Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAWIT SOLOMON SINU,
Petitioner,
v. 	No. 1:26-cv-01908-SMD-JHR
MARKWAYNE MULLIN, 	et al.,
Respondents.
ORDER
THIS MATTER is before the Court on
reasons set forth below, the Petition is 	GRANTED.
BACKGROUND
Petitioner, a citizen of Ethiopia, entered the United States on February 20, 2025, and was
placed into immigration detention that same day. As of the present date, he has never been released
from custody. He was first placed in expedited removal proceedings. After further processing, he
was then placed in § 240 removal proceedings. 	On December 8, 2025, an immigration judge
ordered Petitioner removed from the United States. 	Petitioner timely appealed the order and, as
of the present date, the appeal remains pending.1 	Petitioner has never received an individualized
custody hearing. 	See 	Docs. 3, 9. Petitioner challenges his detention as unreasonably prolonged in
violation of the Due Process Clause of the Fifth Amendment. Doc. 3 at 10-11.
1 	See 	Executive Office for Immigration Review, 	Automated Case Information,
https://acis.eoir.justice.gov/en/caseInformation 	-number and
nationality).
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Petitioner has filed two earlier habeas petitions in this Court, both while Petitioner was
represented by his prior counsel. He filed the first petition on April 16, 2026. 	See Sinu v. LNU,
No. 1:26-cv-01196-KWR-GJF. District Judge Kea W. Riggs denied the petition on May 6, 2026,
finding that Petitioner was mandatorily detained under 8 U.S.C. § 1225(b) and was not entitled to
a bond hearing. Judge Riggs noted in her decision that Petitioner did not expressly challenge his
detention as prolonged and Petitioner was responsible for asserting his own arguments. 	See Sinu
v. LNU, Doc. 8.
Petitioner filed his second petition on May 21, 2026; Petitioner filed it as a second action
but titled his filing as an amended petition. 	See Sinu v. Warden, No. 1:26-cv-01651-MIS-JHR.
District Judge Margaret I. Strickland denied the petition on June 3, 2026, finding that Petitioner
again did not expressly challenge his detention as prolonged, or argue how prolonged detention
violates due process or entitles him to a bond hearing. Judge Strickland noted that the denial was
without prejudice to Petitioner filing a second amended petition asserting new bases for habeas
relief. 	See Sinu v. Warden, Doc. 7.
LEGAL STANDARD
An application for habeas corpus pursuant to § 2241 may be granted only if the petitioner
U.S.C.
§ 2241(c)(3). Federal courts have habeas jurisdiction to examine the statutory and constitutional
bases for an immigration detention unrelated to a final order of removal. 	See 	Demore v. Kim, 538
U.S. 510, 517 	18 (2003); 	see also 	Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006)
(holding that the district court properly exercised jurisdiction over a habeas petition challenging
continued detention without a bonding hearing); 	Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th
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DISCUSSION
This Court has jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to
immigration detention. 	Zadvydas v. Davis, 533 U.S. 678, 687 (2001). A district court may grant
28 U.S.C. § 2241(c)(3).
I. 	Second or Successive Habeas Filings under 28 U.S.C. § 2241
As a preliminary matter, any assertion that the Petition is barred as successive by § 2241 is
without merit and the Court summarily rejects it. 	See Khan v. Current Sec 	y of Dep 	t of Homeland
Sec., No. 2:26-cv-00315-MIS-GJF, 2026 WL 776190, at *2 (D.N.M. Mar. 19, 2026) 	The Tenth
to 2241 petitions filed by alien detainees. 	(citing 	Stanko v. Davis, 617 F.3d 1262, 1268 (10th Cir.
2010)).
