Kunner v. Grant

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ADITYA KUNNER, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-229-R
)
SCARLET GRANT et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Aditya Kunner, a noncitizen proceeding pro se,1 seeks a writ
of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States District Judge
David L. Russell referred the case to the undersigned Magistrate Judge for
initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The Government
responded, Doc. 8,3 and Petitioner replied, Doc. 10. So the matter is at issue.
1 	This 	Report 	and 	Recommendation 	“uses 	the 	term 	‘noncitizen’ 	as
equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578
n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)). This Court construes “[a] pro se
litigant’s pleadings . . . liberally,” holding them “to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
3 	The Government did not file the response on behalf of Respondent
Scarlet Grant, Warden of the Cimarron Correctional Facility because she is not
a federal official. See Doc. 8, at 1 n.1.
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For the reasons below, the undersigned recommends the Court grant in
part Petitioner’s habeas petition and order his immediate release under an
appropriate order of supervision.
I. 	Factual background and procedural history.
Petitioner is a citizen of India who entered the country on January 17,
2023, on an F-1 visa as an international student. Doc. 8, at 5. He applied for
asylum in May 2023. Id. Ex. 1. When he did not enroll in classes for the 2024-
25 academic year, his F-1 visa was “eventually terminated.” Doc. 8, at 6.
Petitioner 	states 	he 	was 	driving 	his 	truck 	through 	Oklahoma 	and
stopped at a weigh station for a “routine” truck inspection on October 13, 2025.
Doc. 10, at 2. He asserts that an officer detained and arrested him at the weigh
station after telling him that his “status [was] not good in the United States”
and that Immigration and Customs Enforcement (ICE) “want[ed] [him].” Id. at
2-3. The officer then cuffed Petitioner and drove him for two hours to ICE’s
Oklahoma City field office for processing. Id. Neither the officer nor ICE had a
warrant for his arrest on that date.
After ICE detained him, the Department of Homeland Security (DHS)
placed Petitioner into removal proceedings on October 14, 2025, through the
issuance of a Notice to Appear which charged him as removable under Section
237(a)(1)(C)(i) of the Immigration and Nationality Act (INA). Doc. 8, at 6 & Ex.
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2, 	at 	1-3; 	see 	Doc. 	10, 	at 	2. 	Also 	on 	October 	14, 	2025, 	an 	“Authorized
Immigration 	Officer” 	issued 	a 	“Warrant 	for 	Arrest 	of 	Alien” 	which 	a
deportation officer then “served” on Petitioner. Doc. 8, Ex. 2, at 5. And, on that
same date, the immigration officer issued a “Notice of Custody Determination”
“pending a final administrative determination” and Petitioner requested a
“review of [the] custody determination by an immigration judge (IJ).” Id. Ex.
2, at 4.
On October 30, 2025, an IJ considered Petitioner’s request for a custody
redetermination 	and 	denied 	it 	“after 	full 	consideration 	of 	the 	evidence
presented” “because [Petitioner] did not establish [that he was] not a flight
risk.” Id. Ex. 3, at 1.
II. 	Petitioner’s claims.
Petitioner raises four grounds for relief:
(1) 	Unconstitutional 	prolonged 	detention 	in 	violation 	of 	the
Fifth Amendment to the United States Constitution;
(2) 	Unlawful arrest and detention in violation of the INA and its
regulations;
(3) 	Unconstitutional conditions of confinement; and
(4) 	Adjudication of his asylum application has taken too long
through no fault of Petitioner.
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Doc. 1, at 6-7. Petitioner seeks his immediate release or his release subject to
conditions of supervision. Id. at 7.
III. 	Standard of review.
An application for a writ of habeas corpus “is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.
475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “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. 	Discussion.
A. 	The Court has jurisdiction to consider the petition.
Respondents contend first that Petitioner has received the relief he
wants (a bond custody hearing), so this Court should not adjudicate the matter.
Doc. 8, at 6-7. But Petitioner seeks his release because the government has not
abided by the INA. To this, Respondents argue this Court lacks jurisdiction
under 8 U.S.C. § 1225(b)(2)(A) to review the habeas petition as Petitioner
challenges the Attorney General’s decision to detain him. See Doc. 8, at 7. As
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the Respondents recognize, this Court disagrees. Id. n.3
Section 1226(e) provides:
The 	Attorney 	General’s 	discretionary 	judgment 	regarding 	the
application of [Section 1226] shall not be subject to review. No
court may set aside any action or decision by the Attorney General
under this section regarding the detention of any alien or the
revocation or denial of bond or parole.
