IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
GENDER JOSÉ HERNANDEZ ROJAS,
Petitioner,
v. No. 1:26-cv-01516-SMD-KK
MARKWAYNE MULLIN,1 et al.,
Respondents.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
THIS MATTER is before the Court on Petitioner’s Petition for Writ of Habeas Corpus Under 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 Gender José Hernandez Rojas, a citizen of Venezuela, is currently in the custody of Immigration and Customs Enforcement (“ICE”) at the Cibola County Correctional Institution in Milan, New Mexico. Doc. 1 at 1. Petitioner first entered the United States without inspection on November 14, 2023 near Brownsville, Texas. Doc. 6 at 2. Border Patrol agents apprehended Petitioner shortly after his arrival and then released him. Id. On November 10, 2025, ICE arrested Petitioner at a routine immigration check-in and placed him in detention. Id.; Doc. 1 at 3. On March 6, 2026, the Immigration Court found Petitioner meets the eligibility requirements under the Asylum Cooperative Agreement and ordered him removed to Ecuador. Doc. 6 at 3; see 8 U.S.C. § 1158. Petitioner appealed that
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 Homeland Security. All future filings should be in the name of the substituted party. decision, which is now pending before the Board of Immigration Appeals. Doc. 6 at 3. Petitioner has no criminal history and no known history of failure to comply with immigration requirements. Id. 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. Respondents take the position that “all noncitizens who enter the country without being admitted (or who otherwise arrive in the United States without proper documentation) are subject to detention[.]” Doc. 6 at 6. They argue that Petitioner is properly detained as an “arriving alien” under § 1225(b)(2) because “aliens apprehended in the interior of the United States, even after prolonged presence in the United States, are also considered to be ‘arriving aliens.’” Id. The Tenth Circuit rejected Respondents’ interpretation of §§ 1225 and 1226 in Santillan Quiroz v. Mullin, __ F. 4th __, 2026 WL 1876709 (10th Cir. June 30, 2026). The court held that
noncitizens “who entered the United States without admission and who have lived here since” cannot be subject to mandatory detention under § 1225. Id. at *7. These individuals are “categorically unable to seek admission while they remain in the country.” Id. “The Government's interpretation disrupts § 1226(a)’s coverage of inadmissible noncitizens. If the Government is correct that § 1225(b)(2)(A) mandates the detention of all applicants for admission, then there are no inadmissible noncitizens left for § 1226(a) to cover.” Id. at *14. Following Santillan Quiroz, Respondents’ argument has no merit in this Court. II. The Government’s Detention of Petitioner Violates His Fifth Amendment Rights.
The Court finds that Petitioner’s continued detention violates his 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 Domingo v. Castro, 806 F. Supp. 1246, 1251–52 (D.N.M. 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 United States’ 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. 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. “Due process requires that, whenever the Government detains somebody, it must have a good reason for doing so.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
GENDER JOSÉ HERNANDEZ ROJAS,
Petitioner,
v. No. 1:26-cv-01516-SMD-KK
MARKWAYNE MULLIN,1 et al.,
Respondents.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
THIS MATTER is before the Court on Petitioner’s Petition for Writ of Habeas Corpus Under 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 Gender José Hernandez Rojas, a citizen of Venezuela, is currently in the custody of Immigration and Customs Enforcement (“ICE”) at the Cibola County Correctional Institution in Milan, New Mexico. Doc. 1 at 1. Petitioner first entered the United States without inspection on November 14, 2023 near Brownsville, Texas. Doc. 6 at 2. Border Patrol agents apprehended Petitioner shortly after his arrival and then released him. Id. On November 10, 2025, ICE arrested Petitioner at a routine immigration check-in and placed him in detention. Id.; Doc. 1 at 3. On March 6, 2026, the Immigration Court found Petitioner meets the eligibility requirements under the Asylum Cooperative Agreement and ordered him removed to Ecuador. Doc. 6 at 3; see 8 U.S.C. § 1158. Petitioner appealed that
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 Homeland Security. All future filings should be in the name of the substituted party. decision, which is now pending before the Board of Immigration Appeals. Doc. 6 at 3. Petitioner has no criminal history and no known history of failure to comply with immigration requirements. Id. 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. Respondents take the position that “all noncitizens who enter the country without being admitted (or who otherwise arrive in the United States without proper documentation) are subject to detention[.]” Doc. 6 at 6. They argue that Petitioner is properly detained as an “arriving alien” under § 1225(b)(2) because “aliens apprehended in the interior of the United States, even after prolonged presence in the United States, are also considered to be ‘arriving aliens.’” Id. The Tenth Circuit rejected Respondents’ interpretation of §§ 1225 and 1226 in Santillan Quiroz v. Mullin, __ F. 4th __, 2026 WL 1876709 (10th Cir. June 30, 2026). The court held that
noncitizens “who entered the United States without admission and who have lived here since” cannot be subject to mandatory detention under § 1225. Id. at *7. These individuals are “categorically unable to seek admission while they remain in the country.” Id. “The Government's interpretation disrupts § 1226(a)’s coverage of inadmissible noncitizens. If the Government is correct that § 1225(b)(2)(A) mandates the detention of all applicants for admission, then there are no inadmissible noncitizens left for § 1226(a) to cover.” Id. at *14. Following Santillan Quiroz, Respondents’ argument has no merit in this Court. II. The Government’s Detention of Petitioner Violates His Fifth Amendment Rights.
The Court finds that Petitioner’s continued detention violates his 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 Domingo v. Castro, 806 F. Supp. 1246, 1251–52 (D.N.M. 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 United States’ 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. 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. “Due process requires that, whenever the Government detains somebody, it must have a good reason for doing so. If the detention is civil and nonpunitive, like the immigration detention here, that reason must rise to the level of a ‘strong special justification.’” Santilla Quiroz, 2026 WL 1876709, at *16 (citation omitted). Here, the Government has offered neither justification nor
process for the deprivation of Petitioner’s protected liberty interest. There is no evidence that Petitioner is a flight risk (indeed he has a strong incentive to remain in the country while the BIA processes his appeal) nor a threat to the community. The Government does not dispute these facts. See Doc. 6. Yet, despite this incontrovertible evidence, the Government has held Petitioner in custody for over seven months. The Government has violated Petitioner’s Fifth Amendment rights by keeping him detained indefinitely without sufficient process or any proffered explanation for what purpose detention serves. Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1387 (10th Cir. 1981) (“Detention pending deportation seems properly analogized to incarceration pending trial or other disposition of a criminal charge, and is, thus, justifiable only as a necessary, temporary measure.”). Petitioner is therefore entitled to habeas relief. CONCLUSION It is hereby ORDERED: 1) The Petition for Writ of Habeas Corpus (Doc. 1) is GRANTED; 2) Respondents shall release Petitioner within 48 hours of this Order being entered; 3) Respondents shall facilitate Petitioner’s transportation from the detention facility, and by providing all necessary identity and travel documents to return him to his 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 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) The Court will separately enter Final Judgment in favor of Petitioner but retain jurisdiction over this matter to ensure compliance with this Order. IT IS SO ORDERED.
SARAH M.DAVENPORT UNITED STATES DISTRICT JUDGE