Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SALVADOR CAYAMBE SHULQUI,
Petitioner,
v. 2:26-cv-00205-KG-DLM
PAMELA BONDI, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Salvador Cayambe Shulqui’s Petition for a Writ of
Habeas Corpus, Doc. 1. The Court entered an Order to Answer directing the Government to
respond within ten days of service of the petition by February 13, 2026, Doc. 4, but the
Government failed to do so. Because Mr. Cayambe Shulqui’s challenge presents a purely legal
question, the Court declines to hold a hearing, see 28 U.S.C. § 2243, and grants his petition for
the reasons below.
I. Background
Mr. Cayambe Shulqui, a native and citizen of Ecuador, entered the United States in 2020.
Doc. 1 at 7. Immigrations and Customs Enforcement (“ICE”) released Mr. Cayambe Shulqui on
his own recognizance on April 9, 2021. Id. He has no criminal history and resides in Minnesota.
Id. at 8. He is currently detained at the Otero County Processing Center in New Mexico. Id. He
argues his detention violates the Immigration and Nationality Act (“INA”) and the Fifth
Amendment’s Due Process Clause. See generally Doc. 1.
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II. Standard of Review
A petition for a writ of habeas corpus seeks “release from unlawful physical
confinement.” Preiser v. Rodriguez, 411 U.S. 475, 485 (1973). Habeas corpus review is
available if a noncitizen is “in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3); see also Zadvydas, 533 U.S. at 687.
III. Analysis
For the reasons below, the Court finds that (A) 8 U.S.C. § 1226 governs Mr. Cayambe
Shulqui’s detention, (B) his detention violates his right to due process, and (C) the proper
remedy is a bond hearing where the Government bears the burden of proof.
A. Section 1226 governs Mr. Cayambe Shulqui’s detention.
The INA establishes distinct detention regimes depending on whether a noncitizen is
“seeking admission” to the United States. See Jennings v. Rodriguez, 583 U.S. 281, 288–89
(2018). Section 1225(b)(2)(A) applies to “applicant[s] for admission” who are “seeking
admission” and “not clearly and beyond a doubt entitled to be admitted.” The “provision
mandates detention and affords no bond hearing.” Pu Sacvin v. De Anda-Ybarra, 2025 WL
3187432, at *1 (D.N.M.) (Gonzales, J.). By contrast, § 1226(a) authorizes the arrest and
detention, “on a warrant issued by the Attorney General,” of noncitizens “pending a decision on
whether [they are] to be removed.” Noncitizens “detained under this second detention regime
are entitled to individualized bond hearings at the outset of detention.” Pu Sacvin, 2025 WL
3187432, at *1.
Consistent with the overwhelming majority of district courts to consider the issue and this
Court’s prior findings, the Court finds that § 1226 governs here. See Barco Mercado v. Francis,
2025 WL 3295903, at *13 (S.D.N.Y.) (collecting 362 district-court opinions nationwide and
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noting that challengers prevailed in at least 350 of them, in decisions by over 160 judges across
fifty courts); Pu Sacvin, 2025 WL 3187432 (Gonzales, J.); Danierov v. Noem, 2026 WL 45288,
at *2 (D.N.M.) (Gonzales, J.). Section 1225(a)(1) defines an “applicant for admission” as a
noncitizen “who has not been admitted or who arrives in the United States.” In contrast,
§ 1225(b)(2)(A)’s detention mandate applies only to noncitizens “seeking admission” (emphasis
added). Noncitizens “seeking admission” are those who have not “effected an entry” into the
United States. DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020). Noncitizens “who entered the
country years earlier” are not “seeking admission,” and therefore fall under § 1226 rather than
§ 1225(b)(2)(A). Pu Sacvin, 2025 WL 3187432, at *3. The Court acknowledges the recent Fifth
Circuit decision holding that “[w]hile [noncitizens] remain applicants” for admission, “they
are...seeking admission.” Buenrostro-Mendez v. Bondi, --- F.4th ----, 2026 WL 323330, at *5
(5th Cir.). However, the Tenth Circuit has not yet addressed this question.
