Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
GUSTAVO MORELOS VALDOVINOS,
Petitioner,
v. 	No. 1:26-cv-0338 JB/DLM
KRISTI NOEM, et al.,
Respondents.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Gustavo Morelos Valdovinos’s Petition
for Writ of Habeas Corpus filed under 28 U.S.C. § 2241. (Doc. 1.) Petitioner challenges the legality
of his arrest and continued detention, asserting that DHS lacked statutory authority to arrest him
without a warrant under 8 U.S.C. § 1357(a)(2) and that his continued detention without a prompt
judicial 	probable‑cause 	determination 	violates 	the 	Fourth 	Amendment. 	He 	also 	raises 	a
transfer‑based access‑to‑counsel claim.
Having reviewed the record, the parties’ submissions, and the governing law, the
undersigned recommends that the Petition be GRANTED IN PART to the extent Petitioner seeks
release based on the Fourth Amendment violation; DENIED IN PART as to Petitioner’s
Administrative Procedure Act (APA) claim; and DISMISSED IN PART as to Petitioner’s
transfer‑based access‑to‑counsel claim, which falls outside the scope of habeas review. In the
alternative, the undersigned recommends that Respondents be ordered to provide Petitioner with a
prompt individualized bond hearing under 8 U.S.C. § 1226(a).1
1 On March 3, 2026, United States District Judge James O. Browning entered an Order of Reference referring this
case to the undersigned “to conduct hearings, if warranted, including evidentiary hearings, and to perform any legal
analysis required to recommend to the Court an ultimate disposition of the case.” (Doc. 12.)
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I. 	Factual and Procedural Background
Petitioner Gustavo Morelos Valdovinos is a 49‑year‑old native and citizen of Mexico. (See
Docs. 1 ¶ 27; 17‑2 at 1.) He has lived continuously in the United States since at least 2001 and has
three U.S. citizen children who reside in Minnesota. (Docs. 1 ¶¶ 27, 33; 17‑2 at 2.) Petitioner has
no criminal history. (See Docs. 1 ¶ 51; 17‑2 at 2.)
On 	January 	10, 	2026, 	U.S. 	Immigration 	and 	Customs 	Enforcement 	(ICE) 	agents
encountered Petitioner while he was driving on Interstate 94 near the Lyndale exit in Minneapolis,
Minnesota.2 (Doc. 1 ¶ 31.) Petitioner pulled over believing local law enforcement was attempting
to stop him. (Id.) Three ICE agents approached his vehicle, questioned him, and directed him to
exit the car. (Id.) Agents then arrested Petitioner and transported him to the Whipple Federal
Building in Fort Snelling, Minnesota. (Id.) According to Department of Homeland Security (DHS)
encounter records, no warrant was served at the time of arrest. (See Doc. 18 at 1–2 (citing Doc.
17‑2 at 1 (“Warrant served by Warrant Service Officer (WSO)? N/A”)).)
Petitioner remained at the Whipple Building until January 11, 2026, when ICE transferred
him to the El Paso East Montana facility. (Doc. 1 ¶¶ 20, 31.) On January 26, 2026, ICE transferred
him again to the Cibola County Correctional Center in Milan, New Mexico, where he remains
detained. (See id.; see also Doc. 17-1 at 1.)
On January 17, 2026, Petitioner was processed by DHS at the El Paso facility. (Doc. 17-2
at 2.) DHS records reflect that Petitioner had no prior immigration history and no pending
applications with the U.S. Citizenship and Immigration Services (USCIS). (Id.) On January 29,
2026, DHS served Petitioner with a Notice to Appear charging him as removable under 8 U.S.C.
2 DHS records list the “Apprehension Date” as January 11, 2026 (Doc. 17‑2 at 1), though the Petition alleges the arrest
occurred on January 10, 2026 (Doc. 1 ¶ 31).
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§ 1182(a)(6)(A)(i) as a noncitizen “present in the United States without being admitted or
paroled . . . .” (Doc. 17-1 at 1.)
On January 30, 2026, Petitioner filed a Petition for Writ of Habeas Corpus in the District
of Minnesota, challenging the legality of his arrest and continued detention and seeking immediate
release. (Doc. 1.) The Government Respondents filed a response on February 3, 2026, arguing that
jurisdiction was improper in Minnesota and asserting that Petitioner is subject to mandatory
detention under 8 U.S.C. § 1225(b)(2). (Doc. 6.) Petitioner filed a reply on February 5, 2026. (Doc.
7.)
On February 6, 2026, the District of Minnesota transferred the case to this Court under 28
U.S.C. § 1406(a). (Doc. 8.) On March 4, 2026, the undersigned ordered the Warden Respondents
to answer. (Doc. 13.) The Warden Respondents timely filed their response on March 6, 2026. (Doc.
15.) The Government Respondents then filed a second response on March 13, 2026. (Doc. 17.)
Petitioner filed a second reply on March 18, 2026. (Doc. 18.) The matter is now fully briefed and
ready for disposition.
