Singh v. Warden Facility Administrator of Cimarron Correctional Facility et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
CHAIT SINGH, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-311-D
)
TODD BLANCHE,1 et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Chait Singh, represented by counsel, filed a Petition for Writ of Habeas
Corpus under 28 U.S.C. § 2241. (Doc. 1).2 Chief United States District Judge Timothy D.
DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B)-(C). 	(Doc. 4). 	Respondents timely filed a
Response in Opposition to Petitioner’s Petition for Writ of Habeas Corpus. 	(Doc. 12).3
Petitioner filed a Reply. 	(Doc. 13).4 	For the reasons set forth below, the undersigned
1 Todd Blanche became the Acting Attorney General on April 2, 2026. Therefore, the Court
substitutes him as one of the Respondents in this matter.
2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
3 The Response was not filed on behalf of Respondent Scarlet Grant, Warden of the
Cimarron Correctional Facility because she is not a federal official. (Doc. 12, at 1). The
undersigned finds that a separate response from Warden Grant is not necessary to resolve
this matter.
4 The Reply was untimely filed. 	However, contemporaneous with the Reply, Petitioner
filed a motion for leave to file reply out of time. (Doc. 13, at 6). For good cause shown,
the motion is granted.
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recommends that the Court find that Petitioner is subject to detention under 8 U.S.C. §
1226(a) and entitled to the process due under that statute. 	However, the undersigned
recommends that the Petition (Doc. 1) be DENIED because Petitioner has received a bond
hearing, and on these facts the Court lacks jurisdiction to review the immigration judge’s
determination.
I. 	Factual Background
Petitioner is a native and citizen of India who entered the United States on March 8,
2022. 	(Doc. 1, at 2, 7, 15; Doc. 12, at 8). 	Petitioner was detained immediately after his
arrival, and the same day the Department of Homeland Security (“DHS”) issued a Notice
to Appear (“NTA”) initiating removal proceedings. 	(Doc. 1, at 2; Doc. 12, at 8). 	After
requesting a bond hearing, Petitioner was released on a $5,000 bond on or about April 6,
2022. 	(Doc. 1, at 2, 15; Doc. 12, at 8). 	Petitioner filed an application for asylum on
September 27, 2022. (Doc. 1, at 2, 7, 15; Doc. 12, at 8). Petitioner married a United States
citizen in February 2024. (Doc. 1, at 2, 7). His wife then filed a Petition for Alien Relative
on his behalf in March 2024, which was approved in August 2025. 	(Doc. 1, at 2, 3, 7).
Respondents do not dispute these facts. (Doc. 12, at 8). Respondents state that on August
28, 2024, DHS successfully moved to dismiss removal proceedings without prejudice
under 8 C.F.R. § 1239.2(c). (Id.) Petitioner has a valid employment authorization through
September 2030. (Doc. 1, at Ex. 5). Petitioner states, and Respondents do not dispute, that
he has no criminal record and he has complied with all ICE supervision requirements.
(Doc. 1, at 2).
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On December 15, 2025, Petitioner was arrested during a traffic stop and taken to the
Tulsa County Jail. (Id. at 3). Following his arrest, DHS issued a new NTA, again placing
Petitioner into removal proceedings. 	(Doc. 12, at Ex. 1). 	Petitioner requested a custody
redetermination pursuant to 8 C.F.R. § 1236. (Id. at Ex. 3). At a hearing on January 20,
2026, an immigration judge (“IJ”) denied bond due to “[n]o jurisdiction,” citing 8 U.S.C.
§ 1225(b)(2)(A) and the decision of the Board of Immigration Appeals (“BIA”) in Matter
of Yajure Hurtado, 29 I&N Dec. 216 (BIA 2025) (“Hurtado”).5 	(Id.) 	The IJ also held,
“[i]n the alternative, and after hearing and considering the totality of evidence before the
Court, the Court denies bond based on its finding that [Petitioner] presents a flight risk.”
(Id.) Respondents state that Petitioner has not yet appealed the bond order. (Doc. 12, at 9,
10). 	Petitioner remains in ICE custody. 	(Doc. 1, at 3, 15; Doc. 12, at 8). 	Petitioner’s
removal proceedings are ongoing. (Doc. 1, at 7).
