Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CARLOS IDELSO ROJAS-ROMERO,
Petitioner,
v. No. 2:26-cv-00589-KG-LF
PAMELA BONDI, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Carlos Idelso Rojas-Romero’s Petition for a Writ of
Habeas Corpus, Doc. 1, and the Government’s Response, Doc. 8. For the reasons below,
petitioner’s habeas petition is granted.
I. Background
Mr. Rojas-Romero, a citizen of Cuba, entered the United States in 2024 and was paroled
under § 212(d)(5)(A) of the Immigration and Nationality Act (“INA”) “for humanitarian reasons.”
Doc. 1 at 4. He resides and works in Midland, Texas, and is legally married. Id. at 5.
On July 8, 2025, an immigration judge (“IJ”) dismissed his pending removal proceedings.
Doc. 8 at 1. Mr. Rojas-Romero filed an appeal of that decision which remains pending before the
Board of Immigration Appeals (“BIA”). Id.
The same day, Immigration and Customs Enforcement (“ICE”) “took custody of Mr. Rojas-
Romero at the Immigration Court.” Doc. 1 at 5. He had not broken the law or “otherwise violated
the terms of his parole.” Doc. 8 at 1. He remains detained at the Otero County Processing Center in
Chaparral, New Mexico. Doc. 1 at 3.
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Mr. Rojas-Romero argues that his detention is governed by 8 U.S.C. § 1226, and that his
prolonged detention without an opportunity for release violates the INA and his Fifth Amendment
right to procedural due process. Doc. 1 at 9–10, 13.
The Government contends that Mr. Rojas-Romero’s detention is governed by 8 U.S.C.
§ 1225, “which...require[s] mandatory detention” while “his applications are considered.” Doc. 8 at
6. It asserts that “if the BIA sustains [Mr. Rojas Romero’s] appeal, [his] proceedings in
immigration court will resume.” Id. at 1–2. “If the BIA dismisses the appeal, DHS will process the
Petitioner for expedited removal, including a credible fear interview.” Id.
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, 533 U.S. at 687.
III. Analysis
For the reasons below, the Court concludes that (A) 8 U.S.C. § 1226(a) governs Mr. Rojas-
Romero’s detention, and (B) the proper remedy is a bond hearing where the Government must
justify his detention by clear and convincing evidence.
A. Section 1226(a) governs Mr. Rojas-Romero’s detention.
The INA establishes two distinct detention regimes. Section 1225 applies to noncitizens
“who are applicants for admission,” including those “seeking admission” and “not clearly and
beyond a doubt entitled to be admitted.” 8 U.S.C. §§ 1225(a)(1), (b)(2)(A). The provision
“mandates detention” and affords no bond hearing. Velasquez Salazar v. Dedos, 806 F. Supp. 3d
1231, 1239 (D.N.M. 2025). Noncitizens “seeking admission” are those who have not “effected an
entry” into the United States. DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020).
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Section 1225(b) establishes two pathways. First, § 1225(b)(1) governs noncitizens in
expedited removal proceedings, who are typically ordered removed “without further hearing or
review,” subject to limited screening procedures. Jennings v. Rodriguez, 583 U.S. 281, 287 (2018)
(citing § 1225(b)(1)(A)(i)). Second, § 1225(b)(2) applies to other applicants for admission who are
not placed in expedited removal but are instead processed through full removal proceedings.
§ 1225(b)(2)(A).
By contrast, § 1226(a) governs noncitizens already present in the United States “pending a
decision on whether [they are] to be removed.” 8 U.S.C. § 1226(a). Detention under this provision
is discretionary, and the noncitizen may seek release on bond or conditional parole. Id. “Under
federal regulations, noncitizens detained under” this second detention regime “are entitled to
individualized bond hearings at the outset of detention.” Salazar, 806 F. Supp. 3d at 1239 (citing
Jennings, 583 U.S. at 297).
