Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LUIS EDUARDO TOSCA HIDALGO,
Petitioner,
v. No. 1:26-cv-001230-SMD-JMR
MARKWAYNE MULLIN,1 et al.,
Respondents.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
THIS MATTER is before the Court on Petitioner’s Pro Se Petition for Writ of Habeas
Corpus Under 28 U.S.C. § 2241. Doc. 1. The Court has reviewed the parties’ submissions, the
record, and the relevant law, and for the reasons set forth below, the Petition is GRANTED.
BACKGROUND
Petitioner Luis Eduardo Tosca Hidalgo, a citizen of Mexico, is currently in the custody of
Immigration and Customs Enforcement (“ICE”) at the Cibola County Correctional Center in
Milan, New Mexico. Doc. 1 ¶ 1. Petitioner first entered the United States on February 15, 2006,
when he was around five years old. Id. ¶¶ 1, 74. He now resides in Florida and lives alongside
his mother and stepfather. Id. ¶ 74. Petitioner has an asylum application currently pending, as
well as an application under the Deferred Action for Childhood Arrivals (“DACA”). Id. ¶ 80. He
has spent his life in the United States, developing strong community ties, and has been a law-
abiding citizen the entire time. Id. ¶¶ 76, 79.
On August 19, 2025, Petitioner was the passenger in a vehicle that was pulled over. Id.
¶ 75. The driver lacked a valid license, but Petitioner was not alleged to have violated any traffic
1 Pursuant to Federal Rule of Civil Procedure 25(d), the case caption shall be updated to reflect that Markwayne Mullin
is the Secretary of Homeland Security. All future filings should be in the name of the substituted party.
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law. Id. ¶ 18. Nevertheless, the officer detained Petitioner, contacted ICE, and had him transferred
to its custody. Id. ¶ 3. Petitioner has remained in custody for approximately nine months. Id. ¶ 2.
Petitioner represents, and Respondents do not dispute, that there was no valid reason for his
detention at the time of his arrest nor any substantive process afforded since. Id. ¶ 3.
DISCUSSION
This Court has jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to
immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). A district court may grant
a writ of habeas corpus to a petitioner who demonstrates that “[h]e is in custody in violation of the
Constitution or laws . . . of the United States.” 28 U.S.C. § 2241(c)(3).
I. Statutory Framework: 8 U.S.C. §§ 1225 and 1226
Sections 1225 and 1226 govern the detention of noncitizens prior to a final order of
removal. See Jennings v. Rodriguez, 583 U.S. 281, 287–89 (2018). Section 1225(b) “applies
primarily to [noncitizens] seeking entry into the United States”—i.e., “applicants for admission.”
Id. at 297. Detention pursuant to § 1225(b)(2)(A) is required “if the examining immigration officer
determines that [a noncitizen] seeking admission is not clearly and beyond a doubt entitled to be
admitted.” Noncitizens detained pursuant to § 1225(b)(2) cannot be released on bond.
Section 1226(a) sets the “default rule” for detaining noncitizens “already present in the
United States.” Jennings, 583 U.S. at 303. Under § 1226(a), a noncitizen “may be arrested and
detained pending a decision on whether the [noncitizen] is to be removed from the United States.”
Noncitizens detained pursuant to § 1226(a) are therefore generally entitled to individualized bond
hearings. See id. at 306.
Sections 1225(b)(2)(A) and 1226(a) are mutually exclusive in that both provisions cannot
simultaneously govern Petitioner’s detention. E.g., Romero v. Hyde, 795 F. Supp. 3d 271, 286 (D.
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Mass. 2025); see also, Patel v. Crowley, No. 25-cv-11180, 2025 WL 2996787, at *5 (N.D. Ill. Oct.
24, 2025); Artiga v. Genalo, No. 25-cv-5208, 2025 WL 2829434, at *4 (E.D.N.Y. Oct. 5, 2025).
Section 1226(a), rather than § 1225(b)(2), governs Petitioner’s detention because he was
“already present in the United States” at the time of his arrest. Jennings, 583 U.S. at 303.
Petitioner entered the United States in 2006 has lived here continuously since then, and was
detained in the country’s interior. Doc. 1 ¶ 74. He is therefore not subject to the mandatory
detention provisions of § 1225, which apply to those seeking admission, specifically noncitizens
who present at a port of entry or are apprehended immediately after entering. Petitioner is instead
entitled to a bond hearing under § 1226(a). See Requejo Roman v. Castro, __ F. Supp. 3d ___,
2026 WL 125681, at *8 (D.N.M. Jan. 12, 2026); Cortez-Gonzalez v. Noem, 811 F. Supp. 3d 1287,
1296 (D.N.M. 2025); Velasquez Salazar v. Dedos, No. 1:25-cv-00835, 2025 WL 2676729, at *4
(D.N.M. Sept. 17, 2025); Pu Sacvin v. De Anda-Ybarra, No. 2:25-cv-01031, 2025 WL 3187432,
at *3 (D.N.M. Nov. 14, 2025); Ayala v. Moniz, et al, __ F. Supp. 3d ___, 2026 WL 1031167, at *2
(D. Mass. Apr. 16, 2026); Wuilmer v. Noem, No. 25-CV-3236, 2026 WL 458457, at *3 (D. Minn.
