Tamayo-Aguilar v. United States District Court

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
WILIAN TAMAYO-AGUILAR, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-511-D
)
UNITED STATES DISTRICT COURT,
et al.,
)
)
)
Respondents.1 )
REPORT AND RECOMMENDATION
Petitioner Wilian Tamayo-Aguilar,2 a noncitizen3 and Cuban national proceeding
pro se, filed a Petition for Writ of Habeas Corpus (“Petition”), Doc. 1, challenging under
28 U.S.C. § 2241 his detention by U.S. Immigration and Customs Enforcement (“ICE”).
United States Chief District Judge Timothy D. DeGiusti referred this matter to the
undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). 	The
undersigned set an expedited briefing schedule. Respondents timely filed a Response, Doc.
10, and Petitioner did not file a Reply. 	For the reasons set forth below, the undersigned
1 Markwayne Mullin was confirmed as Secretary of the Department of Homeland Security
on March 23, 2026. He replaces Kristi Noem and is substituted as the proper respondent
pursuant to Federal Rule of Civil Procedure 25(d). Todd Blanche was announced as Acting
Attorney General on April 2, 2026. 	He replaces Pamela Bondi and is substituted as the
proper respondent pursuant to Federal Rule of Civil Procedure 25(d).
2 The record is unclear whether Petitioner’s first name is Wilian or William. See Resp. at
1 n.2. The undersigned proceeds using “Wilian,” as that name is used in the case caption
and in some ICE records attached to Respondents’ Response.
3 Unless quoting, 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)).
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recommends that the Court grant the Petition, Doc. 1, in part and order Respondents to
provide Petitioner a bond hearing pursuant to 8 U.S.C. § 1226(a) within five business days
or otherwise to release him if there is no hearing within that time.
I. 	Background
Petitioner, a citizen of Cuba, entered the United States at or near San Luis, Arizona
in June 2022. Doc. 1-1; Resp. at 1; Doc. 10-1 at 1.4 On the day he entered, United States
Border Patrol encountered Petitioner. 	Resp. at 2. 	On June 27, 2022, the Department of
Homeland Security (“DHS”) issued a warrant for Petitioner’s arrest and notice of custody
determination, which indicated Respondents intended to detain Petitioner. Id.; Doc. 10-2
at 1, 3. Also on June 27, 2022, ICE placed Petitioner into removal proceedings before the
Immigration Court pursuant to 8 U.S.C. § 1229a through a Notice to Appear, and charged
him with being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered
the United States without inspection. 	Resp. at 2; Doc. 10-1 at 1. 	On June 28, 2022,
Petitioner was released from detention on an Order of Release on Recognizance. Resp. at
2; Doc. 10-3 at 1. On or about March 6, 2023, Petitioner filed an Application for Asylum
and for Withholding of Removal. Resp. at 2; Doc. 10-4.
4 Petitioner alleges he entered the United States on June 13, 2022. Doc. 1-1. Respondents
state their records indicate Petitioner entered the country on or about June 26, 2022. Resp.
at 1. Whether Petitioner entered the country on June 13 or June 26, 2022, does not impact
the undersigned’s analysis.
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On December 1, 2025, ICE re-arrested Petitioner. 	Resp. at 3. 	The undersigned
presumes ICE detained Petitioner under 8 U.S.C. § 1225(b)(2)(A).5 Respondents assert
Petitioner has not requested a bond hearing before an Immigration Judge (“IJ”). Resp. at
3. 	Such a request, though, would be futile 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 country without admission or parole are ineligible for a bond hearing.
Resp. at 3.
When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility
in Cushing, Oklahoma. 	Id. at 1. 	He remains detained there. 	See ICE Online Detainee
Locator System, at https://locator.ice.gov/odls/#/results (last visited Apr. 17, 2026).
II. 	Petitioner’s Claims
Petitioner asserts two counts in his Petition.
• 	Count I: Violation of Due Process. Petitioner alleges Respondents’
failure 	to 	provide 	“proper 	court 	proceedings 	during 	removal
proceedings” violates his right to due process. Pet. at 7.