8 U.S.C. § 1226(e).
“In the context of an immigration bond hearing, district courts have
jurisdiction to review [an IJ’s] discretionary bond denial only ‘where that bond
denial is challenged as legally erroneous or unconstitutional.’” Diaz-Calderon
v. Barr, 535 F. Supp. 3d 669, 676 (E.D. Mich. 2020) (quoting Lopez Reyes v.
Bonnar, 362 F. Supp. 3d 762 (N.D. Cal. 2019)); see, e.g., Medina-Herrera v.
Noem, No. CIV-25-1203-J, Doc. 28, at *1 (W.D. Okla. Jan. 6, 2026) (“The Court
assumes, without deciding, that it would have jurisdiction to ‘consider any
error of law in [Petitioner’s] agency proceedings, including any claimed due
process violation.’”) (quoting L.G. v. Choate, 744 F. Supp. 3d 1172, 1178 n.12
(D. Colo. 2024)); see also Garcia v. Green, 2016 WL 1718102, at *3 (D.N.J. Apr.
29, 2016) (noting that a district court “may order a bond hearing where the
bond 	hearing 	was 	conducted 	unlawfully, 	or 	where 	the 	petitioner 	has
erroneously been denied a hearing.”). So, § 1226(e) does not bar the Court from
hearing Petitioner’s claims as he is not asking the Court to “review the IJ’s
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discretionary judgment.” Mayancela v. FCI Berlin, Warden, 2025 WL 3215638,
at *5 (D.N.H. Nov. 18, 2025); see also R.I.L-R v. Johnson, 80 F. Supp. 3d 164,
176 (D.D.C. 2015) (“[I]t is not within DHS’s discretion to decide whether it will
be bound by the law.” (internal quotation marks omitted)).
B. 	Section 1226 governs Petitioner’s detention.
Petitioner asserts he was arrested without a warrant, which § 1226
requires. See Doc. 10, at 2-4. Respondents concede Petitioner was “admitted”
to the country “on or about January 17, 2023, on an F-1 visa as an international
student.” Doc. 8, at 5. He sought asylum in May 2023. Id. When DHS issued
its Notice to Appear for removal proceedings after Petitioner overstayed his
visa, 	it 	also 	issued 	a 	warrant 	to 	detain 	Petitioner 	and 	an 	IJ 	reviewed
Petitioner’s custody determination. Id. Exs. 2, 3. These proceedings all arose
under § 1226, not § 1225. See, e.g., Doc. 8, at 5 (“[Section] 1226 more generally
applies to all noncitizens, . . . and is initiated by warrants . . . .”). So § 1226
governs the petition.
C. 	Respondents did not follow their own regulations when
arresting 	and 	detaining 	Petitioner 	for 	removal
proceedings.
Petitioner argues he was arrested without a warrant and detained for a
day before DHS issued a Notice to Appear and obtained an arrest warrant.
Doc. 10, at 2-4. The regulations provide that “[a]t the time of issuance of the
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notice to appear, or at any time thereafter and up to the time removal
proceedings are completed, the respondent may be arrested and taken into
custody under the authority of Form I–200, Warrant of Arrest.” 8 C.F.R.
§ 1236.1. 	Only 	authorized 	“immigration 	officers” 	may 	issue 	and 	serve 	a
warrant. Id.; see 8 U.S.C. § 1226(a) (“On a warrant issued by the Attorney
General, an alien may be arrested and detained pending a decision on whether
the alien is to be removed from the United States.”).
As 	a 	general 	rule, 	it 	is 	not 	a 	crime 	for 	a 	removable
[noncitizen] to remain present in the United States. If the police
stop someone based on nothing more than possible removability,
the usual predicate for an arrest is absent. When [a noncitizen] is
suspected 	of 	being 	removable, 	a 	federal 	official 	issues 	an
administrative document called a “Notice to Appear.” The form
does not authorize an arrest. Instead, it gives the [noncitizen]
information about the proceedings, including the time and date of
the removal hearing.
Arizona v. United States, 567 U.S. 387, 407 (2012) (internal citations and
quotations 	omitted). 	“Generally, 	the 	warrant 	must 	be 	issued 	before 	the
noncitizen’s arrest.” Guarnizo v. Quinones, 2026 WL 982816, at *3 (M.D. Fla.
