Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AKINYEMI OLUBUNMI OKE,
Petitioner,
v. 2:26-cv-01203-KG-GBW
MARY DE ANDA-YBARRA, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Akinyemi Olubunmi Oke’s Petition for a Writ of Habeas
Corpus, Doc. 1, and the Government’s Response, Doc. 6. The Court grants his petition for the
reasons below.
I. Background
Petitioner, a native and citizen of Nigeria, entered the United States in 2017 on a B2 visa.
Doc. 1 at 20. He filed an I-589 application for asylum based on persecution in Nigeria. Id. When
Petitioner overstayed his visa, the Department of Homeland Security (“DHS”) filed a Notice to
Appear, initiating removal proceedings. Doc. 6 at 2. Prior to his detention, Petitioner resided in
New Jersey and lawfully worked as a nurse. Id.; Doc. 1 at 20. He has complied with all
Immigration and Customs Enforcement (“ICE”) reporting requirements. Doc. 1 at 20.
On June 27, 2025, ICE agents arrested Petitioner outside of his home. Id. ICE transported
him to the Otero County Processing Center in Chaparral, New Mexico, where he remains. Id. at 20.
On April 20, 2026, an Immigration Judge (“IJ”) denied Petitioner’s I-589 application and ordered
him removed. Doc. 6 at 2. Petitioner reserved his right to appeal. Id.
Petitioner contends that his detention violates the Due Process Clause and seeks immediate
release. See Doc. 1 at 6–7. The Government does not dispute that Petitioner is entitled to an
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individualized bond hearing under 8 U.S.C. § 1226(a) but argues that no such hearing has occurred
because Petitioner has not requested one. Doc. 6 at 3.
II. Standard of Review
A petition for a writ of habeas corpus seeks “release from unlawful physical confinement.”
Preiser v. Rodriguez, 411 U.S. 475, 485 (1973). Habeas corpus review is available if a noncitizen is
“in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3); see also Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
III. Analysis
The Court concludes that (A) Petitioner’s detention violates the Immigration and Nationality
Act (“INA”), (B) Petitioner’s detention violates the Due Process Clause of the Fifth Amendment,
and (C) release is warranted.
A. Petitioner’s detention violates the INA.
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).
First, 8 U.S.C. § 1225 governs noncitizens detained at a port of entry or shortly after entry, who are
treated as “[noncitizens] seeking admission into the country.” Dep’t of Homeland Sec. v.
Thuraissigiam, 591 U.S. 103, 140 (2020). Absent exceptions irrelevant here, § 1225 “mandates
detention and affords no bond hearing.” Pu Sacvin v. De Anda-Ybarra, 2025 WL 3187432, at *1
(D.N.M.).
By contrast, 8 U.S.C. § 1226(a) sets forth “the default rule” for detaining noncitizens
“already in the country.” Jennings, 583 U.S. at 303. Section § 1226(a) authorizes the arrest and
detention of noncitizens, “on a warrant issued by the Attorney General...pending a decision on
whether [they are] to be removed.” Under federal regulations, a noncitizen detained under
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§ 1226(a) is entitled to an individualized bond hearing at the “outset of detention.” Jennings, 583
U.S. at 306.
Consistent with the overwhelming majority of district courts to consider the issue, the Court
concludes that § 1226(a) governs here.1 See Barco Mercado v. Francis, 2025 WL 3295903, at *13
(S.D.N.Y.) (collecting 362 district-court opinions nationwide and noting that challengers prevailed
in at least 350 of them, in decisions by over 160 judges across fifty courts). Petitioner entered the
United States in 2017 and timely pursued an asylum claim. Doc. 1 at 20. He has worked lawfully
and has complied with all immigration requirements. Id. An IJ has ordered Petitioner removed, but
because Petitioner has reserved appeal, the removal order is not yet administratively final. Doc. 6 at
2. Therefore, Petitioner is a noncitizen detained “pending a decision on whether [he is] to be
removed,” and his detention is governed by § 1226(a). See Jennings, 583 U.S. at 303 (2018).
