Perez Perez v. Grant et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DAMIAN PEREZ PEREZ, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-596-SLP
)
SCARLET GRANT, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Damian Perez Perez, a noncitizen and Mexican national proceeding with
counsel, 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 Scott L. Palk 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, Doc. 6, and the Petition is at issue. For the reasons outlined
below, the undersigned recommends the Court DENY the Petition.
I. 	Background
Petitioner, a citizen of Mexico, entered the United States in 1998 without inspection
or parole. 	Pet. at 6; Resp. at 2. 	In or around 1999, Petitioner voluntarily departed the
United States and returned sometime thereafter. Doc. 1-6 at 4. 	On September 12, 2025,
ICE detained Petitioner in Tulsa, Oklahoma. 	Pet. at 6. 	On the same day, ICE placed
Petitioner into removal proceedings before the Aurora Immigration Court pursuant to 8
U.S.C. § 1229a through the issuance of a Notice to Appear. Id.; Doc. 1-1 at 1 (Notice to
Appear). 	Petitioner 	was 	charged 	with 	being 	inadmissible 	under 	8 	U.S.C.
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§ 1182(a)(6)(A)(i) as someone who entered the United States without inspection. 	Pet. at
2; Doc. 1-1 at 1.
On October 3, 2025, Petitioner filed a habeas petition alleging Respondents were
illegally detaining him pursuant to 8 U.S.C. § 1225(b)(2)(A) without a bond hearing (“First
Habeas Proceeding”). See Perez v. Holt, No. CIV-25-1151-SLP, 2026 WL 597126, at *1
(W.D. Okla. Mar. 3, 2026). 	On November 5, 2025, Magistrate Judge Amanda Maxfield
recommended Petitioner be given a bond hearing pursuant to 8 U.S.C. § 1226(a). 	Id.
However, as Judge Maxfield’s Report and Recommendation (“R&R”) was pending,
Petitioner received a bond hearing on December 1, 2025. Doc. 1-4 (Order denying bond);
see also Pet. at 7 (alleging “Respondents decided to provide a bond hearing for Petitioner”
after Judge Maxfield issued her R&R). 	Also, while the R&R was pending, Petitioner’s
removal proceedings in Immigration Court were terminated and a second removal
proceeding was initiated three days later. Perez, 2026 WL 597126, at *2.
At the bond hearing, an Immigration Judge (“IJ”) determined Petitioner “is a flight
risk and a danger to community” based on “the I-213 filing and his prior voluntary return
in 1999.” Doc. 1-4 at 1; see also Perez, 2026 WL 597126, at *2. An I-213 filing includes
ICE’s narrative detailing when an ICE officer encounters a noncitizen. 	See Doc. 1-2
(Petitioner’s I-213 filing). In Petitioner’s I-213 filing, the encounter narrative states: “Lead
intelligence also referred to ICE that PEREZ-Perez would ‘shoot ICE Officers if attempt
to arrest.’” Id. at 3. The encounter summary narrative, dated September 12, 2025, includes
no additional details about the source of this “lead intelligence.” 	Petitioner appealed the
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denial of bond to the Board of Immigration Appeals (“BIA”). 	Doc. 10-3 (Notice of
Appeal).
On January 5, 2026, while the R&R was still pending, the IJ terminated Petitioner’s
removal proceedings. 	Pet. at 8; see also Doc. 1-5 at 1 (IJ Order). 	However, Petitioner
remained in detention. Pet. at 8. On January 8, 2026, ICE issued a new Notice to Appear
and commenced new removal proceedings in the Aurora Immigration Court. Id.; Doc. 1-
6 at 1 (Second Notice to Appear). That case remains pending. Pet. at 8.
After supplemental briefing, this Court held in Petitioner’s First Habeas Proceeding
that he was properly detained under § 1226(a) and entitled to a bond hearing, but his
petition was moot because he already received a bond hearing. Perez, 2026 WL 597126,
at *4-7. Specifically, the Court held (1) Petitioner’s claims were moot because those claims
“focused on Petitioner’s detention without a bond hearing” that he later received, and (2)
it lacked jurisdiction under § 1226(e) to review the IJ’s discretionary decision to deny
Petitioner bond. 	Perez, 2026 WL 597126, at *6-7. 	The Court did not address “whether
Petitioner should be afforded a new bond hearing” because his removal proceedings were
terminated and a second removal proceeding was initiated three days later. Id. at *6.