• 	Count II: Violation of the Immigration and Nationality Act
(“INA”) and ICE Regulations. Petitioner also alleges “ICE did not
provide any adequate notice” regarding his re-detention. Pet. at 7.
5 Neither party provides clear evidence in the record as to which provision ICE used to
detain Petitioner. 	Respondents spend several pages outlining their position on the scope
of § 1225(b)(1), § 1225(b)(2), and § 1226(a). 	Resp. at 3-7. 	Based on the context of the
Response, see id., and the fact that ICE’s current policies typically call for detention of
noncitizens similarly situated to Petitioner under § 1225(b)(2)(A), the undersigned
presumes Respondents relied on that statute to detain him. 	But later in the Response,
Respondents 	allege—without 	any 	supporting 	documentation—that 	ICE 	rearrested
Petitioner and revoked his conditional parole under § 1226(b). Resp. at 10-11.
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A pro se litigant’s pleadings are liberally construed “and held to a less stringent
standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). Liberally construed, the undersigned reads Petitioner’s Petition to contest
his detention without any bond hearing and to seek a bond hearing. 	See Torres Villason,
v. Dir. of Diamondback Corr. Ctr., No. CIV-26-371-D, 2026 WL 950132, at *2 (W.D.
Okla. Apr. 8, 2026) (finding pro se petitioner’s detention governed by § 1226(a) rather than
§ 1225(b)(2) when he did not have a final order of removal); see also Macias Emigdio v.
Grant, No. CIV-26-135-SLP, 2026 WL 735462, at *2 (W.D. Okla. Mar. 16, 2026) (finding
in a counseled case the issue of whether petitioner was properly detained pursuant to § 1226
or § 1225 properly before the court even if the claim could have been developed “more
robustly”).6
III. 	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.
6 Respondents allege Petitioner’s failure to provide appropriate “legal authority or any
meaningful 	argument” 	and 	his 	“vague 	supporting 	factual 	allegations” 	are 	“wholly
insufficient to support a finding of any violation of a constitutional right or federal statute
or regulation.” Resp. at 7-8. However, as Respondents point out, the Court should make
“some allowance for mistakes like failure to cite proper legal authority and confusion of
legal theories.” Id. at 7 (citation modified). Here, Petitioner is a noncitizen in ICE custody
since December 1, 2025. He does not have a final order of removal. See EOIR, Automated
Case Information, at https://acis.eoir.justice.gov/en/ (last accessed Apr. 17, 2026). Further,
he is contesting his re-detention by ICE after being released on his own recognizance
almost four years ago. As such, Petitioner’s failure properly to cite § 1226 or § 1225 should
not prevent his request for relief when Respondents can construe the basis of his Petition
and requested relief. Hall, 935 F.2d at 1110.
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§ 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. 	Analysis
A. 	Section 1226(a) applies to Petitioner’s detention.
The two sections of the INA that could possibly govern Petitioner’s detention as a
noncitizen without a final order of removal are 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.”
On the other hand, Section 1226(a) authorizes detention of a noncitizen “on a
warrant issued by the Attorney General” pending removal proceedings. 	Id. § 1226(a)
(citation modified). 	A noncitizen detained under § 1226(a) is entitled to a bond hearing.
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))).
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If Petitioner is an “applicant for admission” and “seeking admission” under
§ 1225(b)(2)(A), he 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. Liberally construed, Petitioner’s
two counts alleged in his Petition contest his re-detention by ICE without proper notice or
procedures, such as a bond hearing. See Pet. at 7. Respondents do not appear to dispute
Petitioner is detained pursuant to § 1226. Rather, Respondents contend because Petitioner
was released from detention on “conditional parole” under § 1226(a)(2), also known as
release on recognizance, they had discretion to revoke that parole. Resp. at 2 n.2, 10-11.
Respondents do not explain why Petitioner isn’t entitled to a bond hearing pursuant to
§ 1226. Nonetheless, the Court must determine what statute governs Petitioner’s detention
before determining whether he is entitled to an individualized bond hearing.
