Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDER YOSMEL HERNANDEZ CASTRO,
Petitioner,
v. No. 1:26-cv-01045-KG-DLM
MARKWAYNE MULLIN, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Eder Yosmel Hernandez Castro’s Petition for a Writ of
Habeas Corpus, Doc. 1, and the Government’s Response, Doc. 6. Because Petitioner presents a
purely legal question, the Court declines to hold a hearing, see 28 U.S.C. § 2243, and grants his
petition for the reasons below.
I. Background
Petitioner, a native and citizen of Cuba, entered the United States at an unknown time and
place. Doc. 6 at 2. In 2019, a U.S. Border Patrol agent encountered Petitioner near San Luis,
Arizona and determined that he had established a credible fear of persecution. Id. The agent
released Petitioner with a Notice to Appear. Id. Shortly thereafter, Petitioner’s immigration
proceedings were dismissed pursuant to prosecutorial discretion. Id. Petitioner has two daughters
and no criminal history. Id.; Doc. 1 at 22.
In July 2025, local law enforcement in Florida arrested Petitioner on unrelated charges and
transferred him to Immigration and Customs Enforcement (“ICE”) custody. Doc. 6 at 2. While in
federal custody, Petitioner applied for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Id. In February 2026, an immigration judge (“IJ”) denied
those applications and ordered Petitioner removed. See Doc. 1 at 12. Petitioner’s appeal of that
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decision remains pending with the Board of Immigration Appeals (“BIA”). Id. at 10. He remains
detained at the Torrance County Detention Center in Estancia, New Mexico and has not received a
bond hearing. Id.
Petitioner contends that his continued detention violates the Immigration and Nationality
Act (“INA”) and the Due Process Clause of the Fifth Amendment. Id. at 2–3. He also argues that
relief is warranted under Zadvydas v. Davis, 533 U.S. 678 (2001), because removal is not
reasonably foreseeable. Id. He therefore seeks immediate relief or, in the alternative, a bond
hearing at which the Government must justify his detention. Id. at 7. The Government opposes the
petition. See Doc. 6.
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, 533 U.S. at 687.
III. Analysis
The Court concludes that (A) Petitioner’s detention violates the 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 who are detained at a port of entry or shortly after entry.
Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 140 (2020). This includes noncitizens
deemed to be “seeking admission” into the United States, § 1225(a), and those placed in expedited
removal proceedings under § 1225(b)(1). Absent exceptions irrelevant here, § 1225 “mandates
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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, noncitizens detained under § 1226(a)
are entitled to an individualized bond hearing at the “outset of detention.” Jennings, 583 U.S. at
306.
Under these principles, § 1226(a) governs here. 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).1
Although Petitioner entered the United States without inspection, DHS initiated removal
proceedings under 8 U.S.C. § 1229a by issuing a Notice to Appear. Doc. 6 at 2. Petitioner has
resided in the United States since at least 2019, was arrested in the interior, and has no criminal
history. Id. Moreover, although an IJ has issued a removal order, that order is not administratively
final because Petitioner’s appeal remains pending before the BIA. Id. Accordingly, because
Petitioner is in ongoing removal proceedings and no other detention provision applies, his custody
falls within § 1226(a).
Moreover, this Court’s prior decisions control. The Government concedes that the material
facts here are “substantially similar” to those in Patel v. Noem, 2026 WL 103163 (D.N.M.), where
the Court concluded that § 1226 governs. Doc. 6 at 4. The Court has reached the same conclusion
in numerous similar cases. See, e.g., Pu Sacvin v. De Anda-Ybarra, 2025 WL 3187432, at *3
1 While the Fifth Circuit holds that “[w]hile [noncitizens] remain applicants” for admission,
“they are...seeking admission,” Buenrostro-Mendez v. Bondi, --- F.4th ----, 2026 WL 323330, at *5
(5th Cir.), the Tenth Circuit has not yet addressed the question.
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(D.N.M.); Arroyo Lopez v. Noem, 2026 WL 776332, at *3 (D.N.M.); Aguilar v. Lyons, 2026 WL
851237, at *2 (D.N.M.). Because the Government offers no new basis for Petitioner’s continued
detention, Petitioner is entitled to relief.
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). 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). 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”). 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 Petitioner’s
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continued detention”); Palomeque-Carrion v. Bondi, 2026 WL 895567, at *2 (D.N.M.) (same);
Alfaro Herrera v. Baltazar, 2026 WL 91470, at *1 (D. Colo.) (same).
IV. Conclusion
For the reasons above, the Court orders that:
1. The Petition for Writ of Habeas Corpus, Doc. 1, is granted. Because relief is warranted
under the Fifth Amendment and 8. U.S.C. § 1226(a), the Court declines to reach Petitioner’s
other arguments.
2. The Government shall release Petitioner within 24 hours of this Order and shall not impose
any new conditions of release.
3. The Government is enjoined from redetaining Petitioner absent a predetention hearing
before a neutral IJ under § 1226(a), at which the Government must establish, by clear and
convincing evidence, that Petitioner poses a danger or flight risk.
4. 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
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PACER public access system.
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