II. 	Legal Standard
Federal courts possess longstanding authority to review the legality of executive detention
through the writ of habeas corpus. 28 U.S.C. § 2241 expressly authorizes courts to issue a writ of
habeas corpus when a person is “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(3). The Tenth Circuit has recognized that “[c]hallenges to
immigration detention are properly brought directly through habeas.” Soberanes v. Comfort, 388
F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687–88 (2001)).
The fundamental purpose of a § 2241 habeas corpus proceeding is to allow a detainee to
challenge the legality of his custody and to secure release from unlawful detention. See
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Palma‑Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). Because Petitioner challenges the
legality of his continued detention, his claim falls squarely within the scope of § 2241.
No party has identified any factual dispute requiring an evidentiary hearing, and the issues
presented are purely legal and fully briefed. As such, the existing record is sufficient to resolve the
habeas petition.
III. 	Discussion
Petitioner challenges the legality of his detention on several related grounds. In his habeas
petition, he asserts that DHS is detaining him under 8 U.S.C. § 1225(b)(2) despite his long‑term
residence in the United States, lack of criminal history, and the absence of any indication that he
is an arriving alien or applicant for admission. (See Doc. 1 ¶¶ 27–31, 34–36.) Petitioner contends
that § 1225(b)(2) does not apply to individuals apprehended in the interior after years of residence
and that his custody is instead governed by 8 U.S.C. § 1226(a). (See id. ¶¶ 28, 47.) He further
alleges that DHS has not provided the individualized custody determination required under
§ 1226(a) and that his continued detention without such a determination violates the Immigration
and Nationality Act (INA) and the Administrative Procedure Act. (See id. ¶¶ 49–55.)
Petitioner also raises constitutional claims based on the circumstances of his warrantless
arrest and continued detention, alleging that these actions were arbitrary and unsupported by the
procedures required by due process. (See id. ¶¶ 56–67.) He further asserts that his transfer away
from Minnesota to New Mexico has impeded his ability to communicate with counsel, in violation
of the Fifth Amendment. (See id. ¶¶ 68–72.)
Respondents maintain that Petitioner is properly detained under § 1225(b)(2) as an
applicant for admission and therefore subject to mandatory detention without bond. (See Doc. 17
at 3.) They acknowledge, however, that this District recently held in a factually similar case that
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§ 1225(b)(2) did not apply where the petitioner had not taken any action indicating he was seeking
admission. (See id. (citing Garcia‑Lopez v. Castro, No. 2:25-cv-1144 JB/SCY, 2026 WL 524082
(D.N.M. Feb. 25, 2026)).)
Because the statutory framework determines the procedural protections that apply to
Petitioner’s detention, the Proposed Findings and Recommended Disposition (PFRD) first
addresses whether § 1225 or § 1226 governs. The PFRD then turns to Petitioner’s constitutional
challenges, including whether his warrantless arrest and continued detention violate the Fourth
Amendment.
For the reasons explained below, neither § 1225(b)(1) nor § 1225(b)(2) applies, and
Petitioner’s detention is governed by § 1226(a).
A. 	Detention Under § 1225 vs. § 1226
The detention of noncitizens prior to a final order of removal is governed by 8 U.S.C. §§
1225 and 1226. See Jennings v. Rodriguez, 583 U.S. 281, 287–89 (2018). The statutory question
here is whether Petitioner—who entered the United States in 2001 and lived openly in the interior
since entry—is properly detained under § 1225(b)(2), a provision that applies only to noncitizens
“seeking admission,” or under § 1226(a), which governs the detention of noncitizens already
present in the United States and which provides for the possibility of a bond hearing. See id. at
297, 303.
Respondents assert that “Petitioner is subject to mandatory detention under Section
1225(b)(2) because he was present in the United States without being admitted or paroled.” (See
Doc. 17 at 3 (citing 8 U.S.C. § 1225(b)(2)(A); Matter of Yajure Hurtado, 29 I. & N. Dec. 216, 228
(BIA 2025)).) But Respondents also acknowledge that this District recently rejected that
interpretation in a factually similar case. See Garcia‑Lopez, 2026 WL 524082, at *34–35. As
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explained herein, the undersigned recommends finding that the reasoning in Garcia‑Lopez applies
here. Under the statutory framework, and consistent with decisions in this District, Petitioner’s
detention is governed by § 1226(a), not § 1225(b)(2).
1. 	Section 1225(b)(1) does not apply.
In Garcia‑Lopez v. Castro, United States District Judge James O. Browning addressed the
statutory basis for the federal government’s detention of a long‑term resident who, like Petitioner
here, had lived in the United States for decades and was apprehended in the interior during an ICE
encounter at a traffic stop. See Garcia-Lopez, 2026 WL 524082 at *1. The court began by
examining whether § 1225(b)(1) applied. The court first recognized that Garcia‑Lopez was “an
applicant for admission” because § 1225(a)(1) deems any noncitizen present in the United States
without admission to be one. See id. at *34 (citing 8 U.S.C. § 1225(a)(1)). But the court held that
§ 1225(b)(1) nevertheless did not apply because Garcia‑Lopez was “not an arriving alien or an
alien present in the United States continuously for less than two years at the time” of the
inadmissibility determination. Id.
