Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
NATASHA JETCAY CORTEZ-GONZALEZ,
Petitioner,
v. 	No. 2:25-cv-00985-MLG-KK
KRISTI NOEM, in her official capacity as
Secretary of the Department of Homeland Security;
PAMELA BONDI, in her official capacity as U.S.
Attorney General; TODD LYONS, in his official
capacity as Acting Director and Senior Official
Performing the Duties of the Director of U.S.
Immigration and Customs Enforcement;
MARY DE ANDA-YBARRA, in her official
capacity as Field Office Director of the El Paso
Field Office of U.S. Immigration and Customs Enforcement,
Enforcement and Removal Operations; and
DORA CASTRO, in her official capacity
as Warden of Otero County Processing Center,
Respondents.
MEMORANDUM OPINION REGARDING
SECOND TEMPORARY RESTRAINING ORDER
The issue presented in this matter is whether a noncitizen, who has been living in the United
States, is entitled to a bond hearing after they have been detained and charged with removability.
Like nearly every other court to address the issue, this Court resolves the question in the
affirmative.
FACTUAL BACKGROUND
Though technically a native Mexican citizen, Nathasha Jetcay Cortez-Gonzalez has resided
continuously in this country since 2005. Doc. 1 at 6 ¶ 19-20. She arrived with her mother—who
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had been trafficked into the United States—when she was just five months old.1 Id. Given the
circumstances precipitating her arrival, she did not receive admission or parole as an infant. See
Doc. 2 at 8 ¶ 2.
Having lived in the United States for nearly her entire life, Cortez-Gonzalez has established
deep roots. Her education and upbringing occurred entirely in this country, and she is engaged to
an American citizen. Id. at 9 ¶ 11.
Although Cortez-Gonzalez has no criminal record, on July 10, 2025, she was arrested by
Department of Homeland Security (“DHS”) agents during “Operation at Large,” which was
conducted in Los Angeles, California. Doc. 2 at 8-9 ¶¶ 4, 11. She was served with a Notice to
Appear (“NTA”) and charged with removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Id. at ¶
5; Doc. 1 at 23-25 (NTA). Cortez-Gonzalez was subsequently transported from California—her
state of residence—to the Otero County Processing Center in New Mexico. Doc. 1 at 1 ¶ 1, 4-5 ¶
13.
On August 11, 2025, the presiding immigration judge (“IJ”) denied Cortez-Gonzalez’s
request for a custody redetermination pursuant to 8 C.F.R. § 1236 because he “lack[ed] jurisdiction
1 Cortez-Gonzalez’s legal status depends—at least in the short term—on whether her mother’s
application for a T visa is successful. Cortez-Gonzalez’s mother filed an application for a T visa
(or, more formally, T nonimmigrant status), which provides protected status to victims of “a severe
form of trafficking in persons.” Doc. 2 at 12 (internal quotation marks omitted) (quoting 8 U.S.C.
§ 1101(a)(15)(T)); id. at 8 ¶ 3. Cortez-Gonzalez submitted an I-914A Application for Immediate
Family Member of T-1 Recipient to request derivative status and I-192 Application for Advance
Permission to Enter as Nonimmigrant. Doc. 1 at 1 ¶ 1. The I-914A Application was received by
USCIS on May 28, 2024, and remains pending. Id. at 27-30 (I-914A Application Receipt). If
accepted, Cortez-Gonzalez would gain legal status. See generally Victims of Human Trafficking:
T 	Nonimmigrant 	Status, 	U.S. 	Citizenship 	& 	Immigr. 	Servs.,
https://www.uscis.gov/humanitarian/victims-of-human-trafficking-t-nonimmigrant-status
[https://perma.cc/LN9L-BTEP] (last updated May 16, 2025). But, to remain eligible for the T visa,
Cortez-Gonzalez must remain physically present in the United States. See § 1101(a)(15)(T)(i)(II);
8 C.F.R. § 214.207(a)-(b). Removing her from the country prior to resolution of her application
would therefore have profound consequences.