On March 24, 2026, Petitioner filed his Petition to “challenge[] the legality of his
continued detention based on material facts that arose during the pendency of his prior
habeas action, which was dismissed for mootness.” 	Pet. at 2. 	Specifically, Petitioner
alleges (1) he is properly detained under § 1226(a) and entitled to a bond hearing, (2) due
process entitles him to a bond hearing, and (3) his due process was violated during his prior
bond hearing. 	Id. at 2-3, 20-22. 	When Petitioner filed his Petition, he was detained at
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Cimarron Correctional Facility in Cushing, Oklahoma. 	Doc. 1-7. 	He remains detained
there. 	See ICE Online Detainee Locator System, at https://locator.ice.gov/odls/#/results
(last visited Apr. 30, 2026).
II. 	Petitioner’s Claims
Petitioner asserts three counts in his Petition.
• 	Count 	I: 	Violation 	of 	the 	Immigration 	and 	Nationality 	Act
(“INA”). 	Petitioner 	alleges 	his 	continued 	detention 	under
§ 1225(b)(2) is unlawful and violates the INA because that provision
does not apply to those, like Petitioner, who previously entered the
country and have been residing in the United States before being
apprehended and placed in removal proceedings. Pet. at 20.
• 	Count II: Violation of Due Process in Prior Bond Hearing.
Petitioner alleges the IJ did not provide the due process required at his
prior bond hearing. Id. at 21.
• 	Count II: Violation of Due Process under Mathews Factors.
Petitioner 	alleges 	his 	continued 	detention 	without 	a 	bond
redetermination hearing to determine whether he is a flight risk or
danger to others violates his right to due process under the framework
established in Mathews v. Eldridge. Id. at 22.
Petitioner asks the Court to “issue a Writ of Habeas Corpus requiring that
Respondents release Petitioner immediately or, in the alternative, provide Petitioner with a
constitutionally sufficient bond hearing in which [the Department of Homeland Security]
carries the burden of proof by clear and convincing evidence, pursuant to 8 U.S.C.
§ 1226(a), within five days.” 	Id. at 23 (citation modified). 	Petitioner also requests an
award of attorney fees and costs under the Equal Access to Justice Act (“EAJA”). Id.
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.
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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) continues to govern Petitioner’s detention
The two relevant provisions governing detention of noncitizens pending removal
proceedings are §§ 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.” 	8 U.S.C. § 1225(a)(1) (citation modified). 	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.” 	If Petitioner is an “applicant for admission” and “seeking admission” under
§ 1225(b)(2)(A), he is not entitled to a bond hearing. On the other hand, Section 1226(a)
more generally authorizes detention of a noncitizen pending removal proceedings and
entitles the noncitizen 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))).
Petitioner argues he is properly detained under § 1226(a) because “§ 1225(b)(2)
does not apply to those [like him] who previously entered the country and have been
residing in the United States prior to being apprehended and placed in removal proceedings
by Respondents.” 	Pet. at 20. 	Respondents maintain Petitioner is an “applicant for
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admission” and “seeking admission,” therefore subject to mandatory detention and
properly detained under § 1225(b)(2)(A). Resp. at 4-6.
This Court has previously determined § 1226(a) governed Petitioner’s detention in
his First Habeas Proceeding. 	Perez, 2026 WL 597126 at *4. 	With his new Petition, 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 the First Habeas Proceeding and in Lopez v. Corecivic Cimmaron Corr.
Facility, No. CIV-25-1175-SLP, 2026 WL 165490, at *3-7 (W.D. Okla. Jan. 21, 2026), the
undersigned concludes § 1226(a) continues to govern Petitioner’s detention.
First, the INA limits the scope of the term “seeking admission” in § 1225(b)(2)(A)
so that section does not apply to noncitizens living in the United States when detained.
Section 1225(b)(2)(A) “only applies when a noncitizen ‘applicant for admission’ is actively
‘seeking admission’ into the United States.” 	Valdez v. Holt, No. CIV-25-1250-R, 2025
WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025). 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 superfluous. 	Lopez, 2026 WL 165490, at *4. 	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 apprehended inside
the country.