When Petitioner filed his Petition he was detained at the Cimarron Correctional
Facility in Cushing, Oklahoma, and he is still detained there. (Doc. 1, at 3, 15; Doc. 12, at
8); see ICE Online Detainee Locator System, at https://locator.ice.gov/odls/#/results (last
visited Apr. 2, 2026).
5 On September 5, 2025, the BIA determined in Hurtado that an immigration judge does
not have authority to hear a request for bond by an alien present in the United States who
has not been admitted after inspection because the alien was subject to mandatory detention
under 8 U.S.C. § 1225(b)(2)(A).
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II. 	Petitioner’s Claims
Petitioner alleges his “summary arrest and detention violate substantive and
procedural due process because they lack any individualized finding of danger or flight
risk and were imposed without notice or an opportunity to be heard.” (Doc. 1, at 4). He
further asserts that he has “a protected liberty interest in [his] ongoing freedom from
confinement.” (Id. at 10). Petitioner also alleges that he has been previously released on
bond, has no criminal record, and there is no evidence that he poses a flight or safety risk.
(Id. at 16).
In Count One, Petitioner claims his detention violates substantive due process under
the Fifth Amendment. (Id. at 17). Petitioner states he is neither a flight risk nor a danger
to the community making his detention “unjustified and unlawful.” 	(Id.) 	Petitioner also
alleges his “detention is punitive as it bears no ‘reasonable relation’ to any legitimate
government purpose.” 	(Id.) 	Petitioner contends his detention is not meant “to facilitate
deportation, or to protect against risk of flight or dangerousness” but rather to meet new
quotas and seek a more favorable venue for an expedited removal. (Id.)
In Count Two, Petitioner claims that his detention by Respondents violates
procedural due process under the Fifth Amendment. 	(Id. at 18). 	Specifically, Petitioner
alleges that his “re-detention without a pre-deprivation hearing violated due process.” (Id.)
Petitioner asserts that before he was re-detained, he should have had advance notice, an
explanation justifying his re-detention, and an opportunity to contest his re-detention. (Id.
at 18-19). 	Petitioner contends he “has a weighty liberty interest in avoiding re-
incarceration after his release.” (Id. at 18).
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In opposition, Respondents argue that under 8 U.S.C. § 1225, Petitioner is an
applicant for admission because he is present in the United States and entered without
admission. (Doc. 12, at 1-3). Accordingly, Respondents argue that Petitioner is subject to
mandatory detention under 8 U.S.C. § 1225(b)(2)(A). (Id. at 4-6). Respondents also assert
that because Petitioner has had a recent bond hearing that he has not appealed, he is now
improperly using these proceedings to challenge the IJ’s decision. (Id. at 10). Respondents
make brief argument that under the jurisdiction channeling and stripping provisions of the
Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1252(b)(9), this Court lacks
jurisdiction to consider Petitioner’s claims. (Id. at 7, 9).
As for Petitioner’s due process claims, Respondents claim that because Petitioner is
challenging executive actions, the conduct he challenges must satisfy the “shocks-the-
conscience” standard. (Id. at 11). Respondents argue the detention conditions do not rise
to “a degree of outrageousness or magnitude of harm that is truly conscience shocking.”
(Id. at 12). 	Respondents further contend that Petitioner’s detention is “authorized and
permissible” because the IJ found Petitioner is not entitled to bond and the alleged facts do
not show his detention is conscience shocking. (Id.)
Respondents also argue that Petitioner has received all the procedural protections
he is due. (Id. at 14). Respondents assert that Petitioner has had, and continues to have,
opportunities to be heard. 	(Id.) 	Respondents specifically point to both the bond hearing
on January 20, 2026, which has not been appealed, and the additional hearings scheduled
in the removal proceedings as means by which Petitioner’s procedural due process has been
met. (Id.) 	Finally, Respondents assert that Petitioner’s request to limit future actions by
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any IJ is not ripe for decision. 	(Id. at 15). 	Respondents contend this Court is
jurisdictionally barred from reviewing an IJ’s bond decisions. (Id.)
In Reply, Petitioner argues that he is not an applicant for admission and seeking
admission under § 1225(b) and thus cannot be subjected to mandatory detention. (Doc. 13,
at 2-3). He further argues that the immigration judge who conducted his bond hearing on
January 20, 2026, disclaimed jurisdiction over the matter under Hurtado, such that his
alternative finding of flight risk is “ultra vires and legally irrelevant.” 	(Id. at 4). 	He re-
urges his due process argument and also asserts that 8 U.S.C. § 1252(g) does not bar this
Court’s habeas review. (Id. at 5).