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to grant a bond.” Doc. 1 at 32-33 (Otero Immigration Court Order); Doc. 2 at 8 ¶ 6. Cortez-
Gonzalez appealed the IJ’s bond denial to the Board of Immigration Appeals (“BIA”). Doc. 1 at 6
¶ 25; see also id. at 38-44 (Appeal to BIA). The BIA has not ruled on Cortez-Gonzalez’s appeal,
but the prospects of a favorable outcome are bleak. The BIA recently issued a precedential decision
holding that section 235(b)(2)(A) of the Immigration and Nationality Act, codified at 8 U.S.C. §
1225(b)(2)(A), precludes IJs from granting bond requests to people who are present in the United
States unlawfully.2 See Matter of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025). With no other
options available to her, Cortez-Gonzalez now seeks relief from this Court. Doc. 1.3
PROCEDURAL BACKGROUND
Cortez-Gonzalez filed a Petition for Writ of Habeas Corpus (“Petition”) on October 9,
2025. Doc. 1. She asserts that she is being held unlawfully at the Otero County Processing Center
and that her continued detention violates her Fifth Amendment right to due process, the
Administrative Procedure Act (“APA”), her Fourth Amendment right to a neutral judicial
determination 	of 	probable cause, 	and 	the Accardi 	Doctrine with 	respect 	to 	8 	C.F.R. 	§
2 Respondents urge the Court to adopt the BIA’s decision and apply 8 U.S.C. § 1225 to Cortez-
Gonzalez’s pre-removal detention. See Doc. 15 at 9-10. This approach is novel and inconsistent
with a host of case law interpreting the relevant statutes. See Salazar v. Dedos, No. 1:25-cv-00835-
DHU-JMR, 2025 WL 2676729, at *4 (D.N.M. Sept. 17, 2025); Pu Sacvin v. De Anda-Ybarra, No.
2:25-cv-01031-KG-JFR, 2025 WL 3187432 (D.N.M. Nov. 14, 2025); see also Rodriguez v.
Bostock, 779 F. Supp. 3d 1239, 1257-61 (W.D. Wash. 2025); Lopez Benitez v. Francis, 795 F.
Supp. 3d 475, 483-91 (S.D.N.Y. 2025); Jimenez v. FCI Berlin, No. 25-cv-326-LM-AJ, 2025 WL
2639390 (D.N.H. Sept. 8, 2025); Cerritos Echevarria v. Bondi, No. CV-25-03252-PHX-DWL
(ESW), 2025 WL 2821282, at *4-5 (D. Ariz. Oct. 3, 2025) (collecting cases); Ochoa Ochoa v.
Noem, No. 25-cv-10865, 2025 WL 2938779, at *5 n.8 (N.D. Ill. Oct. 16, 2025) (collecting cases).
3 The Immigration Court originally scheduled Cortez-Gonzalez’s individual hearing regarding her
removal for February 2, 2026. Doc. 2 at 7. The hearing was rescheduled to October 21, 2025. Id.
The IJ denied Cortez-Gonzalez’s motion to continue on October 6, 2025. Id. As of the date of this
Opinion, Cortez-Gonzalez’s individual hearing was set for November 17, 2025. Doc. 15 at 3.
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287.8(C)(2)(i) and (ii). Id. at 10-14 ¶¶ 40-61. Along with the Petition, Cortez-Gonzalez also filed
a Motion for Temporary Restraining Order (“Motion”). Doc. 2. She seeks various forms of relief,
including:
(1) enjoin[ing] Respondents from transferring Petitioner outside of New Mexico
while this matter is pending so as not [to] deprive this Court and Petitioner an
opportunity to hear this case; (2) direct[ing] DHS to schedule a constitutionally
adequate individualized custody determination within 10 days[,] at which the
government bears the burden to justify continued detention and the Court considers
release on bond or other reasonable conditions of supervision; (3) enjoin[ing] DHS
from removing Petitioner while her application for a T visa remains pending; [and]
(4) grant[ing] such other and further relief as law and justice require.
