Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FREDY TEPEHUA-TLAPALTOTOLI,
Petitioner,
v. No. 2:26-cv-00116-KG-GJF
KRISTI NOEM, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Fredy Tepehua-Tlapaltotoli’s Petition for a Writ of
Habeas Corpus, Doc. 1, and the Government’s Response, Doc. 7. Because Mr. Tepehua-
Tlapaltotoli’s challenge 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
Mr. Tepehua-Tlapaltotoli, a native and citizen of Mexico, entered the United States in
2017 without inspection. Doc. 1 at 7. ICE detained Mr. Tepehua-Tlapaltotoli and placed him in
removal proceedings. Id. ICE released him after Mr. Tepehua-Tlapaltotoli posted a $25,000
bond. Id. For the past eight years, he has remained compliant with his conditions of release and
his next immigration hearing is set for 2027. Id. at 2.
“In late 2025,” DHS arrested Mr. Tepehua-Tlapaltotoli and detained him the Otero
County Immigration Processing Center in Chaparral, New Mexico, where he remains. Id. at 4.
Mr. Tepehua-Tlapaltotoli claims his redetention violates the Immigration and Nationality Act
(“INA”) and his Fifth Amendment due process rights. Id. at 11–13. He therefore seeks
immediate release, or, in the alternative, a prompt bond hearing. Id. at 12–13.
II. Standard of Review
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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
For the reasons below, the Court finds that (A) 8 U.S.C. § 1226 governs Mr. Tepehua-
Tlapaltotoli’s detention, (B) his detention violates his right to due process, and (C) the proper
remedy is a bond hearing where the Government bears the burden of proof.
A. Section 1226 governs Mr. Tepehua-Tlapaltotoli’s detention.
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). Section 1225(b)(2)(A) applies to “applicant[s] for admission” who are “seeking
admission” and “not clearly and beyond a doubt entitled to be admitted.” The “provision
mandates detention and affords no bond hearing.” Pu Sacvin v. De Anda-Ybarra, 2025 WL
3187432, at *1 (D.N.M.) (Gonzales, J.). By contrast, § 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.” Pu Sacvin, 2025 WL
3187432, at *1.
Consistent with the overwhelming majority of district courts to consider the issue and this
Court’s prior findings, the Court finds that § 1226 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); Pu Sacvin, 2025 WL 3187432 (Gonzales, J.); Danierov v. Noem, 2026 WL 45288,
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at *2 (D.N.M.) (Gonzales, J.). Section 1225(a)(1) defines an “applicant for admission” as a
noncitizen “who has not been admitted or who arrives in the United States.” In contrast,
§ 1225(b)(2)(A)’s detention mandate applies only to noncitizens “seeking admission” (emphasis
added). Noncitizens “seeking admission” are those who have not “effected an entry” into the
United States. DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020). Noncitizens “who entered the
country years earlier” are not “seeking admission,” and therefore fall under § 1226 rather than
§ 1225(b)(2)(A). Pu Sacvin, 2025 WL 3187432, at *3. The Court acknowledges the recent Fifth
Circuit decision holding 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.). However, the Tenth Circuit has not yet addressed this question.
Under this framework, § 1226 governs Mr. Tepehua-Tlapaltotoli’s detention. ICE
arrested him eight years after his initial entry into the United States and did not apprehend him at
or near the border. Doc. 1 at 2. Accordingly, § 1225’s mandatory detention provision does not
apply because Mr. Tepehua-Tlapaltotoli effected an entry into the United States by living here
for nearly a decade. Pu Sacvin, 2025 WL 3187432, at *3.
B. Mr. Tepehua-Tlapaltotoli’s detention violates his right to due process.
Courts analyze due process claims in two steps: first, whether there exists “a protected
liberty interest under the Due Process Clause,” and second, whether the procedures used to
deprive that interest “accord with the Constitution.” Domingo v. Castro, 2025 WL 2941217, at
*3 (D.N.M.).
Here, Mr. Tepehua-Tlapaltotoli has a protected liberty interest. After being released on
bond, noncitizens acquire “a protectable liberty interest in remaining out of custody.” Danierov,
2026 WL 45288, at *2. Mr. Tepehua-Tlapaltotoli’s release allowed “him to do a wide range of
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things,” including to live at home, work, and “be with family and friends and to form the other
enduring attachments of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972).
Mr. Tepehua-Tlapaltotoli was also entitled to procedural safeguards before he was
redetained. In determining what process is due, courts consider (1) “the private interest”
affected; (2) “the risk of erroneous deprivation” through the procedures used and the probable
value of safeguards; and (3) “the Government’s interest,” including the fiscal and administrative
burdens of additional procedures. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). To start, Mr.
Tepehua-Tlapaltotoli’s private interest in remaining free from detention is substantial. “Freedom
from imprisonment...lies at the heart of the liberty that [the Due Process] Clause protects.”
Zadvydas v. Davis, 533 U.S. 678, 690 (2001).
There is also a significant risk of erroneous deprivation. Courts require “a material
change in circumstances as to whether the noncitizen poses a danger to the community or an
unreasonable risk of flight” before DHS redetains a noncitizen. Danierov, 2026 WL 45288, at
*2. Mr. Tepehua-Tlapaltotoli was redetained after eight years without a bond hearing, and no
assessment was made as to whether any material facts had changed. Doc. 2 at 3.
Finally, the Government’s interest in detaining Mr. Tepehua-Tlapaltotoli without a
hearing is limited. While the Government has a legitimate interest in ensuring Mr. Tepehua-
Tlapaltotoli appears at immigration proceedings, detention has been unnecessary to further that
interest. Since his release eight years ago, Mr. Tepehua-Tlapaltotoli has appeared at all required
immigration proceedings and complied with all imposed conditions. Doc. 1 at 2. Moreover, the
administrative burden of providing a bond hearing is minimal. See Danierov, 2026 WL 45288,
at *2 (the “cost of providing a bond determination is not terribly burdensome”).
C. The remedy is a bond hearing where the Government bears the burden of proof.
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The proper habeas remedy is a prompt bond hearing at which the Government must
prove, by clear and convincing evidence, that Mr. Tepehua-Tlapaltotoli is a flight risk or danger
to the community. Although “under normal circumstances, the burden” at a § 1226 hearing “is
on the noncitizen” to show that detention is unwarranted, Mr. Tepehua-Tlapaltotoli’s “unlawful
detention in violation of his constitutional rights shifts that burden to the Government.” Pu
Sacvin, 2025 WL 3187432, at *3. A noncitizen’s “strong private interest in being free from civil
detention” outweighs the Government’s “comparatively minimal burden to justify custody.” Id.
IV. Conclusion
The Court grants Mr. Tepehua-Tlapaltotoli’s petition, Doc. 1, and directs the Government
to provide Mr. Tepehua-Tlapaltotoli with a bond hearing under § 1226(a) before an IJ within
seven days. At that hearing, the Government must justify Mr. Tepehua-Tlapaltotoli’s continued
detention by clear and convincing evidence. If the Government fails to provide a bond hearing
within that timeframe, it must release Mr. Tepehua-Tlapaltotoli. The Court further orders the
Government to file a status report within 10 days of this Order showing that it has provided Mr.
Tepehua-Tlapaltotoli with a bond hearing or released him.
IT IS SO ORDERED
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
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authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
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