Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROGELIO BOLUFE IZQUIERDO,
Petitioner,
v. 	Civ. No. 25-1304 JB/SCY
MELISSA ORTIZ, Warden, Torrance
County Detention Facility; JOEL
GARIA, Field Office Director, El
Paso Field Office, United States
Immigration and Customs Enforcement;
TODD M. LYONS, Acting Director,
United States Immigration and Customs
Enforcement; KRISTI NOEM,
Secretary of Homeland Security; and
PAMELA JO BONDI, United States
Attorney General,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter comes before me on Petitioner Rogelio Bolufe Izquierdo’s Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1), Memorandum of Law in Support of Petition
for Writ of Habeas Corpus (Doc. 2), and Respondents’ Motion to Dismiss Petition for Writ of
Habeas Corpus (Doc. 10).1 United States District Judge James Browning referred this case to me
under 28 U.S.C. §§ 636(b)(1)(B), (b)(3), and Va. Beach Fed. Sav. & Loan Ass’n v. Wood, 901
F.2d 849 (10th Cir. 1990) “to conduct hearings, if warranted, including evidentiary hearings, and
to perform any legal analysis required to recommend to the Court an ultimate disposition of the
1 Although the motion to dismiss is only filed on behalf of Immigrations and Customs
Enforcement, the Department of Homeland Security, and the United States Attorney General,
Doc. 10, those federal Respondents acknowledge that “all arguments made on behalf of the
[federal] respondents apply equally to the Warden.” Doc. 9 at 1 n.1.
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case.” Doc. 7. Having reviewed the briefs and the law, I recommend that the Court grant the
motion to dismiss and deny the petition for writ of habeas corpus.
BACKGROUND
Petitioner Rogelio Bolufe Izquierdo is a native of Cuba and was lawfully admitted to the
United States on January 22, 2020 as a B2 visa holder, expiring July 21, 2020. Doc. 10-1.
Petitioner filed an I-485 (application to register permanent residence or adjust status) on October
4, 2021, which remained pending until his arrest in Florida on August 18, 2025 for drug
possession. Doc. 10-2. Thereafter, Department of Homeland Security began removal proceedings
for overstaying the visa and Petitioner was taken into custody of Immigration and Customs
Enforcement (“ICE”). Id. He is currently being held at Torrance County Detention Facility. Doc.
1 at 1. On September 30, 2025, an Immigration Judge (“IJ”) held a bond hearing pursuant to 8
C.F.R. § 1236 and ordered “No Action.” Doc. 10-3. On November 20, 2025, an IJ denied
Petitioner asylum and ordered him to be removed to Ecuador. Doc. 10-4. Petitioner appealed to
the Board of Immigration Appeals (“BIA”) on December 22, 2025 and that appeal is currently
pending. See Automated Case Information, United State Department of Justice,
https://acis.eoir.justice.gov/en/caseInformation (last visited January 15, 2026).
On December 24, 2025, Petitioner filed the present Petition Under 28 U.S.C. § 2241 for
Writ of Habeas Corpus and accompanying Memorandum of Law in Support of Petition for Writ
of Habeas Corpus. Docs. 1, 2. The Court granted Petitioner leave to appear through his next
friend, Haymel de la Vega, and ordered Respondents to answer the petition. Doc. 8. On January
13, 2026, Respondents filed a Motion to Dismiss. Doc. 10. Petitioner has not filed a response to
the motion to dismiss and his time to do so has expired.
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LEGAL STANDARD
Respondents move to dismiss the petition under Rule 12(b)(1) for lack of subject matter
jurisdiction and under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
“As a general rule, Rule 12(b)(1) motions to dismiss for lack of jurisdiction take one of
two forms: (1) facial attacks; and (2) factual attacks.” Paper, Allied-Indus., Chem. and Energy
Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285, 1292 (10th Cir. 2005). A facial attack
“challenges the sufficiency of the complaint, requiring the district court to accept the allegations
in the complaint as true.” Id. In a factual attack “the movant goes beyond the allegations in the
complaint and challenges the facts upon which subject matter jurisdiction depends.” Id. When
considering a factual attack, the Court may look to evidence outside the complaint and “has wide
discretion to allow documentary and even testimonial evidence under Rule 12(b)(1).” Id.; see
also Graff v. Aberdeen Enterprizes, II, Inc., 65 F.4th 500, 507 (10th Cir. 2023) (“When the
moving party attacks the factual basis for subject matter jurisdiction . . ., a court may not
presume the truthfulness of the factual allegations in the complaint, but may consider evidence to
resolve disputed jurisdictional facts.”) (internal quotation marks and citation omitted).
Federal Rule of Civil Procedure 12(b)(6), on the other hand, allows a court to dismiss a
complaint for failure to state a claim upon which the court can grant relief. “[T]o withstand a
Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as
true, to state a claim to relief that is plausible on its face.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim is facially plausible when the allegations give rise to a reasonable inference that the
defendant is liable.” Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016). The court’s
consideration, therefore, is limited to determining whether the complaint states a legally
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sufficient claim upon which the court can grant relief. See Sutton v. Utah State Sch. for the Deaf
& Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). The court must view a plaintiff’s allegations in
the light most favorable to him. Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013).