Petitioner’s circumstances are materially identical. He entered the United States in 2001
and has lived here continuously for approximately 25 years. (See Doc. 1 ¶¶ 2, 6, 27.) Like in
Garcia‑Lopez, Petitioner is an “applicant for admission” because he entered the United States
without inspection and has never been admitted or paroled, but he is neither an “arriving alien”
nor a noncitizen present in the country for less than two years. Accordingly, § 1225(b)(1) does not
apply.
2. 	Section 1225(b)(2) does not apply.
The court in Garcia-Lopez next considered whether § 1225(b)(2) applied. The court held
that it did not, because § 1225(b)(2) applies only to noncitizens who are both (i) “applicants for
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admission” and (ii) “seeking admission.” Garcia-Lopez, 2026 WL 524082, at *34–35. The court
explained that “seeking admission” is an affirmative act—such as presenting at a port of entry,
applying for adjustment of status, or otherwise requesting lawful entry—not a passive condition
imposed by statute. Id. at *16–17, *35. Crucially, the court found that “[t]here [was] no indication
that Garcia‑Lopez ha[d] any pending application or ha[d] taken any other action which indicate[d]
that he [was] actively seeking admission.” Id. at *35.
The same is true here. Petitioner asserts that he “has not submitted any applications or taken
any other action which indicates he is actively seeking admission . . . .” (Doc. 18 at 4.) DHS records
confirm that Petitioner had no pending applications with USCIS and no prior immigration history
at the time of his arrest. (See Doc. 17‑2 at 2.) He was not at a port of entry and was not pursuing
any form of lawful admission; he was simply driving on Interstate 94 in Minneapolis when ICE
agents stopped and arrested him. (See Doc. 1 ¶ 31.) Under Garcia‑Lopez, these facts foreclose the
application of § 1225(b)(2). Petitioner is an “applicant for admission” only in the technical sense
that § 1225(a)(1) deems all non‑admitted noncitizens to be such. But he is not “seeking admission,”
and § 1225(b)(2) therefore does not apply.
3. 	Section 1226(a) governs Petitioner’s detention.
Having rejected both § 1225(b)(1) and § 1225(b)(2), the court in Garcia-Lopez found that
“the United States must detain [him] under § 1226(a).” Garcia-Lopez, 2026 WL 524082, at *35.
Here, Petitioner is a long‑term resident of the interior with no pending applications for admission
and no conduct indicating that he is seeking admission. Under the statutory framework and relevant
decisions from this district, § 1226(a) governs his detention.
Similarly, in Cortez‑Gonzalez v. Noem, where a noncitizen had lived in the United States
for nearly her entire life with no criminal history and was later arrested in the interior and charged
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under § 1182(a)(6)(A)(i), the court rejected DHS’s attempt to classify her detention under
§ 1225(b)(2)(A). See Cortez-Gonzalez v. Noem, 811 F. Supp. 3d 1287, 1295–97 (D.N.M. 2025).
The court explained that § 1225(b)(2) applies only when a noncitizen is both an “applicant for
admission” and “seeking admission,” and that long‑term residents who have taken no affirmative
steps to request lawful admission are not “seeking admission” within the meaning of the statute.
Id. at 1296–97. Because the statutory prerequisites for § 1225(b)(2) were not met, the court held
that detention defaulted to § 1226(a). Id. at 1297. The same reasoning applies here: Petitioner has
lived in the United States for years, was charged under § 1182(a)(6)(A)(i), and has made no
affirmative request for admission. As in Cortez‑Gonzalez, DHS’s reliance on § 1225(b)(2) is
inconsistent with the statutory text, and § 1226(a) governs his detention.
B. 	Petitioner’s warrantless arrest and continued detention violate the Fourth
Amendment and 8 U.S.C. § 1357(a)(2).
Because § 1226(a) governs Petitioner’s detention, the Court must also consider whether his
arrest and continued detention comply with the Fourth Amendment and the statutory limits
Congress imposed on warrantless immigration arrests. See Salazar v. Dedos, No. 1:26‑cv‑0251
WJ/JHR, 2026 WL 555336, at *5–6 (D.N.M. Feb. 27, 2026) (analyzing Fourth Amendment limits
after concluding § 1226(a) governed). Although § 1226(a) permits the Attorney General to arrest
noncitizens “on a warrant,” the Supreme Court has clarified that § 1226(a) does not require a
warrant in every case. See Jennings, 583 U.S. at 303 (Ҥ 1226(a) . . . permit[s] . . . but [does] not
requir[e] . . . the Attorney General to issue warrants for the arrest and detention of noncitizens
already present in the United States”); see also 8 U.S.C. § 1226(a). Thus, the question is not
whether § 1226(a) mandates a warrant, but whether the Constitution and § 1357(a)(2) permit the
warrantless arrest and continued detention at issue here.
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The petition alleges that ICE agents stopped Petitioner on Interstate 94 based solely on his
ethnicity, questioned him without reasonable suspicion, and arrested him without probable cause
or a warrant, in violation of the Fourth Amendment and § 1357(a)(2). (See Doc. 1 ¶¶ 31–32, 42,
61.) Petitioner further alleges that agents had no basis to believe he was likely to escape before a
warrant could be obtained, as the statute requires. (Id. ¶¶ 42, 61.) Respondents do not address these
allegations in either of their filings. (Docs. 6; 17.)
