5:26-cv-00188•Doe v. Grant et al
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA JOHN DOE, ) ) Petitioner, ) ) v. ) Case No. CIV-26-188-SLP ) SCARLET GRANT, et al., ) ) Respondents. ) REPORT AND RECOMMENDATION Petitioner John Doe,1 a citizen of El Salvador proceeding with counsel, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his detention by the U.S. Immigration and Customs Enforcement (“ICE”).2 (Doc. 1).3 United States District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). In accordance with the briefing schedule, (Doc. 12), Respondents timely filed a response.4 (Doc. 15). Petitioner timely filed a reply. (Doc. 16). At the order of the Court, the parties 1 Petitioner has been granted permission to proceed under pseudonym. (Doc. 11). 2 Petitioner is housed at Cimarron Correctional Facility in Cushing, Oklahoma. (Doc. 1, at 1). 3 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF pagination. 4 The response was not filed on behalf of Respondent Scarlet Grant, Warden of the Cimarron Correctional Facility, because she is not a federal official. (Doc. 15, at 1 n.1). The undersigned concludes that a separate response from Warden Grant is not necessary to resolve this matter. Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 1 of 19
2 provided supplemental filings. (Docs. 18, 21). As fully set forth below, the undersigned recommends that Petition be GRANTED in part and that the Court order Respondents to provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a), and that at the bond hearing, the Government shall bear the burden of proving, by clear and convincing evidence, that Petitioner is a flight risk and/or a danger to the community in order to justify continued detention. I. Introduction to the Immigration and Nationality Act The two sections of the Immigration and Nationality Act (“INA”) at issue 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.” (Emphasis added). In other words, the alien is subject to mandatory detention while he awaits removal proceedings. On the other hand, § 1226(a) authorizes detention of an alien “on a warrant issued by the Attorney General.” Id. § 1226(a) (citation modified). An alien detained under § 1226(a) is entitled to a bond hearing at which he can argue to an immigration judge that he should be released while he awaits removal proceedings because he is not a danger to others Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 2 of 19
3 or at risk for non-appearance. 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)). Accordingly, if Petitioner is an “applicant for admission” and “seeking admission” under § 1225(b)(2)(A), he must be detained and 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 and potentially release. For many years, Immigration Judges applying the INA provided bond hearings for aliens who had entered the country without inspection or admission and were later apprehended and detained by ICE. See Jonathan Javier Yajure Hurtado, 29 I. & N. Dec. 216, 225 n.6 (BIA 2025) (“Hurtado”). But on September 5, 2025, the Board of Immigration Appeals (“BIA”) determined that an immigration judge does not have authority to hear a request for bond by an alien present in the United States who has not been admitted after inspection because the alien was “subject to mandatory detention” under § 1225. Id. at 229. This change in interpretation of the INA has led to a nationwide influx of habeas corpus petitions seeking bond hearings for aliens who were recently detained after living for years in the United States without inspection. Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 3 of 19
4 II. Factual Background Petitioner entered the United States without inspection or parole on or about August 8, 2014. (Doc. 1, at 7; Doc. 15, at Ex. 1, at 1; Doc. 21, at 2-3).5 ICE encountered Petitioner shortly after entry and on September 26, 2014, instituted removal proceedings against him through issuance of a Notice to Appear (“NTA”). (Doc. 15, at Ex. 1, at 2). On August 24, 2025, Petitioner was arrested in Tulsa County for aggravated DUI, unsafe lane use, improper stopping, lack of valid driver’s license, failure to carry insurance and transporting an open container. (Doc. 15, at 3-4). Petitioner pleaded guilty and completed his 45-day sentence in September 2025. (Doc. 1, at 2, 4; Doc. 15, at 4 n.4). Petitioner then transferred into ICE custody on an immigration