When a petitioner files multiple § 2241 petitions, the later-filed cases generally proceed in
one of two ways. 	If the first § 2241 case is still pending, the later-filed petition is generally
dismissed as duplicative and without prejudice. 	See, e.g., 	Horbenko v. Lyons, 26-cv-00751-KWR-
DLM (dismissing duplicate § 2241 immigration petition); 	Anis v. Bondi, 26-cv-00865-KG-DLM
(same); 	Leon-Chapa v. Janecka, 26-cv-01060-MIS-GBW (same); 	Izquierdo v. Warden, 26-cv-
01117-SMD-JHR (same). The petitioner is then free to continue prosecuting claims in his or her
existing § 2241 case. 	Id.
If the first § 2241 case was denied on the merits and a final judgment has been entered, the
Court may dismiss the second petition as an abuse of the writ. 	See Tashchian v. Warden of Golden
State Annex Det. Facility, No. 1:25-cv-01289-JLT-SKO, 2025 WL 3194356, at *1 (E.D. Cal. Oct.
2, 2025), 	report and recommendation adopted, 2025 WL 3192364 (E.D. Cal. Nov. 14, 2025)
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(dismissing section § 2241 immigration petition based on the abuse of the writ doctrine); 	Garza
, No. 3:25-cv-00599-WMC, 2026 WL 788077, at *1 (W.D.
Wis. Mar. 20, 2026) 	(issuing a warning regarding abuse of the writ).
bar on successive habeas petitions under 28 U.S.C. §§ 2254 and 2255. 	See Stanko, 617 F.3d at
1268 (discussing the differences between the statutory bar and the abuse of the writ doctrine). The
doctrine permits courts to dismiss successive § 2241 claims that were raised in a prior petition as
Stanko v. Davis, 617 F.3d 1262, 1270 (10th Cir. 2010).
Petitioner states that application of abuse-of-the-
challenge to ongoing civil confinement no matter how long
Sinu v. Warden 	noted that denial of the petition was
without prejudice to Petitioner filing a second amended petition. 	See Sinu v. Warden, Doc. 7.
Thus, and because of the substantive due process rights at stake
detention, the Court declines to summarily dismiss this case as an abuse of the writ. 	See Nir B. v.
Warden, California City Corr. Ctr., No. 1:26-cv-05697-TLN-SCR, 2026 WL 2546627, at *4 (E.D.
Cal. Aug. 28, 2026) ( 	Finally, to the extent Petitioner raises claims relating to prolonged detention
based upon the additional time that has passed between the filing of the first petition and the instant
petition, that claim is also not barred by the abuse of the writ doctrine. 	).
II.
Sections 1225 and 1226 govern the detention of noncitizens prior to a final order of
removal. 	See Jennings v. Rodriguez, 583 U.S. 281, 287 	89 (2018).
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Id. 	at 297. Detention pursuant to §
determines that [a noncitizen] seeking admission is not clearly and beyond a doubt entitled to be
8 U.S.C. § 1225(b)(2)(A).
Jennings, 583 U.S. at 303. Under §
Noncitizens detained pursuant to § 1226(a) are therefore generally entitled to individualized bond
hearings. 	Id. 	at 306. 	1225
and 1226, which aligned with the vast majority of district courts in this circuit, in 	Santillan Quiroz,
180 F.4th 1226 (10th Cir. 2026).
§ 1225. 	Id. 	at 1239.
remain in 	Id. 	s interpretation disrupts §
inadmissible noncitizens. 	If the Government is correct that § 1225(b)(2)(A) mandates the
detention of all applicants for admission, then there are no inadmissible noncitizens left for
§ 	Id. 	at 1247.
In 	Mursalin v. Dedos, the court held that an arriving alien who received a positive credible-
fear determination and was placed into §
pursuant to §
§ 1226 nor § 1231 applies. No. 1:25-cv-00681-MIS-JMR, 2025 WL 3140824, at *6 (D.N.M. Nov.
10, 2025) (citing 	Jennings, 583 U.S. at 287, 299). 	No mechanism transforms an arriving alien
from § 1225(b) custody to § 1226 upon a positive credible fear determination. 	See 	Dep 	t of
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Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 111, (2020); 	Jennings, 583 U.S. at 285 	87)
(holding that a
); § 1225(b)(1)(B)(ii) (stating that if the
immigration officer determines that a noncitizen has a credible fear of persecution, 	the alien shall
be 	).