Petitioner’s continued detention without a meaningful bond determination is unlawful under the
INA.
The Government argues that Petitioner’s detention is lawful because he could obtain a bond
hearing simply by requesting one. Doc. 6 at 3. The Court is not persuaded that such a request
would result in a meaningful custody determination. As this Court has repeatedly observed, IJs
have declined to conduct custody reviews under § 1226(a) on jurisdictional grounds following the
Board of Immigration Appeals’ decision in Matter of Yajure Hurtado. See 29 I. & N. Dec. 216
(BIA 2025); see, e.g., Mustafokulov v. Lyons, 2026 WL 895558, at *1 (D.N.M); Melendez Aldarozo
v. Noem, 2026 WL 735379, at *1 (D.N.M.). Petitioner has already been detained for approximately
1 There is currently a circuit split on this issue. The Second Circuit has held that individuals
like Petitioner are entitled to a bond hearing under 8 U.S.C. § 1226(a). See Cunha v. Freden, ---
F.4th ----, 2026 WL 1146044 (2d Cir. 2026). The Fifth and Eighth Circuits have reached the
opposite conclusion. See Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); Avila v.
Bondi, 170 F.4th 1128 (8th Cir. 2026). The Tenth Circuit has not yet addressed the question.
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11 months without any meaningful bond hearing. Requiring him to request a hearing that, as
presently construed, cannot provide relief would serve only to prolong that detention.
B. Petitioner’s detention violates the Due Process Clause.
The Fifth Amendment’s Due Process Clause prohibits the Government from depriving any
person of “life, liberty, or property, without due process of law[.]” U.S. Const. amend. V.
“Freedom from imprisonment—from government custody, detention, or other forms of physical
restraint—lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas, 533
U.S. at 690. “It is well established that the Fifth Amendment entitles [noncitizens] to due process of
law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993); see also Zadvydas, 533
U.S. at 693. The Government’s power to admit or exclude aliens is no longer plenary once an alien
enters the country, because the Due Process Clause applies to “all persons.” Landon v. Plasencia,
459 U.S. 21, 32 (1982) (“Once an alien gains admission to our country and begins to develop the
ties that go with permanent residence his constitutional status changes accordingly.”). Given that §
1226(a) is controlling here, Petitioner “is entitled—as a right—to an individualized bond hearing.”
Cortez-Gonzalez v. Noem, 2025 WL 3485771, at *5 (D.N.M.). Petitioner’s continued detention
without such review “constitutes an ongoing violation of [his] right to due process.” Id.
C. The proper remedy is release.
The Court next turns to the appropriate remedy. Federal courts are authorized under § 2243
to “dispose of [a habeas petition] as law and justice require” and possess broad discretion to fashion
appropriate relief. Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012); see also Burton v.
Johnson, 975 F.2d 690, 693 (10th Cir. 1992) (noting that a federal court “possesses power to grant
any form of relief necessary to satisfy the requirement of justice”) (emphasis in original). Given the
Government’s conduct here, release is warranted. See Singh v. Carnes, 2026 WL 446579, at *1
(D.N.M.) (ordering release where the Government “failed to articulate a legitimate interest in
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Petitioner’s continued detention”); Palomeque-Carrion v. Bondi, 2026 WL 895567, at *2 (D.N.M.)
(same).
IV. Conclusion
For the reasons above, the Court orders that:
1. The Petition for Writ of Habeas Corpus, Doc. 1, is granted. The Government shall release
Petitioner within 24 hours of this Order. The Government shall not impose any new
conditions of release beyond those in place prior to Petitioner’s detention.
2. The Government is enjoined from redetaining Petitioner absent a predetention hearing
before a neutral immigration judge under § 1226(a), at which the Government must
establish, by clear and convincing evidence, that Petitioner poses a danger or flight risk.
3. The Government shall file a status report within 10 business days of this Order certifying
compliance.
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.
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