Petitioner seeks immediate release from ICE detention. (Doc. 1, at 20). Petitioner
asks the Court to declare that his arrest and detention violate the Due Process Clause of the
Fifth Amendment. (Id.) Petitioner also asks the Court to enjoin the Respondents from re-
detaining him “unless his re-detention is ordered at a custody hearing before a neutral
arbiter in which the government bears the burden of proving by clear and convincing
evidence that [he] is a flight risk or a danger to the community.” (Id.) Finally, Petitioner
asks the Court to “award . . . his costs and reasonable attorneys’ fees in this action as
provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412.”6 (Id.)
6 To the extent Petitioner may be entitled to EAJA fees and costs, Petitioner must seek those
separately. 28 U.S.C. § 2412(d)(1)(B); see also Daly v. Ceja, 158 F.4th 1152, 1166 (10th
Cir. 2025) (interpreting “EAJA’s broad language to unambiguously authorize fees in habeas
actions challenging immigration detention”). 	Accordingly, the undersigned does not
address this request at this juncture.
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III. 	Analysis
A. 	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)).
B. 	The Court Has Jurisdiction To Consider the Petition.
Respondents 	argue 	in 	passing 	that 	this 	Court 	lacks 	jurisdiction 	to 	consider
Petitioner’s claims, based on 8 U.S.C. §§ 1252(g) and 1252(b)(9). 	(Doc. 12, at 7, 9).
However, Judges of this District have consistently ruled the INA “does not jurisdictionally
bar” a habeas claim like Petitioner’s because such a claim does not arise from and “does
not challenge Respondents’ decision to commence or adjudicate proceedings or execute
removal orders.” 	Colin v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *2 (W.D. Okla.
Dec. 16, 2025); see also Gonzalez Cortes v. Holt, No. CIV-25-1176-SLP, 2026 WL
147435, at *3 (W.D. Okla. Jan. 20, 2026) (same); Alvarado Montoya v. Holt, No. CIV-25-
1231-JD, 2025 WL 3733302, at *4-5 (W.D. Okla. Dec. 26, 2025) (same); Valdez v. Holt,
No. CIV-25-1250-R, 2025 WL 3709021, at *1 (W.D. Okla. Dec. 22, 2025) (same); Urbina
Garcia v. Holt, No. CIV-25-1225-J, 2025 WL 3516071, at *2 (W.D. Okla. Dec. 8, 2025)
(same); Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20,
2026) (same). But see Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344,
at *3 (W.D. Okla. Jan. 6, 2026) (expressing “grave doubts over whether it has subject
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matter jurisdiction” but assuming it had jurisdiction to proceed to the merits). 	The
undersigned agrees with the majority of Judges of this District in finding that jurisdiction
exists to consider Petitioner’s habeas challenge to detention.7
C. 	The Undersigned Agrees With the Majority of this District Court and
District Courts Nationwide that the Detention of Aliens Like Petitioner
is Governed by § 1226(a).
Petitioner’s immigration detention implicates two sections of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1225 and § 1226. 	Section 1225(a)(1) describes an
“applicant for admission” as “an alien present in the United States who has not been
admitted or who arrives in the United States.” 	Id. § 1225(a)(1) (citation modified). 	The
statute defines “admission” and “admitted” as “the lawful entry of the alien into the United
States after inspection and authorization by an immigration officer.” 	Id. § 1101(a)(13).
Under § 1225(b)(2)(A), “in the case of an alien who is an applicant for admission, if the
examining immigration officer determines that an alien seeking admission is not clearly
and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding
under section 1229a.” (Emphasis added). In other words, the alien is subject to mandatory
detention while he awaits removal proceedings.
On the other hand, § 1226(a) authorizes detention of an alien “on a warrant issued
by the Attorney General.” 	Id. § 1226(a) (citation modified). 	An alien detained under §
1226(a) is entitled to a bond hearing at which he can argue to an immigration judge that he
7 While the Court has jurisdiction over the Petition, the Court does not have jurisdiction to
review the immigration judge’s discretionary determination at the bond hearing. See infra
§ III.E.
