Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TERESA NSUKULA MAKIESE,
Petitioner,
v. No. 2:26-cv-00627-SMD-LF
MARKWAYNE MULLIN,1 et al.,
Respondents.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
THIS MATTER is before the Court on Petitioner’s Verified Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1). The Court has reviewed the parties’ submissions,
the record, and the relevant law, and for the reasons set forth below, the Petition is GRANTED.
BACKGROUND
Petitioner Teresa Nsukula Makiese, a citizen of Angola, entered the United States without
inspection on December 20, 2024, to seek asylum. Doc. 1 ¶ 19. After being released on her own
recognizance, Petitioner filed an asylum application. Id. ¶ 22–23. Petitioner asserts that she has
fully cooperated with Respondents, complied with all release conditions, and has no criminal
record in either the United States or Angola. Id. ¶ 27.
On November 13, Petitioner appeared for a scheduled appointment with Immigration and
Customs Enforcement (“ICE”) and was detained. An immigration judge denied bond for lack of
jurisdiction. Id. ¶ 4. Petitioner alleges that her detention stems from an administrative error. On
September 3, 2025, ICE conducted a home visit at Petitioner’s former address and erroneously
1 Pursuant to Federal Rule of Civil Procedure 25(d), the case caption shall be updated to reflect that Markwayne
Mullin is the Secretary of the Department of Homeland Security. All future filings should be in the name of the
substituted party.
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determined that she had violated reporting requirements. Id. ¶ 24. Furthermore, Petitioner alleges
that she suffers from multiple health conditions requiring periodic medical treatment. Id. ¶ 26.
Petitioner challenges her ongoing detention, asserting that the denial of a bond hearing
violates the Administrative Procedure Act, the Accardi Doctrine, the Suspension Clause, and the
Due Process Clause. Id. ¶ 37–63. She seeks immediate release or, alternatively, a constitutionally
adequate bond hearing.
DISCUSSION
This Court has jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to
immigration detention. Zadvydas v. Davis, 533 U.S. 678, 687 (2001). A district court may grant
a writ of habeas corpus to a petitioner who demonstrates that “[h]e is in custody in violation of the
Constitution or laws . . . of the United States.” 28 U.S.C. § 2241(c)(3).
I. Statutory Framework: 8 U.S.C §§ 1225 and 1226
Sections 1225 and 1226 govern the detention of noncitizens prior to a final order of
removal. See Jennings v. Rodriguez, 583 U.S. 281, 287–89 (2018). Section 1225(b) “applies
primarily to [noncitizens] seeking entry into the United States”—i.e., “applicants for admission.”
Id. at 297. Detention pursuant to § 1225(b)(2)(A) is required “if the examining immigration officer
determines that [a noncitizen] seeking admission is not clearly and beyond a doubt entitled to be
admitted.” Noncitizens detained pursuant to § 1225(b)(2) cannot be released on bond.
Section 1226(a) sets the “default rule” for detaining noncitizens “already present in the
United States.” Jennings, 583 U.S. at 303. Under § 1226(a), a noncitizen “may be arrested and
detained pending a decision on whether the [noncitizen] is to be removed from the United States.”
Noncitizens detained pursuant to § 1226(a) are therefore generally entitled to individualized bond
hearings. See id. at 306.
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Sections 1225(b)(2)(A) and 1226(a) are mutually exclusive in that both provisions cannot
simultaneously govern Petitioner’s detention. E.g., Romero v. Hyde, 795 F. Supp. 3d 271, 286 (D.
Mass. 2025); see also, Patel v. Crowley, No. 25-cv-11180, 2025 WL 2996787, at *5 (N.D. Ill. Oct.
24, 2025); Artiga v. Genalo, No. 25-cv-5208, 2025 WL 2829434, at *4 (E.D.N.Y. Oct. 5, 2025).
Section 1226(a), rather than § 1225(b)(2), governs Petitioner’s detention because she was
“already present in the United States” at the time of her arrest. Jennings, 583 U.S. at 303.
Petitioner has resided in the United States since December 20, 2024 and was detained in the U.S.
interior. Doc. 1 ¶¶ 19, 24. She is therefore not subject to the mandatory detention provisions of
§ 1225, which apply to those seeking admission, specifically noncitizens who present at a port of
entry or are apprehended immediately after entering. Petitioner is instead entitled to a bond hearing
under § 1226(a). See Aragon v. Noem, No. 2:26-CV-00065, 2026 WL 458449, at *2 (D.N.M. Feb.
18, 2026); Cortez-Gonzalez v. Noem, ___ F. Supp. 3d ___, 2025 WL 3485771, at *3 (D.N.M. Dec.
