Daushvili et al v. Noem et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
TORNIKE DAUSHVILI,
Petitioner,
v.
MARKWAYNE MULLIN1, et al.,
Respondents.
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Case No. CIV-26-100-D
ORDER
Petitioner Tornike Daushvili filed an Amended Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 [Doc. No. 15]. Petitioner is a citizen of Belarus who entered
the United States on or about September 8, 2022. Id. at p. 1. Petitioner was released from
custody “shortly thereafter,” and filed an application for asylum. Id. at p. 3. However,
Petitioner was re-detained on or about September 24, 2025, and has been in the custody of
the U.S. Immigration and Customs Enforcement (ICE) since that time. Id. at p. 3-4. He is
currently housed at the Diamondback Correctional Facility in Watonga, Oklahoma. Id. at
p. 4.
Petitioner’s removal proceedings are ongoing. He is currently detained pursuant to
the mandatory detention provision contained in 8 U.S.C. § 1225(b)(2)(A). In his Amended
Petition, Petitioner contends that § 1225(b)(2)(A) does not apply to him because he is not
an arriving alien, as he was residing in the interior of the United States when he was re-
1 Markwayne Mullin was sworn in as the Secretary of the Department of Homeland
Security on March 24, 2026. Pursuant to Fed. R. Civ. P. 25(d), Secretary Mullin is
substituted for former Secretary Noem as the proper party.
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detained, and is not “seeking admission” within the meaning of § 1225(b)(2)(A). [Doc. No.
15]. Because of his assertion that § 1225(b)(2)(A) does not apply to him, Petitioner further
asserts that his continued detention without a bond hearing violates his due process rights.
Id. Petitioner seeks release from custody or, alternatively, a bond hearing pursuant to
§ 1226(a). Id.
Respondents filed a Response in Opposition to the Petition for Writ of Habeas
Corpus [Doc. No. 19], and Petitioner filed a reply [Doc. No. 20]. Thus, the matter is fully
briefed and at issue.
First, Respondents assert that Petitioner’s Amended Petitions should be dismissed
without prejudice for failing to assert specific claims or grounds for relief. [Doc. No. 19].
Reviewing 	the Amended 	Petition, 	the 	undersigned 	concludes 	Petitioner 	has
adequately raised statutory and constitutional challenges to his detention. [Doc. No. 15];
see also Akhalaia v. Figueroa, No. CIV-26-133-R, 2026 WL 637620, at *2 (W.D. Okla.
Mar. 6, 2026) (“The Court finds the allegations in the Petition and arguments in his Reply
sufficient to raise the “§ 1225 and § 1226 issue,’ as Respondents put it, and thus sufficient
for the Court to determine Petitioner’s case on the merits.”)
Next, Respondents assert that Petitioner’s claims against Respondent Alejandro N.
Mayorkas in his official capacity as “the head of DHS” should be dismissed because Mr.
Mayorkas was not head of DHS when Petitioner was re-detained, and thus, Petitioner
alleges no plausible claim against Respondent Mayorkas. [Doc. No. 19, at p. 6-7].
Petitioner does not respond to Respondents’ argument that the claims against Respondent
Mayorkas, 	in 	his 	official 	capacity, 	should 	be 	dismissed. Accordingly, 	pursuant 	to
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LCvR7.1(g), Respondents’ request that Petitioner’s claims against Respondent Mayorkas
be dismissed is deemed confessed.
Respondents also assert § 1225(b)(2)(A) applies to Petitioner’s detention, and not §
1226(a). Generally, Ҥ 1225 mandates detention without the opportunity for a bond hearing
for the noncitizens to whom it applies.” Hernandez v. Baltazar, No. 1:25-cv-03094-CNS,
2025 WL 2996643, at *3 (D. Colo. Oct. 24, 2025) (citation omitted). In comparison, § 1226
provides the noncitizen with the opportunity for a bond hearing. Id.; see also Aranda v.
Olson, No. 4:25-cv-156-GNS, 2025 WL 3499061, at *4 (W.D. Ky. Dec. 5, 2025) (“Overall,
Section 1226(a) provides for a discretionary authority requiring an individualized bond
determination before a noncitizen may be taken into custody.”) (quotation and citation
omitted).
As Respondents acknowledge, this Court has previously construed § 1225(b)(2)(A)
as unambiguously requiring that an “applicant for admission” also be “seeking admission”
for the section to control.2 See Colin v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *4
(W.D. Okla. Dec. 16, 2025). Further, this Court has previously declined to find that refusing
to self-deport or submitting an asylum application constitute “seeking admission” for
purposes of § 1225(b)(2)(A). Cruz-Hernandez v. Noem, CIV-25-1378-D, 2026 WL 18932,
at *1 (W.D. Okla. Jan. 2, 2026); Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL
2 On this issue, the Court finds persuasive the analysis provided by the Seventh Circuit in
Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048 (7th Cir. 2025). The Court also
acknowledges the contrary 2-1 decisions in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir.
2026), and Avila v. Bondi, No. 25-3248, 2026 WL 819258 (8th Cir. Mar. 25, 2026).
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227155, at *3 (W.D. Okla. Jan. 28, 2026); see also Li v. Grant, No. CIV-25-1426-HE, 2026
WL 147438, at *1 (W.D. Okla. Jan. 20, 2026) (“The court additionally agrees with Judge
Maxfield that § 1225(b)(2)(A) does not apply even though petitioner filed an application
for asylum.”); Toledo Santos v. Grant, No. CIV-25-1433-SLP, 2026 WL 184287, at *1-2
(W.D. Okla. Jan. 23, 2026) (ordering the respondents to provide the petitioner a bond
hearing under § 1226(a) where the petitioner had been released on his own recognizance
and later applied for asylum).
In this case, because Petitioner has been residing in the United States for years and
was present in the country when he was detained, Petitioner does not fall into the mandatory
detention provision of § 1225(b)(2)(A). See Colin, 2025 WL 3645176, at *5; Malacidze,
2026 WL 227155, at *3. Accordingly, § 1226(a) controls Petitioner’s detention, and
Petitioner is therefore entitled to a bond hearing.3 See Hernandez, 2025 WL 2996643, at
*3 (citing Jennings v. Rodriguez, 583 U.S. 281, 306 (2018)) (“Federal regulations also
provide that noncitizens detained pursuant to § 1226(a) are entitled to individualized bond
hearings.”).
IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 [Doc. No. 1] is GRANTED in part as set forth herein.
Respondents shall provide Petitioner with a prompt bond hearing under 8 U.S.C. § 1226(a),
or release Petitioner. A separate judgment shall be entered.
3 Given this determination, the Court declines to address Petitioner’s remaining claims at this time.
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IT 	IS 	FURTHER 	ORDERED 	that 	Petitioner’s 	claims 	against 	Respondent
Mayorkas, in his official capacity, are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 8 th day of April, 2026.
. DeGIUSTI
Chief United States District Judge
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