ANALYSIS
Petitioner filed the present petition for writ of habeas corpus under 28 U.S.C. § 2241,
which provides that such a writ shall extend to a person “in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Liberally
construing the pro se petition, Petitioner requests relief on several grounds, all of which
Respondents move to dismiss. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A
pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers.”). I will address each in turn.
1. 	Bond Hearing
Petitioner argues that he is in “[o]ngoing immigration detention without a bond hearing.”
Doc. 1 at 1; see also Doc. 1 at 4, Doc. 2 at 2, 7. Respondents assert that “[a]s a visa overstay,
Petitioner is not subject to INA § 235 mandatory detention and remains eligible for a bond
review upon request.” Doc. 10 at 2. That is, Respondents agree that Petitioner is entitled to a
bond hearing under 8 U.S.C. § 1226, as opposed to mandatory detention under 8 U.S.C. § 1225.
However, they argue that he has already received one, and as such this claim for relief is moot
and the Court lacks jurisdiction over it.
Because Respondents mount a factual attack under Rule 12(b)(1), I consider evidence
outside the complaint. Specifically, Respondents provided the Court with an IJ Order from a
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September 30, 2025 custody redetermination hearing with an outcome of “no action”.2 Doc. 10-
3. Given that Petitioner has received a bond hearing, and that Respondents do not contest that
Petitioner “remains eligible for further bond review,” Doc. 10 at 1, I recommend finding that his
claim for relief based on detention without a bond hearing is moot. And because this claim for
relief is moot, I recommend the Court dismiss it without prejudice for lack of jurisdiction.3 See
Keller Tank Servs. II, Inc. v. Comm'r of Internal Revenue, 854 F.3d 1178, 1192–93 (10th Cir.
2017) (“This court lacks subject matter jurisdiction if a case is moot.”).
2. 	Continued Detention
Petitioner alleges that “[u]nder Zadvydas v. Davis, continued detention is unconstitutional
because removal is not reasonably foreseeable.” Doc. 2 at 13. As explained by Chief Judge
Gonzales,
Under the Immigration and Nationality Act (“INA”), when a noncitizen is ordered
removed, the Government must execute the removal within a 90-day “removal
period.” 8 U.S.C. § 1231(a)(1)(A). “During the removal period, the Attorney
General shall detain the alien.” § 1231(a)(2). As relevant here, the “removal
period begins” when the removal order “becomes administratively final.”
§ 1231(a)(1)(B).
2 Respondents explain that “no action” is a designation “typically requested by Petitioners
seeking additional time to gather evidence in support of their legal or factual claims,” and is
different from a denial of a bond hearing for lack of jurisdiction. Doc. 10 at 2 n.1; see also
Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 2025 WL 2674169 (BIA 2025) (Immigration
Judge holding that he lacked jurisdiction to hear a bond request because the respondent was
subject to mandatory detention).
To the extent Petitioner is seeking to challenge the “no action” outcome, “[a]n IJ’s bond
determination is ‘discretionary’ and ‘not subject to review.’” Makarevich v. Bondi, No. 1:25-CV-
01002-KG-JHR, 2025 WL 3653895, at *1 (D.N.M. Dec. 17, 2025) (quoting 8 U.S.C. § 1226(e)).
3 Because I recommend dismissing this claim for lack of jurisdiction, the Court need not address
Respondents’ argument that Petitioner failed to exhaust his administrative remedies as to a bond
hearing. Doc. 10 at 8.
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Although the Government may continue to detain an “inadmissible” noncitizen
beyond the 90-day removal period, see § 1231(a)(6), it may not detain them
“indefinitely.” Zadvydas, 533 U.S. at 699. A six-month detention is
“presumptively reasonable.” Id. at 680. This period runs only while the noncitizen
is actually “detained.” Callender v. Shanahan, 281 F. Supp. 3d 428, 435
(S.D.N.Y. 2017); see also Ke Chen v. Holder, 783 F. Supp. 2d 1183, 1192 (N.D.
Ala.) (“Zadvydas time” cannot run “while a petitioner is not in custody”); Chun
Yat Ma v. Asher, 2012 WL 1432229, at *3 (W.D. Wash.) (same). After six
months, if the noncitizen “provides good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future,” the burden
shifts to the Government to rebut that showing. Zadvydas, 533 U.S. at 680.
Jiang v. Bondi, No. CIV 25-0922 KG/GBW, 2025 WL 3281819, at *2 (D.N.M. Nov. 25, 2025).
Here, however, Zadvydas does not currently apply to Petitioner’s detention because he
does not have a final removal order. It is undisputed that Petitioner appealed his removal order to
the BIA and that appeal is currently pending. See, e.g., Doc. 1 at 4; Doc. 10 at 2. Because this
appeal is pending, Petitioner’s removal order has not become administratively final and the
removal period under Zadvydas has not started to run. See 8 C.F.R. § 1241.1 (“An order of
removal made by the immigration judge at the conclusion of proceedings under section 240 of
the Act shall become final: (a) Upon dismissal of an appeal by the Board of Immigration
Appeals.”).