Here, the record shows that Petitioner was detained at the border as an arriving alien.
§ 1225 generally applies at the border while § 1226 applies in the country 	s interior
and Petitioner is indisputably an arriving alien, § 1225 governs his detention. 	See Santillan Quiroz,
180 F.4th at 1235.
III. 	Petitioner Is Not Entitled to Relief Under Procedural Due Process Principles
Because 	Jennings 	held that § 1225(b) does not contain an implicit reasonableness
limitation or permit judicial release, attention has turned to constitutional challenges, with courts
Jennings, 583 U.S. at 298 	301; 	Gonzalez Aguilar v. Wolf, 448 F. Supp. 3d 1202, 1212
(D.N.M. 2020); 	Horbenko v. Castro, No. 2:25-cv-00764-WJ-DLM, 2026 WL 381867, at *7
(D.N.M. Feb. 11, 2026), 	report and recommendation adopted, 2026 WL 702459 (D.N.M. Mar.
12, 2026).
Some courts have held that, at some point, due process entitles a noncitizen subject to
prolonged detention under § 1225(b) to an individualized bond hearing before an immigration
judge, or some other form of individualized review of eligibility for release beyond the opportunity
to request discretionary parole under § 1182(d)(5). 	E.g., 	Mbalivoto v. Holt, 527 F. Supp. 3d 838,
848 	51 (E.D. Va. 2020); 	Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 	73 (S.D. Cal. 2020);
Clerveaux v. Searls, 397 F. Supp. 3d 299, 309 	22 (W.D.N.Y. 2019).
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Other courts have held that due process imposes no time limit or hearing requirement while
an alien is detained pending removal proceedings. 	E.g., 	Banyee v. Garland, 115 F.4th 928, 931-
34 (8th Cir. 2024) (holding that Supreme Court authorities 	-factor
and set a bright-line rule permitting detention under § 1225(b) as long as
deportation proceedings are still pending); 	Giraldo Nieto v. Ceja, No. 1:24-cv-02821-DDD-NRN,
2025 WL 4087626, at *6 (D. Colo. June 12, 2025); 	Aguayo v. Martinez, No. 1:20-cv-00825-DDD-
KMT, 2020 WL 2395638, at *4 (D. Colo. May 12, 2020); 	Poonjani v. Shanahan, 319 F. Supp. 3d
644, 647-50 (S.D.N.Y. 2018).
The Tenth Circuit has not addressed the issue. 	See 	Giraldo Nieto, 2025 WL 4087626, at
*7. 	This Court holds that procedural due process does not entitle inadmissible arriving alien
subject to prolonged detention to release or a bond hearing before removal proceedings conclude.
See Gonzalez Aguilar, 448 F. Supp. 3d at 1205 	12. 	Under 	Mezei 	and 	Sierra, such aliens are
entitled only to the statutory procedures Congress has authorized, and under 	Jennings, the
procedures in § 1225(b) provide neither bond hearings nor any time limit on detention while
removal proceedings are pending. 	Gonzalez Aguilar, 448 F. Supp. 3d at 1205 	12 (citing 	Sierra v.
INS, 258 F.3d 1213, 1215 	16 (10th Cir. 2001); 	Shaughnessy v. United States ex rel. Mezei, 345
U.S. 206, 212 	16 (1953)).
IV. 	Substantive Due Process
over 19-month detention
violates his substantive due process rights, entitling him to relief. 	While 	Jennings 	imposes no
bright-
mandatory detention under §§ 1225(b) and 1226(c) remains subject to independent constitutional
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limitations. 	Mardanpour v. Warden, No. 2:26-cv-00550-MIS-LF, 2026 WL 963164, at *4
(D.N.M. Apr. 9, 2026).
