Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALBERTO PEREZ-FERRER,
Petitioner,
v. No. 2:26-cv-00551-KG-KK
PAMELA BONDI, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Alberto Perez-Ferrer’s Petition for a Writ of Habeas
Corpus, Doc. 1, and the Government’s Response, Doc. 6. Because Petitioner’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
Petitioner, a 41-year-old Cuban citizen, entered the United States in 2022. On July 24,
2025, the Department of Homeland Security arrested Petitioner. Id. at 3. Petitioner remains
detained at the Otero County Processing Center in New Mexico. Id. at 2. Petitioner has not been
afforded a bond hearing since his arrest. Id. at 3.
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 v. Davis, 533 U.S. 678, 687 (2001).
III. Analysis
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For the reasons below, the Court concludes that (A) 8 U.S.C. § 1226 governs Petitioner’s
detention, and (B) the proper remedy is a bond hearing where the Government bears the burden of
proof.
A. Section 1226 governs Petitioner’s detention.
The Immigration and Nationality Act (“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). First, § 1225 governs noncitizens detained at a port of
entry or shortly after entry, who are treated as “[noncitizens] seeking admission into the country.”
Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 140 (2020). Absent exceptions not
relevant here, § 1225 “mandates detention and affords no bond hearing.” Pu Sacvin v. De Anda-
Ybarra, 2025 WL 3187432, at *1 (D.N.M.).
By contrast, § 1226(a) sets forth “the default rule” for detaining noncitizens “already in the
country.” Jennings, 583 U.S. at 303. Section § 1226(a) authorizes the arrest and detention of
noncitizens, “on a warrant issued by the Attorney General...pending a decision on whether [they
are] to be removed.” Under federal regulations, noncitizens detained under § 1226(a) are entitled to
individualized bond hearings at the “outset of detention.” Jennings, 583 U.S. at 306.
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.1 See Barco Mercado v. Francis,
2025 WL 3295903, at *13 (S.D.N.Y.) (collecting 362 district-court opinions nationwide and 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
1 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.). The Tenth Circuit has not yet addressed
this question.
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(D.N.M.). Immigration and Customs Enforcement arrested Petitioner three years after his initial
entry into the United States and did not apprehend him at or near the border. Accordingly, § 1225’s
mandatory detention provision does not apply because Petitioner effected an entry into the United
States by living here for three years. Therefore, Petitioner’s detention absent a bond hearing
violates the INA.
B. The remedy is a bond hearing where the Government bears the burden of proof.
Petitioner’s prolonged detention violates the Fifth Amendment’s Due Process Clause, and
therefore he is entitled to a bond hearing where the Government bears the burden of proof. Because
§ 1226(a) governs here, Petitioner’s “continued detention without [an individualized bond hearing]
constitutes an ongoing violation of [his] right to due process.” Cortez-Gonzalez v. Noem, 811 F.
Supp. 3d 1287, 1298 (D.N.M. 2025). Where detention proceeds without constitutionally adequate
safeguards, the Court determines what additional procedures are due under the balancing framework
set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). See Watson ex rel. Watson v. Beckel, 242
F.3d 1237, 1240 (10th Cir. 2001). That framework considers (1) the private interest at stake; (2) the
risk of erroneous deprivation under the procedures used and the value of additional safeguards; and
(3) the Government’s interest, including the burdens of additional procedures. Mathews, 424 U.S.
at 335.
The Mathews factors weigh in favor of shifting the burden. To start, Petitioner’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, 533 U.S. at 690.
Second, the current procedures create a substantial risk of erroneous deprivation. Any
evidence Petitioner could present to satisfy their burden has not been meaningfully considered
because Petitioner has not received a bond hearing. Doc. 1 at 5. Courts have observed similar cases
arising across the country, raising “serious concerns about Petitioner’s access to a meaningful bond
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hearing.” Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1243 (D.N.M. 2025) (collecting
cases). Requiring the Government “to prove by clear and convincing evidence that Petitioner is a
flight risk and/or a danger to the community ameliorates those concerns.” Id.
Third, the Government’s interest does not outweigh these concerns. Although the
Government has a legitimate interest in ensuring appearance and protecting the community, shifting
the burden of proof imposes minimal additional burden. The Government has “vast resources at its
disposal to gather information about Petitioner’s eligibility for bond.” Id.
IV. Conclusion
The Court therefore grants Petitioner’s habeas petition, Doc. 1. The Court directs the
Government to provide Petitioner with a bond hearing under § 1226(a) before an immigration judge
within seven (7) days of this Order. At that hearing, the Government has the burden of justifying
Petitioner’s detention by clear and convincing evidence. If the Government fails to do so, it must
release Petitioner. The Court further orders the Government to file a status report within ten (10)
days of this Order confirming that it has complied.
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 Filing)
accompanying this document. Electronically
filed documents can be found on the Court’s
PACER public access system.
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