Palacio v. Warden of Cimarron Correctional Facility

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANDRES PALACIO, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-393-PRW
)
WARDEN OF CIMARRON 	)
CORRECTIONAL FACILITY,1 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Andres Palacio, a noncitizen proceeding pro se,2 seeks a writ
of habeas corpus under 28 U.S.C. § 2241. Doc. 1.3 United States District Judge
Patrick R. Wyrick referred the case to the undersigned Magistrate Judge under
1 	Pursuant 	to 	Fed. 	R. 	Civ. 	P. 	25(d), 	the 	Court 	adds 	Department 	of
Homeland Security (DHS) Secretary Markwayne Mullin, and Todd Blanche
(the acting Attorney General) as Respondents. The Warden of Cimarron
Correctional Facility is not a federal official, so the response is not filed on
behalf of the Warden. See Doc. 7, at 8 n.1.
2 	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 liberally construes a pro se
litigant’s 	pleadings, 	but 	cannot 	serve 	as 	Petitioner’s 	advocate 	or 	create
arguments on his behalf. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991);
Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
3 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondents have responded, Doc. 7, and
the time for a reply has lapsed. So the matter is at issue.
For the reasons below, the undersigned recommends the Court deny the
petition.
I. 	Factual background and procedural history.
Petitioner, a Nicaraguan citizen, alleges he entered the United States on
September 1, 2010. Doc. 1, Att. 1, at 1. On August 8, 2025, the Department of
Homeland Security (DHS) issued a Notice to Appear (NTA) and charged him
as 	removable 	as 	an 	immigrant 	allegedly 	lacking 	valid 	immigrant 	entry
documents and as a noncitizen present in the United States without being
admitted or paroled under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I).
Doc. 7, at 9 & Att. 1. Petitioner sought a re-determination of custody, which
the Immigration Court denied, finding it lacked jurisdiction to consider the
request. Id. at 9 & Att. 2. Petitioner sought cancellation of removal and
adjustment of status on October 1, 2025. Id. at 9-10 & Att. 3.
II. 	Petitioner’s claims.
Petitioner raises four grounds for relief:
Ground One: prolonged detention in excess of six months in violation of
Zadvydas v. Davis, 533 U.S. 678, 701 (2001);
Ground Two: Immigration and Customs Enforcement’s (ICE) prolonged
detention of Petitioner violates the Fifth Amendment due process clause;
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Ground Three: ICE’s violation of the Immigration and Nationality Act
and its own regulations violates his due process rights; and
Ground 	Four: 	ICE 	has 	violated 	its 	own 	regulations 	under 	the
Administrative Procedure Act.
Doc. 1, at 7-8.
Petitioner asks this Court to immediately release him on an order of
supervision. Id. at 8.
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, 533 U.S. at 687-88).
IV. 	Discussion.
A. 	Petitioner cannot show a deprivation of his due process
rights under Zadvydas.
In Grounds One and Two, Petitioner asserts that his prolonged detention
violates Zadvydas, and in turn, his substantive due process rights. Doc. 1, at
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7. This Court may issue a writ of habeas corpus when a person is “in custody
in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). “The Fifth Amendment’s Due Process Clause forbids the
Government to ‘depriv[e]’ any ‘person. . . of . . . liberty . . . without due process
of law.’ 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.
“[W]hen an alien is ordered removed, the Attorney General shall remove
the alien from the United States within a period of 90 days.” 8 U.S.C.
§ 1231(a)(1)(A). This period is called the “removal period.” Id. The removal
period 	begins 	once 	the 	removal 	order 	“becomes 	administratively 	final,”
§ 1231(a)(1)(B)(i), 	meaning 	the 	Board 	of 	Immigration 	Appeals 	(BIA) 	has
affirmed 	it 	on 	appeal 	or 	the 	time 	to 	file 	an 	appeal 	has 	expired. 	Id.
§ 1101(a)(47)(B). In 	certain 	enumerated circumstances, an alien 	“may 	be
detained beyond the removal period.” Id. § 1231(a)(6); see also Johnson v.
Guzman Chavez, 594 U.S. 523, 528-29 (2021) (providing that an alien may be
detained beyond the removal period where (1) the alien fails to make a timely
application for travel documents or acts to prevent his removal; (2) removal is
not practicable or proper; (3) the alien is inadmissible, removable as a result of
violations of status requirements, or there are national security or foreign
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policy reasons for not removing the alien; or (4) the alien is a risk to the
community or unlikely to comply with a removal order).
In Zadvydas, the Supreme Court explained that “[a] statute permitting
indefinite detention of an alien would raise a serious constitutional problem.”