detainer. (Doc. 1, at 2, 4). Respondents first asserted that Petitioner entered the United States in 2025 and was detained pursuant to 8 U.S.C. § 1225(b)(1). (Doc. 15, at 9-10). After supplemental briefing clarified that Petitioner entered the United States in 2014, Respondents asserted that “Petitioner remains lawfully detained under 8 U.S.C. § 1225(b)(2)(A).” (Doc. 21, at 3). Petitioner asserts he “has not been meaningfully considered for release by [ICE]” and that seeking administrative relief has proven futile. (Doc. 1, at 2). Petitioner argues neither Matter of Q. Li, 29 I. & N. Dec. 66 (BIA 2025), nor Hurtado support detaining him under § 1225(b)(2)(A) and his detention should therefore be governed by 8 U.S.C. § 1226(a). 5 Respondents initially alleged Petitioner entered August 8, 2025, based on a document provided by ICE. (Doc. 15, at 4). Petitioner objected in his Reply, (Doc. 16, at 1-2), and after further briefing, Respondents conceded the I-213 included a typo and Petitioner entered in 2014. (Doc. 21, at 2-3). Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 4 of 19
5 (Doc. 1, at 9-12). Petitioner’s removal proceeding is ongoing. (See Doc. 15, at 5; id. at Ex. 1, at 2). III. Petitioner’s Claims and Respondents’ Responses In Count I, Petitioner alleges a violation of the INA, arguing that his detention is unlawful because § 1225(b)(2)(A) “applies only to noncitizens detained as ‘applicants for admission’ during the arrival or border inspection process” and his detention arises from an interior arrest years after his entry. (Doc. 1, at 12-13). In Count II, Petitioner alleges that denial of bond consideration violates due process under the Fifth Amendment to the Constitution. (Id. at 13-14). In Count III, Petitioner alleges dangerous conditions of confinement violate his substantive due process rights. (Id. at 14-15). Petitioner contends Respondents “have demonstrated deliberate indifference to [his] serious medical needs, including failure to evaluate neurological symptoms consistent with stroke risk and failure to appropriately monitor HIV progression.” (Id. at 15). As relief Petitioner requests immediate release from custody or, alternatively, a bond hearing within three days at which • the government bears the burden of proving, by clear and convincing evidence, that Petitioner is both a flight risk and a danger to the community; and • the Immigration Judge must consider Petitioner’s medical conditions, length of detention, family and community ties, and availability of conditions of release. (Id.) Respondents contend that review of Petitioner’s claims is jurisdictionally barred. (Doc. 15, at 6-9). Respondents further assert that Petitioner is lawfully detained under § Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 5 of 19
6 1225(b)(2)(A). (Doc. 21, at 3-4). Respondents state that Petitioner’s due process argument is premature and without basis. (Doc. 15, at 10-12). Respondents also argue Petitioner’s substantive due process claims tied to his conditions of confinement are not cognizable in habeas. (Id. at 12-14). IV. 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. § 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)). V. Analysis A. The Court Has Jurisdiction To Consider the Petition. Respondents first argue this Court lacks jurisdiction to consider Petitioner’s claims, based on 8 U.S.C. §§ 1252(g) and 1252(b)(9). (Doc. 15, at 6-9). However, Judges of this District have consistently ruled the INA “does not jurisdictionally bar” a habeas claim like Petitioner’s because such a claim does not arise from and “does not challenge Respondents’ decision to commence or adjudicate proceedings or execute removal orders.” Colin v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *2 (W.D. Okla. Dec. 16, 2025); see also Gonzalez Cortes v. Holt, No. CIV-25-1176-SLP, 2026 WL 147435, at *3 (W.D. Okla. Jan. 20, 2026) (same); Alvarado Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302, at *4-5 (W.D. Okla. Dec. 26, 2025) (same); Valdez v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *1 (W.D. Okla. Dec. 22, 2025) (same); Urbina Garcia v. Holt, No. CIV-25- Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 6 of 19