Feb. 18, 2026); Villatoro v. Ripa, No. 2:26-CV-00213, 2026 WL 452432, at *1 (M.D. Fla. Feb.
18, 2026).
II. The Government’s Detention of Petitioner Violates His Fifth Amendment Rights.
The Court finds that Petitioner’s continued detention violates his Fifth Amendment rights.
Courts analyze due process claims in two steps: the first asks whether there exists a protected
liberty interest under the Due Process Clause, and the second examines the procedures necessary
to ensure any deprivation of that protected liberty interest accords with the Constitution. Garcia
Domingo v. Castro, 806 F. Supp. 1246, 1251–52 (D.N.M. 2025) (citing Ky. Dep’t of Corrections
v. Thompson, 490 U.S. 454, 460 (1989)). “Freedom from imprisonment—from government
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custody, detention, or other forms of physical restraint—lies at the heart of the liberty that [the
Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. “It is well established that the Fifth
Amendment entitles [noncitizens] to due process of law in deportation proceedings.” Reno v.
Flores, 507 U.S. 292, 306 (1993). Though the Government “may constitutionally detain
deportable aliens during the limited period necessary for their removal proceedings,” that “limited
period” cannot be indefinite. Demore v. Kim, 538 U.S. 510, 527 (2003). As the length of detention
stretches on, an individual’s due process interests escalate and the government’s burden to justify
continued detention mounts. Id. at 529; Jennings, 583 U.S. at 310–11; Mohamed v. Sec’y Dep’t
of Homeland Sec., 376 F. Supp. 3d 950, 957 (D. Minn. 2018).
The United States’ power to admit or exclude aliens is no longer plenary once an alien
enters the country, because the Due Process Clause applies to “all persons.” See Landon v.
Plasencia, 459 U.S. 21, 32 (1982) (“Once an alien gains admission to our country and begins to
develop the ties that go with permanent residence his constitutional status changes accordingly.”).
Petitioner possesses a protected liberty interest in remaining free from detention and was deprived
of that interest without constitutionally adequate process.
The Government has offered neither a justification nor a formal process for the deprivation
of Petitioner’s protected liberty interest. While the Court recognizes that the length of residency
does not constitute legal authorization to remain in the country, the prevailing interpretation of
Sections 1225 and 1226, both by this Court and a majority of courts nationwide, indicates that
noncitizens apprehended within the U.S. interior are entitled to certain constitutional procedural
safeguards. Not only has petitioner resided in the United States for a significant duration, he was
first brought across the border at only five years old. Since then, he has followed the law and
sought a lawful pathway to citizenship through asylum or the DACA program. There is no
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evidence that he is a flight risk nor a threat to the community. To the contrary, he has every
incentive to stay in Florida near his mother and step-father. Yet, despite these fundamental
interests, he has languished in custody, following a likely unlawful arrest, for nine months without
any prospect of removal. Respondents do not dispute these facts. See Doc. 8 at 2. Respondents
have therefore violated Petitioner’s Fifth Amendment rights by keeping him detained indefinitely
without sufficient process or any proffered explanation for what purpose detention serves.
Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981) (“Detention pending
deportation seems properly analogized to incarceration pending trial or other disposition of a
criminal charge, and is, thus, justifiable only as a necessary, temporary measure.”).
Respondents concedes that the material facts of this case are similar from those in Duhan
v. Noem, No. 2:26-cv-0019, 206 U.S. Dist. LEXIS 20895 (D.N.M. Feb. 2, 2026); see also Martin
Ramirez v. Noem, No. 2:26-cv-00063, 2026 WL 381869, at *7 (D.N.M. Feb. 11, 2026). See Doc.
8 at 2. Furthermore, the Government acknowledges that Duhan controls the outcome here should
the Court adhere to that precedent. See id. Because Respondents have offered no independent
legal basis for continued custody, Petitioner is entitled to relief pursuant to § 2241. See Cortez-
Gonzalez, 811 F. Supp. 3d at 1296.
The Court notes that Respondents oppose attorneys’ fees. Doc. 8 at 3–5. The Court does
not address those arguments at this point and will only do so if Petitioner files a separate motion
requesting them.
CONCLUSION
It is hereby ORDERED:
1) The Petition for Writ of Habeas Corpus (Doc. 1) is GRANTED;
2) Respondents shall release Petitioner within 48 hours of this Order being entered;
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3) Respondents shall facilitate Petitioner’s transportation from the detention facility
by providing all necessary identity and travel documents to return to his primary
address in Florida;
4) Respondents SHALL file a notice of compliance within two business days of
Petitioner’s release. This notice must specify: (1) the date, (2) the time, and (3) the
manner of departure (e.g., transport to a bus station, designated drop-off location,
or other arrangements). Additionally, the notice must include (4) a description or
copies of all discharge and travel documents provided to Petitioner at the time of
release;
5) Respondents SHALL NOT re-detain Petitioner without a pre-deprivation hearing
before a neutral Immigration Judge pursuant to 8 U.S.C. § 1226(a);
6) Respondents SHALL NOT remove Petitioner to any third country to which he does
not have a removal order without first providing him with constitutionally
compliant procedures;
7) The Court will separately enter Final Judgment in favor of Petitioner but retain
jurisdiction over this matter to ensure compliance with this Order.
IT IS SO ORDERED.
____________________________________
SARAH M. DAVENPORT
UNITED STATES DISTRICT JUDGE
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