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 PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28
U.S.C. § 2241 AND ORDERING A BOND HEARING
THIS MATTER is before the Court on Petitioner Donald Francisco Garay-Mercado’s
Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”), ECF No. 1, filed April
10, 2026. On April 27, 2026, the Federal Respondents (“Respondents”) filed a Response
(“Response”).1 ECF No. 6. Upon review of the Parties’ submissions, the record, and the relevant
law, the Court will GRANT the Petition and order a bond hearing.
I. Background
Petitioner is a citizen of Nicaragua who entered the United States from Mexico without
inspection on or about July 5, 2021. See I-213 Narrative (July 7, 2021), ECF No. 6-2. The same
1 The Clerk’s Office served all Respondents with the Petition pursuant to this District’s Standing
Order Regarding Service of Process in Immigration Habeas Petitions filed Pursuant to 28 U.S.C. § 2241, Case 1:26-
mc-00004, ECF No. 3 (D.N.M. Jan. 28, 2026). ECF No. 3. However, as has become customary in these cases, the
Warden did not respond to the Petition.
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day, a United States Border Patrol Agent encountered Petitioner and arrested him. Id. On July 7,
2021, a Border Patrol Agent found Petitioner to be inadmissible under Section 212(a)(7)(A)(i)(I)
of the Immigration and Nationality Act (“INA”). Id.; see also Determination of Inadmissibility,
ECF No. 6-3. Petitioner claimed a fear of persecution if returned to Nicaragua, was issued a
Determination of Inadmissibility, ECF No. 6-3, and was apparently released pending a review of
his claim of fear. See I-213 Narrative (July 7, 2021), ECF No. 6-2; Notice to Appear (Jan. 4, 2011),
ECF No. 6-4.
On January 4, 2022, Petitioner was served with a Notice to Appear after an asylum officer
found Petitioner had demonstrated a credible fear of persecution or torture. ECF No. 6-4. The
Notice to Appear indicates that Petitioner is subject to removal pursuant to Section 212(a)(6)(A)(i)
and (a)(7)(A)(i)(I) of the INA. Id. Thereafter, Petitioner filed two applications for asylum,
withholding of removal under the INA, and protection under the Convention Against Torture. See
Decision of the Immigration Judge at 1-2, ECF No. 6-5 [hereafter, Removal Order].
On August 16, 2023, the Immigration Judge (“IJ”) denied Petitioner’s applications for
asylum, withholding of removal, and protection under the Convention Against Torture, and ordered
Petitioner removed to Nicaragua. Id. at 13. Petitioner timely appealed the Removal Order to the
Board of Immigration Appeals (“BIA”). See Filing Receipt for Appeal, ECF No. 6-6. He was
apparently released pending the BIA’s decision.
On February 4, 2026, Border Patrol Agents encountered Petitioner at an immigration
checkpoint in Texas. See I-213 Narrative (Feb. 4, 2026), ECF No. 6-7 at 2. Petitioner was driving
a commercial truck, provided Border Patrol Agents with a valid Employment Authorization
Document, and advised that he had a pending asylum claim. Id. Nevertheless, Petitioner was
arrested for being in the United States illegally. Id. He has been detained ever since. Pet. at 2.
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He is currently detained at the Otero County Processing Cetner in Chaparral, New Mexico. Id. at
1.
On March 31, 2026, Petitioner filed a Motion to Withdraw Appeal with the BIA. ECF No.
6-1. Therein, he states:
After careful personal reflection, I have decided that I no longer wish to continue
with the appeal process. I respectfully request that the Board immediately close my
appeal and terminate the proceedings before the BIA.
I fully understand that by voluntarily withdrawing my appeal, the Immigration
Judge’s decision dated August 16, 2023 (order of REMOVAL) will become final
and enforceable.
Id. According to the Executive Office of Immigration Review’s website, Petitioner’s appeal
remains pending. See https://acis.eoir.justice.gov/en/caseInformation (last visited Apr. 29, 2026).
On April 10, 2026, Petitioner filed the instant Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2241. ECF No. 1. On April 13, 2026, the Court ordered Respondents to answer the
Petition and show cause why it should not be granted. ECF No. 3. On April 27, 2026, Respondents
filed their Response. ECF No. 6.
II. Legal Standard
Federal courts possess authority to review the legality of executive detention through the
writ of habeas corpus. Title 28, United States Code, section 2241 grants district courts the
discretion to issue a writ of habeas corpus when a person is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). The Tenth
Circuit has recognized that “[c]hallenges to immigration detention are properly brought directly
through habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v.
