Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ELIEZER JOSE YANEZ MARCANO,
Petitioner,
v.
Case No. 2:26-cv-03291-MIS-KRS
WARDEN of Otero County Processing
Center; MARKWAYNE MULLIN, in his
official capacity as Secretary, U.S.
Department of Homeland Security; DAVID J.
VENTURELLA, in his official capacity as
Acting Director, U.S. Immigration and
Customs Enforcement; MARY DE ANDA-
YBARRA, in her official capacity as Field
Office Director, El Paso Field Office,
Enforcement and Removal Operations, U.S.
Immigration and Customs Enforcement; and
TODD BLANCHE, in his official capacity as
Attorney General of the United States,
Respondents.
ORDER GRANTING AMENDED PETITION FOR WRIT OF HABEAS CORPUS
UNDER 28 U.S.C. § 2241
THIS MATTER is before the Court on Petitioner Eliezer Jose Yanez Marcano’s Amended
Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Amended Petition”), ECF No. 5,
filed October 9, 2026. Petitioner is a citizen of Venezuela who is married to a United States citizen,
has a child who is a United States citizen, and has pending immigration proceedings. Id. ¶¶ 1, 13-
15. It appears that he is also in removal proceedings and has complied with all reporting
requirements. Id. ¶ 12. On March 4, 2026, U.S. Immigration and Customs Enforcement (“ICE”)
officers arrested Petitioner when he appeared for a scheduled appointment with ICE. Id. Petitioner
appears to allege that he has not received a constitutionally-adequate bond hearing. Id. ¶¶ 25-26.
It is unclear whether he is subject to a final (or even a non-final) order of removal.
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On October 1, 2026, Petitioner initiated these proceedings by filing a Petition for Writ of
Habeas Corpus Under 28 U.S.C. § 2241. ECF No. 1.
On October 2, 2026, the Court issued an Order to Answer and Enjoining Transfer
instructing Respondents to show cause why the Court should not grant Petitioner habeas relief.
ECF No. 4. The Court specifically ordered Respondents to “whether the holdings in Santillan
Quiroz v. Mullin, 180 F.4th 1226 (10th Cir. 2026) and/or Zadvydas v. Davis, 533 U.S. 678 (2001),
require relief.” Id.
On October 9, 2026, Petitioner filed the operative Amended Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241. ECF No 5. He states that he has been in immigration detention
for more than six months and argues that his prolonged detention violates his Fifth Amendment
due process rights. Id. ¶¶10, 20-28. He further argues that his continued detention without an
individual custody determination violates the Immigration and Nationality Act (“INA”). Id. ¶¶ 25-
28.
On October 13, 2026, the federal Respondents filed a “Response to [the] Petition.” ECF
No. 6. Therein, they state:
For purposes of this specific case, Respondents are not submitting a brief in
opposition to the Petition detailing the facts and circumstances of this case.
Respondents recognize that the Court may then decide to grant the Petition and
award appropriate relief. Respondents submit that if the Court does grant the
Petition, the appropriate relief would be an Order directing that Respondents, within
seven days of this Court’s Order, provide Petitioner with a bond hearing under 8
U.S.C. § 1226(a), or else release Petitioner.
Id. at 1 (citing Santillan Quiroz v. Mullin, 180 F.4th 1226, 1251 n.13 (10th Cir. 2026)).
“Where, as here, ‘a party files a response to a motion but does not address all arguments
which the motion raises, the party has effectively conceded the arguments which it does not
address.’” Alfaro Herrera v. Baltazar, Civil Action No. 1:25-cv-04014-CNS, 2026 WL 91470, at
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*5 (D. Colo. Jan. 13, 2026) (quoting Series 17-03-615 v. Teva Pharms. USA, Inc., 785 F. Supp. 3d
904, 935 (D. Kan. 2025)); see also C1.G on behalf of C.G. v. Siegfried, 38 F.4th 1270, 1282 (10th
Cir. 2022) (holding that the district court correctly dismissed plaintiff’s facial challenge as
“abandoned” where plaintiff failed to include that challenge in his response to arguments raised in
defendant’s motion to dismiss). Accordingly, the Court finds that Respondents’ non-opposition to
the Petition constitutes a concession to Petitioner’s allegations that he has been detained in excess
of six months and that he has not received a constitutionally-adequate bond hearing. The Court
further finds that Petitioner is entitled to habeas relief on two grounds.
First, in Santillan Quiroz, the Tenth Circuit held “that noncitizens who entered the United
States and were thereafter detained in the interior of the country are usually subject to § 1226(a)
(and thus eligible for bond), not § 1225(b)(2)(A).” 180 F.4th at 1237. That is precisely the situation
presented by this case. Accordingly, the Court finds that 8 U.S.C. § 1226(a) governs Petitioner’s
detention, his continued detention without a constitutionally-adequate bond hearing violates the
INA, and, as such, he is entitled to habeas relief.
Second, Petitioner’s prolonged detention violates his substantive due process rights under
the Fifth Amendment for the reasons identified in Mardanpour v. Warden, Case No. 2:26-cv-
00550-MIS-LF, 2026 WL 963164, at *3-8 (D.N.M. Apr. 9, 2026), which the Court hereby adopts.