Apr. 13, 2026). To conduct a warrantless arrest, an immigration officer must
have “reason to believe that the [noncitizen] so arrested is in the United States
in violation of any such law or regulation and is likely to escape before a
warrant can be obtained for his arrest.” 8 U.S.C. § 1357(a)(2); see 8 C.F.R.
§ 287.8(c)(2)(ii) 	(“A 	warrant 	of 	arrest 	shall 	be 	obtained 	except 	when 	the
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designated immigration officer has reason to believe that the person is likely
to escape before a warrant can be obtained.”).
The record shows that neither a Notice to Appear nor an arrest warrant
was issued before Petitioner’s detention. Doc. 8, Ex. 2. Respondents do not
explain the delay. Based on these circumstances, the undersigned recommends
Petitioner’s release.
First, Respondents arrested Petitioner before issuing a Notice to Appear.
So they “lacked statutory authority to conduct the arrest under section 1226,
as removal proceedings were not yet pending.” Guarnizo, 2026 WL 982816, at
*3 (citing 8 U.S.C. § 1226(a); 8 C.F.R. § 126.1); see Landaverde Ardon v. Mina,
2026 WL 530199, at *3 (M.D. Fla. Feb. 26, 2026) (“Because Respondents
arrested Petitioner nearly two weeks before issuing his notice to appear, they
lacked statutory authority to arrest Petitioner, as removal proceedings were
not pending against him at that time.”). And second, an immigration officer did
not determine whether Petitioner was likely to escape before they could obtain
a warrant. So a warrant was required before his arrest. 8 U.S.C. § 1357(a)(2);
8 C.F.R. § 287.8(c)(2)(ii).
Respondents lacked statutory authority to arrest Petitioner. So the
Court 	should 	order 	Respondents 	to 	immediately 	release 	Petitioner 	from
custody. See, e.g., Singh v. Bondi, No. CIV-26-43-J, 2026 WL 483482, at *2
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(W.D. Okla. Feb. 20, 2026) (Ordering detainee’s immediate release because “he
was arrested without a warrant in violation of the INA”); see also Guarnizo,
2026 WL 982816, at *4 (ordering immediate release because the respondents
“lacked the statutory authority to arrest” the petitioner “under [8 U.S.C. §]
1357” (citing § 1357(a)(2); 8 C.F.R. § 287.8(c)(2)(ii), Arizona, 567 U.S. at 408)).4
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant in part Petitioner’s habeas application and order his immediate
release 	on 	an 	order 	of 	supervision. 	The 	undersigned 	further
recommends that the Court order Respondents certify compliance by
filing a status report within ten business days of the Court’s order.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by April 27,
4 	The Court should deny Petitioner’s remaining grounds. Because the
undersigned recommends the Court order Petitioner’s immediate release, his
prolonged detention claim in Ground One will be moot. His fourth ground is
also moot as the immigration court issued a decision and ordered his removal
on 	March 	25, 	2026. 	See 	Aditya 	Kunner, 	A-232-602-223,
https://acis.eoir.justice.gov/en/caseInformation 	(last 	visited 	Apr. 	21, 	2026).
Petitioner’s appeal of that decision is due to the Board of Immigration Appeals
by April 24, 2026. Id. And his Ground Three asserting inadequate conditions
of confinement does not sound in habeas corpus. See, e.g., Palma-Salazar v.
Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (a prisoner who challenges the
conditions of his confinement must do so through a civil rights action.).
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2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.5 The undersigned further advises the parties that failure to make timely
objections to this Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein. Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation
disposes of the issues referred to the undersigned Magistrate Judge in the
captioned matter.
ENTERED this 22nd day of April, 2026.
5 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to three
days. See Fed. R. Civ. P. 72(b)(2) advisory committee’s note to 1983 addition
(noting that rule establishing 14-day response time “does not extend to habeas
corpus petitions, which are covered by the specific rules relating to proceedings
under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484
F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (“The Rules Governing § 2254 Cases
may be applied discretionarily to habeas petitions under § 2241” and that
“while 	the 	Federal 	Rules 	of 	Civil 	Procedure 	may 	be 	applied 	in 	habeas
proceedings, they need not be in every instance – particularly where strict
application would undermine the habeas review process”).
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