Tinotenda v. Figueora

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHIMOMBE TINOTENDA, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-1971-G
)
FRED FIGUEROA, et al. 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Chimombe Tinotenda, a citizen of Zimbabwe proceeding pro se,1 filed a
petition for writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his
detention by the U.S. Immigration and Customs Enforcement (“ICE”).2 (Doc. 1).3 United
States District Judge Charles B. Goodwin referred the matter to the undersigned Magistrate
Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). In
accordance with the expedited briefing schedule, (Doc. 8), Respondents timely filed a
Response, (Doc. 10), and the time to file a Reply has passed. 	For the reasons set forth
1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 	But the court
cannot serve as Petitioner’s advocate, creating arguments on his behalf. 	See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2 Petitioner is housed at Diamondback Correctional Facility in Watonga, Oklahoma. (Doc.
1, at 1).
3 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
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below, the undersigned recommends the Petition be DENIED because Petitioner is
currently subject to mandatory detention.
I. 	Factual Background
Petitioner is a citizen of Zimbabwe who was admitted to the United States on or
about November 13, 2022, as a non-immigrant visitor authorized to remain in the United
States until May 12, 2023. 	(Doc. 1, at Ex. 1, at 3). 	On March 27, 2026, Petitioner was
arrested and taken into ICE custody. (Doc. 1, at 4). Petitioner alleges, and Respondents
do not deny, the following facts: (1) he was not served with a Notice to Appear (“NTA”)
or otherwise given an explanation for his arrest on the day he was arrested, (id. at 9); (2)
he was not served the NTA when it issued on April 20, 2026, despite the NTA saying that
it was served in person and that he refused to sign, (id.); and (3) he was first served the
NTA on July 2, 2026. (Id.) The NTA placed Petitioner in removal proceedings on April
20, 2026. (Id. at Ex. 1, at 3). Petitioner was charged as removable due to overstaying the
time he was allowed to remain in the United States. (Id.) On May 1, 2026, Petitioner was
denied release on bond because an immigration judge found he “did not establish not a
danger to the community.” (Doc. 10, at Ex. 2, at 1). Petitioner filed the instant Petition on
July 14, 2026. (Doc. 1, at 8).
On August 25, 2026, an immigration judge granted Petitioner pre-conclusion
voluntary departure under safeguards. 	(Doc. 10, at Ex. 3, at 1). 	The order required
Petitioner to depart without expense to the government by September 24, 2026, or else an
order of removal to Zimbabwe would become effective immediately. 	(Id.) 	Petitioner
waived his right to appeal this order. (Id. at 3). On September 25, 2026, Petitioner had not
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departed the United States, making his removal order immediately effective, and he was
served with a warrant of removal. (Id. at Ex. 5, at 1).
II. 	Petitioner’s Claims and Respondents’ Responses
Petitioner makes the following claims in support of his Petition:
1. 	His arrest without service of an NTA or any other explanation violated due
process. (Doc. 1, at 6, 9).
2. 	He was given permission to stay in the United States while waiting on his
asylum application, he never violated any immigration law, and his detention
violates his right to liberty. (Id.)
3. 	The immigration court improperly denied his request for release on bond.
(Id. at 6).
4. 	The NTA is defective because it was not properly served and it fraudulently
states that it was served in person and that he refused to sign. (Id. at 9).
As relief Petitioner requests immediate release from custody. (Id.)
Respondents argue that, because Petitioner is now subject to a final order of removal
and is detained under 8 U.S.C. § 1231(a), any potential challenges to his detention fall
under the Zadvydas framework. 	(Doc. 10, at 6). 	Respondents further argue that (1) any
challenge to Petitioner’s detention under 8 U.S.C. § 1231(a) is premature, (id.); (2)
Petitioner has not shown that it is significantly unlikely he will be removed in the
reasonably foreseeable future, (id. at 7); and (3) removal is in fact significantly likely in
the reasonably foreseeable future because ICE has promptly requested travel documents
from Zimbabwe, (id. at 8).
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III. 	Standard of Review
To obtain habeas corpus relief, Petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). 	“Challenges 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)).
IV. 	Petitioner Is Currently Detained Within the Removal Period and Subject to
Mandatory Detention.
