Pablo Ulises Lujano Cervantes v. Warden, Otero County Processing Center; David...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

PABLO ULISES LUJANO CERVANTES,

Petitioner, v.

Case No. 2:26-cv-02489-MIS-JFR WARDEN, Otero County Processing Center; DAVID J. VENTURELLA, Acting Director, U.S. Immigration and Customs Enforcement; MARY DE ANDA-YBARRA, El Paso Field Office Acting Director, Enforcement and Removal Operations; MARKWAYNE MULLIN, Secretary, U.S. Department of Homeland Security; and TODD BLANCHE, Attorney General of the United States,

Respondents.

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO

28 U.S.C. § 2241 THIS MATTER is before the Court on Petitioner Pablo Ulises Lujano Cervantes’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”), ECF No. 1, filed July 30, 2026. Petitioner is a citizen of Mexico who has resided in the United States since 2002. Pet. at 1. On August 20, 2025, U.S. Immigration and Customs Enforcement (“ICE”) placed a hold on Petitioner while he was in a county jail. Id. at 2. On February 7, 2026, Petitioner was transferred from a county jail to U.S. Immigration and Customs Enforcement custody. Id. He has apparently been detained ever since and is currently detained at the Otero County Processing Center in Chaparral, New Mexico. Id. at 1. Prior to his arrest he was not provided a bond hearing. Id. Petitioner argues that his detention without pre-deprivation notice and a bond hearing violates his Fifth Amendment right to due process. Id. at 6-8. He seeks immediate release from detention. Id. at 8-9.

On August 7, 2026, the Court issued an Order to Answer and Enjoining Transfer instructing Respondents to show cause why the Court should not grant Petitioner habeas relief. ECF No. 4. The Court specifically ordered Respondents to “specify whether the Court has already ruled on the legal issue(s) in this case and whether the holding in Santillan Quiroz v. Mullin, [180 F. 4th 1226] (10th Cir. 2026), requires relief.” Id.

As of the date of this Order, Respondents have not filed a response. See generally ECF. A party who fails “to file a response within the time specified . . . waives the right to respond or to controvert the facts asserted in the . . . motion.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Accordingly, the Court finds that Respondents’ non-opposition to the Petition constitutes a concession that Petitioner is being detained in violation of his Fifth Amendment right to due process.

Indeed, in Santillan Quiroz, the Tenth Circuit held “that noncitizens who entered the United States and were thereafter detained in the interior of the country are usually subject to § 1226(a) (and thus eligible for bond), not § 1225(b)(2)(A).” 180 F.4th at 1237. That is precisely the situation presented by this case. Accordingly, the Court finds that 8 U.S.C. § 1226(a) governs Petitioner’s detention, his continued detention without a bond hearing violates his Fifth Amendment right to due process, and, as such, he is entitled to habeas relief.

In addition, Petitioner’s prolonged detention violates his substantive due process rights under the Fifth Amendment for the reasons identified in Mardanpour v. Warden, Case No. 2:26- cv-00550-MIS-LF, 2026 WL 963164, at *3-8 (D.N.M. Apr. 9, 2026), which the Court hereby adopts. Briefly, Petitioner 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 over six months, with no reasonably foreseeable end in sight,1 is excessive in relation to the Government’s legitimate, nonpunitive purpose of facilitating removal; and, therefore, Petitioner’s detention is punitive and a violation of his 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); Dominguez v. Warden, Case No. 1:26-cv-02310- MIS-GBW, 2026 WL 2186326, at *2 (D.N.M. July 29, 2026); Yang v. Warden, Case No. 2:26-cv- 02266-MIS-GJF, 2026 WL 2186338, at * 2 (D.N.M. July 29, 2026); Pereira v. Ortiz, Case No. 1:26-cv-02158-MIS-GBW, 2026 WL 2110814, at *2 (D.N.M. July 22, 2026); Mardanpour, 2026 WL 963164, at *3-8; Rasoli v. Mullin, Case No. 2:26-cv-01460-MIS-SCY, 2026 WL 1662615, at *3-4 (D.N.M. June 9, 2026); Marquez v. Warden, Case No. 2:26-cv-01527- MIS-SCY, 2026 WL 1557180, at *2 (D.N.M. June 2, 2026); 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).

1 There is no evidence that Petitioner’s removal shall be accomplished in the reasonably foreseeable future. Petitioner’s appeal of an Immigration Judge’s Removal order “to the BIA and, if unsuccessful there, to the Tenth Circuit Court of Appeals, could take years.” 2026 WL 963164, at *6.

As the Department of Justice recently stated, after the Attorney General reduced the BIA’s size by nearly one half in early 2025, there has been an “unprecedented B[IA] caseload.” Appellate Procedures for the Board of Immigration Appeals, 91 Fed. Reg. 5267, 5270 (Feb. 6, 2026). Indeed, “between fiscal year 2015 and the end of fiscal year 2025, the B[IA]’s pending case load increased more than five-fold—from 37,285 pending appeals to 202,946 pending appeals,” leaving the BIA “at a point where, even were it to have additional resources and better management, . . . it would not be able to keep up with incoming filings while tackling the backlog in any meaningful way.” Id. (citing Executive Office of Immigration Review (“EOIR”), Adjudication Statistics: All Appeals Filed, Completed, and Pending (Nov. 18, 2025), https://www.justice.gov/eoir/media/1344986/dl?inline [https://perma.cc/88C5-MU4N]). Thus, “the B[IA] largely functions now as simply a vessel for further delay of the eventual resolution of [a noncitizen’s] case.” Id. at 5271.

Segura Serrano v. Scott, CASE NO. 2:26-cv-01268-LK, 2026 WL 1674357, at *3 (W.D. Wash. 2026). The Court further finds that Respondents failed to articulate a legitimate interest in

Petitioner’s continued detention and therefore orders his immediate release. See generally ECF. The Court further orders that Petitioner shall not be re-detained without a pre-deprivation bond hearing before a neutral Immigration Judge pursuant to 8 U.S.C. § 1226(a), at which the Government must prove by clear and convincing evidence that Petitioner is a danger or flight risk. Finally, the Court retains jurisdiction to ensure compliance with its Order.

Therefore, it is HEREBY ORDERED that:

1. The Petition for Writ of Habeas Corpus, ECF No. 1, is GRANTED; 2. Respondents are ORDERED to immediately release Petitioner Pablo Ulises

Lujano Cervantes from custody/detention, subject to reasonable conditions of release, such as electronic monitoring and regular check-ins;

3. Respondents shall return all of Petitioner’s seized property to Petitioner; 4. Respondents SHALL NOT re-detain Petitioner absent (1) evidence that Petitioner has committed a crime or absconded in his administrative immigration proceedings, or (2) a valid final order of removal;

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