Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ADRIANA DE LA CARIDAD CALA
MARQUEZ,
Petitioner,
v.
Case No. 2:26-cv-01527-MIS-SCY
WARDEN, Otero County Processing Center;
U.S. ATTORNEY GENERAL; EL PASO
FIELD OFFICE DIRECTOR FOR
IMMIGRATION AND CUSTOMS
ENFORCEMENT; ACTING DIRECTOR
OF U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT; and MARKWAYNE
MULLIN,
Respondents.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
THIS MATTER is before the Court on Petitioner Adriana De La Caridad Cala Marquez’s
pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“Petition”), ECF No. 1, filed
May 13, 2026. The federal Respondents filed a Response on May 29, 2026 (“Response”).1 ECF
No. 6. Upon review of the Parties’ submissions, the record, and the relevant law, the Court will
GRANT the Petition.
I. Background
Petitioner is a citizen of Cuba who entered the United States from Mexico on December
13, 2024, after applying for admission by booking an appointment via the CBP One application.
See Form I-831 Narrative, ECF No. 6-1 at 2. Immigration officials served Petitioner with a Notice
1 The Clerk’s Office served all Respondents with the Petition pursuant to this District’s Standing
Order Regarding Service of Process in Immigration Habeas Petitions filed Pursuant to 28 U.S.C. § 2241, Case 1:26-
mc-00004, ECF No. 3 (D.N.M. Jan. 28, 2026). ECF No. 2. However, as has become customary in these cases, the
Warden did not respond to the Petition.
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to Appear and paroled her into the United States with a Form I-94 pending her removal
proceedings. Id. Her parole was set to expire on December 12, 2026. See ECF No. 1 at 16.
It appears that on October 27, 2025, Petitioner appeared for a scheduled immigration
hearing in El Paso, Texas. Id. at 11; Form I-831 Narrative, ECF No. 6-1 at 2. At that hearing, the
Immigration Judge ordered Petitioner removed to Cuba. Order of the Immigration Judge
(“Removal Order”), ECF No. 6-2 at 1. Upon leaving the courtroom, U.S. Immigration and
Customs Enforcement officers served Petitioner with a Warrant of Arrest and took her into custody.
ECF No. 1 at 11-12; Form I-831 Narrative, ECF No. 6-1 at 2. Petitioner was detained in El Paso
for more than five months before being transferred to the Otero County Processing Center on April
10, 2026, where she is currently detained. ECF No. 1 at 12. Petitioner’s appeal of the Removal
Order is currently pending before the Board of Immigration Appeals (“BIA”). See id. at 33-34;
Resp. at 2.
On May 13, 2026, Petitioner filed the instant Petition, arguing that her prolonged detention
violates her due process rights under the Fifth Amendment to the United States Constitution. Pet.
at 6. She seeks “immediate release or a fair alternative.” Id. at 7.
On May 15, 2026, the Court issued an Order to Show Cause and enjoined Respondents
from transferring Petitioner to any facility outside the District of New Mexico. ECF No. 4.
On May 29, 2026, the federal Respondents filed a Response arguing that Petitioner is
subject to mandatory detention under 8 U.S.C. §§ 1182(d)(5)(A) and 1225(b) because her parole
has been revoked. ECF No. 6 at 6-7.
II. Legal Standard
Federal courts possess authority to review the legality of executive detention through the
writ of habeas corpus. Title 28, United States Code, section 2241 expressly authorizes courts to
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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 proceeding is to allow a person in
custody to attack the legality of that custody, and the traditional function of the writ is to secure
release from illegal custody.” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012)
(quotation marks omitted) (quoting McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir.
1997)).
III. Discussion
Petitioner argues that her prolonged detention—now exceeding seven months—violates
the Fifth Amendment’s Due Process Clause. Pet. at 6. Respondents argue that Petitioner is an
“arriving alien” subject to mandatory detention under 8 U.S.C. § 1225(b)(1). Resp. at 2-7. They
argue that because Petitioner’s parole was revoked, her “case shall continue to be dealt with in the
same manner as that of any other applicant for admission to the United States.” Id. at 7 (quoting
8 U.S.C. § 1182(d)(5)(A)). They argue that Section 1182(d)(5)(A) “returns Petitioner to the status
she held and the position she was in when she presented herself timely at her appointment for
border inspection on December 13, 2024.” Id. at 7.