Prior to the entry of a removal order, 8 U.S.C. § 1225 and § 1226 govern the
detention of aliens. An alien detained under § 1226(a) is entitled to a bond hearing at which
he can argue to an immigration judge that he should be released while he awaits removal
proceedings because he is not a danger to others or at risk for non-appearance. 	See
Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (“Federal regulations provide that aliens
detained under § 1226(a) receive bond hearings at the outset of detention.”) (citing 8 C.F.R.
§§ 236.1(d)(1), 1236.1(d)(1)); Santillan Quiroz, 180 F.4th at 1237 (“[N]oncitizens who
entered the United States and were thereafter detained in the interior of the country are
usually subject to [8 U.S.C.] § 1226(a) (and thus eligible for bond).”).
“After the pre-removal period concludes, the statutory authority to detain an alien
shifts to 8 U.S.C. § 1231.” Carbajal v. Holder, 43 F. Supp. 3d 1184, 1188 (D. Colo. 2014).
Under 8 U.S.C. § 1231(a)(2)(A), a non-citizen is subject to a 90-day removal period, where
detention is mandatory. 	Id. at 1189 (“[W]hen an alien is ordered removed, the Attorney
General shall remove the alien from the United States within a period of 90 days . . . .
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During the removal period, the Attorney General shall detain the alien.”) (quoting 8 U.S.C.
§ 1231(a)). 	This shift from the “pre-removal” period under § 1225 and § 1226 to the
“removal” period under § 1231(a) is triggered by the latest of three events:
(i) 	The date the order of removal becomes administratively final.
(ii) 	If the removal order is judicially reviewed and if a court orders a stay
of the removal of the alien, the date of the court’s final order.
(iii) 	If the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B). A removal order typically becomes administratively final “upon
the earlier of”: “a determination by the Board of Immigration Appeals affirming such
order” or “the expiration of the period in which the alien is permitted to seek review of
such order by the Board of Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B). However,
“the decision of the Immigration Judge” may also “become[] final upon waiver of appeal.”
8 C.F.R. § 1003.39; see, e.g., Muradyan v. Warden, Otay Mesa Det. Ctr., No. 3:26-cv-63-
CAB-AHG, 2026 WL 184206, at *2 (S.D. Cal. Jan. 23, 2026) (“Petitioner was ordered
removed 	on 	September 	30, 	2025, 	and 	because 	he 	waived 	his 	right 	to 	appeal,
his order of removal became administratively final the same day.”) (citation omitted).
Thus, Petitioner’s pre-removal-order period ended on September 25, 2026, when he
failed to depart on time and his removal order became immediately effective; he waived
his right to appeal his contingent removal order to the BIA. Petitioner is presently subject
to § 1231(a)(2)(A), which mandates detention without bond for 90 days, or until December
24, 2026. 	Accordingly, Petitioner’s claims that his present immigration detention is
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unlawful are without merit.4 Any claims as they relate to his pre-removal-order detention
are now moot. 	See Carbajal v. Holder, 43 F. Supp. 3d 1184, 1189 (D. Colo. 2014)
(collecting cases, and stating “[a]pplicant’s claims challenging his mandatory detention
without an individualized bond hearing during the pre-removal period now are moot
because the Board of Immigration Appeals dismissed his administrative appeal on
December 27, 2013, thereby affirming the order of removal”); Oyelude v. Chertoff, 170 F.
App’x 366, 367 n.4 (5th Cir. 2006) (“Oyelude’s challenge to his § 1226 detention was
mooted on June 23, 2004[,] when his final removal order was entered and the Attorney
General’s authority to detain him shifted to § 1231.”).
V. 	Recommendation and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition for
a Writ of Habeas Corpus Under 28 U.S.C. § 2241, (Doc. 1), be DENIED.
The Court advises the parties of their right to object to this Report and
Recommendation by October 30, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2). The Court advises the parties that failure to make timely objection to this report
and recommendation waives their right to appellate review of both factual and legal issues
contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
4 Furthermore, even if Petitioner were detained under § 1226(a), Petitioner’s challenges to
the service of the NTA would not merit relief when he has already received a bond hearing.
See Perdigon v. Gantt, Case No. CIV-26-949-R, 2026 WL 2428826, at *2 (W.D. Okla.
Aug. 19, 2026) (denying relief despite a warrantless arrest when a warrant and NTA were
issued and the petitioner had already received a bond hearing).
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This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge and terminates the referral unless and until the matter is re-referred.
ENTERED this 16th day of October, 2026.
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