7 1225-J, 2025 WL 3516071, at *2 (W.D. Okla. Dec. 8, 2025) (same); Li v. Grant, No. CIV- 25-1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20, 2026) (same). But see Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D. Okla. Jan. 6, 2026) (expressing “grave doubts over whether it has subject matter jurisdiction” but assuming it had jurisdiction to proceed to the merits). The undersigned agrees with the majority of Judges of this District in finding that jurisdiction exists to consider Petitioner’s habeas challenge to detention. B. The Undersigned Agrees With the Majority of this District Court that the Detention of Aliens Like Petitioner is Governed by § 1226(a). According to Petitioner, his continued detention under § 1225(b)(2)(A) is unlawful and he is entitled to a bond hearing under § 1226(a). (Doc. 1, at 11-12). Respondents contend that because Petitioner did not enter the country lawfully and has not departed, he is an “applicant for admission” and therefore he is properly detained under § 1225(b)(2)(A). (Doc. 21, at 3). The undersigned agrees with Petitioner. Indeed, the undersigned has issued more than twenty Reports and Recommendations setting forth a detailed analysis of the statutory text and legislative history of § 1225 and § 1226, a discussion of the BIA’s application of the statutes for the past three decades, and comparison to the reasoning of numerous recent cases from both within and outside this District that have considered the same issues. Central to that analysis is the undersigned’s conclusion that for § 1225(b)(2)(A) to apply, the alien must be both an “applicant for admission” and “seeking admission” and that the use of “seeking” “implies action – something that is currently occurring, and in this Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 7 of 19
8 instance, would most logically occur at the border upon inspection.” Damian v. Jones, No. CIV-25-1561-J, 2026 WL 682545, at *7 (W.D. Okla. Feb. 2, 2026), report and recommendation adopted, 2026 WL 446295 (W.D. Okla. Feb. 17, 2026). Thus, the undersigned has consistently concluded that § 1226(a), not § 1225(b)(2)(A), governs the detention of aliens who were apprehended when they were already present in the country without admission, as opposed to arriving at the border. In response to a growing number of habeas challenges in the Western District of Oklahoma, Chief Judge DeGiusti, Judge Palk, Judge Jones, Judge Russell, and Judge Heaton have repeatedly come to the same conclusion. See, e.g., Damian, 2026 WL 446295, at *2; Li, 2026 WL 147438, at *1; Gonzalez Cortes, 2026 WL 147435, at *5; Valdez, 2025 WL 3709021, at *3; Colin, 2025 WL 3645176, at *4-5. Accordingly, the Judges have granted habeas relief in the form of bond hearings under § 1226(a). The Seventh Circuit Court of Appeals is in agreement, ruling that “while a noncitizen arrested in the Midwest might qualify as ‘an alien present in the United States who had not been admitted,’ § 1225(a)(1), the mandatory detention provision upon which Defendants rely, limits its scope to an ‘applicant for admission’ who is ‘seeking admission,’ § 1225(b)(2)(A).” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061- 62 (7th Cir. 2025). Judges in this District have found the Seventh Circuit’s analysis to be persuasive. Maldonado v. Noem, No. CIV-25-1379-J, 2026 WL 160950, at *1 (W.D. Okla. Jan. 21, 2026); Valdez, 2025 WL 3709021, at *2; Toledo Santos v. Grant, No. CIV-25- Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 8 of 19
9 1433-SLP, 2026 WL 184287, at *2 (W.D. Okla. Jan. 23, 2026).6 Because Petitioner was not detained at the border while “seeking admission,” the undersigned recommends that the Court finds that § 1226(a) governs Petitioner’s detention. C. Petitioner’s Detention Without a Bond Hearing Violates Procedural Due Process. Petitioner alleges that denial of bond consideration violates due process under the Fifth Amendment to the Constitution. (Doc. 1, at 13-14). 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 is well established that the Due Process Clause applies to non-citizens within the United States “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Courts examine procedural due process claims in two steps: (1) is there a protected liberty interest, and (2) if so, what procedures are necessary to ensure deprivation of that protected liberty interest accords with due process. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). “Freedom from imprisonment — from government 6 In contrast, Judge Dishman and Judge Wyrick in this District have adopted Respondents’ position that aliens like Petitioner fall under § 1225(b)(2)(A) and are subject to mandatory detention. See Gutierrez Sosa, 2026 WL 36344; Alvarado Montoya, 2025 WL 3733302. The Fifth and Eighth Circuit Courts of Appeals are in accord. Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498, 502-08 (5th Cir. 2026); Avila v. Bondi, No. 25-3248, --- F.4th ----, 2026 WL 819258 (8th Cir. Mar. 25, 2026). The undersigned respectfully disagrees with the textual analysis and statutory interpretations by these courts. Several Judges in this District have expressly acknowledged the Fifth and Eighth Circuit rulings but have not altered their analysis. See Campa v. Johnson, No. CIV-26-1-HE, 2026 WL 446978, at *1 (W.D. Okla. Feb. 17, 2026); Abhishek v. Holt, No. CIV-26-221-SLP, 2026 WL 852091, at *2 & n.6 (W.D Okla. Mar. 27, 2026); Raj v. Anda-Ybarra, No. CIV-26-125-D, 2026 WL 852093, at *1 & n.1 (W.D. Okla. Mar. 27, 2026). Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 9 of 19
10 custody, detention, or other forms of physical restraint — lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690. Respondents argue that “[g]ranting the Petition under the premise that all detention must be subject to bond hearings would require a reading of the Due Process Clause that the Supreme Court has never endorsed and in fact has repeatedly avoided.” (Doc. 15, at 12). The undersigned’s decision does not reach “all detention.” But for non-citizens subject to § 1226(a), the INA provides the due process of a bond hearing. Indeed, the undersigned finds that (1) as a non-citizen properly classified under § 1226, Petitioner has a protected liberty interest in freedom from immigration detention, and (2) the procedure of the bond hearing as provided in § 1226 is necessary to ensure that deprivation of that protected liberty interest accords with due process. Thus, Petitioner’s procedural due process rights have been violated by Respondents’ decision to detain him without a bond hearing. As articulated by a district court of this Circuit: Because this Court holds that § 1226 governs Petitioner’s detention, the due process owed to Petitioner is that provided for in § 1226—namely, an individualized bond hearing before an IJ [immigration judge]. Having erroneously concluded that Petitioner was mandatorily detained under § 1225, the IJ in Petitioner’s case declined to make an individualized assessment of whether Petitioner posed any danger to the community, threatened national security, or was at risk of flight. Thereafter, Petitioner’s continued detention without the bond hearing that should have been provided to him pursuant to § 1226 constitutes an ongoing violation of his constitutional right to due process. Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025) (internal citation omitted); see also Requejo Roman v. Castro, No. 2:25-cv-1076-DHU-JHR, --- F. Supp. 3d ----, 2026 WL 125681, at *8 (D.N.M. Jan. 12, 2026) (“Because Petitioner is subject to § Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 10 of 19
11 1226’s discretionary detention provision rather than mandatory detention under § 1225, he is entitled to a bond hearing. Classifying Petitioner under § 1225 has thus deprived him of due process by denying him the opportunity to be heard at such a hearing.”) (citations omitted); Facio v. Baltazar, No. 25-CV-03592-CYC, 2025 WL 3559128, at *3 (D. Colo. Dec. 12, 2025) (“[T]he Court agrees with other courts that have, against substantially similar factual backgrounds, concluded that detention without a bond hearing amounts to a due process violation.” After all, “the facts clearly demonstrate that [the petitioner] was entitled to more process than he received pursuant to § 1226(a) and its implementing regulations.”) (first quoting Garcia Cortes v. Noem, No. 1:25-CV-02677-CNS, 2025 WL 2652880, at *4 (D. Colo. Sept. 16, 2025), then quoting Lopez Benitez v. Francis, 795 F. Supp. 3d 475, 495 (S.D.N.Y. 2025)); Lopez-Campos v. Raycraft, 797 F.Supp.3d 771, 785 (E.D. Mich. Aug. 29, 2025) (“[T]he Court has specifically held that Section 1226(a) governs Lopez-Campos’ detention, therefore the process due to him is that which is afforded under Section 1226(a). The discretionary bond framework under Section 1226(a) requires a bond hearing to make an individualized custody determination – a hearing the IJ did not conduct. Therefore, without first evaluating Lopez-Campos’ risk of flight or dangerousness, his detention is a violation of his due process rights.”). Thus, the undersigned recommends that Petitioner be provided a prompt bond hearing under § 1226(a) in order to rectify the violation of his due process rights. Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 11 of 19
