forthcoming Claims and Defenses, ECF No. 11 (D.N.M. Dec. 3, 2025), or not appear
at all, see Francisco v. Dedos, Case No. 1:25-cv-01229-MIS-GJF, Proposed Findings and Recommended Disposition
at 8, ECF No. 53 (D.N.M. Jan. 20, 2026).
Case 2:26-cv-01119-MIS-KK Document 12 Filed 05/15/26 Page 1 of 4

2
the bond denial because it was a discretionary decision. Resp. to Mot. at 3, ECF No. 11. Because
the Court cannot determine whether the bond hearing was constitutionally adequate, the Court will
grant the motion and order a new bond hearing.
Petitioner filed a Petition for Writ of Habeas Corpus on April 10, 2026, requesting release
or a bond hearing. Pet. at 8, ECF No. 1. Petitioner had recently withdrawn his appeal of his order
of removal issued on August 16, 2023. Resp. to Pet., Ex. 1 at 3, ECF No. 6-1. Respondents argued
that Petitioner was being properly held pursuant to 8 U.S.C. § 1225(b)(2)(A), Resp. to Pet. at 4-6,
ECF No. 6, and that once the Board of Immigration Appeals (BIA) filed Petitioner’s appeal
withdrawal, his August 16, 2023, order of removal would become final and he would be subject to
mandatory detention under 8 U.S.C. § 1231, id. at 4.
On April 29, 2026, the Court found Petitioner’s detention was governed by 8 U.S.C. § 1226
and granted his Petition. ECF No. 7 at 4-6. Due to the “unique facts” of the case, the Court ordered
a “constitutionally adequate bond hearing before a neutral Immigration Judge pursuant to 8 U.S.C.
§ 1226(a).” Id. at 5-6. The Court retained jurisdiction to enforce its order. Id. at 6. Also on April
29, 	2026, 	the 	BIA 	apparently 	filed 	Petitioner’s 	appeal 	withdrawal. 	See
https://acis.eoir.justice.gov/en/caseInformation (last visited May 14, 2026).
At the bond hearing on May 1, 2026, the Immigration Judge (IJ) denied bond because
“Flight Risk: has pending removal order that is final.” Resp. to Mot., Ex. 1 at 1, ECF No. 11-1.
Petitioner then filed the instant Motion arguing the bond hearing was constitutionally inadequate
and asking the Court to grant his immediate release or order a new bond hearing. ECF No. 10 at
3. Respondents argue that the IJ made a discretionary bond denial decision and the Court lacks
jurisdiction to review it per 8 U.S.C. § 1226(e). Resp. to Mot. at 3, ECF No. 11.
Case 2:26-cv-01119-MIS-KK Document 12 Filed 05/15/26 Page 2 of 4

3
While the Court does not have jurisdiction to review discretionary bond decisions under §
1226(e), the Court does have jurisdiction to review constitutional challenges to bond decisions,
Grant-Davis v. Anda-Ybarra, No. 2:26-CV-00054-MIS-LF, 2026 WL 823095, at *3 (D.N.M. Mar.
23, 2026), and to enforce its own orders.
The Court finds the IJ’s explanation comically deficient. The Court cannot determine what
the IJ meant by “Flight Risk: has pending removal order that is final,” let alone whether the bond
hearing was constitutionally adequate. The IJ might have meant that the final order of removal had
been issued and Petitioner’s physical removal from the United States was pending. If so, Petitioner
is subject to mandatory detention under § 1231.2 But the phrase could also mean that Petitioner’s
final order of removal was pending but not yet issued. If so, it is unclear whether the IJ considered
anything beyond the removal order itself, which would (1) ignore the nine alien-centric factors in
In Re Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006) and (2) permit DHS to dictate flight risk status
independent of the alien’s circumstances. If the IJ failed to consider anything beyond an impending
final order of removal, it is not clear to the Court that the bond hearing was constitutionally
adequate.
Respondents shall hold another bond hearing for Petitioner under § 1226 at which the IJ is
ordered to (1) consider the nine alien-centric factors from In Re Guerra, 24 I. & N. Dec. 37, 40
2 “After entry of a final removal order and during the 90–day removal period . . . aliens must be held in
custody.” Zadvydas v. Davis, 533 U.S. 678, 683 (2001) (citing 8 U.S.C. § 1231(a)(2)). Custody of an alien under a
final order of removal for more than six months is presumed unreasonable if the alien provides “good reason to believe
that there is no significant likelihood of removal in the reasonably foreseeable future.” Id. at 701.
Petitioner has been in immigration custody for almost three and a half months. See Pet. at 8, ECF No. 1. If
the 	order 	of 	removal 	became 	final 	on 	April 	29, 	2026, 	Resp. 	to 	Pet. 	at 	4, 	ECF 	No. 	6; 	see
https://acis.eoir.justice.gov/en/caseInformation (last visited May 14, 2026), and now dates to August 16, 2023, Resp.
to Pet. at 4, ECF No. 6, Petitioner has either been in custody under a final order of removal for three and a half months
or for just over two weeks. The Court declines to decide which is the correct assessment of his time in custody because
the result is the same, Petitioner would be subject to detention under § 1231. See Zadvydas, 533 U.S. at 683.
Case 2:26-cv-01119-MIS-KK Document 12 Filed 05/15/26 Page 3 of 4

4
(BIA 2006), (2) explain the basis for his decision using alien-centric reasoning in sufficient detail
to determine whether the hearing was constitutionally adequate, see id., and (3) explicitly find,
based on case records, whether and when Petitioner’s appeal withdrawal was filed and whether
Petitioner has successfully moved to reopen his removal case, see Mot. at 2, ECF No. 10.
Respondents shall file notice of the decision and include the resulting Order of the Immigration
Judge as an exhibit.
Accordingly, 	it 	is 	HEREBY ORDERED 	that 	Petitioner 	Donald 	Franciso 	Garay-
Mercado’s Motion to Enforce Court Order, ECF No. 10, is GRANTED consistent with this order.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
Case 2:26-cv-01119-MIS-KK Document 12 Filed 05/15/26 Page 4 of 4