1. 	DHS lacked statutory authority to arrest Petitioner without a warrant.
The INA authorizes warrantless immigration arrests only in narrow circumstances. Under
8 U.S.C. § 1357(a)(2), an immigration officer may arrest a noncitizen without a warrant only if the
officer has “reason to believe” the person is violating the immigration laws and the person “is
likely to escape before a warrant can be obtained . . . .” See 8 U.S.C. § 1357(a)(2). The statute also
permits certain warrantless criminal‑law arrests under § 1357(a)(5), but only when the offense
occurs in the officer’s presence or when the officer has reasonable grounds to believe a felony has
been committed and there is a likelihood of escape before a warrant can be obtained. See 8 U.S.C.
§ 1357(a)(5)(A)–(B).
Courts have recognized that these warrantless‑arrest authorities are strictly limited,
particularly in the interior‑arrest context.
In Salazar v. Dedos, the court rejected DHS’s attempt to justify a warrantless interior arrest
under § 1357 where none of the statute’s narrow prerequisites were met. See 2026 WL 555336, at
*5–6. Salazar had lived in the United States since infancy, had no criminal history, had never
previously been in immigration custody, and was arrested by ICE in the interior without a warrant
and without any contemporaneous criminal conduct. See id. at *1. The court emphasized that the
INA authorizes warrantless immigration arrests only in “limited circumstances,” specifically those
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enumerated in § 1357(a)(2) and § 1357(a)(5), and it found that “[n]one of those circumstances”
were present.3 See id. at *5 (citing 8 U.S.C. § 1357(a)(2), (5)(A)–(B)). Because DHS lacked
statutory authority to arrest Salazar without a warrant, the court held that the government was
required to obtain a prompt judicial probable‑cause determination. See id. at *6 (citing Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 57 (1991); Gerstein v. Pugh, 420 U.S. 103, 107–08 (1975)).
DHS had obtained no such determination, and the record contained no evidence that officers had
any basis to believe Salazar was likely to escape before a warrant could be obtained. Id. Given
these facts, the court concluded that Salazar’s continued detention was “unreasonable under the
Fourth Amendment” and ordered his immediate release. Id.
Likewise, in Gamez Lira v. Noem, the court found that DHS’s warrantless interior arrest of
a long‑term resident with active DACA status was unlikely to satisfy the narrow statutory limits
of § 1357(a)(2) and (a)(5). See Gamez Lira v. Noem, No. 1:25‑cv‑0855 WJ/KK, 2025 WL
2581710, at *3–4 (D.N.M. Sept. 5, 2025). Although that case arose at the TRO stage, the court’s
statutory analysis was clear. Gamez Lira had lived in the United States since infancy, had no
meaningful criminal history, was lawfully present under an active Deferred Action for Childhood
Arrivals grant, and was arrested in his driveway by ununiformed officers who did not identify
themselves and who, according to the petition, lacked a warrant. See id. at *1. DHS later issued a
Notice to Appear (NTA) alleging that he was an “arriving alien,” but the immigration judge found
the NTA defective. See id. On this record, the court concluded that the INA authorizes warrantless
arrests only in “limited circumstances,” specifically those enumerated in § 1357(a)(2) and (a)(5),
3 Section 1357(a)(2) permits a warrantless immigration arrest only when the officer has reason to believe the person
is violating the immigration laws and the person is likely to escape before a warrant can be obtained. See 8 U.S.C.
§ 1357(a)(2). Section 1357(a)(5) permits certain warrantless criminal‑law arrests only when the offense occurs in the
officer’s presence or when the officer has reasonable grounds to believe a felony has been committed, and there is a
likelihood of escape before a warrant can be obtained. See 8 U.S.C. § 1357(a)(5).
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and that “none of those circumstances” appeared to be present. See id. at *3 (citing 8 U.S.C.
§ 1357(a)(2), (5)(A)–(B)).4 Because DHS lacked statutory authority to arrest Gamez Lira without
a warrant, the court held that the government was required to obtain a prompt judicial
probable‑cause determination, which it had not done. See id. at *4 (citing Cnty. of Riverside, 500
U.S. at 57; Gerstein, 420 U.S. at 107–08). The court further noted that the record contained no
evidence that officers had reason to believe Gamez Lira had engaged in criminal conduct or was
likely to escape before a warrant could be obtained. Id. Given these deficiencies, the court found
a substantial likelihood that the arrest and continued detention violated the Fourth Amendment and
issued a temporary restraining order to preserve jurisdiction. Id. at *4–5.
The record here contains no evidence that DHS obtained or served a warrant. DHS’s own
encounter records confirm that no warrant was issued or served at the time of Petitioner’s arrest.
(See Doc. 18 at 1–2 (citing Doc. 17‑2 at 1 (“Warrant served by Warrant Service Officer (WSO)?
N/A”)).) Respondents do not dispute this fact, and they offer no evidence that a warrant existed or
that any statutory exception applied.5 (See Docs. 6; 17.)