See Doc. 2 at 7-8 (citation modified).4
After receiving Cortez-Gonzalez’s Motion, the Court issued an Order directing service on
Respondents. Doc. 5. Briefing was scheduled, and a hearing was held.5 The Court subsequently
issued a Temporary Restraining Order (“TRO”) enjoining Respondents from transferring Cortez-
Gonzalez to any facility outside of the District of New Mexico or from removing her from the
United States during the pendency of her habeas proceedings. Doc. 11. Further briefing was set to
allow the parties an opportunity to address Cortez-Gonzalez’s remaining requests for relief. Doc.
12. Thereafter, the Court issued the Second TRO requiring Respondents to provide her with an
individualized bond hearing pursuant to 8 U.S.C. § 1226(a). Doc. 16. This Opinion provides the
legal reasoning for that decision.
DISCUSSION
4 Unlike the Petition, the Motion does not request Cortez-Gonzalez be released from custody. The
Motion requests the Court enjoin DHS from removing her while her T visa application is pending.
This relief is not requested in the Petition. Compare Doc. 1 at 14-15 ¶¶ 1-8, with Doc. 2 at 7-8.
5 That Order was necessary because the Motion was absent of any statements certifying “efforts
made to give notice,” as required by the Federal Rules of Civil Procedure. Fed. R. Civ. P.
65(b)(1)(B) (providing notice requirements for an ex parte temporary restraining order); Docs. 2,
5.
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I. 	Applicable Legal Standard
To obtain a restraining order, the movant must show “(1) a substantial likelihood of success
on the merits, (2) irreparable injury in the absence of the injunction, (3) its threatened injury
outweighs the harm to the opposing party under the injunction, and (4) the injunction is not adverse
to the public interest.”6 First W. Cap. Mgmt. Co. v. Malamed, 874 F.3d 1136, 1139 n.2 (10th Cir.
2017) (citing Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009)). “The burden is
on the movant, and ‘the right to relief must be clear and unequivocal’ due to the extraordinary
nature of preliminary injunctions as a remedy.” N.S. v. Albuquerque Pub. Schs. Bd. of Educ., No.
1:24-cv-01303-MLG-GJF, 2025 WL 3215604, at *2 (D.N.M. Feb. 3, 2025) (quoting Greater
Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003)). Further, because Cortez-
Gonzalez’s requested relief mandates action (rather than prohibiting it), she must clear a higher
hurdle to prevail. See Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d 792, 797 (10th
Cir. 2019) (citing Awad v Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012)). Specifically, she “must
make a ‘strong showing’” that the likelihood-of-success and balance-of-harms factors “tilt in her
favor.” Id (quoting Fish v. Kobach, 840 F.3d 710, 723 (10th Cir. 2016)).
II. 	Cortez-Gonzalez satisfies the four prerequisites justifying a preliminary injunction.
A. 	Cortez-Gonzalez is likely to succeed on the merits.
1. 	Cortez-Gonzalez’s detention is governed by 8 U.S.C. § 1226(a).
6 The standard applicable to a motion for a preliminary injunction is the same as a motion for a
TRO. See Valdez v. Grisham, 559 F. Supp. 3d 1161, 1170 n.1 (D.N.M. 2021); Nellson v. Barnhart,
454 F. Supp. 3d 1087, 1091 (D. Colo. 2020) (citing Wiechmann v. Ritter, 44 F. App’x 346, 347
(10th Cir. 2002)). Case law addressing either situation may be properly considered. See Valdez,
599 F.Supp. at 1170; Herrera v. Santa Fe Pub. Schs., 792 F.Supp.2d 1174, 1181-82 (D.N.M.
2011).
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Cortez-Gonzalez claims her detention is governed by the discretionary detention authority
of 8 U.S.C. § 1226(a) and, as such, she is entitled to an individualized bond hearing. Doc. 2 at 6-
8, 13-20. Respondents assert Cortez-Gonzalez is appropriately classified and detained pursuant to
§ 1225(b)(2)(A). Doc. 15 at 9. Whether she is likely to succeed on her claims necessarily turns on
which of these statutory provisions controls. For the reasons explained below, the Court finds (like
nearly all other courts to consider the matter) that § 1226(a), not § 1225(b), applies to petitioners
like Cortez-Gonzalez. See supra note 2.
