Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
XINGWEN DONG,
Petitioner,
v. 2:26-cv-00417-KG-JMR
DORA CASTRO, et al.,
Respondents.
TEMPORARY RESTRAINING ORDER
This matter is before the Court on Xingwen Dong’s motion for a Temporary Restraining
Order (“TRO”) under Federal Rule of Procedure 65(a). See Doc. 3. The Court entered an Order
to Answer, directing the Government to respond within 10 days of service of the petition. Doc.
4. The Court held a hearing on the TRO application on February 26, 2026. For the reasons
below, the Court issues a Temporary Restraining Order (“TRO”) requiring the Government to
release Mr. Dong.
I. Background
Xingwen Dong is a 48-year-old Chineze citizen who entered the United States in 2024 at
the California border not designated as a port of entry. Doc. 1 at 2; Draft Tr.1 The Department
of Homeland Security (“DHS”) detained and charged him as removable for entering without
inspection. Id. DHS released him on his own recognizance. Id. Mr. Dong has stable
employment working in a kitchen and extensive family ties in New York (two siblings and
nieces and nephews). Draft Tr. He has no criminal history. Doc. 2-1 at 5; Draft Tr.
1 The Court’s citation to the hearing transcript refers to the court reporter’s original, unedited
version. Any final transcript will contain more specific page and line numbers.
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On December 3, 2025, Immigration and Customs Enforcement (“ICE”) agents arrested
Mr. Dong during a routine ICE check in at 26 Federal Plaza in New York City. Id. He is
detained at the Otero County Processing Center and has not been afforded a bond hearing. Id.
Mr. Dong filed his habeas petition and TRO application on February 16, 2026. Docs. 1,
2. The Clerk of Court served the Government on February 17, 2026, under the Court’s Standing
Order. Doc. 3. Mr. Dong contends that his continued detention violates the Immigration and
Nationality Act (“INA”) and the Fifth Amendment’s Due Process Clause. See id. at 7–8. He
therefore seeks a writ of habeas corpus seeking release or, in the alternative, a bond hearing
before an immigration judge. See id. at 10.
II. Standard of Review
A TRO “preserve[s] the status quo [ante]” before a final decision on the merits.
Resolution Trust v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992). The status quo is “the last
peaceable uncontested status…before the dispute developed.” Free the Nipple-Fort Collins v.
City of Fort Collins, 916 F.3d 792, 798 n.3 (10th Cir. 2019). A petitioner seeking a TRO “must
establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief,” and that the balance of equities and public interest favor relief.
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). “[A]ll four of the equitable factors
weigh in” the petitioner’s favor, Sierra Club. v. Bostick, 539 Fed. App’x 885, 888 (10th Cir.
2013), but “[t]he likelihood-of-success and irreparable-harm factors are the most critical.”
People’s Trust Fed. Credit Union v. Nat’l Credit Union, 350 F. Supp. 3d 1129, 1139 (D.N.M.
2018). “[R]egardless of whether or not notice is provided,” a TRO “should not exceed the
maximum time allowed by” Rule 65, which is 28 days, “absent consent of the opposing party.”
Isler v. New Mexico Activities, 2010 WL 11623621, at *3 (D.N.M.).
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III. Analysis
For the reasons below, the Court concludes that (A) Mr. Dong is likely to succeed on the
merits of his habeas petition, (B) he will suffer irreparable harm without injunctive relief, and
(C) the balance of equities and the public interest favor relief.
A. Mr. Dong is likely to succeed on the merits of his petition.
Mr. Dong has established a likelihood of success on the merits of his (1) statutory claim
and (2) Fifth Amendment due process claim.
1. Mr. Dong is likely to succeed on his statutory claim.
Mr. Dong is likely to succeed on his claim that his detention is governed by § 1226(a),
not the mandatory detention provision of § 1225(b)(2)(A). The INA establishes distinct
detention regimes depending on whether a noncitizen is “seeking admission” to the United States
or has already entered the country. 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
are “not clearly and beyond a doubt entitled to be admitted.” In that circumstance, the statute
provides that the noncitizen “shall be detained” during removal proceedings. § 1225(b)(2)(A).
