Husein v. Mullin et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AHMED YOUSUF HUSEIN,
Petitioner,
v.
MARKWAYNE MULLIN, et al.,
Respondents.
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Case No. CIV-26-2098-D
REPORT AND RECOMMENDATION
Petitioner Ahmed Yousuf Husein, a noncitizen1 proceeding with counsel,
filed a petition seeking a Writ of Habeas Corpus under 28 U.S.C. § 2241. Doc.
1.2 United States District Judge Timothy D. DeGiusti referred this matter to
the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B), (C). Doc. 7. Respondents filed a response to the petition, Doc.
11, and Petitioner filed a reply, Doc. 13. So, the matter is at issue.
For the reasons set forth below, the undersigned recommends that the
Court GRANT the petition in part and order Respondents to provide Petitioner
1 	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)).
2 	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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with an individualized bond hearing within ten days or otherwise release him
from custody.
I. 	Factual background and procedural history.
Petitioner is a citizen of Somalia who entered the United States on or
around June 9, 2022. Doc. 1, Ex. 1, at 1. That same day, the Department of
Homeland Security (DHS) detained Petitioner and paroled him into the United
States until August 8, 2022. Id.; see also id. Ex. 2, at 2. On September 12, 2022,
DHS initiated removal proceedings against Petitioner by filing a Notice to
Appear 	(NTA) 	with 	the 	Immigration 	Court, 	charging 	Petitioner 	as
inadmissible under 8 U.S.C. §§ 1182(a)(6)(A)(i)3 and (a)(7)(A)(i)(I).4 Id. Ex. 3,
at 1, 4.
On September 13, 2022, DHS issued a warrant for Petitioner’s arrest. Id.
Ex. 4, at 2. That same day, DHS released Petitioner under an Order of Release
on Recognizance. Id. at 3-4; see also id. Ex. 5, at 2-4.
3 	A noncitizen is inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) if they are
present in the United States without having been admitted or paroled or
arrived in the United States at any time or place other than as designated by
the Attorney General.
4 	A noncitizen is inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) when, at
the 	time 	of 	the 	noncitizen’s 	application 	for 	admission, 	they 	are 	not 	in
possession of a valid entry document and a valid document of identity and
nationality.
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On March 7, 2023, Petitioner filed a Form I-589, Application for Asylum
and Withholding of Removal, with the Immigration Court. Id. Ex. 6. On March
26, 	2025, 	an 	Immigration 	Judge 	(IJ) 	denied 	Petitioner’s 	applications 	for
immigration relief and ordered him removed to Somalia. Id. Ex. 8, at 2-3. On
April 10, 2025, Petitioner timely appealed the IJ’s decision to the Board of
Immigration Appeals (BIA). Id. at 3. Petitioner’s appeal remains pending. Doc.
15.5
On or around July 28, 2026, Immigration and Customs Enforcement
(ICE) re-detained Petitioner. Doc. 1, at 10. On July 29, 2026, ICE issued a
warrant against Petitioner. Doc. 11, Ex. 1, at 1. ICE is currently detaining
Petitioner at the Cimarron Correctional Facility in Cushing, Oklahoma.6 Doc.
1, at 11.
5 	On October 8, 2026, the undersigned ordered an update on Petitioner’s
immigration proceedings, as the EOIR Automated Case Information website
did not indicate that an appeal was filed or pending with the BIA. Doc. 14.
Petitioner submitted evidence that an appeal was filed and remains pending.
Doc. 15. Respondents similarly submitted evidence of Petitioner’s pending
appeal. Doc. 16.
6 	See 	USCIS, 	Online 	Detainee 	Locator 	System,
https://locator.ice.gov/odls/#/results (last visited Oct. 13, 2026).
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II. 	Petitioner’s claims.
Petitioner alleges that: (1) his detention without notice violates his
procedural due process rights under Mathews v. Eldridge, 424 U.S. 319 (1976);
(2) ICE, in violation of 8 U.S.C. § 1226(a), failed to provide a warrant or
otherwise demonstrate it possessed probable cause to arrest him; (3) ICE
abused its discretion under the Administrative Procedure Act (APA); and (4)
his arrest violates the Fourth Amendment of the United States Constitution
because he was arrested without a warrant or probable cause. Id. at 20-43.
Petitioner requests that the Court: (1) assume jurisdiction over his
petition; 	(2) 	prohibit 	Respondents 	from 	transferring 	Petitioner 	from 	this
district absent the Court’s approval; (3) find Respondents’ revocation of his
release on recognizance and his arrest unconstitutional and in violation of the
Administrative Procedure Act; (4) issue a writ of habeas corpus ordering
Respondents 	to immediately release 	Petitioner; (5) order Respondents to
return 	Petitioner’s 	seized 	property 	upon 	release; 	(6) 	award 	Petitioner
attorney’s fees and costs under the Equal Access to Justice Act (EAJA) and any
other basis justified under law; and (7) grant any further relief deemed proper.7
Id. at 44-45.