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In addition, 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). Further, Congress’ recent amendment to § 1226 mandating detention for certain
criminal noncitizens renders Respondents’ interpretation of § 1225(b)(2)(A) superfluous.
Finally, this Court, Judge DeGiusti, Judge Jones, Judge Russell, Judge Heaton, and
myriad district courts have recently applied § 1226(a) to govern detention of noncitizens
like Petitioner.1 See Norboev v. Lyons, No. CIV-26-107-SLP, 2026 WL 497800, at *2
(W.D. Okla. Feb. 23, 2026) (finding § 1226(a) governs a similarly situated petitioner’s
detention and “join[ing] the decision reached by the vast majority of district courts in this
judicial district, in district courts within the Tenth Circuit and across the country to have
1 See, e.g., Lopez, 2026 WL 165490, at *7; Ramirez Rojas v. Noem, No. CIV-25-1236-HE,
2026 WL 94641, at *1 (W.D. Okla. Jan. 13, 2026); Valdez, 2025 WL 3709021, at *3; Colin
v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *5 (W.D. Okla. Dec. 16, 2025); Urbina
Garcia v. Holt, No. CIV-25-1225-J, 2025 WL 3516071, at *4 (W.D. Okla. Dec. 8, 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, No. CIV-25-01231-JD, 2025 WL 3733302, at *12 (W.D.
Okla. Dec. 26, 2025).
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addressed the same issues as those raised by Petitioner”). This Court has found the plain
language, legislative history, and past immigration practices all support a finding that
“Petitioner’s detention is not governed by §1225(b)(2).” Lopez, 2026 WL 165490, at *7.
The undersigned agrees with this Court’s reasoning, the majority of Judges in this
District, and the great weight of authority to conclude Petitioner continues to fall within
the confines of § 1226(a), and not § 1225(b)(2)(A). This conclusion is also in accord with
the Second and Seventh Circuits, which rejected the statutory interpretation of § 1225(b)(2)
as urged by Respondents. See Cunha v. Freden, No. 25-3141-PR, --- F. 4th ---, 2026 WL
1146044, at *2 (2d Cir. Apr. 28, 2026); Castañon-Nava v. U.S. Dep’t of Homeland Sec.,
161 F.4th 1048, 1061 (7th Cir. 2025). 	But see Avila v. Bondi, 170 F.4th 1128, 1134-38
(8th Cir. 2026) (agreeing with Respondents’ interpretation); Buenrostro-Mendez v. Bondi,
166 F.4th 494, 501-08 (5th Cir. 2026) (same). Accordingly, the undersigned recommends
the Court continue to apply § 1226(a) to govern Petitioner’s current detention.
B. 	Because § 1226 governs Petitioner’s detention, both the INA and due
process require that he receive a bond hearing, but such a hearing
already occurred
Petitioner is owed the due process provided to him under § 1226(a), the statute that
governs his current detention. 	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 applies to noncitizens within the United
States “whether their presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas, 533 U.S. at 693. When “§ 1226 governs Petitioner’s detention, the due process
owed to Petitioner is that provided for in § 1226—namely, an individualized bond hearing
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before an IJ.” 	Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025);
see also Karimov v. Cerna, No. CIV-26-304-R, 2026 WL 950130, at *1 (W.D. Okla. Apr.
8, 2026) (“An individualized custody redetermination hearing would provide Petitioner
with the process he is due under the statute.”).
Petitioner, though, already received a bond hearing on December 1, 2025, and this
Court cannot review the IJ’s discretionary decision at that hearing to deny bond. 	See 8
U.S.C. § 1226(e). This Court rejected the same claim in the First Habeas Proceeding. See
Perez, 2026 WL 597126, at *6 (“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.”).2 Indeed, 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. 	8 C.F.R. § 236.1(c). 	Section § 1226(e) “strips
federal courts of jurisdiction to hear challenges to an IJ’s discretionary decision to keep a
noncitizen in detention.” Nucamendiz v. Hyde, No. 25-CV-13851, 2026 WL 221449, at *1
(D. Mass. Jan. 28, 2026) (citation modified); see also Mwangi v. Terry, 465 F. App’x 784,
2 In Count III, Petitioner alleges his continued detention violates his right to due process
pursuant to the framework set out in Mathews v. Eldridge. While some Magistrate Judges
in this District, including the undersigned, have started considering whether detention of
similarly situated petitioners violates due process when those petitioners raise such a claim
and seek a bond hearing specifically requesting the government bear the burden at such
hearing to establish the petitioner’s risk of flight or danger, the undersigned declines to
undertake a lengthy analysis here considering (1) the Court has already concluded
Petitioner was entitled to a bond hearing under the INA, and (2) such a bond hearing
already occurred. Nonetheless, the undersigned concludes due process—in addition to the
INA—entitles Petitioner to a bond hearing because he is detained under § 1226(a).