Federal circuit and district courts have long held that deportable aliens in custody for more
than a few months must be released because such detention has become imprisonment. 	Wolck v.
Weedin, 58 F.2d 928, 930 	31 (9th Cir. 1932); 	Caranica v. Nagle, 28 F.2d 955, 957 (9th Cir. 1928),
cert. denied, 277 U.S. 589 (1928); 	United States ex rel. Ross v. Wallis, 279 F. 401, 403 	04 (2d Cir.
1922); 	United States ex rel. Janavaris v. Nicolls, 47 F. Supp. 201 (D. Mass. 1942). 	The Tenth
Circuit has also recognized that inadmissible aliens in physical custody in the United States enjoy
some procedural and substantive due process protections under the Fifth Amendment. 	See
Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981).
A restriction on liberty is punitive rather than regulatory if (a) the government intends to
impose punishment, or (b) the restriction is not rationally related to a legitimate nonpunitive
governmental purpose or is excessive in relation to that purpose. 	Kingsley v. Hendrickson, 576
U.S. 389, 398 (2015); 	United States v. Salerno, 481 U.S. 739, 747 (1987); 	Giraldo Nieto, 2025
WL 4087626, at *8.
Respondents provide no specific or apparent justification for continued detention. 	See 	Doc.
9. 	Insofar as Respondents seek to assert that any pending appeal is a basis for such detention,
exercising the right to appeal should not require surrendering one 	s physical liberty as collateral.
See Rodriguez-Fernandez, 654 F.2d at 1387. 	Indefinitely detaining Petitioner solely because he
seeks to exhaust his right to an appeal lacks a legitimate regulatory purpose and amounts to
impermissible punitive detention in violation of his substantive due process rights. 	Mardanpour,
2026 WL 963164, at *3.
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In sum, the Court finds that Petitioner 	s indefinite detention, already exceeding 19 months,
facilitating removal. Petitioner 	s appeal to the BIA and, if unsuccessful there, to the Tenth Circuit
Court of Appeals could take years. Under these circumstances, Petitioner 	s indefinite detention of
more than 19 months is punitive and violates his substantive due process rights. 	Rodriguez-
Fernandez
efforts to expel the alie 	;
Mardanpour, 2026 WL 963164, at *6.
Respondents have failed to articulate any legitimate interest in Petitioner 	s continued
detention. Thus, the Court finds that immediate conditional release is the appropriate remedy. 	See
Espinosa v. Warden, No. 2:26-cv-02907-MIS-SCY, 2026 WL 2906454, at *2 (D.N.M. Sept. 28,
2026) (collecting cases and granting release where petitioner was detained under § 1225 for seven
months).
CONCLUSION
Accordingly, it is hereby 	ORDERED:
1) 	The Petition for Writ of Habeas Corpus (Doc. 3) is 	GRANTED;
2) 	Respondents are 	ORDERED 	to release Petitioner within 48 hours, subject to
reasonable conditions of release, such as electronic monitoring and/or regular
check-ins;
3) 	Respondents 	SHALL 	provide Petitioner will all personal belongings and facilitate
;
4) 	Respondents 	SHALL 	file a notice of compliance within two business days of
This notice must specify: (1) the date, (2) the time, and (3) the
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manner of departure (e.g., transport to a bus station, designated drop-off location,
or other arrangements). Additionally, the notice must include (4) a description or
copies of all discharge and travel documents provided to Petitioner at the time of
release;
5) 	Respondents 	SHALL NOT 	re-detain Petitioner without (1) evidence that Petitioner
has committed a crime or absconded in regard to administrative immigration
proceedings, or (2) a valid final order of removal and concrete travel plans to
remove Petitioner from the United States;
6) 	The Court will separately enter Final Judgment in favor of Petitioner but retain
jurisdiction over this matter to ensure compliance with this Order and entertain any
motion for attorneys 	fees.
IT IS SO ORDERED.
____________________________________
SARAH M. DAVENPORT
UNITED STATES DISTRICT JUDGE
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