Sections 1225 and 1226 govern the detention of noncitizens7 prior to a final order of
removal. See Jennings v. Rodriguez, 583 U.S. 281, 287-89 (2018). The first, §1225(b), “applies
primarily to [noncitizens] seeking entry into the United States,”—i.e., “applicants for admission.”
Jennings, 583 U.S. at 297.8 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 . . . .” “A noncitizen detained under Section 1225(b)(2) may be
released only if he is paroled ‘for urgent humanitarian reasons or significant public benefit’ under
8 U.S.C. § 1182(d)(5)(A).” Gomes v. Hyde, No. 1:25-cv-11571-JEK, 2025 WL 1869299, at *2 (D.
Mass. July 7, 2025) (quoting Jennings, 583 U.S. at 300).
By contrast, § 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.”
7 The Court uses the term aliens and noncitizens interchangeably.
8 Section 1225 defines an “applicant for admission” as a noncitizen “present in the United States
who has not been admitted or who arrives in the United States . . . .” § 1225(a)(1). All applicants
for admission must be inspected by an immigration officer. § 1225(a)(3).
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(emphasis added). Noncitizens detained pursuant to § 1226(a) are therefore generally entitled to
individualized bond hearings as described by federal regulation. See Jennings, 583 U.S. at 306
(citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)). Some limited exceptions exist, including those
outlined in §1226(c). Generally speaking, those provisions apply to circumstances in which a
noncitizen has “committed or been sentenced for certain criminal offenses, or because they are
affiliated with terrorist groups or activities.” Gomes, 2025 WL 1869299, at *2 (citing §§
1226(c)(1)(A)-(D)). Earlier this year, the Laken Riley Act (“LRA”) added additional criminal
convictions triggering § 1226(c)’s custodial provisions, but none are applicable in this case. See
Pub. L. No. 119-1, § 2, 139 Stat. 3 (2025) (codified as amended at § 1226(c)(1)(E)).9 As explained
above, Cortez-Gonzalez has no criminal history. See supra p.2.
Respondents argue Cortez-Gonzalez “falls squarely within the ambit of” § 1225(b)(2)(A)
because she is an “applicant for admission.” Doc. 15 at 9. The Court reads the statute differently.
The reasons are numerous.
For starters, consider the relevant text. Section 1225(b)(2)(A)’s detention provision comes
into effect only after several conditions have been satisfied: (1) an “examining immigration
officer” (2) must conclude during an “inspection” (3) of an “applicant for admission” (4) who is
“seeking admission” (5) that the individual “is not clearly and beyond a doubt entitled to be
admitted[.]”See also Jimenez, 2025 WL 2639390, at *4. The active construction of “the phrase
‘seeking admission’ . . . necessarily implies some sort of present-tense action.” Martinez v. Hyde,
9 LRA amendments require the detention of noncitizens charged as inadmissible under Sections
1182(a)(6)(A) (the inadmissibility ground for a noncitizen ‘present in the United States without
being admitted or paroled’), 1182(a)(6)(C) (the inadmissibility ground for misrepresentation), or
1182(a)(7) (the inadmissibility ground for lacking valid documentation) and if the noncitizen has
been arrested for, charged with, or convicted of certain crimes.” Rodriguez, 779 F. Supp. 3d at
1246.
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792 F. Supp. 3d 211, 218 (D. Mass. 2025). Noncitizens, like Cortez-Gonzalez, who reside in the
country for decades are not “seeking admission”. They are “no longer seeking to enter the United
States (lawfully or otherwise)”—they are already here. Jimenez, 2025 WL 2639390, at *8. Indeed,
the terms “admission” and “admitted” apply “with respect to [a noncitizen], the lawful entry of the
[noncitizen] into the United States after inspection and authorization by an immigration officer.’”