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787 (10th Cir. 2012) (citing § 1226(e) and noting “the Attorney General’s exercise of
discretion is not subject to judicial review”). “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).
Further, this Court already addressed Petitioner’s request for a bond hearing in the
First Habeas Proceedings. 	There, the Court ruled the case was moot because Petitioner
received a bond hearing—his requested relief—in his first, terminated removal proceeding.
Perez, 2026 WL 597126, at *4. 	To the extent this Court left open the question whether
Petitioner should be afforded a new bond hearing in his second removal proceeding, he
fails to cite any cases or make any argument alleging as much in this Petition.3
Accordingly, the Court should deny Petitioner’s request for a bond hearing as moot,
to the extent he already received the bond hearing he is entitled to under § 1226(a), and for
a lack of jurisdiction, to the extent he challenges the IJ’s decision to grant or deny bond.
C. 	The Court has jurisdiction to consider whether Petitioner’s earlier
bond hearing violated his right to due process.
In Count II, Petitioner alleges his due process was violated at the bond hearing
because the IJ relied on “an uncorroborated ICE report and vague accusation” in denying
3 Even assuming Petitioner had properly raised the issue, he would not be entitled to relief
under ICE regulations. See 8 C.F.R. § 1003.19(e) (“After an initial bond redetermination,
an alien’s request for a subsequent bond redetermination shall be made in writing and shall
be considered only upon a showing that the alien’s circumstances have changed materially
since the prior bond redetermination.”).
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him bond. 	Pet. at 21. 	Though this Court “has no jurisdiction to consider a habeas
petitioner’s challenge to the decision to either grant or deny bond,” Kumar, 2026 WL
753944, at *2, section “1226(e) does not preclude habeas jurisdiction over constitutional
claims or questions of law,” Hernandez Casallas v. Jones, No. CIV-26-53-J, 2026 WL
324646, at *2 (W.D. Okla. Feb. 6, 2026) (citation modified).
Petitioner requests “a constitutional review of the sufficiency of his bond hearing,”
which he claims is “fully within this Court’s jurisdiction to review such a claim.” Reply
at 5. The undersigned agrees. While “courts cannot override an immigration judge’s bond
decision simply because they might have reached a different result,” “habeas relief is
appropriate only if the immigration judge’s exercise of discretion in denying bond was so
arbitrary that it would offend fundamental tenets of due process.” Nucamendiz, 2026 WL
221449, at *2 (citation modified); see also De Armas Ramos v. Bondi, No. 26-CV-00455,
2026 WL 837244, at *1 (D.N.M. Mar. 26, 2026) (“Accordingly, § 1226(e) does not strip
federal courts of jurisdiction to consider ‘constitutional challenge[s]’ to the ‘procedures
adopted by the Attorney General for all detention decisions under § 1226(a).’” (quoting
Miranda v. Garland, 34 F.4th 338, 352 (4th Cir. 2022))); accord Sin Johal v. Bondi, No.
CIV-25-1408-J, 2026 WL 893185, at *2 (W.D. Okla. Apr. 1, 2026) (finding the court had
jurisdiction and agreeing “a procedural due process violation likely occurred” at a bond
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hearing but was ultimately rendered harmless). As such, the Court has jurisdiction to the
extent Petitioner challenges his due process at the IJ’s bond hearing.4
D. 	Petitioner has not demonstrated that the IJ violated his right to due
process.
As noted above, the Court’s review of the IJ’s decision is limited to whether the IJ
exercised his discretion in accordance with the law when denying Petitioner bond. 	“To
make this showing, [petitioner] can either point to the language of the immigration judge’s
opinion or demonstrate that the evidence itself could not—as a matter of law—have
supported the immigration judge’s decision to deny bond.” 	Diaz Ortiz v. Smith, 384 F.