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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)).
Accordingly, if Petitioner is an “applicant for admission” and “seeking admission”
under § 1225(b)(2)(A), he must be detained and is not entitled to a bond hearing. If he is
not an “applicant for admission” and “seeking admission” under § 1225, then Petitioner
falls within the confines of § 1226(a), which would entitle him to a bond hearing and
potentially release.
Respondents argue that Petitioner is subject to mandatory detention under §
1225(b)(2)(A) because he meets the definition of an applicant for admission and “[n]othing
in the language of § 1225 limits its operation to only those applicants for admission who
are arriving.” (Doc. 12, at 1-6) (citing Alvarado Montoya, 2025 WL 3733302, at *7). The
undersigned disagrees with this analysis and conclusion.
Indeed, 	the 	undersigned 	has 	issued 	more 	than 	twenty 	Reports 	and
Recommendations setting forth a detailed analysis of the statutory text and legislative
history of § 1225 and § 1226, a discussion of the BIA’s application of the statutes for the
past three decades, and comparison to the reasoning of numerous recent cases from both
within and outside this District that have considered the same issues. 	Central to that
analysis is the undersigned’s conclusion that for § 1225(b)(2)(A) to apply, the alien must
be both an “applicant for admission” and “seeking admission” and that
the terms “applicant for admission” and “seeking admission” in § 1225(b)(2)
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do not cleanly apply to aliens like Petitioner. “The plain meaning of the
phrase ‘seeking admission’ requires that the applicant must be presently and
actively seeking lawful entry into the United States. The use of the present
participle in § 1225(b)(2)(A) implies action – something that is currently
occurring, and in this instance, would most logically occur at the border upon
inspection.” Caballero [v. Baltazar], 2025 WL 2977650, at *6 [(D. Colo.
Oct. 22, 2025)] (citation modified).
Damian v. Jones, No. CIV-25-1561-J, 2026 WL 682545, at *7 (W.D. Okla. Feb. 2, 2026),
report and recommendation adopted, 2026 WL 446295 (W.D. Okla. Feb. 17, 2026). Thus,
the undersigned has consistently concluded that § 1226(a), not § 1225(b)(2)(A), governs
the detention of aliens who were apprehended when they were already present in the
country without admission, as opposed to arriving at the border.
In response to a growing number of habeas challenges in the Western District of
Oklahoma, Chief Judge DeGiusti, Judge Palk, Judge Jones, Judge Russell, and Judge
Heaton have repeatedly come to the same conclusion. See, e.g., Damian v. Jones, No. CIV-
25-1561-J, 2026 WL 446295, at *2 (W.D. Okla. Feb. 17, 2026); Li v. Grant, No. CIV-25-
1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20, 2026); Gonzalez Cortes v. Holt,
No. CIV-25-1176-SLP, 2026 WL 147435, at *5 (W.D. Okla. Jan. 20, 2026); Valdez v. Holt,
No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025); Colin v. Holt,
CIV-25-1189-D, 2025 WL 3645176, at *4-5 (W.D. Okla. Dec. 16, 2025). 	Accordingly,
the Judges have granted habeas relief in the form of bond hearings under § 1226(a).
Other district courts in the Tenth Circuit are in agreement. 	See, e.g., Aguilar
Tanchez v. Noem, No. 25-CV-1150, 2026 WL 125184, at *10 (D. Utah Jan. 16, 2026)
(holding petitioner’s detention is governed by § 1226(a) and not § 1225(b)(2)); Leonardo
G.Z. v. Noem, No. 25-CV-600, 2025 WL 3755590, at *10 (N.D. Okla. Dec. 29, 2025)
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(applying § 1226(a) after “having independently considered the plain language of §
1225(b)(2)(A) in the context of § 1225’s overall structure and the broader statutory
framework governing pre-removal detention of noncitizens”); Cruz Valera v. Baltazar, No.
25-CV-03744, 2025 WL 3496174, at *3 (D. Colo. Dec. 5, 2025); Pu Sacvin v. De Anda-
Ybarra, No. 25-cv-1031, 2025 WL 3187432, at *3 (D.N.M. Nov. 14, 2025).
More generally, an “overwhelming, lopsided majority” of district courts around the
country have applied § 1226(a) to govern detention for aliens like Petitioner. Mercado v.
