Case Name in Immigration Case - Unavailable

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSE GREGORIO DE LA ROSA JIMENEZ,
Petitioner,
v. No. 2:26-cv-00545-KG-DLM
DORA CASTRO, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Jose Gregorio De La Rosa Jimenez’s Petition for a
Writ of Habeas Corpus, Doc. 1, which was filed by Nicole Kelly Lupe on his behalf, and the
Government’s Response, Doc. 6. For the reasons below, the Court grants the petition.
I. Background
Mr. De La Rosa Jimenez, a citizen of Venezuela, entered the United States in 2023
without inspection. Doc. 6 at 1. He works at a barber shop in El Paso, Texas, and is married to
Nicole Kelly Lupe, an active-duty service member. See id.; Doc. 1 at 1. Because of Mr. De La
Rosa Jimenez’s detention, Ms. Lupe does not have anyone to care for her 5-year-old son and has
missed a deployment. Doc. 6 at 6.
On January 8, 2026, Immigration and Customs Enforcement (“ICE”) arrested Mr. De La
Rosa Jimenez. Doc. 1 at 6. He remains detained at the Otero County Processing Center in New
Mexico. Id. He argues that his detention violates the Due Process Clause of the Fifth
Amendment. Id. While the Government opposes the motion, it acknowledges that 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. 6 at 2–3.
Case 2:26-cv-00545-KG-DLM Document 7 Filed 03/06/26 Page 1 of 5

2
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. De La
Rosa Jimenez’s detention, (B) the 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. De La Rosa Jimenez’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
Case 2:26-cv-00545-KG-DLM Document 7 Filed 03/06/26 Page 2 of 5

3
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. De La Rosa Jimenez’s detention. ICE
arrested him three years after his initial entry into the United States and did not apprehend him at
the border. Accordingly, § 1225’s mandatory detention provision does not apply because Mr. De
La Rosa Jimenez effected an entry into the United States by living here for years. As the
Government concedes, the facts of this case are “substantially similar” to those in Patel, 2026
WL 103163, where this Court granted relief. Doc. 6 at 2.
B. Mr. De La Rosa Jimenez’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. De La Rosa Jimenez has a protected liberty interest. By living in the
United States, noncitizens acquire “a protectable liberty interest in remaining out of custody.”
Case 2:26-cv-00545-KG-DLM Document 7 Filed 03/06/26 Page 3 of 5

4
Danierov, 2026 WL 45288, at *2. Mr. De La Rosa Jimenez’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).
Mr. De La Rosa Jimenez 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. De La Rosa Jimenez’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. De La Rosa Jimenez was detained
after three years in the United States. 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. De La Rosa Jimenez without a hearing is limited, and
the administrative burden of providing a bond hearing is minimal. See Danierov, 2026 WL
45288, at *2 (the “cost of providing a bond determination is not terribly burdensome”).
Case 2:26-cv-00545-KG-DLM Document 7 Filed 03/06/26 Page 4 of 5

5
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. De La Rosa Jimenez 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. De La Rosa Jimenez’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. De La Rosa Jimenez’s petition, Doc. 1. The Court directs
the Government to provide Mr. De La Rosa Jimenez 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. De La Rosa Jimenez’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 days of this Order confirming that it has provided Mr. De La Rosa
Jimenez 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 on the
Court’s PACER public access system.
Case 2:26-cv-00545-KG-DLM Document 7 Filed 03/06/26 Page 5 of 5