Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
YARISLE VIERA RIESTRA,
Petitioner,
v. No. 2:26-cv-00626-KG-JHR
FNU LNU, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Yarisle Riestra’s Petition for a Writ of
Habeas Corpus, Doc. 1, the Government’s Response, Doc. 8, and Petitioner’s Reply, Doc. 9.
Because Petitioner’s challenge presents a purely legal question, the Court declines to hold a
hearing, see 28 U.S.C. § 2243, and grants her petition for the reasons below.
I. Background
Petitioner, a 34-year-old Cuban citizen, entered the United States in 2022. Doc. 1-2 at 2.
She was arrested shortly after entry, and on April 29, 2022, was released on an Order of Release
on her own Recognizance. Doc. 1 at 10. She is employed and resides in Las Vegas, Nevada. Id.
She has no criminal history. Id. On January 9, 2026, the Department of Homeland Security
arrested Petitioner after attending a regularly scheduled hearing. Id. Petitioner remains detained
at the Otero County Processing Center in New Mexico. Doc. 1 at 2. Petitioner has not been
afforded a bond hearing. Id. at 12.
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
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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
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,
1 The Court acknowledges the recent Fifth Circuit decision holding that “[w]hile
[noncitizens] remain applicants” for admission, “they are...seeking admission.” Buenrostro-
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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 (D.N.M.). Immigration and Customs Enforcement arrested Petitioner four years after her
initial entry into the United States and did not apprehend her 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 four years. The Government failed to provide her with a
bond hearing at the outset of her detention. Doc. 1 at 11. She also holds steady employment and
has no criminal history. Id. at 10. 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 she 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 her 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
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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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 her burden has not been meaningfully considered
because Petitioner has not received a bond hearing. Doc. 1 at 11. This failure is not isolated.
Courts have observed similar cases arising across the country, raising “serious concerns about
Petitioner’s access to a meaningful bond 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.
Moreover, detention has not been necessary to ensure Petitioner’s presence—she has appeared at
all immigration proceedings and complied with all conditions of release to date. Doc. 1 at 11.
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
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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
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