Jose-De-Jose v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
PASCUAL JOSE-DE-JOSE,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
)
)
)
)
)
)
)
)
)
Case No. CIV-25-1454-SLP
O R D E R
Petitioner, Pascual Jose-de-Jose, represented by counsel, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. 	Before the Court is the Report and
Recommendation [Doc. No. 12] (R&R) of United States Magistrate Judge Suzanne
Mitchell. The Magistrate Judge recommends granting, in part, the Petition. Respondents
have filed an Objection [Doc. No. 13] to which Petitioner responded [Doc. No. 15] and the
matter is at issue. 	The Court reviews de novo any portion of the R&R to which
Respondents have made specific objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
Having conducted that review, and for the reasons that follow, the Court ADOPTS the
R&R and GRANTS IN PART the Petition.
Petitioner, a Guatemalan citizen, entered the United States approximately twenty
years ago and has resided in the United States continuously since he was four years old.
In October 2025, he was placed into removal proceedings by U.S. Immigration and
Customs Enforcement (ICE), where he has been held without bond. 	As set forth in the
R&R, Petitioner has been held without bond because all IJs are subject to the binding
Case 5:25-cv-01454-SLP Document 16 Filed 02/09/26 Page 1 of 5

2
precedent of Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025), “which holds that
those who entered the United States without admission or parole are ineligible for a bond
hearing.” R&R [Doc. No. 12] at 2. Petitioner has been continuously detained at Cimarron
Correctional Facility in Cushing, Oklahoma since his arrest pursuant to the mandatory
detention provision set forth in 8 U.S.C. § 1225(b)(2)(A).
On December 3, 2026, Petitioner filed this action, claiming violations of the
Immigration and Nationality Act and a violation of his due process rights under the Fifth
Amendment to the United States Constitution. Petitioner claims that § 1225(b)(2)(A) does
not apply to him and that his continued detention without a bond hearing violates his due
process rights. As relief, Petitioner seeks release from custody or, in the alternative, a bond
hearing pursuant to 8 U.S.C. § 1226(a).
The Magistrate Judge issued a thorough and well-reasoned R&R and concluded that
habeas relief should be granted, in part. As an initial matter, the Magistrate Judge found
that 8 U.S.C. § 1252(g) is not a jurisdictional bar to this Court’s review of the claims
asserted by Petitioner. 	The Magistrate Judge then recommended that the Court grant
habeas relief and order Respondents to provide Petitioner with an individualized bond
hearing under § 1226(a) within seven business days or otherwise release Petitioner if he
has not received a lawful bond hearing within that time period. The Magistrate Judge also
recommended that the Court order Respondents to certify compliance by filing a status
report within ten business days of the Court’s Order. 	Finally, the Magistrate Judge
Case 5:25-cv-01454-SLP Document 16 Filed 02/09/26 Page 2 of 5

3
recommended that the Court decline to address Petitioner’s due process claim1 and deny
Petitioner’s Emergency Motion for Temporary Restraining Order as moot.
Respondents object to the R&R, arguing that the Magistrate Judge erroneously
found that 8 U.S.C. § 1226(a) governs Petitioner’s detention rather than 8 U.S.C.
§ 1225(b)(2)(A). 	The Court concurs with the Magistrate Judge’s findings and, having
thoroughly 	reviewed 	the Objection, 	rejects 	Respondents’ 	statutory interpretation 	of
§§ 1226(a) and 1225(b)(2)(A). The Court further adopts the reasoning set forth in Lopez
v. Corecivic Cimmaron Corr. Facility, No. CIV-25-1175-SLP, 2026 WL 165490 at *3-7
(W.D. Okla. Jan. 21, 2026), where this Court has previously addressed, in a more detailed
Order, these same issues. 	In doing so, the Court joins the decision reached by the vast
majority of district courts in this judicial district,2 in district courts within the Tenth Circuit3
and across the country4 to have addressed the same issues as those raised by Petitioner.5
1 Neither party has objected to the Magistrate Judge’s recommendation that the Court need not
address Petitioner’s due process claim and the Court concurs with that recommendation.
2 See, e.g., Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026 WL 94641 at *2 (W.D. Okla. Jan.
13, 2026) (collecting cases in this judicial district finding that § 1252(g) does not present a
jurisdictional bar); Lopez, 2026 WL 165490 at *5 (collecting cases in this judicial district
concluding that §1225(b)(2) does not govern the petitioner’s detention).
3 See, e.g., Aguilar Tanchez v. Noem, No. 2:25-cv-1150, 2026 WL 125184 (D. Utah Jan. 16, 2026);
Hernandez v. Baltazar, No. 1:25-CV-03094-CNS, 2025 WL 2996643 (D. Colo. Oct. 24, 2025).
4 See, e.g., Lopez, 2026 WL 165490 at *7 (collecting cases concluding that §1226(a) is the
governing statutory framework).
5 The Court is certainly aware of authority to the contrary, including two decisions entered in this
judicial district. See Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344 at **3-5
(W.D. Okla. Jan. 6, 2026); Montoya v. Holt, No. CIV-235-1231-JD, 2025 WL 3733302 at **5-12
(W.D. Okla. Dec. 26, 2025).
Case 5:25-cv-01454-SLP Document 16 Filed 02/09/26 Page 3 of 5

4
The Court’s decision is also in accord with the Seventh Circuit, which rejected the statutory
interpretation of §1225(b)(2) as urged by Respondents. See Castañon-Nova v. U.S. Dep’t
of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025); but see Buenrostro-Mendez v.
Bondi, No. 25-20496, 2026 WL 323330 (5th Cir. Feb. 6, 2026). 	Accordingly, the Court
concludes 	that 	§ 	1226(a) 	governs 	Petitioner’s 	detention, 	and 	he 	is 	entitled 	to 	an
individualized bond hearing.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
12] is ADOPTED and the Amended Petition [Doc. No. 7] is GRANTED IN PART as
follows:
1. 	Count I of the Amended Petition is GRANTED and Respondents are
ORDERED to provide Petitioner with a bond hearing pursuant to 8 U.S.C. § 1226(a) within
seven (7) days of the date of this Order, or otherwise release Petitioner if he has not received
a lawful bond hearing within that period.
2. 	Count II is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Respondents shall certify their compliance with
this Order by filing a status report within ten (10) days of this Order. 	The status report
shall detail whether Petitioner was provided a bond hearing or has been released, including
the associated dates with either action.
IT IS FURTHER ORDERED that Petitioner’s Emergency Motion for Temporary
Restraining Order [Doc. No. 11] is DENIED as MOOT.
A separate judgment shall be entered.
Case 5:25-cv-01454-SLP Document 16 Filed 02/09/26 Page 4 of 5

5
IT IS SO ORDERED this 9 th day of February, 2026.
Case 5:25-cv-01454-SLP Document 16 Filed 02/09/26 Page 5 of 5