12 D. Requiring the Government To Justify Detention at the Bond Hearing Reduces the Risk of an Ongoing and Erroneous Deprivation of Petitioner’s Liberty. Petitioner requests that at a bond hearing, the government should bear the burden of proving by clear and convincing evidence that he is a flight risk or danger to the community. (Doc. 1, at 15). Generally, it is the non-citizen’s burden to demonstrate his release on bond “would not pose a danger to property or persons, and that the alien is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8); see also Velasquez Salazar, 806 F. Supp. 3d at 1242 (quoting same). However, courts within the Tenth Circuit and around the country have increasingly applied the framework in Mathews v. Eldridge, 424 U.S. 319 (1976), to determine the type of process required in immigration detention cases where the Government has unlawfully detained a non-citizen without a bond hearing. See Requejo Roman, 2026 WL 125681, at *8 (D.N.M. Jan. 12, 2026) (“[U]nder normal circumstances, the burden is on the noncitizen . . . . But these are not normal circumstances. . . . In determining what procedures sufficiently protect due process in the immigration context, courts have applied the [Mathews] framework.”); Vizguerra-Ramirez v. Baltazar, No. 25- cv-881-NYW, 2025 WL 3653158, at *13 (D. Colo. Dec. 17, 2025) (“As for the burden of proof, the Court assesses the type of process required in a given case using the so- called Mathews balancing test.”) (internal citation omitted); see also Hernandez-Lara v. Lyons, 10 F.4th 19, 28 (1st Cir. 2021) (“Whether the Due Process clause of the Fifth Amendment entitles a noncitizen detained pursuant to section 1226(a) to a bond hearing at which the government bears the burden” “is guided by the three-part balancing test Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 12 of 19
13 articulated in [Mathews].”). But see Miranda v. Garland, 34 F.4th 338, 358-65 (4th Cir. 2022) (concluding due process does not require burden shifting). Here, all three Mathews factors support affording a Petitioner a bond hearing at which the Government bears the burden of proof. The first Mathews factor is “the private interest that will be affected.” Mathews, 424 U.S. at 335. Here, “[f]reedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty” interest in the Fifth Amendment’s Due Process Clause. Zadvydas, 533 U.S. at 687-88. Thus, the first factor favors Petitioner. See Requejo Roman, 2026 WL 125681, at *9. The second Mathews factor is “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. “Given that Petitioner is appropriately classified under § 1226 and subject to discretionary detention, the risk of erroneously depriving him of his freedom is high if no [immigration judge] has assessed his risk of flight or dangerousness. Requejo Roman, 2026 WL 125681, at *9. Moreover, placing the burden on Petitioner to prove two negatives, i.e., that he is not a flight risk and not a danger to the community, “can often be more difficult than proving a cause for concern.” L.G. v. Choate, 744 F. Supp. 3d 1172, 1183-84 (D. Colo. 2024) (quoting Hernandez-Lara v. Lyons, 10 F.4th 19, 31 (1st Cir. 2021)). The second factor also favors Petitioner. The final Mathews factor is “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. “[T]he administrative Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 13 of 19
14 burden of a bond hearing is minimal.” Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926, 943 (D. Colo. 2025). Shifting the burden at the bond hearing similarly does not “impose an unreasonable administrative or fiscal burden on the Government . . . . The United States has vast resources at its disposal to gather information about Petitioner’s eligibility for bond. And requiring the Government to justify detention may actually promote their separate interest in conserving resources and managing overcrowding at ICE detention facilities.” Requejo Roman, 2026 WL 125681, at *10; see also Velasco Lopez v. Decker, 978 F.3d 842, 854 (2d Cir. 2020) (“[S]hifting the burden of proof to the Government to justify continued detention promotes the Government’s interest . . . in minimizing the enormous impact of incarceration in cases where it serves no purpose.”). The third factor also supports burden shifting at Petitioner’s bond hearing. In being misclassified as subject to detention under § 1225(b)(2)(A), Petitioner has for six months suffered the erroneous deprivation of his ability to seek his liberty through a bond hearing. Imposing the additional procedural safeguard of shifting the burden to the government at the bond hearing is reasonably designed to protect further deprivation of his due process rights. This approach has been followed by multiple judges in New Mexico. See, e.g., Requejo Roman, 2026 WL 125681, at *10 (Judge Urias finding “the Government’s misclassification of Petitioner under § 1225 deprived him of a bond hearing,” considering the Mathews factors, and concluding that “due process requires that he be provided a bond hearing at which the Government bear the burden of proving that Petitioner is not a flight risk or a danger to the community.”); Mieles-Parraga v. Bondi, No. 2:26-CV-00646-KG-JHR, 2026 WL 776489, at *2 (D.N.M. Mar. 19, 2026) (Chief Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 14 of 19
15 Judge Gonzales utilizing same analysis); Lopez-Romero v. Lyons, No. 2:25-CV-01113- MIS-JHR, 2026 WL 92873, at *1 (D.N.M. Jan. 13, 2026) (Judge Strickland utilizing same analysis). Moreover, in the District of Colorado, “the weight of authority. . . is clear: it is the Government’s burden to justify a noncitizen’s continued detention at a bond hearing.” Abanil v. Baltazar, No. 25-CV-4029-WJM-STV, 2026 WL 100587, at *8 (D. Colo. Jan. 14, 2026) (collecting cases and ordering Respondents to provide petitioner “with a bond hearing under § 1226(a) within seven days of this Order, at which the Government shall bear the burden of justifying [his] continued detention by clear and convincing evidence of his dangerousness to the safety of the community, or of his risk of flight”). It should be noted that many courts have found that burden shifting is appropriate when the petitioner has never had a previous bond hearing and release by ICE. See, e.g., Pu Sacvin v. De Anda-Ybarra, No. 2:25-CV-01031-KG-JFR, 2025 WL 3187432, at *3 (D.N.M. Nov. 14, 2025) (finding when petitioner entered the United States in 2006, and was detained for the first time in September 2025 that “the proper habeas remedy is a prompt bond hearing at which the Government must prove, by clear and convincing evidence, that Mr. Pu Sacvin is a flight risk or danger to the community.”); Lopez-Romero, 2026 WL 92873, at *1 (ordering Respondents to provide a bond hearing and shifting burden to the government when petitioner entered the United States in 2001 and was first detained by ICE in October 2025); Abanil, 2026 WL 100587, at *8 (ordering Respondents to provide a bond hearing and shifting burden to the government when petitioner first entered the United States in 2010 and was first detained by ICE and placed in removal proceedings in July 2025). For the reasons stated above, and under the specific factual Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 15 of 19
16 background of this case, the undersigned recommends this Court join these courts and shift the burden to the Government at Petitioner’s bond hearing.7 Having determined the burden should be on the Government to prove risk of flight and danger to the community, the undersigned must determine which standard of proof should apply. The undersigned is convinced by the weight of authority in this Circuit holding that the proper standard is clear and convincing evidence for both risk of flight and danger. See Martinez Escobar v. Baltazar, No. 26-cv-296-NYW, 2026 WL 503313, at *5 (D. Colo. Feb. 24, 2026) (collecting cases in District of Colorado); Requejo Roman, 2026 WL 125681, at *10 (“the standard of proof the Government must meet is one of clear and convincing evidence.”) (internal quotation marks omitted). As one court persuasively explained, In general, the Supreme Court has held that the clear and convincing standard applies to civil detention where liberty is at stake. See, e.g., United States v. Salerno, 481 U.S. 739, 751 (1987) (noting that pretrial detention is permitted “[w]hen the Government proves by clear and convincing evidence