Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
________________________________
VALERIE M. RODRIGUEZ-LUNA,
Petitioner,
v. 	No. 1:26-cv-00186-WJ-KRS
KRISTI NOEM, Secretary, United States Department of
Homeland Security;
PAMELA BONDI, Attorney General of the United States;
TODD M. LYONS, Acting Director of U.S. Immigration
and Customs Enforcement;
MARY DE ANDA-YBARRA, Filed Office Director, El Paso Field Office of
Immigration and Customs Enforcement;
DORA CASTRO, Warden of Otero County
Processing Center;
Respondents.
MEMORANDUM OPINION AND ORDER DENYING
VERIFIED PETITION FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241
THIS MATTER is before the Court on the Verified Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (“Petition”). [Doc. 1]. The Court denies the Petition and dismisses
the case without prejudice. The Court also denies the Pending Emergency Motion for Temporary
Restraining 	Order 	and/or 	Preliminary 	Injunction 	Directing 	Immediate Release or, 	in 	the
Alternative, an Individualized Bond Hearing. [Doc. 9].
Factual and Procedural Background
Petitioner is a national and citizen of the Dominican Republic. [Doc. 1 at 5]. Petitioner
claims she left the Dominican Republic in 2021 due to fear of physical violence against her by her
husband. [Doc. 1 at 5]. Petitioner first came to the United States in 2021 on a visitor visa, leaving
her children and mother in the Dominican Republis. [Doc. 1 at 5]. Petitioner claims on August
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22, 2024, she left the United States and went to Panama on an advance parole document because
her daughter was facing a critical health condition. [Doc. 1 at 5-6]. Petitioner’s mother fell ill and
she then traveled to the Dominican Republic on September 5, 2024. [Doc. 1 at 6]. After seeing
her mother, Petitioner fled the Dominican Republic and came back to the United States. She was
denied entry, determined to be inadmissible under § 212(a)(7)(a)(i)(I), and removed back to the
Dominican Republic. [Doc. 1 at 6, Doc. 1-2 at 48]. On September 8, 2024, Petitioner stated that
she understood she was being removed under the provisions of Section 235(b)(1) of the INA and
was barred from re-entering the United States for a period of no less than five years from the date
of her removal. She also acknowledged that, in addition to the five-year bar, she would be required
to obtain a new visa and any necessary waivers prior to returning to the United States. [Doc. 1-2
at 49].
Petitioner then, again, fled the Dominican Republic and entered the United States on or
around October 30, 2024, at the U.S./Mexico border. [Doc. 1 at 3, 6]. She was taken into custody
and, following a credible fear interview, was placed in withholding only status. [Doc. 1-2 at 76-
77]. She then filed a form I-589 Application for Asylum and Withholding of Removal on April
17, 2025. [Doc. 1 at 5]. The Application was denied and deferral of removal was denied by an
Immigration Judge on December 11, 2025. 	[Doc. 1-2 at 1]. 	Petitioner filed an appeal of the
Immigration Judge’s decision on January 27, 2026 [Doc. 1-3; Doc. 7-1]. 	Petitioner’s appeal
remains pending.
I. Denial of Petitioner’s Verified Petition for a Writ of Habeas Corpus
In this case, Petitioner was previously deported from the United States under an Order of
Removal and was prohibited from reentering the country within a five-year period. 	Petitioner,
however, reentered the United States without authorization a matter of months after she had been
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removed. 	Congress has created an expedited process for aliens who reenter the United States
without authorization after having already been removed. The relevant statutory provision states:
“If the Attorney General finds that an alien has reentered the United States
illegally after having been removed or having departed voluntarily, under
an order of removal, the prior order of removal is reinstated from its original
date and is not subject to being reopened or reviewed, the alien is not eligible and
may not apply for any relief under this chapter, and the alien shall be removed
under the prior order at any time after the reentry.”
8 U.S.C .§1231(a)(5). 	The Department of Homeland Security’s regulations set out the process
for reinstating an order of removal. In short, the agency obtains the alien’s prior order of removal,
confirms the alien’s identity, determines whether the alien’s reentry was unauthorized, provides
the alien with written notice of its determination, allows the alien to contest that determination,
and then reinstates the order. See 8 CFR §§ 241.8(a)–(c), 1241.8(a)–(c).
Section 1231(a)(5) applies to “all illegal reentrants.” 	It expressly insulates the removal
order from review and also forecloses discretionary relief from the terms of the reinstated order.
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35, 126 S.Ct. 2422 (2006). It does not, however,
preclude an alien from pursuing withholding-only relief to prevent DHS from executing removal
to the particular country designated in the reinstated removal order. Ibid., n. 4; see also §
1231(b)(3)(A).
Federal immigration law contains various provisions authorizing the Government to detain
aliens during the removal process. If an alien was removed from the United States but later
reentered without authorization, and is subject to a reinstated order of removal, seeks withholding
of removal based on fear of persecution in the particular countries designated by their removal
orders, the alien is not entitled to a bond hearing. 8 U.S.C. § 1231. An alien subject to a reinstated
order of removal is not entitled to a bond hearing while they pursue withholding of removal.