Under this framework, § 1226 governs Mr. Cayambe Shulqui’s detention. ICE arrested
him six years after his initial entry into the United States and did not apprehend him at or near
the border. Doc. 1 at 7. Accordingly, § 1225’s mandatory detention provision does not apply
because Mr. Cayambe Shulqui effected an entry into the United States by living here for six
years. Pu Sacvin, 2025 WL 3187432, at *3.
B. Mr. Cayambe Shulqui’s detention violates his right to due process.
Courts analyze due process claims in two steps: first, whether there exists “a protected
liberty interest under the Due Process Clause,” and second, whether the procedures used to
deprive that interest “accord with the Constitution.” Domingo v. Castro, 2025 WL 2941217, at
*3 (D.N.M.). To start, Mr. Cayambe Shulqui has a protected liberty interest. After being
released on his own recognizance, he acquired “a protectable liberty interest in remaining out of
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custody on bond.” Danierov, 2026 WL 45288, at *2. Mr. Cayambe Shulqui’s prior release
allowed “him to do a wide range of things,” including to live at home, work, and “be with family
and friends and to form the other enduring attachments of normal life.” Morrissey v. Brewer,
408 U.S. 471, 482 (1972).
Mr. Cayambe Shulqui was also entitled to procedural safeguards before he was
redetained. In determining what process is due, courts consider (1) “the private interest”
affected; (2) “the risk of erroneous deprivation” through the procedures used and the probable
value of additional safeguards; and (3) “the Government’s interest,” including the fiscal and
administrative burdens of additional procedures. Mathews v. Eldridge, 424 U.S. 319, 335
(1976). Mr. Cayambe Shulqui’s private interest in remaining free from detention is substantial.
“Freedom from imprisonment...lies at the heart of the liberty that [the Due Process] Clause
protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). There is also a significant risk of
erroneous deprivation. Courts require “a material change in circumstances as to whether the
noncitizen poses a danger to the community or an unreasonable risk of flight” before DHS
revokes a noncitizen’s freedom. Danierov, 2026 WL 45288, at *2. Mr. Cayambe Shulqui’s was
redetained after six years. Doc. 2 at 3. No assessment was made as to whether any material facts
had changed, creating a substantial risk of erroneous deprivation of his liberty interest. Finally,
the Government’s interest in detaining Mr. Cayambe Shulqui without a hearing is limited and the
administrative burden of providing a bond hearing is minimal. See Danierov, 2026 WL 45288,
at *2 (the “cost of providing a bond determination is not terribly burdensome”).
C. The remedy is a bond hearing where the Government bears the burden of proof.
The proper habeas remedy is a prompt bond hearing at which the Government must
prove, by clear and convincing evidence, that Mr. Cayambe Shulqui is a flight risk or danger to
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the community. Although “under normal circumstances, the burden” at a § 1226 hearing “is on
the noncitizen” to show that detention is unwarranted, Mr. Cayambe Shulqui’s “unlawful
detention in violation of his constitutional rights shifts that burden to the Government.” Pu
Sacvin, 2025 WL 3187432, at *3. A noncitizen’s “strong private interest in being free from civil
detention” outweighs the Government’s “comparatively minimal burden to justify custody.” Id.
IV. Conclusion
The Court therefore grants Mr. Cayambe Shulqui’s petition, Doc. 1. The Court orders
that the Government provide Mr. Cayambe Shulqui with a bond hearing under § 1226(a) before
an immigration judge within seven days of this Order. At that hearing, the Government must
justify Mr. Cayambe Shulqui’s continued detention by clear and convincing evidence. If the
Government fails to provide a bond hearing within that timeframe, it must release him. The
Court further orders the Government to file a status report within ten days of this Order
confirming that it has provided Mr. Cayambe Shulqui with a bond hearing or released him.
IT IS SO ORDERED
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
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Electronically filed documents can be found
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