Nothing in the record suggests that either statutory condition—reasonable belief of a
violation or likelihood of escape—was met. Petitioner was stopped while driving on Interstate 94
in Minneapolis, had lived in the United States for decades, and had no criminal history. (See Docs.
4 The Gamez Lira opinion cites “§ 1357(a)(5)(A)–(5),” which does not correspond to an existing subsection. See
Gamez Lira, 2025 WL 2581710, at *3. The context makes clear that the court was referring to § 1357(a)(5)(A)–(B),
and this brief uses that formulation for clarity. See 8 U.S.C. § 1357(a)(5).
5 Petitioner first raised the warrant‑related defect in the habeas petition filed in the District of Minnesota. (See Doc. 1
¶¶ 31, 42, 61.) The Government Respondents filed a response in that court but did not address the argument, and
Petitioner noted this omission in his reply. (See Docs. 6; 7 at 5.) After transfer to this District, the Court directed the
Warden to state his position on the petition. (See Doc. 13.) The Warden responded that he had no involvement in
Petitioner’s immigration proceedings and took no position on the requested relief. (See Doc. 15.) The Government
Respondents then filed an additional response, even though the Court’s order directed only the Warden to respond,
and again did not address the warrant issue. (See Doc. 17.) Accordingly, the record contains no explanation from
Respondents regarding whether a warrant existed or whether any statutory exception applied.
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1 ¶ 31; 17‑2 at 2.) Respondents do not argue that Petitioner was “likely to escape” or that any
§ 1357(a)(2) exception applied. (See Docs. 6; 17.) As in Salazar and Gamez Lira, the record
contains no facts that would satisfy § 1357(a)(2) or (a)(5)’s narrow prerequisites for a warrantless
arrest. See Salazar, 2026 WL 555336, at *5 (“None of those circumstances appears to have been
present in this case.”); Gamez Lira, 2025 WL 2581710, at *4 (same).
2. 	DHS failed to obtain a prompt judicial probable‑cause determination
Even when a warrantless arrest is permissible, the Fourth Amendment requires a prompt
judicial determination of probable cause. See Salazar, 2026 WL 555336, at *6 (“Absent obtaining
a warrant, the government was required to secure a prompt judicial probable cause determination
to justify [his] continued detention.”) (citations omitted).
Respondents obtained no such determination here. They do not contend otherwise. (See
Docs. 6; 17.) As in Salazar, the record contains no evidence that DHS had probable cause to
believe Petitioner had engaged in criminal conduct or that any judicial officer ever reviewed the
basis for his detention. See 2026 WL 555336, at *6 (“Respondents obtained no probable cause
determination. Nor does it appear . . . that they could have . . . .”).
3. 	Petitioner’s continued detention is unconstitutional.
DHS lacked statutory authority to arrest Petitioner without a warrant under § 1357(a)(2) or
(a)(5), and DHS never obtained a prompt judicial probable‑cause determination. For both reasons,
Petitioner’s arrest and continued detention are unreasonable under the Fourth Amendment. See id.;
see also Gamez Lira, 2025 WL 2581710, at *4. Accordingly, Petitioner’s continued detention is
unconstitutional and he must be released.
This conclusion is reinforced by a growing body of decisions holding that when DHS
detains a noncitizen under § 1226(a) without a warrant and without satisfying § 1357(a)(2), the
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detention is unlawful from the outset and immediate release is required. In Singh v. Bondi, the
Western District of Oklahoma confronted nearly identical facts: a long‑term resident arrested in
the interior without a warrant, initially detained under § 1225(b)(2), and later determined to fall
under § 1226(a). See Singh v. Bondi, No. 26‑cv‑43 J, 2026 WL 483651, at * 1–2; *12 (W.D. Okla.
Feb. 12, 2026), R&R adopted, 2026 WL 483482 (W.D. Okla. Feb. 20, 2026). The court concluded
that “[b]ecause Petitioner was improperly detained pursuant to § 1226(a), his instant detention was
unlawful from the moment it began,” and recommended immediate release. Id. at *12 (citing
E.P.G. v. Bondi, No. 26‑560 (JRT‑EMB), 2026 WL 242266, at *1 (D. Minn. Jan. 29, 2026);
Chogllo Chafla v. Scott, 804 F. Supp. 3d 247, 264 (D. Me. 2025)). These decisions reinforce the
principle that when DHS cannot meet the statute’s requirements for a warrantless arrest, continued
detention is unlawful and release is the only permissible remedy.
C. 	Immediate 	release 	is 	required 	under 	the 	Fourth 	Amendment; 	in 	the
alternative, petitioner is entitled to a prompt bond hearing under § 1226(a).
The Fourth Amendment violation here is indistinguishable from the violations in Salazar
and Gamez Lira. DHS lacked statutory authority to arrest Petitioner without a warrant, and DHS
failed to obtain a prompt judicial probable‑cause determination. Under these circumstances, the
appropriate remedy is immediate release. See Salazar, 2026 WL 555336, at *6 (ordering
immediate release where warrantless § 1226(a) detention violated the Fourth Amendment); Gamez
Lira, 2025 WL 2581710, at *4 (finding petitioner likely to succeed on Fourth Amendment claim
where DHS lacked § 1357(a)(2) authority and obtained no probable‑cause determination). The
undersigned therefore recommends that the Court order Petitioner’s immediate release.
