Case Name in Immigration Case - Unavailable

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EDWIN VICENTE TAPAY AZHAU,
Petitioner,
v. 1:26-cv-00355-KG-DLM
KRISTI NOEM, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Edwin Vicente Tapay Azhau’s Petition for a Writ of
Habeas Corpus, Doc. 1, and the Government’s Response, Doc. 10. For the reasons below,
petitioner’s habeas petition is granted.
I. Background
Mr. Azhau, a citizen of Ecuador, entered the United States in 2022 without inspection.
Doc. 1 at 10–11. He resides in Minnesota and has no criminal history. Id. at 1, 13. He lives
“with his father, stepmother, and stepsister, spending time with family and attending church, and
complying with all lawful orders with respect to his immigration proceedings.” Id. at 1–2.
Immigration and Customs Enforcement (“ICE”) apprehended Mr. Azhau in Minnesota.
Id. While he was sitting in a car outside of his house, Immigration and Customs Enforcement
(“ICE”) agents “pointed their guns into Mr. Azhau’s face, broke the window, and pulled him out
of the car.” Id. The Government has not provided him with a bond hearing. Id. He is detained
at Cibola County Correctional Center in Milan, New Mexico. Id.
Mr. Azhau argues his detention violates the Immigration and Nationality Act (“INA”)
and the Due Process Clause of the Fifth Amendment. Id. at 5. He seeks release, or, in the
alternative, a bond hearing within seven days. Id. at 21.
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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 governs Mr.
Azhau’s detention, (B) Mr. Azhau’s detention violates his right to due process, and (C) the
proper remedy is a bond hearing where the Government bears the burden of proof.
A. Section 1226 governs Mr. Azhau’s detention.
The INA establishes distinct detention regimes depending on whether a noncitizen is
“seeking admission” to the United States. 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 “not clearly and beyond a doubt entitled to be admitted.” The “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.” Noncitizens “detained under this second detention regime
are entitled to individualized bond hearings at the outset of detention.” Id.
Consistent with the overwhelming majority of district courts to consider the issue and this
Court’s prior findings, the Court concludes that § 1226 governs here. 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); Pu Sacvin, 2025 WL 3187432 (Gonzales, J.); Danierov v. Noem, 2026 WL
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45288, at *2 (D.N.M.) (Gonzales, J.). Section 1225(a)(1) defines an “applicant for admission” as
a noncitizen “who has not been admitted or who arrives in the United States.” In contrast,
§ 1225(b)(2)(A)’s detention mandate applies only to noncitizens “seeking admission” (emphasis
added). Noncitizens “seeking admission” are those who have not “effected an entry” into the
United States. DHS v. Thuraissigiam, 591 U.S. 103, 140 (2020). Noncitizens “who entered the
country years earlier” are not “seeking admission,” and therefore fall under § 1226 rather than
§ 1225(b)(2)(A). Pu Sacvin, 2025 WL 3187432, at *3. The Court acknowledges the recent Fifth
Circuit decision holding that “[w]hile [noncitizens] remain applicants” for admission, “they
are...seeking admission.” Buenrostro-Mendez v. Bondi, --- F.4th ----, 2026 WL 323330, at *5
(5th Cir.). The Tenth Circuit has not yet addressed this question.
Under this framework, § 1226 governs Mr. Azhau’s detention. ICE arrested him
approximately three years after his initial entry into the United States and apprehended him in
Minnesota, not at the border. Doc. 1 at 1–2. Accordingly, § 1225’s mandatory detention
provision does not apply because Mr. Azhau effected an entry into the United States by living
here for years. Pu Sacvin, 2025 WL 3187432, at *3. As the Government concedes, the facts of
this case are “substantially similar” to those in Patel v. Noem, 2026 WL 103163 (D.N.M.), where
this Court granted relief. Doc. 10 at 2.
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B. Mr. Azhau’s detention violates his right to due process.
Courts analyze due process claims in two steps: first, whether there exists “a protected
liberty interest under the Due Process Clause,” and second, whether the procedures used to
deprive that interest “accord with the Constitution.” Domingo v. Castro, 2025 WL 2941217, at
*3 (D.N.M.). Here, Mr. Azhau has a protected liberty interest. By living in the United States,
noncitizens acquire “a protectable liberty interest in remaining out of custody.” Danierov, 2026
WL 45288, at *2. Mr. Azhau’s freedom allowed “him to do a wide range of things,” including to
live at home, work, and “be with family and friends and to form the other enduring attachments
of normal life.” Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Indeed, Mr. Azhau lives with
his father, stepmother, and stepsister and attends church and school. Doc. 1 at 10.
Mr. Azhau was also entitled to procedural safeguards before he was detained. In
determining what process is due, courts consider (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
of additional procedures. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). To start, Mr. Azhau’s
private interest in remaining free from detention is substantial. “Freedom from
imprisonment...lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas
v. Davis, 533 U.S. 678, 690 (2001). There is also a significant risk of erroneous deprivation.
Courts require “a material change in circumstances as to whether the noncitizen poses a danger
to the community or an unreasonable risk of flight” before revoking a noncitizen’s freedom.
Danierov, 2026 WL 45288, at *2. Mr. Azhau was detained after three years in the United States.
Doc. 2 at 3. No assessment was made as to whether any material facts had changed, creating a
substantial risk of erroneous deprivation of his liberty interest. Finally, the Government’s
interest in detaining Mr. Azhau without a hearing is limited, and the administrative burden of
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providing a bond hearing is minimal. See Danierov, 2026 WL 45288, at *2 (the “cost of
providing a bond determination is not terribly burdensome”).
C. The remedy is a bond hearing where the Government bears the burden of proof.
The proper habeas remedy is a prompt bond hearing at which the Government must
prove, by clear and convincing evidence, that Mr. Azhau is a flight risk or danger to the
community. Although “under normal circumstances, the burden” at a § 1226 hearing “is on the
noncitizen” to show that detention is unwarranted, Mr. Azhau’s “unlawful detention in violation
of his constitutional rights shifts that burden to the Government.” Pu Sacvin, 2025 WL 3187432,
at *3. A noncitizen’s “strong private interest in being free from civil detention” outweighs the
Government’s “comparatively minimal burden to justify custody.” Id.
IV. Conclusion
The Court therefore grants Mr. Azhau’s petition, Doc. 1. The Court directs the
Government to provide Mr. Azhau with a bond hearing under § 1226(a) before an immigration
judge within seven days of this Order. At that hearing, the Government must justify Mr.
Azhau’s detention by clear and convincing evidence. If the Government fails to do so, it must
release Mr. Azhau. The Court also orders the Government to file a status report within ten days
of this Order confirming that it has provided Mr. Azhau with a bond hearing or released him.
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
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