(HC) Guncay Juela v. Warden, Diamondback Correctional Facility

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JESSICA ELIZABETH GUNCAY 	)
JUELA, 	)
)
Petitioner, 	)
v. 	) 	Case No. CIV-26-501-G
)
WARDEN, DIAMONDBACK 	)
CORRECTIONAL FACILITY1, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Jessica Elizabeth Guncay Juela, a noncitizen appearing pro
se, seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States
District Judge Charles B. Goodwin referred the case to the undersigned
1 	Pursuant to Fed. R. Civ. P. 25(d), Department of Homeland Security
(DHS) Secretary Markwayne Mullin is substituted for former Secretary Noem
as 	a 	party. 	https://www.dhs.gov/news/2026/03/24/us-senate-confirms-
markwayne-mullin-secretary-department-homeland-security (last visited Apr.
30, 2026). Todd Blanche is the acting Attorney General and is substituted for
former Attorney General Pam Bondi as a party. https://www.justice.gov/ag
(last visited Apr. 30, 2026). Respondent Warden of Diamondback Correctional
Facility is a not federal official, and the response is not filed on the Warden’s
behalf. See Doc. 15, 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 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).
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Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C).
Doc. 10.3 The Government responded, Doc. 15, and the time for Petitioner to
reply has lapsed. See Doc. 11, at 1. So the matter is at issue.
For the reasons below, the undersigned recommends the Court grant
Petitioner’s 	habeas 	petition, 	in 	part, 	and 	order 	Respondents 	to 	provide
Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within five business
days or otherwise release Petitioner if she has not received a lawful bond
hearing within that period.
I. 	Factual background and procedural history.
Petitioner is a citizen of Ecuador who has been in Immigration &
Customs 	Enforcement 	(ICE) 	custody 	since 	January 	2026 	after 	ICE
encountered her “on her way to work,” “stopped the vehicle in which she was
traveling,” and placed “Petitioner and her husband . . . into custody.” Doc. 1, at
2.
Petitioner 	entered 	the 	United 	States 	in 	November 	2022, 	without
admission or parole after inspection, and “sought protection through the
asylum process.” Id. at 1; see also Doc. 15, Ex. 2 (I-589 Application for Asylum
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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and Withholding of Removal). She maintains “that she has no criminal history
whatsoever and has never been arrested for or convicted of any crime.” Doc. 1,
at 1-2.
ICE placed her in removal proceedings pursuant to 8 U.S.C. § 1229a by
issuing a Notice to Appear (NTA). Doc. 15, Ex. 1. She was charged by DHS as
removable 	under 	8 	U.S.C. 	§ 1182(a)(6)(A)(i) 	of 	the 	Immigration 	and
Nationality Act (INA) as an alien who is present in the United States without
being admitted or paroled, or who arrived in the United States at any time or
place other than as designated by the Attorney General. Id.
Petitioner has been detained since January 2026 without a bond hearing.
Doc. 1, at 2.4 She is “the mother of a seven-year old child,” and “[b]ecause both
parents were detained . . ., the child had no one available to care for him in the
United States and had to be sent to Ecuador.” Id. She states that “[t]he
separation has caused severe emotional harm to both [her] and [the] child.” Id.
II. 	Petitioner’s claims.
4 	In Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), the Board
of Immigration Appeals (BIA) held that those who entered the country without
admission or parole are ineligible for a bond hearing and are detained under 8
U.S.C. § 1225(b)(2)(A). Hurtado is not binding on this Court. See Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 413 (2024) (“[C]ourts need not and under
the APA may not defer to an agency interpretation of the law simply because
a statute is ambiguous.”).
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Petitioner raises two grounds for relief:
Ground One: Violation of the Immigration and Nationality Act (INA);
and
Ground 	Two: 	Violation 	of 	the 	Due 	Process 	Clause 	of 	the 	Fifth
Amendment.
Id. at 8-9. At bottom, she argues that she is not subject to mandatory detention
under § 1225(b)(2) 	and her continued detention in Respondents’ custody
violates the INA and her due process rights. Id.