7 	The Court need not address Petitioner’s request for EAJA fees and costs
as a prevailing party, as Petitioner must separately seek these after a final
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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)).
IV. 	Petitioner is entitled to a bond hearing under § 1226(a).
Respondents acknowledge that, in light of Santillan Quiroz v. Mullin,
180 F.4th 1226 (10th Cir. 2026), Petitioner is entitled to a bond hearing before
an IJ. Doc. 11, at 1. The undersigned agrees and concludes that a bond hearing
is the appropriate remedy. See, e.g., Santillan Quiroz, 180 F.4th at 1247
(explaining that noncitizens subject to §1226(a) are “eligible for bond”); see also
judgment. 28 U.S.C. § 2412(d)(1)(B). Additionally, the Court need not address
whether it assumes jurisdiction over this matter or whether Respondents are
permitted to transfer Petitioner during the pendency of these proceedings,
because the Court addressed these issues in its Order for Response, Doc. 9.
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Vasquez-Lopez v. Grant, No. CIV-26-1494-D, 2026 WL 2983729, at *1 (W.D.
Okla. Oct. 5, 2026) (finding the petitioner was detained under § 1226(a) and
the relief warranted was a bond hearing).
Section “1226(a) contemplates individualized custody determinations
and authorizes release on bond or conditional parole pending completion of
removal 	proceedings.” 	Zhakhonov 	v. 	Grant, 	No. 	CIV-26-350-J, 	2026 	WL
1865418, at *3 (W.D. Okla. June 29, 2026). Here, Respondents have not
provided Petitioner with an individualized custody determination since his
detention in July 2026. Doc. 1, at 11; see, e.g., Zhakhonov, 2026 WL 1865418,
at *3 (“[T]he process afforded by § 1226(a) itself serves as the mechanism
through which a detainee’s liberty interest is protected.”). Because this is “the
very process Congress prescribed for detainees held pursuant to § 1226(a),” he
is entitled to a bond hearing under § 1226(a). Zhakhonov, 2026 WL 1865418,
at *3; see also Navarrete v. Mullin, No. CIV-26-224-SLP, 2026 WL 2323345, at
*2 (W.D. Okla. Aug. 11, 2026) (finding the petitioner had a “protected liberty
interest arising from her release on her own recognizance” and that the level
of process owed to her was “for Respondents to provide [her] with a bond
hearing 	pursuant 	to 	8 	U.S.C. 	§ 1226”); 	Todyrenchuk 	v. 	Warden 	of
Diamondback Corr. Facility, No. CIV-26-1243-J, 2026 WL 2186977, at *3
(W.D. Okla. July 29, 2026) (“[T]he Court concludes the proper remedy in this
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case is not immediate release, but an individualized bond hearing before an
Immigration Judge exercising jurisdiction under § 1226(a).”).
Therefore, 	the 	Court 	should 	grant 	the 	petition 	in 	part 	and 	order
Respondents to provide Petitioner with a bond hearing under § 1226(a) within
ten days; if they fail to do so, they must release Petitioner. See, e.g., Santillan
Quiroz, 180 F.4th at 1251 n.13 (directing district court to order the government
to provide the petitioner a bond hearing within seven days “[b]ecause [the
petitioner] can properly be subject to detention under § 1226(a).”); see also
Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176, at *6 (W.D. Okla. Dec.
16, 2025) (“Petitioner has not received a bond hearing and Respondents raise
no 	objection 	challenging 	their 	obligations 	to 	provide 	bond 	hearings 	for
noncitizens that are detained under 8 U.S.C. § 1226(a).”).8
8 	Given the recommended statutory relief, the undersigned recommends
that the Court decline to reach Petitioner’s remaining constitutional and APA
claims and his request for return of seized property. The Court can grant him
relief under § 1226(a). See Vasquez-Lopez, 2026 WL 2983729, at *2 n.1 (“Given
[the Court’s grant of relief under § 1226(a)], the Court declines to address
Petitioner’s remaining claims at this time.”); see also 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.”); Singh v. Cerna, No. CIV-26-757-R, 2026
WL 1973892, 	at *1 (W.D. Okla. July 8, 2026) (declining to address the
petitioner’s due process and “other claims” because the court was granting the
petitioner habeas corpus relief on the basis of his statutory claim and directing
the respondents to provide him with a bond hearing under § 1226(a)).
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V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s habeas petition in part and order Respondents to
provide 	Petitioner 	with 	an 	individualized 	bond 	hearing 	before 	a
neutral IJ within ten days; if they fail to do so, they must release
Petitioner. 	The 	undersigned 	also 	recommends 	that 	the 	Court 	order
Respondents to certify their compliance with the Court's order by filing a status
report within ten business days of the Court's order, and to promptly provide
a copy of this order to counsel for the Warden of the Cimarron Correctional
Facility.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by October 21,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.9 The undersigned further advises the parties that failure to make timely
9 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation. 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 & 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
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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 14th day of October, 2026.
need not be in every instance–particularly where strict application would
undermine the habeas review process”).
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