The Court finds that this case is materially analogous to this Court’s decision in
Mardanpour v. Warden, Case No. 2:26-cv-00550-MIS-LF, 2026 WL 963164, at *3-8 (D.N.M. Apr.
9, 2026), and adopts the analysis contained therein. Initially, the Court will assume, without
deciding, that (1) Petitioner’s parole was properly revoked and (2) Petitioner is properly classified
as an “arriving alien” subject to detention under 8 U.S.C. § 1225(b)(2). However, for the reasons
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explained in Mardanpour, 2026 WL 963164, at *6-8, even “arriving aliens” subject to detention
under Section 1225(b)(2) may not be “punished” without being accorded the substantive and
procedural due process guarantees of the Fifth Amendment, Rodriguez-Fernandez v. Wilkinson,
654 F.2d 1382, 1387 (10th Cir. 1981)); under the circumstances of this case, Petitioner’s indefinite,
ongoing detention of more than seven months, with no reasonably foreseeable end in sight,2 is
constitutionally excessive in relation to the Government’s legitimate, nonpunitive purpose of
facilitating removal; and, therefore, Petitioner’s detention is punitive and a violation of her Fifth
Amendment substantive due process rights, id.; see also Zadvydas v. Davis, 533 U.S. 678, 699-
701 (2001); Rosales-Garcia v. Holland, 322 F.3d 386, 411-13 (6th Cir. 2003); Mardanpour, 2026
WL 963164, at *3-8; Ahmadi v. De Anda-Ybarra, Case No. 1:26-cv-00897-MIS-DLM, 2026 WL
1121981, at *3 (D.N.M. Apr. 24, 2026); Harutyunyan v. Lyons, Case No. 2:26-cv-01020-MIS-
GBW, 2026 WL 1078958, at *1 (D.N.M. Apr. 21, 2026).
Upon finding a person is “in custody in violation of the Constitution or laws or treaties of
the United States[,]” 28 U.S.C. § 2241(c), a district court may grant a writ of habeas corpus and
“dispose of the matter as law and justice so require[,]” 28 U.S.C. §§ 2241(a), 2243. The “typical
remedy” for “unlawful executive detention” is release from custody. Munaf v. Geren, 553 U.S.
674, 693 (2008); see also Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The Court finds that
immediate conditional release is the appropriate remedy. See Boumediene v. Bush, 553 U.S. 723,
779 (2008) (“[T]he habeas court must have the power to order the conditional release of an
individual unlawfully detained—though release need not be the exclusive remedy and is not the
appropriate one in every case in which the writ is granted.”).
2 As in Mardanpour, “Petitioner’s appeal to the BIA and, if unsuccessful there, to the Tenth Circuit
Court of Appeals, could take years.” 2026 WL 963164, at *6. In any event, Respondents present no evidence or
argument that the end of Petitioner’s detention is reasonably foreseeable. See generally Resp., ECF No. 6.
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IV. Conclusion
Therefore, it is HEREBY ORDERED that:
1. Petitioner Adriana De La Caridad Cala Marquez’s Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2241, ECF No. 1, is GRANTED;
2. Respondents are ORDERED to immediately release Petitioner Adriana De La
Caridad Cala Marquez from custody/detention subject to reasonable conditions of
release, such as electronic monitoring and/or regular check-ins;
3. Respondents SHALL return all of Petitioner’s seized belongings to Petitioner;
4. Respondents are ENJOINED from re-detaining Petitioner absent (1) evidence that
Petitioner has committed a crime or absconded in her administrative immigration
proceedings, or (2) a valid final order of removal and concrete travel plans to
effectuate removal; and
5. The Court will separately enter Final Judgment in favor of Petitioner but retain
jurisdiction over this matter to ensure compliance with this Order.
………………………………………….
MARGARET STRICKLAND
UNITED STATES DISTRICT JUDGE
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