Abhishek v. Holt et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ABHISHEK ABHISHEK,
Petitioner,
v.
RUSSELL HOLT, et al.,
Respondents.
)
)
)
)
)
)
)
)
)
Case No. CIV-26-221-SLP
O R D E R
Petitioner Abhishek Abhishek, represented by counsel, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. 	Before the Court is the Report and
Recommendation [Doc. No. 10] (R&R) of United States Magistrate Judge Amanda L.
Maxfield. The Magistrate Judge recommends granting, in part, the Petition. Respondents
have filed an Objection [Doc. No. 11] and Notice of Supplemental Authority [Doc. No.
12], and the matter is at issue. The Court reviews de novo any portion of the R&R to which
Respondents have made specific objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Having conducted that review, and for the reasons that follow, the Court ADOPTS the
R&R and GRANTS IN PART the Petition.
Petitioner, a citizen of India, entered the United States on or about June 30, 2019.
On or about July 1, 2019, he was placed into removal proceedings by U.S. Immigration
and Customs Enforcement (ICE). 	On August 19, 2019, Petitioner was ordered detained
pursuant to 8 U.S.C. § 1226. 	On October 17, 2019, an “updated” Notice to Appear was
issued, 	charging 	Petitioner 	as 	a 	noncitizen 	present 	in 	the 	country 	lacking 	valid
Case 5:26-cv-00221-SLP Document 13 Filed 03/27/26 Page 1 of 5

2
documentation, and an arrest warrant was issued the same day. 	In December 2019, an
Immigration Judge (IJ) granted Petitioner’s release on $5,000 bond. 	In June 2020,
Petitioner filed an application for Asylum and Withholding of Removal.
On January 21, 2026, ICE apprehended Petitioner during a routine commercial
truck inspection. As set forth in the R&R, Petitioner has been held without bond because
all IJs are subject to the binding precedent of Matter of Yajure Hurtado, 29 I & N Dec. 216
(BIA 2025), which holds that those who entered the United States without admission or
parole are ineligible for a bond hearing. 	R&R [Doc. No. 10] at 2–3. 	Petitioner remains
detained at Cimarron Correctional Facility in Cushing, Oklahoma.1
On February 9, 2026, Petitioner filed this action, claiming violations of the
Immigration and Nationality Act and a violation of his due process rights under the Fifth
Amendment to the United States Constitution. R&R [Doc. No. 10] at 3; Pet. [Doc. No. 1].
Petitioner claims that § 1225(b)(2)(A) does not apply to him and that his continued
detention without a bond hearing violates his due process rights. As relief, Petitioner seeks
release from custody or, in the alternative, a bond hearing pursuant to 8 U.S.C. § 1226(a).
The Magistrate Judge issued a thorough and well-reasoned R&R and concluded that
habeas relief should be granted, in part. As an initial matter, the Magistrate Judge found
that 8 U.S.C. § 1226(e) is not a jurisdictional bar to this Court’s review of the claims
asserted by Petitioner. 	The Magistrate Judge then recommended that the Court grant
habeas relief and order Respondents to provide Petitioner with an individualized bond
1 See ICE Online Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited
March 27, 2026).
Case 5:26-cv-00221-SLP Document 13 Filed 03/27/26 Page 2 of 5

3
hearing under § 1226(a) within five business days or otherwise release Petitioner if he has
not received a lawful bond hearing within that time period. 	The Magistrate Judge also
recommended that the Court order Respondents to certify compliance by filing a status
report within seven business days of the Court’s Order. 	Finally, the Magistrate Judge
recommended that the Court decline to address Petitioner’s due process claim.2
Respondents object to the R&R, arguing that the Magistrate Judge erroneously
found that 8 U.S.C. § 1226(a) governs Petitioner’s detention rather than 8 U.S.C.
§ 1225(b)(2)(A). 	The Court concurs with the Magistrate Judge’s findings and, having
thoroughly 	reviewed 	the Objection, 	rejects 	Respondents’ 	statutory interpretation 	of
§§ 1226(a) and 1225(b)(2)(A). The Court further adopts the reasoning set forth in Lopez
v. CoreCivic Cimarron Corr. Facility, No. CIV-25-1175-SLP, 2026 WL 165490 at *3-7
(W.D. Okla. Jan. 21, 2026), where this Court has previously addressed, in a more detailed
Order, these same issues. 	In doing so, the Court joins the decision reached by the vast
majority of district courts in this judicial district,3 in district courts within the Tenth
Circuit4, and across the country5 to have addressed the same issues as those raised by
2 Neither party has objected to the Magistrate Judge’s recommendation that the Court need not
address Petitioner’s due process claim and the Court concurs with that recommendation.
3 See, e.g., Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026 WL 94641 at *2 (W.D. Okla. Jan.
13, 2026) (collecting cases in this judicial district finding that § 1252(g) does not present a
jurisdictional bar); Lopez, 2026 WL 165490 at *5 (collecting cases in this judicial district
concluding that §1225(b)(2) does not govern the petitioner’s detention).
4 See, e.g., Aguilar Tanchez v. Noem, No. 2:25-cv-1150, 2026 WL 125184 (D. Utah Jan. 16, 2026);
Hernandez v. Baltazar, No. 1:25-CV-03094-CNS, 2025 WL 2996643 (D. Colo. Oct. 24, 2025).
5 See, e.g., Lopez, 2026 WL 165490 at *7 (collecting cases concluding that §1226(a) is the
governing statutory framework).
Case 5:26-cv-00221-SLP Document 13 Filed 03/27/26 Page 3 of 5

4
Petitioner.6 The Court’s decision is also in accord with the Seventh Circuit, which rejected
the statutory interpretation of §1225(b)(2) as urged by Respondents. See Castañon-Nova
v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025); but see Buenrostro-
Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); Avila v. Bondi, --- F.4th ---, 2026 WL
819258 (8th Cir. Mar. 25, 2026). Accordingly, the Court concludes that § 1226(a) governs
Petitioner’s detention, and he is entitled to an individualized bond hearing.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
10] is ADOPTED and the Petition [Doc. No. 1] is GRANTED IN PART as follows:
1. 	Petitioner’s claim for violation of the Immigration Nationality Act is
GRANTED. 	Respondents are ORDERED to provide Petitioner with a bond hearing
pursuant to 8 U.S.C. § 1226(a) within seven (7) days of the date of this Order, or otherwise
release Petitioner if he has not received a lawful bond hearing within that period.
2. 	Petitioner’s due process claim is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Respondents shall certify their compliance with
this Order by filing a status report within ten (10) days of this Order. 	The status report
shall detail whether Petitioner was provided a bond hearing or has been released, including
the associated dates with either action.
A separate judgment shall be entered.
6 The Court is certainly aware of authority to the contrary, including two decisions entered in this
judicial district. See Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344 at **3-5
(W.D. Okla. Jan. 6, 2026); Montoya v. Holt, No. CIV-235-1231-JD, 2025 WL 3733302 at **5-12
(W.D. Okla. Dec. 26, 2025).
Case 5:26-cv-00221-SLP Document 13 Filed 03/27/26 Page 4 of 5

5
IT IS SO ORDERED this 27 th day of March, 2026.
Case 5:26-cv-00221-SLP Document 13 Filed 03/27/26 Page 5 of 5