Francis, --- F. Supp. 3d ---, 2025 WL 3295903, at *4 (S.D.N.Y. Nov. 26, 2025) (noting the
contrary interpretation of § 1225 and § 1226 “has been challenged in at least 362 cases in
federal district court” and “challengers have prevailed, either on a preliminary or final
basis, in 350 of those cases decided by over 160 different judges sitting in about fifty
different courts spread across the United States”); see also Demirel v. Fed. Det. Ctr.
Philadelphia, No. 25-5488, 2025 WL 3218243, at *4 (E.D. Pa. Nov. 18, 2025) (“[O]f the
288 district court decisions to address the issue, 282 have determined that § 1226(a) applies
or likely applies in situations similar to those presented here.”).
The Seventh Circuit Court of Appeals has weighed in on this issue. The court ruled
on a motion to stay pending appeal that based on a “preliminary record” the respondents
“are not likely to succeed on the merits of their argument that those individuals, whom ICE
arrested in Chicago without a warrant, are subject to mandatory detention under §
1225(b)(2)(A).” 	Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061-
62 (7th Cir. 2025). The Seventh Circuit reasoned that
§ 1225(a)(1) defines an “applicant for admission” as “an alien present in the
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United States who has not been admitted or who arrives in the United States.”
8 U.S.C. § 1225(a)(1). And while a noncitizen arrested in the Midwest might
qualify as “an alien present in the United States who had not been admitted,”
§ 1225(a)(1), the mandatory detention provision upon which Defendants
rely, limits its scope to an “applicant for admission” who is “seeking
admission,” § 1225(b)(2)(A).
Id. at 1061. 	Judges in this District have found the Seventh Circuit’s analysis to be
persuasive. Maldonado v. Noem, No. CIV-25-1379-J, 2026 WL 160950, at *1 (W.D. Okla.
Jan. 21, 2026); Valdez, 2025 WL 3709021, at *2; Toledo Santos v. Grant, No. CIV-25-
1433-SLP, 2026 WL 184287, at *2 (W.D. Okla. Jan. 23, 2026).
In contrast, Judge Dishman and Judge Wyrick in this District have adopted
Respondents’ position that aliens like Petitioner fall under § 1225(b)(2)(A) despite residing
in the United States at the time of their apprehension by ICE. 	See Gutierrez Sosa, 2026
WL 36344; Alvarado Montoya, 2025 WL 3733302. 	Additionally, the Fifth and Eighth
Circuit Courts of Appeals recently applied § 1225 to a similar habeas challenge, agreeing
with Respondents’ position based on “the relevant provisions and structure of the [INA],
the statutory history, and Congressional intent.” 	Buenrostro-Mendez v. Bondi, 166 F.4th
494, 498, 502-08 (5th Cir. 2026); see Avila v. Bondi, --- F.4th ----, 2026 WL 819258 (8th
Cir. Mar. 25, 2026).
The undersigned respectfully disagrees with the textual analysis and statutory
interpretations by these courts. 	Notably, several Judges in this District have expressly
acknowledged the Fifth and Eighth Circuit rulings but have not altered their analysis. See
Campa v. Johnson, No. CIV-26-1-HE, 2026 WL 446978, at *1 (W.D. Okla. Feb. 17, 2026)
(“The 2-1 decision in Buenrostro-Mendez makes clear that strong arguments support both
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statutory readings of the parties. 	The court, however, remains persuaded that § 1226(a)
governs and continues to follow similar rulings by the judges in this district and the Seventh
Circuit Court of Appeals in Castanon-Nava.”); Abhishek v. Holt, No. CIV-26-221-SLP,
2026 WL 852091, at *2 & n.6 (W.D Okla. Mar. 27, 2026) (granting habeas relief despite
contrary authority in Western District of Oklahoma and Fifth and Eighth Circuits); Raj v.
Anda-Ybarra, No. CIV-26-125-D, 2026 WL 852093, at *1 & n.1 (W.D. Okla. Mar. 27,
2026) (granting habeas relief despite contrary authority in Fifth and Eighth Circuits).
Relevant to the instant case, Judges in this District have held that an alien’s efforts
to gain legal status after having entered without admission do not render him subject to §
1225(b)(2)(A). See, e.g., Singh v. Bondi, No. CIV-26-43-J, 2026 WL 483482, at *2 (W.D.
