Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FABINSON JIMENEZ GALVAN,
Petitioner,
v. No. 2:26-cv-01022-KG-GJF
MARY DE ANDA-YBARRA, et al.,
Respondents.
MEMORANDUM ORDER AND OPINION
This matter is before the Court on Petitioner Fabinson Jimenez Galvan’s Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241, Doc. 1. 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 citizen of Colombia, entered the United States without inspection on December
20, 2024, and was apprehended by Customs and Border Patrol agents (“CBP”). Doc. 6 at 1–2.
Petitioner was interviewed by an asylum officer and found to have established a credible fear of
past persecution. Id. at 2. Petitioner was released on his own recognizance on December 24, 2024,
but was redetained on December 10, 2025, when he appeared for a check-in with Immigration and
Customs Enforcement agents in El Paso, Texas. Doc. 7 at 1. An Immigration Judge ordered
Petitioner be removed to Honduras on January 26, 2026. Doc. 6 at 2. Petitioner appealed the
decision to the Board of Immigration Appeals. Doc. 1 at 2–3. His appeal is currently pending. Id.
Petitioner challenges his continued detention, arguing that he has been detained without an
individualized bond hearing in violation of the Fifth Amendment’s Due Process Clause. Doc. 1 at
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6. The Government argues that Petitioner’s detention is mandatory under 8 U.S.C. § 1225 but
concedes that courts in this district have ruled otherwise in cases with similar facts. Doc. 6 at 3.
II. Standard of Review
A habeas petition seeks “release from unlawful physical confinement.” Preiser v.
Rodriguez, 411 U.S. 475, 485 (1973). Habeas review is proper where an immigration detainee is
“in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
III. Analysis
For the reasons below, the Court concludes that (A) § 1226 governs Petitioner’s detention;
(B) Petitioner’s detention violates the Immigration and Nationality Act (“INA”) and the Due
Process Clause of the Fifth Amendment; and (C) release is warranted.
A. Petitioner’s detainment is governed by § 1226.
“Sections 1225 and 1226 govern the detention of noncitizens prior to a final order of
removal.” Cortez-Gonzalez v. Noem, 811 F. Supp. 3d 1287, 1295 (D.N.M. 2025). Section 1225
governs noncitizens who are detained at a port of entry or shortly after entry. Dep’t of Homeland
Sec. v. Thuraissigiam, 591 U.S. 103, 140 (2020). This includes noncitizens deemed to be “seeking
admission” into the United States, 8 U.S.C. § 1225(a), as well as those placed in expedited removal
proceedings under § 1225(b)(1). Absent exceptions irrelevant 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 “applies to [noncitizens] already present in the United States.” Jennings
v. Rodriguez, 583 U.S. 281, 303 (2018). Section 1226 permits, but does not require, the Attorney
General to arrest and detain a noncitizen pending removal proceedings. Id. “Noncitizens detained
pursuant to § 1226(a) are therefore generally entitled to individualized bond hearings as described
by federal regulation.” Cortez-Gonzalez, 811 F. Supp. 3d at 1295.
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Section 1226(a) governs Petitioner’s detention. 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).1
Noncitizens, like Petitioner, who reside in the country are “no longer seeking to enter the United
States (lawfully or otherwise)—they are already here.” Cortez-Gonzalez, 811 F. Supp. 3d at 1296
(internal quotation marks and citation omitted). Petitioner had lived in the United States for nearly
one year before he was redetained. Doc. 7 at 1. Given his presence in the United States, the Court
concludes that § 1226(a) governs Petitioner’s detention and his prolonged confinement without an
individualized bond hearing violates the INA.
The Court’s conclusion is well supported by prior decisions. The Government concedes that
the material facts here are materially indistinguishable from those in Patel v. Noem, 2026 WL
103163 (D.N.M.), where the Court held that § 1226 governed the detention of a noncitizen present
in the United States and not apprehended at or near the border. See Doc. 6 at 3–4. The Court has
reached the same conclusion in numerous similar cases. See, e.g., Pu Sacvin v. De Anda-Ybarra,
2025 WL 3187432, at *3 (D.N.M.); Arroyo Lopez v. Noem, 2026 WL 776332, at *3 (D.N.M.);
Aguilar v. Lyons, 2026 WL 851237, at *2 (D.N.M.). The Government acknowledges that these
decisions control here if followed. Doc. 6 at 3–4. Because the Government offers no new basis for
Petitioner’s continued detention, he is entitled to relief.
B. Petitioner’s detention violates the Due Process Clause.
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.
1There is currently a circuit split on this issue. The Second Circuit has held that individuals
like Petitioner are entitled to a bond hearing under 8 U.S.C. § 1226(a). See Cunha v. Freden, ---
F.4th ----, 2026 WL 1146044 (2d Cir. 2026). The Fifth and Eighth Circuits have reached the
opposite conclusion. See Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); Avila v.
Bondi, 170 F.4th 1128 (8th Cir. 2026). The Tenth Circuit has not yet addressed the question.
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“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. The Government’s power to admit or exclude aliens is no longer plenary once an alien
enters the country, because the Due Process Clause applies to “all persons.” Landon v. Plasencia,
459 U.S. 21, 32 (1982) (“Once an alien gains admission to our country and begins to develop the
ties that go with permanent residence his constitutional status changes accordingly.”). Given that §
1226(a) is controlling here, Petitioner “is entitled—as a right—to an individualized bond hearing.”
Cortez-Gonzalez, 811 F. Supp. 3d at 1295. Petitioner’s continued detention without such review
“constitutes an ongoing violation of [his] right to due process.” Id.
C. The proper remedy is release.
The Court next turns to the appropriate remedy. Federal courts are authorized under § 2243
to “dispose of [a habeas petition] as law and justice require” and thus possess broad discretion to
fashion appropriate relief. Clayton v. Jones, 700 F.3d 435, 443 (10th Cir. 2012); see also Burton v.
Johnson, 975 F.2d 690, 693 (10th Cir. 1992) (noting that a federal court “possesses power to grant
any form of relief necessary to satisfy the requirement of justice”) (emphasis in original). Given the
Government’s conduct here, release is warranted. See Singh v. Carnes, 2026 WL 446579, at *1
(D.N.M.) (ordering release where the Government “failed to articulate a legitimate interest in
Petitioner’s continued detention”); Palomeque-Carrion v. Bondi, 2026 WL 895567, at *2 (D.N.M.)
(same); Alfaro Herrera v. Baltazar, 2026 WL 91470, at *1 (D. Colo.) (same).
III. Conclusion
For the reasons stated, the Court orders that:
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1. The Petition for Writ of Habeas Corpus, Doc. 1, is granted. The Government shall release
Petitioner within 24 hours of this Order. The Government shall not impose any new
conditions of release beyond those in place prior to Petitioner’s detention.
2. Before Petitioner’s removal order becomes final, the Government may not redetain him
absent a predetention hearing before a neutral Immigration Judge at which the Government
must establish, by clear and convincing evidence, that he poses a danger or flight risk. This
Order does not affect the Government’s ability to detain Petitioner once his removal order
becomes final—at that point, his detention is governed by the mandatory detention provision
of § 1231.
3. The Government shall file a status report within ten (10) business days of this Order
certifying compliance.
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
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PACER public access system.
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