Supp. 3d 140, 143 (D. Mass 2019) (citation modified). 	“In a fundamentally fair bond
hearing, due process has three essential elements. 	The noncitizen ‘(1) is entitled to
factfinding based on a record produced before the decisionmaker and disclosed to him or
her; (2) must be allowed to make arguments on his or her own behalf; and (3) has the right
to an individualized determination of his [or her] interests.’” 	De Souza v. Soto, No. CV
4 The undersigned acknowledges the Court previously found it lacked jurisdiction to review
Petitioner’s argument that his bond hearing was deficient under 8 U.S.C. § 1226(e). Perez,
2026 WL 597126, at *5. 	However, the undersigned concludes the Court does have
jurisdiction to review Petitioner’s specific claims raised in this second habeas proceeding
to the limited extent the Petition alleges a constitutional claim that his due process rights
were violated. 	See Hernandez Casallas, 2026 WL 324646, at *2; see also Hernandez v.
Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (stating § 1226(e) does not eliminate habeas
jurisdiction “over constitutional claims or questions of law”); Miranda, 34 F.4th at 353
(same); accord Perez, 2026 WL 597126, at *6 (noting how in the First Habeas Proceeding,
unlike here, Petitioner did “not assert any arguments regarding impropriety of burden
allocation at the bond hearing”).
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25-18734, 2026 WL 102946, at *3 (D.N.J. Jan. 14, 2026) (quoting Ghanem v. Warden
Essex Cnty. Corr. Facility, No. 21-1908, 2022 WL 574624, at *2 (3d Cir. Feb. 25, 2022)).
For habeas relief, Petitioner must show the IJ’s “decision was somehow legally
erroneous or unconstitutional.” Kumar, 2026 WL 753944, at *2; see also, e.g., id. (denying
habeas motion where petitioner failed to allege he was denied the opportunity to present
evidence at a bond hearing or that the IJ improperly shifted the burden of proof); Mendez
v. Dedos, No. 26-cv-394, 2026 WL 973077, at *2 (D.N.M. Apr. 10, 2026) (granting habeas
petitioner’s motion to enforce where IJ did not appropriately shift the burden to the
government at the bond hearing as ordered by the district court); Garcia v. Hyde, No. 25-
CV-585, --- F. Supp. 3d ---, 2025 WL 3466312, at *11 (D.R.I. Dec. 3, 2025) (granting
habeas because the IJ failed to apply the correct standard and ignored two key documents).
Petitioner fails to make any such showing here that the IJ’s decision was legally
erroneous or unconstitutional. To support his assertion that his bond hearing violated his
constitutional rights, Petitioner only generally alleges: “Courts have found that due process
requires the government to bear the burden of proving, at any bond hearing, that the
noncitizen is a danger, flight risk, or threat to national security.” Pet. at 15 (citing L.G. v.
Choate, 744 F. Supp. 3d 1172 (D. Colo. 2024)). However, Petitioner fails to show how he
was entitled to such burden shifting at his bond hearing.5
5 The IJ’s order did not state which party had the burden of proof at the bond hearing. Doc.
1-4. 	The undersigned presumes the IJ assigned the burden to Petitioner, consistent with
ICE regulations and BIA precedent. 	See, e.g., Matter of Guerra, 24 I. & N. Dec. 37, 40
(BIA 2006) (stating the “burden is on the alien to show to the satisfaction of the
Immigration Judge that he or she merits release on bond”). 	However, Petitioner fails to
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First, Petitioner does not allege now that he sought burden shifting in his first
petition—because he did not. Perez, 2026 WL 597126, at *6 n.11 (noting that Petitioner
failed to “assert any arguments regarding impropriety of burden allocation at the bond
hearing” in the First Habeas Proceeding); see also Perez v. Holt, No. 25-1151-SLP, Doc.