Id. (alteration in original) (quoting § 1101(a)(13)(A)). To conclude that all “applicants for
admission” are continuously “seeking admission” for as long as they live in the United States “is
an obvious violation of the rule against surplusage.” Romero v. Hyde, No. 25-11631-BEM, 2025
WL 2403827, at *10 (D. Mass. Aug. 19, 2025). If all “applicants for admission” were “seeking
admission” to the country, “there would be no need to include the phrase ‘seeking admission’ in
the statute.” Lopez Benitez, 2025 WL 2371588, at *6.
Further, Respondents take on the relevant statues at odds with the purposes underlying
Congress’s enactment of the LRA. Simply put, “[i]f § 1225(b)(2) already mandated detention of
any alien who has not been admitted, regardless of how long they have been here, then adding §
1226(c)(1)(E) to the statutory scheme was pointless.” Maldonado v. Olson, 795 F. Supp. 3d 1134
(D. Minn. 2025). The LRA would be rendered unnecessarily duplicative. Neither legal principles
nor common sense support such a reading. See Chevron Mining Inc. v. United States, 863 F.3d
1261, 1283 n.15 (10th Cir. 2017) (“The canon against surplusage indicates that [courts] generally
must give effect to all statutory provisions, so that no part will be inoperative or superfluous—
each phrase must have distinct meaning.”).
Perhaps most significantly, the Court’s interpretation of § 1225(b)(2) accords with the
Supreme Court’s holding in Jennings. 583 U.S. 281. There, the Supreme Court instructed that
“U.S. immigration law authorizes the Government to detain certain [noncitizens] seeking
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admission into the country under §§ 1225(b)(1) and (b)(2). It also authorizes the Government to
detain certain [noncitizens] already in the country pending the outcome of removal proceedings
under §§ 1226(a) and (c).” Id. (emphases added). This interpretation of §§ 1225 and 1226 is
consistent with the due process that must be afforded to noncitizens who have entered the United
States. Once a noncitizen effects entry into the United States, the Due Process Clause applies
“whether [the noncitizen’s] presence here is lawful, unlawful, temporary, or permanent.” Zadvydas
v. Davis, 533 U.S. 678, 693 (2001). Noncitizens who have not yet effected entry are not afforded
the same privileges.10 See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020). The
relevant statutes should be read consistent with these principles. And to that end, the Court finds
that Congress plainly did not intend for § 1225(b)(2)(A) to apply to noncitizens already present in
the United States. See also Martinez, 792 F. Supp. 3d at 222.
Finally, the Court notes that Respondents’ take on the law is novel. Until July 2025, DHS
interpreted and applied § 1226(a) to noncitizens already residing in the United States without
admission or parole. See Jimenez, 2025 WL 2639390, at *9; Martinez, 792 F. Supp.3d at 217.
From the time § 1226 was enacted as part of the Illegal Immigration Reform and Immigrant
10 The Supreme Court in Thuraissigiam concluded that simply “set[ting] foot on U.S. soil” is
insufficient to “effect[] an entry” and trigger due process protections. 591 U.S. 103, 139-40 (2020).
The Court noted that noncitizens “who have established connections in this country have due
process rights in deportation proceedings . . .”” Id. at 107. This is consistent with previous cases
recognizing noncitizens who have “effected an entry” having due process rights. See Zadvydas,
533 U.S. at 693; see also Pablo Sequen v. Albarran, No. 25-cv-06487-PCP, 2025 WL 2935630, at
*7 (N.D. Cal. Oct. 15, 2025) (“[I]f a noncitizen ‘gain[s a] foothold in the United States,’ . . . or
‘begins to develop . . . ties’ in this country, ‘h[er] constitutional status changes accordingly,’ and
she ‘has a right to due process.’”) (alterations in original) (citations omitted) (first quoting Kaplan
v. Tod, 267 U.S. 228, 230, (1925), the quoting Landon v. Plasencia, 459 U.S. 21, 32-33 (1982)).