Okla. Feb. 20, 2026) (rejecting Respondents’ argument that Petitioner is seeking admission
and § 1225(b)(2) therefore applies because he filed a Form I-589 asylum application during
his removal proceedings); Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL 227155, at
*3 (W.D. Okla. Jan. 28, 2026) (concluding “a pending asylum application does not render
§ 1225(b)(2)(A) applicable to Petitioner”); Li, 2026 WL 147438, at *1 (finding “§
1225(b)(2)(A) does not apply even though petitioner filed an application for asylum”);
Medina-Herrera v. Noem, No. CIV-25-1203-J, 2025 WL 3460946, at *4 (W.D. Okla. Dec.
2, 2025) (rejecting Respondents’ argument that Petitioner is seeking admission by filing an
application to cancel removal proceedings and finding that a 42B application “does not
transform [petitioner] into a person ‘seeking admission’ within § 1225(b)(2)’s context”);
Morocho, 2026 WL 36452, at *3 (same) (citing Medina-Herrera). 	Thus, Petitioner’s
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application for asylum and Petition for Alien Relative do not render him “seeking
admission” and subject to § 1225(b)(2)(A).
Moreover, the conclusion that § 1226 governs an alien’s recent detention by ICE is
only bolstered in cases like the instant one, in which Petitioner was previously detained by
ICE and later released on bond pursuant to § 1226.8 	(Doc. 1, at 2). 	See, e.g., Vielma
Uzcategui v. Brooksby, Case No. 4:26-cv-20-DN-PK, 2026 WL 622751, at *9 (D. Utah
Mar. 5, 2026) (finding petitioner was entitled to a bond hearing under § 1226(a) when she
had been originally released on her own recognizance under § 1226(a) and then later
detained without bond because “[a]s numerous courts have observed, the initial decision to
pursue petitioner’s detention under § 1226(a) precludes the government from later
switching tracks to subject her to mandatory detention under § 1225(b)(2). 	The rule is
simple: Sections 1226(a) and 1225(b) cannot be applied simultaneously.”) (citation
modified); Bello Chacon v. Hermosillo, No. 25-CV-2299, 2025 WL 3562666, at *2 (W.D.
Wash. Dec. 12, 2025) (finding petitioner’s prior release on recognizance under § 1226
indicates he “was—and continues to be—subject to discretionary detention under § 1226”);
Chen v. Soto, No. CV 25-17198, 2025 WL 3527239, at *3 (D.N.J. Dec. 9, 2025) (granting
habeas relief and ordering respondents to provide a bond hearing for petitioner previously
released on his own recognizance pursuant to § 1226 because previously treating petitioner
8 Petitioner was previously detained pursuant to removal proceedings that were later
dismissed. 	(Doc. 12, at 8). 	Petitioner has been re-detained on new proceedings. 	(Id. at
Ex. 1). It is unclear what effect that has in relation to this point, but the undersigned finds
Petitioner is properly classified under § 1226 irrespective of which removal proceedings
are considered.
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under § 1226 “defeats respondents’ new position that a different statutory provision
applies”).
Based on the foregoing analysis, the undersigned recommends that the Court finds
that § 1226(a) governs Petitioner’s detention.
D. 	Because §1226 Governs Petitioner’s Detention, Procedural Due Process
Requires That He Receive a Bond Hearing; Such a Hearing Was
Conducted.
The Fifth Amendment’s Due Process Clause protects all persons within the United
States from being “deprived of life, liberty, or property, without due process of law.” U.S.
Const. Amend. V. It is well established that the Due Process Clause applies to non-citizens
within the United States “whether their presence here is lawful, unlawful, temporary, or
permanent.” 	Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 	Courts examine procedural
due process claims in two steps: (1) is there a protected liberty interest, and (2) if so, what
procedures are necessary to ensure deprivation of that protected liberty interest accords
with due process. 	Morrissey v. Brewer, 408 U.S. 471, 481 (1972). 	“Freedom from
imprisonment — from government custody, detention, or other forms of physical restraint
— lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690.