Petitioner asks this Court to issue an order directing Respondents to
show cause why the petition should not be granted within three days, and set
a 	hearing 	on 	the 	petition 	within 	five 	days 	of 	return5; 	declare 	that 	her
“continued detention violates 8 U.S.C. § 1226(a), 8 C.F.R. § 236.1, and the Due
Process Clause of the Fifth Amendment”; issue “a writ of habeas corpus
ordering Respondents to immediately release [her] from the Diamondback
Correctional Facility” or, in the alternative, “[o]rder a bond hearing to be held
as soon as practicable, with bond set at an amount [she] can reasonably pay,
and enjoin any further detention absent a valid bond hearing.” Id. at 9-10. She
5 	The Court addressed Petitioner’s request for an order to show cause
when it ordered Respondents to respond to the petition, see Doc. 10, and
determines a hearing is unnecessary.
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also seeks attorneys’ fees and costs under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. Id. at 10.
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)).
“When called on to resolve a dispute over a statute’s meaning,” the Court
should “seek[] to afford the [statute’s] terms their ordinary meaning at the time
Congress adopted them” and to “exhaust all the textual and structural clues
bearing on the meaning.” Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021)
(internal quotation marks omitted). This Court’s “‘sole function’ is to apply the
law as the Court finds it, . . . not defer to some conflicting reading the
government might advance.” Id. (internal citation omitted); see also Oklahoma
v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11 (10th Cir.
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2024) (stating that the court “must independently interpret the statutory
phrase irrespective of the parties’ positions”), judgment vacated on other
grounds, 145 S. Ct. 2837 (2025).
IV. 	Discussion.
A. 	Section 1226 governs Petitioner’s detention.6
Petitioner asserts that Respondents violated the INA by detaining her
without a bond hearing. Doc. 1, at 8. She argues that she is “detained pursuant
to 8 U.S.C. § 1226(a)” which “does not authorize indefinite detention without a
6 	Respondents maintain that Petitioner’s INA claim is barred by the INA’s
jurisdiction channeling and stripping provisions in 8 U.S.C. § 1252(a)(5), (b)(9),
and (g). Doc. 15, at 16-19. This Court, consistent with other district courts
throughout the country, has dispensed with arguments by the Government
that § 1252(a)(5), (b)(9), and (g) deprive the Court of jurisdiction when a
noncitizen challenges their detention under 8 U.S.C. § 1225(b). See, e.g., Cortes
v. Holt, No. CIV-25-1176-SLP, 2026 WL 147435, at *3 (W.D. Okla. Jan. 20,
2026) (“Petitioner’s claim that Respondents are detaining him without a bond
hearing in violation of the INA does not divest the Court of jurisdiction. Such
a claim does not ‘arise from’ and is not directly connected to the commencement
of removal proceedings, the adjudication of removability, or the execution of
any removal order. Rather, Petitioner challenges the legality of his continued
detention 	under 	the 	statutory 	framework 	governing 	custody 	and 	bond
determinations.”); Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL
18932, at *1 (W.D. Okla. Jan. 2, 2026) (“Here, because Petitioner challenges
the legal question of whether he is subject to mandatory detention under
§ 1225(b)(2)(A) 	or 	detention 	under 	§ 	1226(a), 	and 	he 	does 	not 	challenge
Respondents’ 	decision 	to 	commence 	or 	adjudicate 	proceedings 	or 	execute
removal orders, § 1252(g) does not jurisdictionally bar consideration of the
Petition.”). 	So, 	the 	undersigned 	recommends 	the 	Court 	find 	there 	is 	no
jurisdictional bar to consideration of Petitioner’s claims.
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bond 	hearing, 	particularly 	for 	individuals 	with 	no 	criminal 	history.” 	Id.
Respondents maintain that she is detained under 8 U.S.C. § 1225(b)(2)(A). Doc.
15, at 8, 19-28. The undersigned agrees with Petitioner and determines she is
detained pursuant to § 1226(a) and entitled to a bond hearing.