Johnson v. Guzman Chavez, 141 S.Ct. 2271, 2282-2284 (2021).
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In this case, Petitioner was previously removed from the United States to the Dominican
Republic and illegally reentered. [Doc. 1 at 3, 6]. Petitioner was granted withholding of removal
status, but withholding was subsequently denied by an Immigration Judge, and Petitioner’s appeal
of that determination is currently pending. [Doc. 1-2 at 1; Doc. 1-3; Doc. 7-1]. 	This Court lacks
legal authority or jurisdiction to review the Immigration Judge’s denial of withholding of removal
or to release Petitioner from custody during the withholding proceedings. Fernandez-Vargas v.
Gonzales, 548 U.S. at 35. Further, Petitioner detention is mandatory under § 1231 which precludes
an individualized bond hearing. Johnson v. Guzman Chavez, 141 S.Ct. 2271, 2282-2284 (2021).
Therefore, Petitioner is not entitled to habeas corpus relief either in the form of release from
custody or in the form of an individualized bond hearing.
Petitioner also contends that she is entitled to release under Zadvydas v. Davis, 533 U.S.
768 (2001) because she has been detained in ICE custody for more than 90 days without removal.
However, 	the 	90-day 	removal 	period 	does 	not 	commence 	until 	the 	removal 	order 	is
administratively final. 8 U.S.C. § 1231(a)(1)(B). In this case, Petitioner’s appeal is still pending
and the removal order has not become administratively final. Therefore, any claim for relief under
Zadvydas is premature and Petitioner, again, is not entitled to habeas corpus relief.
II. 	Denial of Petitioner’s Emergency Motion for Temporary Restraining
Order
Also 	pending 	before 	the 	Court 	is 	Petitioner’s 	Emergency 	Motion 	for 	Temporary
Restraining Order. [Doc. 9]. Petitioner’s Motion is moot in light of this Court’s denial of habeas
corpus relief. However, even if the Court had not ruled on the merits of the Petition, Petitioner
failed to establish entitlement to a temporary restraining order. 	Petitioner seeks a temporary
restraining order under Fed. R. Civ. P. 65(b)(1). Rule 65(b) provides:
“A temporary restraining order may be granted without written or oral notice
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to the adverse party or that party’s attorney only if (1) it clearly appears from
specific facts shown by affidavit or by the verified complaint that immediate
and irreparable injury, loss, or damage will result to the applicant before the
adverse party or that party’s attorney can be heard in opposition, and (2) the
applicant’s attorney certifies to the court in writing the efforts, if any, which
have been made to give the notice and the reasons supporting the claim that
notice should not be required.”
The Tenth Circuit has adopted four elements for the Court to consider in deciding whether
to grant a TRO under Rule 65(b). 	Those four elements are: (1) a showing that the movant will
suffer immediate and irreparable injury unless the injunction issues; (2) proof that the threatened
injury to the movant outweighs whatever damage the proposed injunction may cause the opposing
party; (3) a substantial likelihood that the movant will eventually prevail on the merits: and (4) a
showing that the injunction, if issued, would not be adverse to the public interest. 	Lundgrin v.
Claytor, 619 F.2d 61, 63 (10 th Cir. 1980).
For issuance of a TRO, Rule 65 requires a factual showing of both immediate and
irreparable injury, loss, or damage made by way of an affidavit or verified complaint. Fed. R. Civ.
P. 65(b)(1)(A). Although Plaintiff’s Motion contains conclusory allegations of irreparable harm,
and lengthy legal argument, it does not even argue, nor does it contain factual support for the
proposition any immediate harm. Absent a clear and unequivocal factual showing that Petitioner
will suffer both immediate and irreparable injury, Petitioner’s motion is insufficient to support
issuance of a TRO by the Court. Lundgrin, 619 F.2d at 63; Kansas Health Care Ass’n, 31 F.3d at
1543. Petitioner has not made the threshold factual showing of immediate and irreparable harm.
Nor has Petitioner demonstrated a likelihood of success on the merits in light of the Court’s ruling
denying habeas corpus relief. Lundgrin v. Claytor, 619 F.2d at 63. Therefore, the Court denies
Plaintiff’s Motion both as moot and for failure to establish the necessary elements for issuance of
a TRO.
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CONCLUSION
The Court is not unsympathetic to the long periods of detention immigration detainees are
being subjected to. However, the Court is not at liberty to ignore the rule of law or to interfere in
administrative removal proceedings absent a legal basis to do so. Therefore, the Court denies the
Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1] and dismisses this case
without prejudice.
IT IS ORDERED:
(1) Petitioner’s Emergency Motion for Temporary Restraining Order and/or
Preliminary Injunction Directing Immediate Release or, in the Alternative, an Individualized
Bond Hearing [Doc. 9] is DENIED;
(2) Petitioner’s Verified Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
[Doc. 1] is DENIED; and
(3) This case is DIMISSED without prejudice.
__/s/____________________________________
HONORABLE WILLIAM P. JOHNSON
SENIOR UNITED STATES DISTRICT JUDGE
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