4, 2025); Velasquez Salazar v. Dedos, No. 1:25-cv-00835-DHU-JMR, 2025 WL 2676729, at *4
(D.N.M. Sept. 17, 2025); Pu Sacvin v. De Anda-Ybarra, No. 2:25-cv-01031-KG-JFR, 2025 WL
3187432, at *3 (D.N.M. Nov. 14, 2025); see also Figuera v. Ripa, No. 26-CV-20307-JB, 2026
WL 467569, at *5 (S.D. Fla. Feb. 19, 2026); Wuilmer v. Noem, No. 25-CV-3236 (NEB/JFD), 2026
WL 458457, at *3 (D. Minn. Feb. 18, 2026); Villatoro v. Ripa, No. 2:26-CV-00213-SPC-DNF,
2026 WL 452432, at *1 (M.D. Fla. Feb. 18, 2026).
II. The Government’s Detention of Petitioner Violates Her Fifth Amendment Rights
The Court finds that Petitioner’s continued detention violates her Fifth Amendment rights.
Courts analyze due process claims in two steps: the first asks whether there exists a protected
liberty interest under the Due Process Clause, and the second examines the procedures necessary
to ensure any deprivation of that protected liberty interest accords with the Constitution. Garcia
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Domingo v. Castro, 806 F. Supp. 1246, 1251–52 (D.N.M. Oct. 15, 2025) (citing Ky. Dep’t of
Corrections v. Thompson, 490 U.S. 454, 460 (1989)). “Freedom from imprisonment—from
government custody, detention, or other forms of physical restraint—lies at the heart of the liberty
that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. “It is well established that
the Fifth Amendment entitles [noncitizens] to due process of law in deportation proceedings.”
Reno v. Flores, 507 U.S. 292, 306 (1993). Though the Government “may constitutionally detain
deportable aliens during the limited period necessary for their removal proceedings,” that “limited
period” cannot be indefinite. Demore v. Kim, 538 U.S. 510, 527 (2003). As the length of detention
stretches on, an individual’s due process interests escalate and the government’s burden to justify
continued detention mounts. Id. at 529; Jennings, 583 U.S. at 310–11; Mohamed v. Sec’y Dep’t
of Homeland Sec., 376 F. Supp. 3d 950, 957 (D. Minn. 2018).
The Government has offered neither a justification nor a formal process for the deprivation
of Petitioner’s protected liberty interest. ICE detained Petitioner during a routine check-in
appointment, effectively penalizing the very compliance the agency required. See Doc. 1 ¶ 24.
The combination of authorized release and consistent attendance of check-in appointments creates
a constitutionally protected interest that cannot be revoked without providing due process of law.
While the Court recognizes that release on one’s own recognizance does not constitute legal
authorization to remain in the country and is generally revocable, any such revocation must still
comport with constitutional procedural safeguards.
The United State’s power to admit or exclude aliens is no longer plenary once an alien
enters the country, because the Due Process Clause applies to “all persons.” See Landon v.
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Plasencia, 459 U.S. 21, 32 (1982) (“Once an alien gains admission to our country and begins to
develop the ties that go with permanent residence his constitutional status changes accordingly.”).
Petitioner possesses a protected liberty interest in remaining free from detention and was deprived
of that interest without constitutionally adequate process.
The Government concedes that the material facts of this case are similar from those in
Martin Ramirez v. Noem, No. 2:26-cv-00063-SMD-GJF, 2026 WL 381869, at *7 (D.N.M. Feb.
11, 2026). See Doc. 7 at 1–2. Furthermore, the Government acknowledges that Martin Ramirez
controls the outcome here should the Court adhere to that precedent. See id. Because Respondents
have offered no independent legal basis for continued custody, Petitioner is entitled to relief
pursuant to § 2241. See Martin Ramirez, 2026 WL 381869; Cortez-Gonzalez, 2025 WL 3485771,
at *3.
CONCLUSION
It is hereby ORDERED:
1) The Petition for a Writ of Habeas Corpus (Doc. 2) is GRANTED;
2) Respondents shall release Petitioner within 24 hours of this Order being entered;
3) Respondents shall facilitate Petitioner’s transportation from the detention facility
by notifying Petitioner’s counsel when and where she can be collected, and by
providing all necessary identity and travel documents to return to her primary
address;
4) Respondents SHALL file a notice of compliance within two business days of
Petitioner’s release. This notice must specify: (1) the date, (2) the time, and (3) the
manner of departure (e.g., transport to a bus station, designated drop-off location,
or other arrangements). Additionally, the notice must include (4) a description or
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copies of all discharge and travel documents provided to Petitioner at the time of
release;
5) Respondents SHALL NOT re-detain Petitioner without a pre-deprivation hearing
before a neutral Immigration Judge pursuant to 8 U.S.C. § 1226(a);
6) Respondents SHALL NOT remove Petitioner to any third country to which she
does not have a removal order without first providing him with constitutionally
compliant procedures;
7) The Court will separately enter Final Judgment in favor of Petitioner but retain
jurisdiction over this matter to ensure compliance with this Order and to entertain
any motions for attorneys’ fees.
IT IS SO ORDERED.
____________________________________
SARAH M. DAVENPORT
UNITED STATES DISTRICT JUDGE
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