This Court has compared §§ 1225 and 1226 and decided noncitizens like
Petitioner are entitled to a bond hearing under § 1226. See, e.g., Cortes, 2026
WL 147435, at *3-7; Lopez v. Corecivic Cimarron Corr. Facility, No. CIV-25-
1175-SLP, 2026 WL 165490, at *3-7 (W.D. Okla. Jan. 21, 2026). The Court
should reach the same result in this case.
Section 1225(b)(2)(A) “unambiguously requires that an ‘applicant for
admission’ 	also 	be 	‘seeking 	admission’ 	for 	the 	section 	to 	control,” 	and
“‘[n]oncitizens ‘seeking admission’ are those who have not effected an entry
into the United States.’” Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176,
at *4 (W.D. Okla. 	Dec. 16, 2025) (quoting 	Sacvin v. Anda-Ybarra, 	2025
3187432, at *3 (D.N.M. Nov. 14, 2025)). Petitioner effected entry into the
country 	over 	three 	years 	ago, 	so 	she 	is 	not 	subject 	to 	§ 	1225(b)(2)(A)’s
mandatory detention requirement. Numerous Judges in this District have held
likewise. See Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026 WL 94641, at
*2 (W.D. Okla. Jan. 13, 2026) (“The court also agrees that § 1226(a), not §
1225(b)(2)(A), governs petitioner’s detention.”); Valdez v. Holt, No. CIV-25-
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1250-R, 	2025 	WL 	3709021, 	at 	*3 	(W.D. 	Okla. 	Dec. 	22, 	2025) 	(“Because
Petitioner has been unlawfully living in the United States for many years
without seeking admission, this provision does not apply to him. Instead,
Petitioner’s detention is controlled by § 1226(a).”); Escarcega v. Olson, No. CIV-
25-1129-J, 2025 WL 3243438, at *2 (W.D. Okla. Nov. 20, 2025) (“[B]ased on the
plain language of § 1225(b)(2)(A), the phrase ‘seeking admission’ only applies
to noncitizens who are presently and actively seeking lawful entry into the
United States at the border.”) (internal quotation marks and alterations
omitted).7 As well as determining that if “all ‘applicants for admission’ are also
‘seeking admission,’ then § 1225(b)(2)(A)’s inclusion of the phrase ‘seeking
admission’ 	would 	be 	redundant 	and 	courts 	should 	avoid 	statutory
interpretations that ‘make[] any part [of the statute] superfluous.’” Escarcega,
7 	Cunha v. Freden, 2026 WL 1146044, at *2 (2d Cir. Apr. 28, 2026) (“Today,
although we part ways with two other circuits that have addressed this
question, we join the overwhelming majority of federal judges across the
Nation to consider it and conclude that the government’s novel interpretation
of the immigration statutes defies their plain text.”); see also Castañon-Nava
v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025) ; but see
Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D.
Okla. Jan. 6, 2026) (holding § 1225 applied to the petitioner’s detention);
Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302, at *12 (W.D. Okla.
Dec. 26, 2026) (same); Avila v. Bondi, 2026 WL 819258, at *3 (8th Cir. Mar. 25,
2026) (applying § 1225 to a similar habeas challenge); Buenrostro-Mendez v.
Bondi, 166 F.4th 494, 506 (5th Cir. 2026) (same).
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2025 WL 3243438, at *3 (quoting Fuller v. Norton, 86 F.3d 1016, 1024 (10th
Cir. 1996)).
Respondents 	briefly 	suggest 	the 	Court 	should 	reconsider 	because
“Petitioner has affirmatively sought a form of admission by applying for
asylum.” Doc. 15, at 27. But the Court has “declined to find” that either
refusing 	to 	voluntarily 	depart 	or 	seeking 	asylum 	“‘constitutes 	‘seeking
admission’ for purposes of this subsection.’” Malacidze v. Noem, No. CIV-25-
1527-D, 2026 WL 227155, at *3 (W.D. Okla. Jan. 28, 2026) (quoting Cruz-
Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla.