The undersigned has reviewed the statutory text, Congressional intent, legislative
history, and § 1226(a)’s application for the past three decades, as well as numerous recent
cases addressing this exact issue. For the reasons stated below, and adopting this Court’s
reasoning in Colin v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *5 (W.D. Okla. Dec.
16, 2025), the undersigned recommends the Court grant the Petition in part to the extent
Petitioner seeks a bond hearing under § 1226(a).
First, the INA limits the scope of the term “seeking admission” in § 1225(b)(2)(A)
so that section does not apply to noncitizens already living in the United States when
apprehended. 	Section 1225(b)(2)(A) “unambiguously requires that an ‘applicant for
admission’ also be ‘seeking admission’ for the section to control.” 	Colin, 2025 WL
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3645176, at *4. 	“If all ‘applicants for admission’ are also ‘seeking admission,’ then
§ 1225(b)(2)(A)’s inclusion of the phrase ‘seeking admission’ would be superfluous and
redundant, and courts should avoid statutory interpretations that make any part of the
statute superfluous.” Colin, 2025 WL 3645176, at *4 (citation modified). The undersigned
best 	understands 	mandatory 	detention 	under 	§ 1225(b)(2)(A) 	to 	apply 	to 	arriving
noncitizens actively seeking admission at or near the border or port of entry—not those
like Petitioner who have resided in the United States for years and were not arrested when
trying to cross the border.
Second, the legislative history and recent amendment of § 1226 indicate that section
applies to noncitizens who previously entered without inspection and were residing in the
United States when apprehended. Notably, after passage of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, the Department of Justice explained that
“despite being applicants for admission, aliens who are present without having been
admitted or paroled . . . will be eligible for bond and bond redetermination.” 	Inspection
and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997) (citation
modified).
Third, this analysis is not impacted by Petitioner’s application for asylum. See, e.g.,
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 v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at *1
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(W.D. Okla. Jan. 20, 2026) (finding Ҥ 1225(b)(2)(A) does not apply even though
petitioner filed an application for asylum”).
Finally, Petitioner’s previous release on his own recognizance under § 1226 in June
2022 also supports application of § 1226(a) to his current detention. See, e.g., Bello Chacon
v. Hermosillo, No. 25-CV-02299, 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 under § 1226
“defeats respondents’ new position that a different statutory provision applies”).7
The undersigned is not persuaded by Respondents’ claim that 	ICE actually
rearrested Petitioner under § 1226(b) and can revoke his release with no notice, Resp. at
10-11. 	Such a claim without further argument and any evidence in the record of
Petitioner’s arrest warrant and revocation under § 1226(b) is “inadequately presented.”
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (declining to consider
arguments 	“inadequately 	presented” 	in 	an 	opening 	brief). 	Also, 	even 	in 	alleging
7 Some courts have ordered immediate release for petitioners previously released on their
own recognizance. 	See, e.g., Salinas v. Woosley, No. 25-CV-121, 2025 WL 3243837, at
*5 (W.D. Ky. Nov. 20, 2025) (ordering immediate release for petitioner who had
previously been released on her own recognizance shortly after entering the United States
and requiring a bond hearing if she is later re-arrested and detained under § 1226(a))). The
undersigned, though, agrees with those courts deciding the proper relief for a petitioner is
a bond hearing under § 1226(a) before an IJ. See Chen, 2025 WL 3527239, at *3-4.
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Petitioner’s revocation of his “conditional parole” under § 1226(a), Respondents do not
explicitly argue Petitioner is not entitled to a bond hearing from such revocation. See Resp.