Even if the Court declines to order Petitioner’s immediate release based on DHS’s failure
to obtain a warrant, the Court should grant habeas relief in the alternative by ordering an
individualized bond hearing under § 1226(a). Petitioner is, at minimum, entitled to the procedural
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protections that accompany detention under § 1226(a). See Jennings, 583 U.S. at 306 (citing 8
C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)) (“Federal regulations provide that aliens detained under
§ 1226(a) receive bond hearings at the outset of detention”). Petitioner has never received such a
hearing. Indeed, Respondents’ reliance on § 1225(b)(2) foreclosed any opportunity for Petitioner
to seek release before an immigration judge.
Courts in this District have repeatedly ordered individualized bond hearings where, as here,
a petitioner was apprehended in the interior and found to be detainable under § 1226(a). See, e.g.,
Pu Sacvin v. De Anda-Ybarra, No. 2:25-cv-1031 KG/JFR, 2025 WL 3187432, at *2–3 (D.N.M.
Nov. 14, 2025) (ordering bond hearing after concluding petitioner was properly detained under
§ 1226(a)); Camac‑Huanca v. Noem, No. 2:25‑cv‑1253 KWR/JFR, 2026 WL 357651, at *6–7
(D.N.M. Feb. 9, 2026) (same); Gutierrez v. Garcia, No. 2:25‑cv‑1145 WJ/KRS, 2026 WL 310064,
at *5–6 (D.N.M. Feb. 5, 2026) (same); Velasquez Salazar v. Dedos, No. 1:25‑cv‑0835 DHU/JMR,
2025 WL 2676729, at *5–6 (D.N.M. Sept. 17, 2025) (same).
Petitioner urges the Court to go further and require DHS to bear the burden at that hearing,
arguing that the Government must “show by clear and convincing evidence that continued
detention of Petitioner is necessary to prevent flight or danger to the community.” (See Doc. 18 at
5–6.) The Court should decline to impose such a requirement in light of its recent decision in
Castillo v. De Anda‑Ybarra, 2:25-cv-1074 JB/JFR, 2026 WL 370497 (D.N.M. Feb. 10, 2026).
There, the court sustained the Government’s objection to a magistrate judge’s recommendation
that the burden shift to DHS at a § 1226(a) bond hearing. Castillo, 2026 WL 370497 at *41–42.
The court held that, although habeas is an appropriate vehicle to challenge detention without any
hearing, it is not a mechanism for restructuring the evidentiary burdens applicable at a bond hearing
unless the existing process is so one‑sided that noncitizens have no meaningful chance of securing
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release. Id. at 42. The court concluded that the current § 1226(a) framework—under which the
noncitizen bears the burden to show he is not a flight risk or danger—does not rise to that level,
and therefore the Court lacked authority on habeas review to reallocate the burden of proof. Id.
Accordingly, if the Court does not order immediate release, the undersigned recommends
that the Court direct Respondents to provide Petitioner with an individualized bond hearing before
a neutral immigration judge. If Respondents fail to provide such a hearing, Petitioner should be
released.
D. 	Petitioner’s Remaining Claims
1. 	Access to Counsel Claim
Petitioner alleges that his transfer from Minnesota to New Mexico has interfered with his
ability to communicate with counsel and to meaningfully participate in his removal proceedings.
(See Doc. 1 ¶¶ 37–38, 68–72.) Respondents do not address this allegation. (See Docs. 6; 17.)
Petitioner cites two out‑of‑circuit decisions in support of his assertion that his transfer
violated a constitutional right to counsel and to a full and fair removal hearing, but neither case
stands for the propositions he advances. (See id. ¶¶ 69–70.) In Al Khouri v. Ashcroft, the Eighth
Circuit reaffirmed that due process entitles a noncitizen to a “full and fair hearing” in removal
proceedings. See 362 F.3d 461, 464 (8th Cir. 2004) (citing Reno v. Flores, 507 U.S. 292, 306
(1993); Castaneda–Suarez v. INS, 993 F.2d 142, 144 (7th Cir. 1993); Plyler v. Doe, 457 U.S. 202,
210 (1982)). But the case did not involve transfer, detention location, or distance from counsel.
Instead, the due‑process violation arose from the immigration judge’s failure to adequately develop
the record for a pro se asylum applicant—including curtailing testimony, limiting his ability to
explain his claim, and giving him only minutes to review a lengthy application—which rendered
the hearing fundamentally unfair. See id. at 464–66.
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Likewise, 	the 	holding 	in 	United 	States 	v. 	Torres‑Sanchez 	does 	not 	recognize 	a
constitutional right to counsel in removal proceedings. See 68 F.3d 227, 230 (8th Cir. 1995) (citing
United States v. Campos–Asencio, 822 F.2d 506, 509 (5th Cir. 1987); Acewicz v. United States
Immigr. & Nat. Serv., 984 F.2d 1056, 1062 (9th Cir. 1993); Nazakat v. Immigr. & Nat. Serv., 981
F.2d 1146, 1148 (10th Cir. 1992)). Rather, the Eighth Circuit held that the right to representation
in deportation proceedings is statutory, not constitutional, and that a due‑process violation based
on denial of counsel requires both a procedural error and a showing of prejudice. See id. at 230–
32. The court ultimately concluded that the petitioner in that case knowingly waived his statutory
right to counsel. Id. at 231–32.