Davis, 533 U.S. 678, 687-88 (2001)).
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III. Discussion
Petitioner argues that his “prolonged detention without a bond hearing violates [his] right
to due process.” Pet. at 2. He further argues that because his asylum appeal is still pending, the
Immigration Judge’s Removal Order is not yet final. Id. He seeks immediate release or,
alternatively, a bond hearing before an immigration judge. Id.
Respondents concede that Petitioner’s asylum appeal is technically still pending, but only
because the BIA has not yet processed Petitioner’s voluntary withdrawal of the appeal. Resp. at
4. They argue that once the BIA processes the withdrawal, the order of removal will become final
and enforceable, Petitioner will be subject to mandatory detention, and Petitioner will be removed
to Nicaragua. Id. Counsel for Respondents acknowledges that the facts of this case are
“substantially similar” to Duhan v. Noem, No. 2:26-CV-00019-MIS-JFR, 2026 WL 74195
(D.N.M. Jan. 9, 2026), and that “this Court’s decision in Duhan v. Noem, would control the result
here if the Court adheres to that decision, as the facts are not materially distinguishable for
purposes of the Court’s decision on the legal issue of which statutory provision authorizes
Petitioner’s detention.” Id. at 4-5. However, Respondents maintain that Petitioner is an applicant
for admission seeking admission subject to mandatory detention under 8 U.S.C. § 1225(b). Id. at
4.
Initially, the Court agrees with Respondents that this case is materially indistinguishable
from prior cases the Undersigned Judge has decided involving habeas petitioners who were
detained within the United States, rather than at a border crossing or port of entry. See Lopez-
Romero v. Lyons, Case No. 2:25-cv-0113-MIS-JHR, 2026 WL 92873 (D.N.M. Jan. 13, 2026);
Duhan, 2026 WL 74195, at *2. Based on the Court’s prior decisions, the Court finds that 8 U.S.C.
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§ 1226(a) governs Petitioner’s detention, his continued detention without a bond hearing violates
his Fifth Amendment right to due process, and, as such, he is eligible for habeas relief.
“Congress invested federal courts with discretion when it comes to supplying habeas
relief—providing that they ‘may’ (not must) grant writs of habeas corpus, and that they should do
so only as ‘law and justice require.’” Brown v. Davenport, 596 U.S. 118, 132 (2022) (first quoting
28 U.S.C. § 2241, then quoting 28 U.S.C. § 2243). Habeas corpus “is an ‘adaptable remedy,’ and
the ‘precise application and scope’ of the review it guarantees may change ‘depending upon the
circumstances.’” Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 152 (2020) (Breyer, J.,
concurring) (quoting Boumediene v. Bush, 553 U.S. 723, 779 (2008)).
Under the unique facts of this case, the Court finds that ordering Petitioner’s immediate
release is not the appropriate remedy. Petitioner’s detention is only unlawful because the BIA has
not yet processed his Motion to Withdraw Appeal. Once the BIA processes the withdrawal, the
Removal Order will become final, see 8 U.S.C. § 1101(a)(47)(B), and Petitioner’s detention will
be mandatory, 8 U.S.C. § 1231(a)(2)(A) (“During the removal period, the Attorney General shall
detain the” noncitizen); see also Zadvydas, 533 U.S. at 683 (“[D]uring the 90-day removal period,
… [the noncitizen] must be held in custody.”).
Instead, the Court concludes that ordering a bond hearing is the appropriate remedy in this
case, as the Court finds that whether and under what conditions Petitioner should be released is
better left to the sound discretion of an immigration judge at a bond hearing. See Lopez-Romero,
2026 WL 92873, at *7.
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IV. Conclusion
Therefore, it is HEREBY ORDERED that:
1. Petitioner Donald Francisco Garay-Mercado’s Petition for a Writ of Habeas Corpus
Under 28 U.S.C. § 2241, ECF No. 1, is GRANTED;
2. Respondents are ORDERED to provide Petitioner with an individualized and
constitutionally adequate bond hearing before a neutral Immigration Judge
pursuant to 8 U.S.C. § 1226(a) within seven days of the date of this Order;
3. Respondents shall file a status report within three days of Petitioner’s bond hearing
advising the Court as to whether bond was granted or denied, and if bond was
denied, the reasons for the denial; and
4. The Court will separately enter Final Judgment in favor of Petitioner but retain
jurisdiction to enforce this Order.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
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