1 (W.D. Okla. Oct. 3, 2025) (Petition in the First Habeas Proceeding). 	Further, while
Petitioner cites district courts in the Tenth Circuit ordering respondents to bear the burden
at § 1226(a) bond hearings in different factual scenarios, he has not pointed to any binding
Tenth Circuit precedent that requires the government to bear the burden in every case. In
fact, Petitioner bears such a burden under ICE regulations. 	See 8 C.F.R. § 236.1(c)(8)
(stating a noncitizen generally has the burden at a bond hearing to show his “release would
not pose a danger to property or persons” and he “is likely to appear for any future
proceeding”). If, for instance, Petitioner had sought a bond hearing with the burden on the
government in the First Habeas Proceeding, he would be better positioned now to allege
his bond hearing violated due process. 	See Kumar, 2026 WL 753944, at *2 (denying
habeas motion because “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”).
Petitioner fails to establish any due process violation from his prior bond hearing
where he could have but did not request burden shifting either at the hearing or in his First
point to any evidence the IJ did, in fact, assign him the burden. See De Armas Ramos, 2026
WL 837244, at *2 (finding a petitioner’s bond hearing comported with due process because
“nothing in the record demonstrates that the IJ failed to apply the burden-shifting
framework” (citation modified)).
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Habeas Proceedings. Petitioner now claims that “Respondents continue to refuse to give
him any kind of individualized hearing at which they bear the burden of proving the
necessity of detention.” 	Pet. at 22. 	His belated arguments in this Petition that he was
entitled to burden shifting at a bond hearing in late 2025 are unpersuasive. 	See, e.g.,
Cristobal v. Asher, No. C20-1493, 2020 WL 8678097, at *4 (W.D. Wash. Dec. 14, 2020)
(finding “there is nothing showing that petitioner’s first hearing was conducted by an unfair
IJ or that a shift in burden, itself, justifies a new hearing” where there is no allegation it
should have been shifted in the prior hearing, and concluding petitioner’s due process was
not violated) (R&R), adopted, No. C20-1493, 2021 WL 796597 (W.D. Wash. Mar. 2,
2021); Colon-Pena v. Rodriguez, No. CV 17-10460, 2018 WL 1327110, at *3 (D.N.J. Mar.
15, 2018) (holding petitioner’s prior bond hearings did not violate due process where the
burden was placed on petitioner when petitioner failed to show the burden should have
been shifted to the government at those hearings).6
Finally, Petitioner acknowledges he was allowed to present evidence and the IJ
considered the evidence at the prior hearing. 	Pet. at 7. 	And nothing in the IJ’s decision
indicates the IJ failed to consider or improperly considered the evidence Petitioner
presented. See, e.g., Nucamendiz, 2026 WL 221449, at *2 (finding the IJ’s determination
6 As an alternative remedy, Petitioner asks the Court to order “that Respondents provide a
constitutionally sufficient bond hearing under § 1226(a) within five days.” Pet. at 3. But
in his Reply, he clarifies “all that Petitioner requests of the Court is a constitutional review
of the sufficiency of his bond hearing.” 	Reply at 5 (citation modified). 	To the extent
Petitioner seeks another bond hearing with his new removal proceedings, he fails to show
entitlement to such a hearing.
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petitioners were a flight risk did not violate due process because “Respondents and
Petitioners were each permitted to present evidence of risk of flight at their respective
hearings, and the reasons given by the immigration judge were, in each case, specific to
the petitioner’s circumstances and plausibly related to the risk that the petitioner would
abscond”); Garcia, 2025 WL 3466312, at *11 (granting habeas because the IJ failed to
apply the correct standard and the record showed the IJ ignored two key documents).
The undersigned acknowledges the IJ’s order lacks much detail. But Petitioner fails
to point to any document the IJ didn’t consider; nor has he otherwise established he did not
receive a true individualized hearing. The record shows the IJ gave significant weight to
the statements made in Petitioner’s I-213 narrative and his prior voluntary departure. See
Doc. 1-4. Ultimately, Petitioner takes issue with the IJ’s weighing of evidence, which this
Court does not have jurisdiction to review. 	Regardless whether this Court would have
given different weight to any piece of evidence, § 1226(e) bars this Court’s review of the
IJ’s discretionary determination that Petitioner is a flight risk. Accordingly, Petitioner has
failed to establish his due process rights were violated at the bond hearing.7
V. 	Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court DENY the
Petition. 	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 May 7,
7 As this Court did previously, the undersigned has reviewed the cases cited by Petitioner
and found them to be “factually distinguishable or otherwise inapposite.” Perez, 2026 WL
597126, at *6 n.11.
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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 May 12, 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 30 th day of April, 2026.
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