The undersigned finds that (1) as a non-citizen properly classified under § 1226,
Petitioner has a protected liberty interest in freedom from immigration detention, and (2)
the procedure of the bond hearing as provided in § 1226 is necessary to ensure that
deprivation of that protected liberty interest accords with due process. 	See Velasquez
Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025) (“Because this Court holds
that § 1226 governs Petitioner’s detention, the due process owed to Petitioner is that
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provided for in § 1226—namely, an individualized bond hearing before an IJ.”); Requejo
Roman v. Castro, 2026 WL 125681, at *8 (D.N.M. Jan. 12, 2026) (“Because Petitioner is
subject to § 1226’s discretionary detention provision rather than mandatory detention under
§ 1225, he is entitled to a bond hearing.”); Lopez-Campos v. Raycraft, 797 F.Supp.3d 771,
785 (E.D. Mich. Aug. 29, 2025) (“[T]he Court has specifically held that Section 1226(a)
governs Lopez-Campos’ detention, therefore the process due to him is that which is
afforded under Section 1226(a).”).
The Petition did not disclose that Petitioner had a bond hearing on January 20, 2026,
(see Doc. 1), but Respondents provided evidence of this hearing, at which the IJ found that
pursuant to § 1225(b)(2)(A) and Hurtado, he lacked jurisdiction to set a bond for Petitioner.
(Doc. 12, at Ex. 3). The IJ also held, “[i]n the alternative, and after hearing and considering
the totality of evidence before the Court, the Court denies bond based on its finding that
Respondent presents a flight risk.” 	(Id.) 	Respondents state that Petitioner has not yet
appealed the bond order. (Doc. 12, at 9, 10). In Reply, Petitioner argues that because the
IJ found he had no jurisdiction, his alternative finding of flight risk is “ultra vires and
legally irrelevant.” (Doc. 13, at 4). As explained below, the undersigned disagrees.
E. 	This Court Cannot Review the Discretionary Determination of the IJ
That Petitioner Is a Flight Risk.
The determination of bond under § 1226(a) is within the purview of the IJ, who
considers whether a non-citizen is a flight risk or a danger to the community. § 1226(a); 8
C.F.R. § 236.1(c). 	If he is neither, he can be released from detention while his removal
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proceedings are pending. Appeals of the immigration judge’s decision are to be reviewed
by the BIA. 8 CFR § 1003.19(f). 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). “Thus, a district court has no jurisdiction to consider a habeas
petitioner’s challenge to the decision to either grant or deny bond.” 	Kumar v. De Anda-
Ybarra, No. CIV-26-164-R, 2026 WL 753944, at *2 (W.D. Okla. Mar. 17, 2026) (citing
Valeriano v. Soto, No. CV 25-16100 (MAS), 2026 WL 63710, at *2 (D.N.J. Jan. 8, 2026)
(“Where an immigration judge makes a ruling as to granting or denying bond under §
1226(a), . . . the Court has no jurisdiction to second guess or reconsider the immigration
judge's decision.”); Perez v. Holt, No. CIV-25-1151-SLP, 2026 WL 597126, at *6 (W.D.
Okla. Mar. 3, 2026) (“Thus, the Court finds that the IJ relied on evidence in the record to
make a discretionary decision to deny Petitioner bond; therefore, this Court lacks subject
matter jurisdiction to review that decision.”).
Like Judge Russell in Kumar, 2026 WL 753944, the undersigned “is not persuaded,
based on the arguments before it, that the IJ’s decision was unlawful merely ‘because it
was handed down on an in-the-alternative basis.’” 	Id. at *2. 	Judge Russell relied on
Chiquito Barzola v. Warden, Delaney Hall Det. Facility Newark, NJ, No. 2:25-CV-17326
(MEF), 2025 WL 3443487, at *2 (D.N.J. Dec. 1, 2025), which is directly on point here. In
Chiquito Barzola, the habeas petitioner was granted a bond hearing at which the IJ found
that she lacked jurisdiction to release Petitioner because the case was controlled by
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Hurtado, but ruled in the alternative that Petitioner was not entitled to release because he
posed a flight risk. Id. at *2. The court found:
There is no reason to discount the Immigration Judge’s risk-of-flight holding
because it was handed down on an in-the-alternative basis. In-the-alternative
holdings are understood as providing, on their own, a sufficient foundation
for a court’s ruling. See Phila. Marine Trade Ass’n-Int’l Longshoremen]s
Ass’n Pension Fund v. Comm’r, 523 F.3d 140, 147 n.5 (3d Cir. 2008) (quoting
Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949)).