“This 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.”
§ 1226(a). “Under federal regulations, 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. “Noncitizens who entered the country years earlier are not considered to be
‘seeking admission,’ and therefore fall under” § 1226(a), “rather than § 1225(b)(2)(A).” Id. at
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*3; see also Barco Mercado v. Francis, 2025 WL 3295903, at *13 (S.D.N.Y. Nov. 26, 2025)
(collecting over 300 district-court decisions nationwide).
Because Mr. Dong had already affected an entry and was not seeking admission at the
time of his arrest, § 1226(a) governs his detention. Mr. Dong entered the United States in 2024
and was arrested in Minneapolis, inside the United States. Mr. Dong has therefore shown a
strong likelihood of success on his statutory claim.
2. Mr. Dong is likely to succeed on his constitutional claim.
Mr. Dong has also met his burden of showing a likelihood of success on his due process
claim. 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.
“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 v.
Davis, 533 U.S. 678, 690 (2001). “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. Given that § 1226(a) is controlling here, Mr.
Dong “is entitled—as a right—to an individualized bond hearing.” Cortez-Gonzalez v. Noem,
2025 WL 3485771, at *5 (D.N.M.). His redetention without such review “constitutes an ongoing
violation of [his] right to due process.” Id. Mr. Dong therefore meets his burden in
demonstrating that he is likely to succeed on his due process claim.
B. Mr. Dong will face irreparable harm without injunctive relief.
Mr. Dong has met his burden of showing that his detention causes irreparable harm,
because “infringement of a constitutional right” is per se irreparable harm. Free the Nipple, 916
F.3d at 805.
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C. The equities and public interest favor relief.
Finally, any burden on the Government to release Mr. Dong from custody and hold a pre-
deprivation hearing is minimal compared to the harm that Mr. Dong is suffering in detention.
While the Government has an interest in securing Mr. Dong’s appearance at immigration
proceedings, detention has been unnecessary to carry out that interest. Indeed, he was arrested in
at a routine ICE check-in, which demonstrates that he is making an active effort to comply with
his conditions of release. “Faced with a choice between minimally costly procedures and
preventable human suffering,” the “balance of hardships tips decidedly in [P]etitioner’s favor.”
Singh v. Andrews, 2025 WL 1918679, at *7 (E.D. Cal.); see also Domingo, 2025 WL 2941217,
at *4 (same). The public interest also weighs in Mr. Dong’s favor; it is “not in the public’s
interest to allow unexplained detention.” Domingo, 2025 WL 2941217, at *4.
IV. Conclusion
This TRO restores and preserves the status quo ante pending further proceedings. IT IS
THEREFORE ORDERED that:
1. Mr. Dong’s request for a Temporary Restraining Order, Doc. 2, is granted.
2. The Government is ordered to release Mr. Dong within 24 hours of this order. Upon
release, the Government may not subject Mr. Dong to post-release monitoring or
supervision not in place before his detention.
3. The Government is restrained from redetaining Mr. Dong unless it demonstrates, by clear
and convincing evidence at a pre-deprivation hearing before a neutral arbiter, that Mr.
Dong is a danger or flight risk.
4. This Court has already ordered the Government to respond within ten days of service of
the original petition. Doc. 4. Mr. Dong may file a reply within ten (10) days thereafter.
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5. This order shall remain in effect for 28 days for good cause shown. See Fed. R. Civ. P.
65(b)(2).
6. Given the important constitutional rights at stake for Mr. Dong, the Court finds that no
bond is required. See Winnebago Tribe of Nebraska v. Stovall, 341 F.3d 1202, 1206
(10th Cir. 2003) (providing district courts with “wide discretion under Rule 65(c)” to
determine “whether to require security”).
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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