533 U.S. at 690. As a result, the Court construed § 1231(a)(6) to limit “an alien’s
post-removal-period detention to a period reasonably necessary to bring about
that alien’s removal from the United States.” Id. at 689. “Thus, if removal is
not 	reasonably 	foreseeable, 	the 	court 	should 	hold 	continued 	detention
unreasonable and no longer authorized by statute.” Id. at 699-700.
Under 	Zadvydas, 	six 	months 	of 	post-removal 	order 	detention 	is
“presumptively 	reasonable.” 	Id. 	at 	701. 	After 	this 	point, 	“once 	the 	alien
provides good reason to believe that there is no significant likelihood of removal
in the reasonably foreseeable future, the Government must respond with
evidence sufficient to rebut that showing.” Id. This presumption does not mean
that every alien must be released if not removed after six months in detention.
Id. Rather, “an alien may be held in confinement until it has been determined
that there is no significant likelihood of removal in the reasonably foreseeable
future.” Id.
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Petitioner’s removal proceedings began August 8, 2025. On April 1, 2026,
the Immigration Judge (IJ) issued an order of removal.4 Petitioner filed this
action before the IJ issue the removal order, so his claim is premature.
B. 	Petitioner does not state a due process violation.
In Ground Two, Petitioner argues he
has 	been 	detained 	since 	08/09/2025 	and 	without 	any 	given
adequate notice that demonstrate changed circumstances that
render 	my 	removal 	significantly 	likely 	in 	the 	reasonably
foreseeable future, which has caused me and my family not just a
financial burden but also mental stress and severe depression.
Doc. 1, at 7.
Petitioner does not challenge the procedures of his arrest and detention,
nor does he allege he was denied a bond hearing. Although he has been
detained since August 2025, the IJ issued an order of removal on April 1, 2026,
and Petitioner may appeal that ruling. Even liberally construing the petition,
the Court identifies no procedural due process claim.
4 	The undersigned takes judicial notice of the Immigration Court’s filings
in 	Petitioner’s 	case, 	available 	at 	Automated 	Case 	Information,
https://acis.eoir.justice.gov/en/caseInformation (last visited Apr. 21, 2026). See
United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising
discretion “to take judicial notice of publicly-filed records in [this] court and
certain other courts concerning matters that bear directly upon the disposition
of the case at hand”) (quoting United States v. Ahidley, 486 F.3d 1204, 1192 n.5
(10th Cir. 2007)).
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C. 	Petitioner identifies no statutory or regulatory violation.
When the government promulgates regulations “with the force and effect
of law,” agencies are bound to follow their own “existing valid regulations.”
United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265, 268 (1954).
Pertinent here, “[t]he statutes and regulations governing immigration and
removal proceedings afford important procedural safeguards to detainees.”
Villanueva v. Tate, 801 F. Supp. 3d 689, 698-99 (S.D. Tex. 2025).
Petitioner entered the United States without admission or parole after
inspection. Doc. 7, Att. 5, at 2. DHS issued an NTA and detained Petitioner
pending the outcome of his removal proceedings. Id. Atts. 1-4. An IJ issued an
order of removal on April 1, 2026, and Petitioner can appeal that order to the
BIA.
In Ground Three, Petitioner simply restates his supporting facts for
Ground Two. Doc. 1, at 7-8. He identifies no statutory or regulatory violation
related to his removal proceedings. So the Court should deny Ground Three.
D. 	The 	Court 	should 	decline 	to 	consider 	Petitioner’s 	APA
claim.
Petitioner alleges Respondents violated the APA because they have
detained him for over six months. Id. at 8. Because Petitioner’s claim for relief
“‘necessarily imply the invalidity’ of [his] confinement,” his claim “fall[s] within
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the ‘core’ of the writ of habeas corpus and thus must be brought in habeas.”
Trump v. J.G.G., 604 U.S. 670, 672 (2025); see also id. at 674 (“[G]iven 5 U.S.C.
§ 704, which states that claims under the APA are not available when there is
another ‘adequate remedy in a court,’ I agree with the Court that habeas
corpus, not the APA, is the proper vehicle here.”) (Kavanaugh, J. concurring);
Soberanes, 	388 	F.3d 	at 	1310 	(“Challenges 	to 	immigration 	detention 	are
properly brought directly through habeas.” (citing Zadvydas, 533 U.S. at 687).
The Court should deny Petitioner’s request for relief under the APA.
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
deny Petitioner’s habeas petition and dismiss the petition without prejudice.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by May 15, 2026,
in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 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.
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ENTERED this 24th day of April, 2026.
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