Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HORACIO ALFREDO TIFFER PENA,
Petitioner,
v. No. 2:26-cv-00426-KG-KRS
KRISTI NOEM, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Horacio Alfredo Tiffer Pena’s Petition for a Writ of
Habeas Corpus, Doc. 1, and the Government’s Response, Doc. 8. For the reasons below, the
Court grants the petition.
I. Background
Mr. Tiffer Pena, a citizen of Nicaragua, entered the United States in 2022 without
inspection. Doc. 1 at 2. He has applied for asylum “based on the politically motivated
persecution he suffered in Nicaragua. Id. at 13. He resides in Minnesota and has no criminal
history “that would subject him to mandatory detention.” Id. at 2, 13.
On January 6, 2026, Immigration and Customs Enforcement (“ICE”) arrested Mr. Tiffer
Pena. Id. at 13. He remains detained at the Otero County Processing Center in New Mexico. Id.
at 2. He argues that his detention violates the Immigration and Nationality Act (“INA”) and the
Due Process Clause of the Fifth Amendment. Id. at 15–17. He seeks release, or, in the
alternative, a bond hearing. Id. at 19. While the Government opposes the motion, it
acknowledges that the facts of this case are “substantially similar” to those in Patel v. Noem,
2026 WL 103163 (D.N.M), where this Court granted relief. Doc. 8 at 2.
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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
For the reasons below, the Court concludes that (A) 8 U.S.C. § 1226 governs Mr. Tiffer
Pena’s detention, (B) Mr. Tiffer Pena’s 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. Tiffer Pena’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.” Id.
Consistent with the overwhelming majority of district courts to consider the issue and this
Court’s prior findings, the Court concludes 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
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across fifty courts); Pu Sacvin, 2025 WL 3187432 (Gonzales, J.); Danierov v. Noem, 2026 WL
45288, 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.). The Tenth Circuit has not yet addressed this question.
Under this framework, § 1226 governs Mr. Tiffer Pena’s detention. ICE arrested him
over three years after his initial entry into the United States and did not apprehend him at the
border. Doc. 1 at 13–14. Accordingly, § 1225’s mandatory detention provision does not apply
because Mr. Tiffer Pena effected an entry into the United States by living here for years. As the
Government concedes, the facts of this case are “substantially similar” to those in Patel, 2026
WL 103163, where this Court granted relief. Doc. 8 at 2.
B. Mr. Tiffer Pena’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. Tiffer Pena has a protected liberty interest. By living in the United
States, noncitizens acquire “a protectable liberty interest in remaining out of custody.”
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Danierov, 2026 WL 45288, at *2. Mr. Tiffer Pena’s freedom allowed “him to do a wide range of
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. Tiffer Pena was also entitled to procedural safeguards before he was detained. 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 additional
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. Tiffer
Pena’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 revoking a noncitizen’s freedom.
Danierov, 2026 WL 45288, at *2. Mr. Tiffer Pena was detained after three years in the United
States. Doc. 1 at 13–14. No assessment was made as to whether any material facts had changed,
creating a substantial risk of erroneous deprivation of his liberty interest. Finally, the
Government’s interest in detaining Mr. Tiffer Pena without a hearing is limited, and 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.
The proper habeas remedy is a prompt bond hearing at which the Government must
prove, by clear and convincing evidence, that Mr. Tiffer Pena is a flight risk or danger to the
community. Although “under normal circumstances, the burden” at a § 1226 hearing “is on the
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noncitizen” to show that detention is unwarranted, Mr. Tiffer Pena’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 therefore grants Mr. Tiffer Pena’s petition, Doc. 1. The Court directs the
Government to provide Mr. Tiffer Pena with a bond hearing under § 1226(a) before an
immigration judge within seven days of this Order. At that hearing, the Government must justify
Mr. Tiffer Pena’s detention by clear and convincing evidence. If the Government fails to do so,
it must release Mr. Tiffer Pena. The Court also orders the Government to file a status report
within ten days of this Order confirming that it has provided Mr. Tiffer Pena 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
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
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Electronically filed documents can be found
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