Therefore, the 	Immigration Judge’s in-the-alternative holding, that the
Petitioner is a risk of flight, supplies an adequate basis for the Immigration
Judge’s determination that the Petitioner should remain detained.
Id. 	The undersigned likewise finds in this case that “[t]he Court lacks jurisdiction to
reconsider the IJ’s discretionary decision to deny bond.” Kumar, 2026 WL 753944, at *2.
It should be noted that § 1226(e) does not deprive the Court of jurisdiction over
constitutional claims or questions of law relating to the bond determination hearing.
Hernandez Casallas v. Jones, No. CIV-26-53-J, 2026 WL 324646, at *2 (W.D. Okla. Feb.
6, 2026). See also Sin Johal v. Bondi, No. CIV-25-1408-J, 2026 WL 517529, at *2 (W.D.
Okla. Feb. 25, 2026), opinion vacated on other grounds, Doc. 20 (W.D. Okla. Mar. 6, 2026)
(adopting the Magistrate Judge’s recommendation that § 1226(e) does not strip the court
of 	jurisdiction 	to 	determine 	whether 	a 	bond 	hearing 	is 	“legally 	erroneous 	or
unconstitutional”) (citing L.G. v. Choate, 744 F. Supp. 3d 1172, 1178 (D. Colo. 2024)
(“District courts lack jurisdiction to review an IJ’s bond determination. But district courts
do have jurisdiction under 28 U.S.C. § 2241 to consider any error of law in Petitioner’s
agency proceedings, including any claimed due process violation.” (cleaned up)); Diaz-
Calderon v. Barr, 535 F. Supp. 3d 669, 676 (E.D. Mich. 2020) (“In the context of an
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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.”) (citation modified); 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”).
The IJ’s bond determination order states that a hearing was held and that the IJ
considered evidence. (Doc. 12, at Ex. 3). As in Kumar, “Petitioner does not indicate that
he was denied the opportunity to present evidence at the bond hearing or that the IJ
improperly shifted the burden of proof. . . . [Thus], he has not shown that the decision was
somehow legally erroneous or unconstitutional.” 2026 WL 753944, at *2.9 Thus, the Court
lacks jurisdiction under § 1226(e) to review or set aside the IJ’s bond determination.
9 Judge Russell indicates that a bond hearing would be legally erroneous or unconstitutional
if the IJ applied an improper burden of proof. See Kumar, 2026 WL 753944, at *2 (citing
for example Barreno v. Baltasar, No. 025-CV-03017-GPG-TPO, 2025 WL 3190936, at *3
(D. Colo. Nov. 14, 2025) (concluding that “Respondents failure to provide Petitioner with
a detention hearing at which the government bore the burden of proof violated her Fifth
Amendment rights”)). 	Similarly, the undersigned has previously recommended that the
Court find that the proper habeas remedy for a due process violation caused by the illegal
detention of a non-citizen under § 1225(b)(2)(A) and denial of a bond hearing is a bond
hearing at which the government bears the burden of proof. Singh v. Grant, No. CIV-26-
88-G, Doc. 14 (W.D. Okla. Mar. 30, 2026).
The Petition asks that the Court immediately release Petitioner from custody and to enjoin
the Respondents from re-detaining him “unless his re-detention is ordered at a custody
hearing before a neutral arbiter in which the government bears the burden of proving by
clear and convincing evidence that [he] is a flight risk or a danger to the community.” (Doc.
1, at 20). In his Reply, Petitioner requests this relief or in the alternative requests the Court
order a second bond hearing at which the government bears the burden of proof. (Doc. 13,
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IV. 	Recommendation and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Court find
that Petitioner is subject to detention under 8 U.S.C. § 1226(a) and entitled to the process
due under that statute. 	However, the undersigned recommends that the Petition (Doc. 1)
be DENIED because Petitioner has received a bond hearing, and on these facts the Court
lacks jurisdiction to review the immigration judge’s determination to deny bond based on
a risk of flight.
The Court advises the parties of their right to object to this Report and
Recommendation by April 10, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2).10 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).
at 6). However, the Petitioner nowhere alleges that that the IJ used the wrong burden
of proof at his January 20, 2026, hearing.
10 Given the expedited nature of these proceedings, the undersigned has reduced the typical
objection time to Report and Recommendations. 	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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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 3rd day of April, 2026.
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