Under these principles, § 1226(a) governs Mr. Rojas-Romero’s detention because neither
provision of § 1225(b) applies. Section 1225(b)(1) does not apply because Mr. Rojas-Romero is not
in expedited removal proceedings. See Rodriguez v. Ortiz, 2026 WL 412466, at *2 (D.N.M.)
(concluding that § 1225(b)(1) is inapplicable absent evidence of expedited removal proceedings).
The Government concedes as much, stating that “[i]f the BIA dismisses the appeal, DHS will
process the Petitioner for expedited removal.” Doc. 8 at 2 (emphasis added). Because Mr. Rojas-
Romero’s appeal remains pending, there is no expedited removal proceeding and no final
determination of removability. Accordingly, § 1225(b)(1) does not apply.
Next, § 1225(b)(2) does not apply because Mr. Rojas-Romero is not “seeking admission.”
He has lived and worked in the United States since 2024 and was arrested by ICE at immigration
court—not at the border or while attempting entry. Doc. 1 at 4–5. Nothing in the record suggests
he was seeking “lawful physical entry into the country” at the time of his arrest. Rodriguez, 2026
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WL 412466, at *7. Accordingly, because neither provision of § 1225 applies, Mr. Rojas-Romero’s
detention is governed by § 1226(a).
B. The remedy is a bond hearing where the Government has the burden of proof.
Because Mr. Rojas-Romero is detained under § 1226(a) and has not been afforded a bond
hearing, the Court must determine what process is constitutionally required. In making that
determination, the Court applies the framework set forth in Mathews v. Eldridge, which considers:
(1) “the private interest” affected; (2) “the risk of erroneous deprivation” through the procedures
used and the probable value of additional safeguards; and (3) “the Government’s interest,”
including the fiscal and administrative burdens that additional procedures would entail. 424 U.S.
319, 335 (1976).
Each Mathews factor supports a bond hearing at which the Government bears the burden of
justifying continued detention. First, Mr. Rojas-Romero’s liberty interest is substantial. A
noncitizen’s “interest in liberty...is particularly strong” after months of detention without a
meaningful bond hearing. Salazar, 806 F. Supp. 3d at 1243. Here, Mr. Rojas-Romero has been
detained for approximately eight months and remains separated from his family. Doc. 1 at 5. This
prolonged detention, absent a determination of flight risk or dangerousness, weighs heavily in favor
of additional procedural protections. Salazar, 806 F. Supp. 3d at 1243.
Second, shifting the burden “likely will reduce the risk of the continuing erroneous
deprivation of Petitioner’s liberty interest.” Id. Requiring the Government to prove “by clear and
convincing evidence that Petitioner is a flight risk and/or a danger to the community ameliorates”
the risk that Mr. Rojas-Romero will remain detained “without meaningful consideration” of relevant
evidence. Id.
Third, the Government’s interest does not outweigh these concerns. Although the
Government has a legitimate interest in securing Mr. Rojas-Romero’s appearance at immigration
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proceedings, detention has not been necessary to serve that interest. He has consistently complied
with the conditions of his release and was arrested after appearing at an immigration proceeding.
Doc. 1 at 4–6. Moreover, the administrative burden of shifting the burden of proof is minimal,
particularly given that “[t]he Government has vast resources at its disposal to gather information
about Petitioner’s eligibility for bond.” Id. Accordingly, the Government’s interest does not justify
continued detention without adequate procedural protection.
IV. Conclusion
The Court grants Mr. Rojas-Romero’s petition, Doc. 1. Because relief is warranted under
the INA and Due Process Clause, the Court declines to address his other claims. The Government
must provide Mr. Rojas-Romero with a bond hearing under § 1226(a) before an IJ within seven (7)
days of this Order. At that hearing, the Government must justify Mr. Mr. Rojas-Romero’s detention
by clear and convincing evidence. If the Government fails to do so, it must release him. The Court
also orders the Government to file a status report within ten (10) business 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
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PACER public access system.
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