Petitioner also argues that “[p]rolonged detention without meaningful review violates
Jennings v. Rodriguez.” Doc. 2 at 13. In Jennings, the Supreme Court rejected the argument that
Section 1225(b)(1), 1225(b)(2), or 1226(c) only allow for detention during the pendency of the
applicable proceeding (such as removal proceedings) for a maximum of six months before a
bond hearing is required. 583 U.S. 281, 298-301 (2018). And further, the Court rejected the
argument that Section 1226(a) requires periodic bond hearings every six months. Id. at 306.
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Accordingly, Jennings does not support Petitioner’s argument that his continued detention is
unlawful.4
I therefore recommend the Court deny Petitioner’s request for relief under Zadvydas and
Jennings for failure to state a claim.
3. 	Conditions of Detention
Petitioner asserts several claims regarding his conditions of confinement. See, e.g., Doc. 1
at 5 (alleging unsafe, inhumane, and dangerous conditions of confinement); id. at 6 (denial of
access to legal materials and court processes); id. at 7 (interference with legal mail); Doc. 2 at 8
(“Petitioner has endured torture, assault, overmedication, freezing temperatures, shackling, sleep
deprivation, and threats” while detained); id. at 9 (deliberate indifference to serious medical
needs); id. at 10 (denial of access to counsel, legal materials, and evidence). These claims,
however, are not cognizable through a habeas corpus petition.
“The fundamental purpose of a § 2241 habeas proceeding is to allow a person in custody
to attack the legality of that custody, and the ‘traditional function of the writ is to secure release
from illegal custody.’” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (quoting
McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997)). Thus, “a prisoner who
challenges the fact or duration of his confinement and seeks immediate release or a shortened
period of confinement, must do so through an application for habeas corpus.” Id. On the other
4 The Jennings Court specifically did not reach the issue of whether prolonged detention violates
constitutional rights, 583 U.S. at 312, but some lower courts have held that prolonged detention
without a bond hearing can violate a noncitizen’s constitutional right to due process. See Black v.
Decker, 103 F.4th 133, 147-51 (2d Cir. 2024) (declining to adopt a brightline rule and setting
forth factors to consider on a case-by-case basis as to the reasonableness of pre-removal
detention); but see Banyee v. Garland, 115 F.4th 928, 930 (8th Cir. 2024) (“Due process imposes
no time limit on detention pending deportation.”). Here, however, Petitioner has received a bond
hearing and Respondents agree that he “remains eligible for further bond review.” Doc. 10 at 1.
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hand, “a prisoner who challenges the conditions of his confinement must do so through a civil
rights action.” Id.; see also Richwine v. Romero, No. CV 09-0870 JB/GBW, 2012 WL 13081847,
at *22 (D.N.M. Feb. 8, 2012) (holding that claim of insufficient access to legal materials “relates
to conditions of confinement, and therefore is not cognizable in a habeas corpus petition”).
I therefore recommend that the Court deny without prejudice the claims for relief related
to Petitioner’s conditions of confinement, as such claims fail to state a claim for habeas relief.
Should Petitioner wish to pursue these claims, he would need to file a separate action under 42
U.S.C. § 1983 with the appropriate court.5
4. 	Review of Immigration Judge’s Order
Petitioner raises several arguments regarding the merits of his removal proceedings in
front of an IJ. Doc. 2 at 6, 11 (interpreter errors during immigration hearing); id. at 6, 12
(removal order to Ecuador without legal basis); id. at 7, 11-12 (IJ’s written order contradicts his
oral statements). Fatal to Petitioner’s claim for relief, however, is that the federal court’s
“jurisdiction to review removal proceedings requires a ‘final order of removal.’” Sosa-
Valenzuela v. Gonzales, 483 F.3d 1140, 1143 (10th Cir. 2007) (quoting 8 U.S.C. § 1252(a)).
Here, as discussed above, there is no final order of removal in Petitioner’s case because an
appeal is pending with the BIA. Indeed, Petitioner raised these same issues in his appeal to the
BIA. See Doc. 1 at 2. Further, judicial review over a final order of removal is granted only to the
court of appeals, not district courts. See 8 U.S.C. § 1252(a)(5); § 1252(b)(9). Accordingly, I
recommend that Court dismiss these claims for failure to state a claim.
5 In his present petition, Petitioner complains about the conditions of his confinement at both the
Torrence County Detention Facility in New Mexico and a detention facility in Florida.
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RECOMMENDATION
For these reasons, I recommend that the Court grant the Motion to Dismiss (Doc. 10) and
deny the Petition under 28 U.S.C. § 2241 for Writ of Habeas Corpus (Doc. 1).
____________________________________
Steven C. Yarbrough
United States Magistrate Judge
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen-day period
if that party wants to have appellate review of the proposed findings and recommended
disposition. If no objections are filed, no appellate review will be allowed.
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