Briefly, Petitioner may not be “punished” without being accorded the substantive and procedural
due process guarantees of the Fifth Amendment, Rodriguez-Fernandez v. Wilkinson, 654 F.2d
1382, 1387 (10th Cir. 1981); under the circumstances of this case, Petitioner’s indefinite, ongoing
detention of over fourteen months, with no reasonably foreseeable end in sight,1 is excessive in
1 As previously mentioned, it is unclear whether Petitioner is subject to an order of removal. The
Executive Office of Immigration Review’s website indicates that his case is “pending[,]” which suggests to the Court
that an Immigration Judge has not yet ordered his removal. Assuming arguendo that an Immigration Judge ultimately
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relation to the Government’s legitimate, nonpunitive purpose of facilitating removal; and,
therefore, Petitioner’s detention is punitive and a violation of his Fifth Amendment substantive due
process rights, id.; see also Zadvydas v. Davis, 533 U.S. 678, 699-701 (2001);2 Rosales-Garcia v.
Holland, 322 F.3d 386, 411-13 (6th Cir. 2003); Dominguez v. Warden, Case No. 1:26-cv-02310-
MIS-GBW, 2026 WL 2186326, at *2 (D.N.M. July 29, 2026); Yang v. Warden, Case No. 2:26-cv-
02266-MIS-GJF, 2026 WL 2186338, at * 2 (D.N.M. July 29, 2026); Pereira v. Ortiz, Case No.
1:26-cv-02158-MIS-GBW, 2026 WL 2110814, at *2 (D.N.M. July 22, 2026);
Mardanpour, 2026 WL 963164, at *3-8; Rasoli v. Mullin, Case No. 2:26-cv-01460-MIS-SCY,
2026 WL 1662615, at *3-4 (D.N.M. June 9, 2026); Marquez v. Warden, Case No. 2:26-cv-01527-
MIS-SCY, 2026 WL 1557180, at *2 (D.N.M. June 2, 2026); Ahmadi v. De Anda-Ybarra, Case No.
orders Petitioner’s removal, “Petitioner’s appeal to the BIA and, if unsuccessful there, to the Tenth Circuit Court of
Appeals, could take years.” Mardanpour, 2026 WL 963164, at *6.
As the Department of Justice recently stated, after the Attorney General reduced the BIA’s size by
nearly one half in early 2025, there has been an “unprecedented B[IA] caseload.” Appellate
Procedures for the Board of Immigration Appeals, 91 Fed. Reg. 5267, 5270 (Feb. 6, 2026). Indeed,
“between fiscal year 2015 and the end of fiscal year 2025, the B[IA]’s pending case load increased
more than five-fold—from 37,285 pending appeals to 202,946 pending appeals,” leaving the BIA
“at a point where, even were it to have additional resources and better management, . . . it would not
be able to keep up with incoming filings while tackling the backlog in any meaningful
way.” Id. (citing Executive Office of Immigration Review (“EOIR”), Adjudication Statistics: All
Appeals Filed, Completed, and Pending (Nov. 18, 2025),
https://www.justice.gov/eoir/media/1344986/dl?inline [https://perma.cc/88C5-MU4N]). Thus, “the
B[IA] largely functions now as simply a vessel for further delay of the eventual resolution of [a
noncitizen’s] case.” Id. at 5271.
Segura Serrano v. Scott, CASE NO. 2:26-cv-01268-LK, 2026 WL 1674357, at *3 (W.D. Wash. 2026). In any event,
Respondents present no evidence or argument that Petitioner’s removal is imminent in the reasonably foreseeable
future.
2 To the extent that Petitioner is subject to a final order of removal, the Court finds that he is entitled
to habeas relief pursuant to Zadvydas. Specifically, the Court finds that the presumptively reasonable six-month-
period of confinement has expired, Petitioner has provided good reason to believe that there is no significant likelihood
of removal in the reasonably foreseeable future, and the Government has failed to present any evidence to rebut that
showing.
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1:26-cv-00897-MIS-DLM, 2026 WL 1121981, at *3 (D.N.M. Apr. 24, 2026); Harutyunyan v.
Lyons, Case No. 2:26-cv-01020-MIS-GBW, 2026 WL 1078958, at *1 (D.N.M. Apr. 21, 2026).
Upon finding a person is “in custody in violation of the Constitution or laws or treaties of
the United States[,]” 28 U.S.C. § 2241(c), a district court may grant a writ of habeas corpus and
“dispose of the matter as law and justice so require[,]” 28 U.S.C. §§ 2241(a), 2243. The “typical
remedy” for “unlawful executive detention” is release from custody. Munaf v. Geren, 553 U.S.
674, 693 (2008); see also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Respondents have failed
to articulate a legitimate interest in Petitioner’s continued detention. Therefore, the Court finds
that immediate conditional release is the appropriate remedy. See Boumediene v. Bush, 553 U.S.
723, 779 (2008) (“[T]he habeas court must have the power to order the conditional release of an
individual unlawfully detained—though release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.”).
IV. Conclusion
Therefore, it is HEREBY ORDERED that:
1. The Amended Petition for Writ of Habeas Corpus, ECF No. 5, is GRANTED;
2. Respondents are ORDERED to immediately release Petitioner Eliezer Jose Yanez
Marcano from custody/detention, subject to reasonable conditions of release, such
as electronic monitoring and regular check-ins;
3. Respondents shall return all of Petitioner’s seized belongings to Petitioner;
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4. Respondents SHALL NOT re-detain Petitioner absent (1) evidence that Petitioner
has committed a crime or absconded in his administrative immigration proceedings,
or (2) a valid final order of removal;3 and
5. The Court will separately enter Final Judgment in favor of Petitioner but retain
jurisdiction over this matter to ensure compliance with this Order.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
3 If Petitioner is currently subject to a final order of removal, Respondents shall not re-detain
Petitioner absent (1) evidence that Petitioner has committed a crime or absconded in his administrative immigration
proceedings, or (2) concrete travel plans to remove Petitioner from the United States.
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