Noncitizens like Cortez-Gonzalez have, in fact, effected entry due to their connections and ties to
this country. See Pu Sacvin, 2025 WL 3187432, at * 3 (“Mr. Pu Sacvin ‘already effected an entry’
into the United States by living here for decades.” (citing Hernandez v. Baltazar, No. 1:25cv-
03094-CNS, 2025 WL 2996643, at *5 (D. Colo. Oct. 24, 2025))).
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Responsibility Act of 1996 (“IIRIRA”) until this summer, “DHS took the position that, ‘[d]espite
being applicants for admission, [noncitizens] who are present without having been admitted or
paroled . . . will be eligible for bond and bond redetermination.’” Jimenez, 2025 WL 2639390, at
*9 (alterations in original) (quoting 62 Fed. Reg. 10312-01, 10323 (Mar. 6, 1997)). “The
government’s failure, across multiple administrations, to assert that § 1225(b) gives it the power
to detain without a bail hearing everyone who unlawfully entered the country is ‘significant in
determining whether such power was actually conferred.’” Id. (quoting West Virginia v. EPA, 597
U.S. 697, 725 (2022)). As other courts have noted, “‘[T]he longstanding practice of the
government—like any other interpretive aid—can inform [a court’s] determination of what the law
is,”’ and “[r]espect for Executive Branch interpretations of federal statutes is ‘especially warranted
when [it] was issued roughly contemporaneously with enactment of the statute and remained
consistent over time.”’ Rodriguez, 779 F. Supp. 3d at 1260 ((quoting Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 386 (2024)). So, while not dispositive, the Court finds DHS’s prior
decades-long practice persuasive.
For the foregoing reasons, the Court concludes Cortez-Gonzalez has made a strong
showing that her detention is governed by § 1226(a). See Doc. 2 at 13-20.
2. 	Matter of Yajure Hurtado
Respondents rely heavily on the BIA’s September 5, 2025, decision in Matter of Yajure
Hurtado, 29 I&N Dec. 216 (BIA 2025), for their position that Cortez-Gonzalez’s detention is
subject to § 1225(b)(2)(A). Doc. 15 at 4-5, 9-10. This Court is not bound by the BIA’s
interpretation of the relevant statutes—particularly when the result lacks sound legal foundation.
See Loper Bright Enters., 603 U.S. at 413; see also Patel v. Crowley, No. 25 C 11180, 2025 WL
2996787, at *6 (N.D. Ill. Oct. 24, 2025) (discussing how the Yajure Hurtado decision does not
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entitle deference because it contradicts prior BIA decisions and “conflicts with the implementing
regulation for § 1225(b)” (quoting Ortiz Donis v. Chestnut, No. 1:25-cv-01228 JLT SAB, 2025
WL 2879514, at *8 (E.D. Cal. Oct. 9, 2025))). Accordingly, for the reasons previously explained
in this Opinion, the Court is not persuaded by the BIA’s analysis and declines to follow it. See also
Pizarro Reyes v. Raycraft, No. 25-cv-12546, 2025 WL 2609425, at *6 (E.D. Mich. Sept. 9, 2025);
Buenrostro-Mendez v. Bondi, No. H-25-3726, 2025 WL 2886346, at *3 n.3 (S.D. Tex. Oct. 7,
2025) (collecting cases ruling similarly).
3. 	Cortez-Gonzalez’s Fifth Amendment Claim
The Fifth Amendment’s Due Process Clause prohibits the Government from depriving any
person of “life, liberty, or property, without due process of law[.]” U.S. Const. amend. V.