Neither decision recognizes a constitutional right to be detained in any particular facility,
nor do they hold that transfer or physical distance from counsel violates due process. And unlike
the petitioners in those cases, Petitioner here identifies no specific prejudice arising from his
transfer. Moreover, the record does not support Petitioner’s assertion that the transfer has impaired
his ability to communicate with counsel. To the extent Petitioner suggests that the transfer deprived
him of representation, that allegation is moot. His retained counsel has continued to represent him
throughout the transfer, has filed multiple submissions on his behalf, and remains counsel of
record. (See Docs. 1 at 22; 7 at 9; 7-1; 11; 18 at 6.) Petitioner identifies no missed filings, missed
hearings, or other concrete prejudice arising from the transfer.
Even if Petitioner had identified a constitutional violation, his transfer‑based claim falls
outside the scope of relief available under 28 U.S.C. § 2241. Habeas corpus is limited to challenges
to the legality of custody and to securing release from unlawful detention. See Palma-Salazar, 677
F.3d at 1035 (“the traditional function of the writ is to secure release from illegal custody”)
(quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997)). The Supreme
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Court has likewise emphasized that habeas “simply provide[s] a means of contesting the
lawfulness of restraint and securing release.” Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S.
103, 117 (2020).
Because Petitioner’s transfer‑based allegations fall outside the scope of habeas review and
do not provide an independent basis for relief under § 2241, this claim should be dismissed.
2. 	Administrative Procedure Act Claim
Petitioner also asserts that DHS’s application of § 1225(b)(2) to deny him a bond hearing
is “arbitrary, capricious, and not in accordance with law” in violation of the Administrative
Procedure Act. (Doc. 1 ¶¶ 52–55.) This claim does not provide an independent basis for relief.
Courts in this District have held that an individualized detention determination—such as DHS’s
classification of a detainee under § 1225(b)(2) or its refusal to provide a bond hearing—is not
“final agency action” within the meaning of the APA. See Gamez Lira, 2025 WL 2581710, at *4
(citing Hamilton v. Gonzales, 485 F.3d 564, 569 (10th Cir. 2007)).
Accordingly, to the extent Petitioner seeks relief under the APA, that claim should be
denied.
E. 	Administrative Exhaustion
Respondents contend that Petitioner “must first exhaust his administrative remedies” by
requesting a bond hearing before the immigration court. (See Docs. 17 at 2; 17-4 at 2, 10–11.) That
argument is misplaced. Exhaustion is not required where the agency has predetermined the
outcome or where the administrative process is incapable of providing the relief sought.
First, neither the INA nor § 2241 expressly imposes a statutory exhaustion requirement for
noncitizens challenging the legality of their detention. See Castro v. Noem, No. 1:25-cv-1129
KWR/LF, 2026 WL 280470, at *3 (D.N.M. Feb. 3, 2026) (citing Gonzalez v. O’Connell, 355 F.3d
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1010, 1016 (7th Cir. 2004)). Although the Tenth Circuit applies an exhaustion requirement in
§ 2241 cases, it “recognize[s] a ‘narrow exception’” where exhaustion would be futile. Id. (quoting
Garza v. Davis, 596 F.3d 1198, 1203–04 (10th Cir. 2010)).
To be sure, here, exhaustion is futile. Petitioner alleges—and Respondents do not dispute—
that he has been given no opportunity to seek bond. (See Doc. 1 ¶¶ 50–55.) Respondents’ own
filings confirm futility: they maintain that immigration judges categorically lack jurisdiction to
provide § 1226(a) bond hearings to noncitizens DHS has classified under § 1225(b)(2)(A)—
including Petitioner. (See Doc. 17‑4 at 2, 4, 7–10.) To get to this position, Respondents rely on
Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), which directs immigration judges to
deny bond requests for noncitizens DHS classified under § 1225(b)(2)(A). (Id. at 2.) Under the
agency’s own interpretation, any request by Petitioner for a bond hearing would have been
automatically denied for lack of jurisdiction.
Courts in this district have consistently held that Hurtado renders exhaustion futile in
precisely these circumstances. See, e.g., Pu Sacvin, 2025 WL 3187432, at *2 (exhaustion futile
where IJ lacked jurisdiction under Hurtado); Castro, 2026 WL 280470, at *3 (same); Francisco
v. Dedos, No. 1:25-cv-1229 MIS/GJF, 2026 WL 145456, at *7–8 (D.N.M. Jan. 20, 2026), R&R
adopted, 2026 WL 300319 (D.N.M. Feb. 4, 2026) (same). As these courts have recognized,
requiring a petitioner to pursue a remedy the agency has already declared unavailable would serve
no purpose and would only delay judicial review. Because the administrative process could not
have provided Petitioner any avenue for release, habeas review is both appropriate and necessary.