at 11.8
In sum, this Court, Judge Jones, Judge Palk, Judge Russell, Judge Heaton, and
myriad district courts have recently applied § 1226(a) to govern detention of noncitizens
like Petitioner who had been living in the United States for years and were present in the
country when apprehended.9 This conclusion is also in accord with the Seventh Circuit,
which rejected the statutory interpretation of § 1225(b)(2) as urged by Respondents. See
Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025). But
see Avila v. Bondi, No. 25-3248, --- F.4th ----, 2026 WL 819258, at *3-6 (8th Cir. Mar. 25,
8 Even if Respondents adequately briefed and presented evidence of Petitioner’s arrest and
revocation under § 1226(b), the undersigned would still conclude he is entitled to a bond
hearing. See, e.g., Becerra v. Sparks, No. 26-CV-00212, 2026 WL 915439, at *4 (D. Utah
Apr. 3, 2026) (finding “even if [a petitioner] is re-detained pursuant to § 1226(b) or even
if a violation of his conditions of release did occur, as Respondents argue, Petitioner is still
entitled to a bond hearing” based on due process); J.C.E.P. v. Wofford, No. 25-CV-01559,
2026 WL 809865, at *7 (E.D. Cal. Mar. 24, 2026) (holding “requirements of due process,
of course, supersede statutory and regulatory authority, and numerous courts have held that
the Due Process clause entitles a noncitizen to notice and an opportunity to be heard before
his parole or bond is summarily revoked under section 1226(b)”).
9 See, e.g., Colin, 2025 WL 3645176, at *5; Coreas v. Noem, No. CIV-26-151-J, 2026 WL
541151, at *2 (W.D. Okla. Feb. 26, 2026); Lopez v. Corecivic Cimarron Corr. Facility,
No. CIV-25-1175-SLP, 2026 WL 165490, at *1 (W.D. Okla. Jan. 21, 2026); Ramirez Rojas
v. Noem, No. CIV-25-1236-HE, 2026 WL 94641, at *1 (W.D. Okla. Jan. 13, 2026); Valdez
v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025). Two
Judges in the District have applied § 1225(b)(2)(A) to a similarly situated petitioner. See
Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D. Okla. Jan.
6, 2026); Alvarado Montoya v. Holt, No. CIV-25-01231-JD, 2025 WL 3733302, at *12
(W.D. Okla. Dec. 26, 2025).
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2026) (agreeing with Respondents’ interpretation); Buenrostro-Mendez v. Bondi, 166 F.4th
494, 501-08 (5th Cir. 2026) (same).
The undersigned agrees with this Court’s reasoning, the majority of Judges in this
District, and the great weight of authority to conclude Petitioner falls within the confines
of § 1226(a). See, e.g., Singh v. Mullin, No. CIV-26-173-D, 2026 WL 937557, at *1-2 &
2 n.1 (W.D. Okla. Apr. 7, 2026) (recent application by this Court of § 1226(a) to a similarly
situated petitioner, noting “the Court finds persuasive the analysis by the Seventh Circuit
in Castañon-Nava”). The Court should grant the Petition in part and order Respondents to
provide Petitioner with a bond hearing under § 1226(a) before a neutral IJ within five
business days or otherwise release him if he does not have a lawful bond hearing within
that period.
B. 	The Court should decline to address Petitioner’s due process claim.
Petitioner also argues that his continued detention without a bond hearing violates
his rights to due process. Pet. at 7. If the Court grants Petitioner’s requested relief for a
bond hearing under § 1226(a), the undersigned recommends that the Court decline to
decide the merits of the due process claim based on his continued detention. 	See, e.g.,
Colin, 2025 WL 3645176, at *6 n.3 (“Because the Court grants the relief the Petitioner
requests based on the applicability of 8 U.S.C. § 1226(a), the Court declines to decide the
merits of Petitioner’s due process claim.”).
V. 	Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court GRANT in
part the Petition for habeas relief by ordering Respondents to provide Petitioner with a
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bond hearing under 8 U.S.C. § 1226(a) within five business days or otherwise release
Petitioner if he has not received a lawful bond hearing within that period. 	The undersigned
further recommends that the Court order Respondents to certify compliance by filing a
status report within seven business days of the Court’s order.
The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. Any objection must be filed not later than April 24, 2026. See id.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). 	If a party wishes to respond to the other party’s
objections, such response must be filed not later than April 29, 2026. See Fed. R. Civ. P.
72(b)(2). 	Failure to object timely waives the right to appellate review of the factual and
legal issues addressed in this Report and Recommendation. 	See Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 17 th day of April, 2026.
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