Jan. 2, 2026)); see also Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at
*1 (W.D. Okla. Jan. 20, 2026) (finding Ҥ 1225(b)(2)(A) does not apply even
though petitioner filed an application for asylum”).
When Petitioner was detained after residing in the country for over three
years, she was not subject to mandatory detention under § 1225(b)(2)(A).
Instead, Petitioner is subject to § 1226, and “is entitled to a prompt bond
hearing before an immigration judge pursuant to § 1226(a).” Cortes, 2026 WL
147435, at *7.
Petitioner has been unlawfully detained since January 27, 2026, see Doc.
1, at 1, without the bond hearing she is entitled to by law. Normally, at a bond
hearing authorized under § 1226(a), the noncitizen bears the burden of proving
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that he is neither a danger to the community nor a flight risk. See 8 C.F.R. §
236.1(c)(8); Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). Given
Petitioner’s prolonged detention under the incorrect statute, the Court should
find that it is more appropriate for the government to bear the burden of proof
in this context. See, e.g., Garcia Cortes v. Noem, 2025 WL 2652880, at *5 (D.
Colo. Sept. 16, 2025) (citing L.G. v. Choate, 744 F. Supp. 3d 1172, 1185 (D. Colo.
2024)). “Freedom from imprisonment . . . lies at the heart of the liberty that
[the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Petitioner has
now been detained without a bond hearing for nearly ten months, depriving
her of a core liberty interest. Under these circumstances, the government ought
to bear the burden of proving that she poses a danger to the community or a
risk of flight such that she should remain in detention. And the clear and
convincing standard that generally “applies to civil detention where liberty is
at stake” is appropriate here as well. See L.G., 744 F. Supp. 3d at 1186 (first
citing United States v. Salerno, 481 U.S. 739, 751 (1987), and then citing
Addington v. Texas, 441 U.S. 418, 433 (1979)).
The undersigned therefore recommends the Court grant Petitioner’s
habeas 	petition 	and 	order 	Respondents 	to 	provide 	Petitioner 	with 	an
individualized bond hearing before a neutral IJ under § 1226(a) within five
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business days of the Court’s adoption of this Report and Recommendation or,
in the alternative, immediately release Petitioner.
B. 	The 	Court 	should 	decline 	to 	address 	the 	merits 	of
Petitioner’s due process claim.
Given 	the 	undersigned’s 	recommendation 	as 	to 	the 	disposition 	of
Petitioner’s claim for relief under the INA, the undersigned recommends the
Court refrain from addressing the merits of Petitioner’s due process claim. The
Court can grant her the relief she seeks under § 1226(a). See Cortes, 2026 WL
147435, at *7 (“The Court declines to decide the merits of such claim and
Petitioner may renew such a claim if he is not provided with a bond hearing or
released within seven days of this Order.”).
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s habeas application, in part, and order Respondents to
provide 	Petitioner 	with 	an 	individualized 	bond 	hearing 	before 	a
neutral 	IJ 	under 	8 	U.S.C. 	§ 	1226(a) 	where 	the 	Government 	must
establish by clear and convincing evidence that Petitioner poses a
danger to the community or is a flight risk within five business days
or otherwise release Petitioner if she has not received a lawful bond
hearing within that period. The undersigned further recommends
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that the Court order Respondents certify compliance by filing a status
report within five business days of the Court’s order. 8
The undersigned further recommends the Court order that:
• 	Respondents 	shall 	not 	re-detain 	Petitioner 	without 	a 	pre-
deprivation hearing before a neutral IJ under 8 U.S.C. § 1226(a);
and
• 	Counsel for Respondents provide a copy of the Court’s order to
Counsel for the Warden of the Diamondback Correctional Facility
without delay.
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 4, 2026,
in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.9
8 	Petitioner seeks EAJA fees, Doc. 1, at 9, but she proceeds pro se and
“attorney fees are not available for pro se litigants under the EAJA.” Demarest
v. Manspeaker, 948 F.2d 655, 655 (10th Cir. 1991).
9 	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
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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 30th day of April, 2026.
proceedings, they need not be in every instance – particularly where strict
application would undermine the habeas review process.”).
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