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F. 	EAJA Attorney Fees
Petitioner’s prayer for relief includes a request for “[r]easonable attorney fees and costs
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).” (Doc. 1 at 22.) The Equal
Access to Justice Act (EAJA) provides that:
[A] court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a), incurred
by that party in any civil action (other than cases sounding in tort), including
proceedings for judicial review of agency action, brought by or against the United
States in any court having jurisdiction of that action, unless the court finds that the
position 	of 	the 	United 	States 	was 	substantially 	justified 	or 	that 	special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A).
The Tenth Circuit has confirmed that the EAJA “unambiguously authorize[s] fees in
habeas actions challenging immigration detention.” Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir.
2025).
At this stage, however, Petitioner’s request is premature. A party becomes eligible to seek
EAJA fees only after entry of a final judgment, and an EAJA motion does not ripen until the time
for appeal has expired. See 28 U.S.C. § 2412(d)(1)(B), (d)(2)(G); see also Melkonyan v. Sullivan,
501 U.S. 89, 96 (1991). Because no final judgment has been entered, Petitioner is not yet a
prevailing party for EAJA purposes.
Even if the request were ripe, the undersigned would recommend denying EAJA fees
because the government’s position was substantially justified. “The test for substantial justification
is ‘one of reasonableness in law and fact.’” Garcia‑Lopez, 2026 WL 524082, at *35 (quoting
Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007)). The government’s position is
substantially justified if it is “justified to a degree that could satisfy a reasonable person.” Id.
(quoting Hackett, 475 F.3d at 1172.) A position may be substantially justified even if it is
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ultimately incorrect. Id. (quoting Hackett, 475 F.3d at 1172). And substantial justification exists
where reasonable people could disagree about the appropriateness of the government’s action. Id.
(citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
Applying that standard, Judge Browning held that the government’s position was
substantially justified where the relevant legal question was unsettled, courts across the country
had reached conflicting conclusions, and at least one Court of Appeals had adopted the
government’s view. Id. at *36. The same is true here. The central statutory question—whether
detention in these circumstances is governed by § 1225 or § 1226—remains unsettled, and courts
have reached conflicting conclusions. As the court in Garcia-Lopez points out, several district
courts have adopted the government’s interpretation. See, e.g., Vargas Lopez v. Trump, 802 F.
Supp. 3d 1132 (D. Neb. 2025); Chavez v. Noem, 801 F. Supp. 3d 1133 (S.D. Cal. 2025); Mejia
Olalde v. Noem, No. 1:25-cv-0168 JMD, 2025 WL 3131942 (E.D. Mo. Nov. 10, 2025). And the
Fifth and Eighth Circuits have likewise embraced the government’s view. See Buenrostro-Mendez
v. Bondi, 166 F.4th 494 (5th Cir. 2026); Avila v. Bondi, --- F.4th ----, No. 25-cv-3248, 2026 WL
819258 (8th Cir. Mar. 25, 2026). At the same time, the Seventh Circuit has reached the opposite
conclusion. See Castanon‑Nava v. DHS, 161 F.4th 1048 (7th Cir. 2025). Given this unsettled
landscape, the government’s position had a reasonable basis in law and fact.
Accordingly, even if Petitioner were eligible to seek EAJA fees at this stage, the
undersigned would recommend denying such fees because the government’s position was
substantially justified.
IV. 	Conclusion
For the reasons stated above, the undersigned RECOMMENDS the following:
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1. 	The Petition for Writ of Habeas Corpus (Doc. 1) should be GRANTED IN PART
on the grounds that Petitioner’s warrantless arrest and continued detention violate
the Fourth Amendment and exceed DHS’s statutory authority under 8 U.S.C.
§ 1357(a)(2).
2. 	The Petition should be DENIED IN PART as to Petitioner’s Administrative
Procedure Act claim, because it does not provide an independent basis for habeas
relief; 	and 	DISMISSED 	IN 	PART 	as 	to 	Petitioner’s 	transfer‑based
access‑to‑counsel claim, because it falls outside the scope of habeas review.
3. 	The Court should ORDER Petitioner’s immediate release because DHS lacked
statutory authority to arrest him without a warrant and failed to obtain a prompt
judicial 	probable‑cause 	determination, 	rendering 	his 	continued 	detention
unconstitutional.
4. 	In the alternative, if the Court declines to order immediate release, the Court should
ORDER Respondents to provide Petitioner with an individualized bond hearing
before a neutral Immigration Judge within seven days of the Court’s order, and to
file a status report within ten days confirming that the hearing has occurred or that
Petitioner has been released.
5. 	If no bond hearing is held within seven days, the Court should ORDER Petitioner’s
immediate release unless and until the Government demonstrates that continued
detention is lawful under 8 U.S.C. § 1226(a).
6. 	The Court should retain jurisdiction over this matter to decide any future motion
for an award of reasonable attorney’s fees and costs under the EAJA.
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THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the 14-day period if that party wants
to have appellate review of the proposed findings and recommended disposition. If no
objections are filed, no appellate review will be allowed.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
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