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. No. 2:26-cv-00417-KG-JMR
DORA CASTRO, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Xingwen Dong’s Petition for a Writ of Habeas Corpus,
Doc. 1, and the Government’s Response, Doc. 11. Following a hearing, the Court issued a
Temporary Restraining Order (“TRO”) directing the Government to release Mr. Dong. Doc. 10.
In its Response, the Government indicated that it has done so. Doc. 11 at 1. For the reasons
below, the Court grants Mr. Dong’s habeas petition.
I. Background
Mr. Dong is a 48-year-old Chinese 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.
On December 3, 2025, Immigration and Customs Enforcement (“ICE”) agents arrested
1 The Court’s citation to the hearing transcript refers to the court reporter’s original, unedited
version. Any final transcript will contain specific page and line numbers.
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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 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
release or, in the alternative, a bond hearing before an immigration judge. See id. at 10.
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 finds that (A) 8 U.S.C. § 1226 governs Mr. Dong’s
detention, and (B) his detention violates his right to due process.
A. Section 1226 governs Mr. Dong’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
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are entitled to individualized bond hearings at the outset of detention.” Pu Sacvin, 2025 WL
3187432, at *1.
Consistent with the overwhelming majority of district courts to consider the issue and this
Court’s prior findings, the Court finds 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 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. Dong’s detention. Mr. Dong entered the
United States in 2024 and was arrested in Minneapolis. Accordingly, § 1225’s mandatory
detention provision does not apply because Mr. Dong effected an entry into the United States by
living here for years. Pu Sacvin, 2025 WL 3187432, at *3.
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B. Mr. Dong’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. Dong has a protected liberty interest. After living in the United States
for years, noncitizens acquire “a protectable liberty interest in remaining out of custody.”
Danierov, 2026 WL 45288, at *2. Mr. Dong’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.” Id.
Mr. Dong 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. Dong’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. Although DHS may revoke a
noncitizen’s freedom “at any time,” 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
detaining them. Danierov, 2026 WL 45288, at *2. ICE detained Mr. Dong without a bond
hearing. Because no assessment was made as to whether any material facts had changed,
creating a substantial risk of erroneous deprivation of his liberty interest.
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Finally, the Government’s interest in detaining Mr. Dong’s without a hearing is limited,
and the burden of providing a bond hearing is minimal. While the Government does have a
legitimate interest in ensuring that noncitizens attend immigration proceedings, detention is
unnecessary to achieve that goal in this case. In fact, ICE arrested Mr. Dong when he appeared
at a routine immigration check in. See Doc. 1 at 11. Moreover, the “cost of providing a bond
determination is not terribly burdensome.” See Danierov, 2026 WL 45288, at *2.
IV. Conclusion
The Court grants Mr. Dong’s Petition for Writ of Habeas Corpus, Doc. 1. Because Mr.
Dong is already at liberty, the Court now enjoins the Government from re-detaining Mr. Dong
unless it provides an individualized bond hearing before an Immigration Judge under § 1226(a).
The Government shall file a status report within ten business days of this Order
confirming that it has provided him with a bond hearing or, alternatively, that he remains at
liberty.
IT IS SO ORDERED
s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
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authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
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