“Freedom from imprisonment—from government 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); see also Zadvydas,
533 U.S. at 693. Given that § 1226(a) is controlling, Cortez-Gonzalez is entitled—as a right—to
an individualized bond hearing. See Salazar, 2025 WL 2676729, at *5. Cortez-Gonzalez’s
continued detention without such review constitutes an ongoing violation of her right to due
process. Id. Cortez-Gonzalez therefore meets her burden in demonstrating a strong showing of the
likely success on the merits of her Fifth Amendment Claim.11
B. Irreparable Harm
11 Because Cortez-Gonzalez met her burden as to her Fifth Amendment Claim, the Court need not
address the likelihood of success of her other claims at this time. Furthermore, Cortez-Gonzalez’s
Fourth Amendment and Accardi doctrine claims are irrelevant, as she did not request a TRO
requiring her release in her Motion for injunctive relief. See Doc. 2 at 7-8.
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To demonstrate irreparable harm, Cortez-Gonzalez must show that she “stand[s] to suffer
‘an injury’ that is ‘certain, great, actual, and not theoretical.’” Valdez, 559 F. Supp. 3d at 1181-82
(quoting Schrier v. Univ. of Colo., 427 F.3d 1253, 1267 (10th Cir. 2005)). ‘“Merely serious or
substantial harm is not irreparable harm.”’ Id. (quoting Schrier, 427 F.3d at 1267). “What makes
an injury ‘irreparable’ is the inadequacy of, and the difficulty of calculating, a monetary remedy
after a full trial.” Free the Nipple-Fort Collins, 916 F.3d at 806 (citing Awad, 670 F.3d at 1131).
“Any deprivation of any constitutional right fits that bill.” Id.
Absent the Court’s Order requiring Respondents provide a bond hearing, Cortez-Gonzalez
will continue to be denied her Fifth Amendment due process rights that she is entitled to under §
1226(a). It also appears that Cortez-Gonzalez is likely to be granted conditional release if afforded
a bond hearing because she has no criminal history and does not seem to be a flight risk given her
pending T visa application and her engagement to a U.S. citizen. Doc. 2 at 8-9 ¶¶ 3, 11; Rodriguez,
779 F. Supp. 3d at 1262 (citing Rodriguez Diaz v. Garland, 53 F.4th 1189, 1197 for the proposition
that “an IJ will order a detainee released on bond if the person is not ‘a threat to national security,
a danger to the community at large, likely to abscond, or otherwise a poor bail risk’”)). The Court
therefore concludes Cortez-Gonzalez suffers irreparable harm every day that she remains in
custody without a hearing, which would likely result in her release from detention. See Rodriguez,
779 F. Supp. 3d at 1261-62.
C. Balance of the Equities and the Public Interest
Upon consideration of the record, the Court finds that the equities weigh in favor of
injunctive relief and that granting the limited relief of a bond hearing is in the public interest.
Predictably, Respondents offer no counterargument to this factor of the TRO analysis. See Doc.
15. Respondents’ detention of Cortez-Gonzalez in New Mexico has separated her from her family
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in California and placed a person without a criminal history in a custodial setting. Doc. 2 at 6.
Further, Cortez-Gonzalez will almost certainly be released if afforded a bond hearing. See supra
Section II.B. Whatever (unstated) interest Respondents may have in detaining Cortez-Gonzalez, it
is outweighed by the “‘substantial public interest in having governmental agencies abide by the
federal laws that govern their existence and operations.”’ Gamez Lira v. Noem, No. 1:25-cv-00855-
WJ-KK, 2025 WL 2581710, at *4 (D.N.M. Sept. 5, 2025) (quoting League of Women Voters of
U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016)). Accordingly, the Court concludes it is likely that
Cortez-Gonzalez’s detention should be governed by § 1226(a)—neither equity nor the public’s
interest are furthered by detaining Cortez-Gonzalez without an individualized bond hearing. This
factor supports granting injunctive relief.
CONCLUSION
For the foregoing reasons, the Court entered a second temporary restraining order on
October 24, 2025, requiring Respondents provide Cortez-Gonzalez an individualized bond hearing
pursuant to § 1226(a) within seven days of the Order. Doc. 16.
UNITED STATES DISTRICT JUDGE
MATTHEW L. GARCIA
Case 2:25-cv-00985-MLG-KK Document 23 Filed 12/04/25 Page 13 of 13