that an arrestee presents an identifiable and articulable threat to an individual or the community”); Addington v. Texas, 441 U.S. 418, 433 (1979) (upholding the clear and convincing standard for civil confinement of individuals with severe mental illnesses). . . . The Court recognizes that the rights of noncitizens are not the same as citizens; however, the Court agrees . . . that there is no persuasive justification to conclude that the same noncitizen must face different standards for the same actions, depending upon the forum, i.e., an administrative charge for removal versus a criminal charge of illegal reentry. L.G., 744 F. Supp. 3d at 1186 (citation modified). 7 While the undersigned recommends burden shifting at Petitioner’s bond hearing, a Mathews analysis may not result in such a recommendation in all cases. “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey, 408 U.S. at 482. Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 16 of 19
17 E. Petitioner’s Conditions of Confinement Claims Are Not Cognizable in Habeas. In Count III of the Petition, Petitioner alleges dangerous conditions of confinement at Cimarron Correctional Facility violate his substantive due process rights. (Doc. 1, at 14- 15). Petitioner contends Respondents “have demonstrated deliberate indifference to [his] serious medical needs, including failure to evaluate neurological symptoms consistent with stroke risk and failure to appropriately monitor HIV progression.” (Id. at 15). While the undersigned takes those concerns seriously, such claims cannot form the basis for habeas relief. “It is well-settled law that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) — not through federal habeas proceedings.” Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011) (citation modified) (citing McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (“A habeas corpus proceeding attacks the fact or duration of a prisoner’s confinement and seeks the remedy of immediate release or a shortened period of confinement. In contrast, a civil rights action [ ] attacks the conditions of the prisoner’s confinement....”) (quotation omitted)). See also Cruz Bonilla v. Anda-Ybarra, No. 2:26-cv-824-KG-GBW, 2026 WL 867706, at *2 (D.N.M. Mar. 30, 2026) (finding no basis to grant habeas relief on the claim of immigration detainee challenging deficient medical care) (quoting Standifer). Accordingly, the undersigned recommends that the Court deny Count III. Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 17 of 19
18 VI. Recommendation and Notice of Right to Object For the reasons discussed above, the undersigned recommends that the Petition (Doc. 1) be DENIED as to Count III and as to immediate release but GRANTED as to a bond hearing under § 1226. It is further recommended that the Court order Respondents to provide Petitioner an individualized bond hearing before a neutral Immigration Judge within 7 days of the judgment in this matter, or else release him from custody. It is recommended that the Court order that at the bond hearing, the Government shall bear the burden of proving, by clear and convincing evidence, that Petitioner is a flight risk and/or a danger to the community in order to justify continued detention. The undersigned further recommends that the Court order Respondents to certify compliance by filing a status report within ten days of the Court’s order. The Court advises the parties of their right to object to this Report and Recommendation by April 17, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).8 The Court advises the parties that failure to make timely objection to this report and recommendation waives their right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). 8 Given the expedited nature of these proceedings, the undersigned has reduced the typical objection time to Report and Recommendations. 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 proceedings, they need not be in every instance – particularly where strict application would undermine the habeas review process.”). Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 18 of 19
19 This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge and terminates the referral unless and until the matter is re-referred. ENTERED this 10th day of April, 2026. Case 5:26-cv-00188-SLP Document 22 Filed 04/10/26 Page 19 of 19
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