Zelaya Losa v. Cerna et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
EDWIN FERNANDO ZELAYA
LOSA,
Petitioner,
v.
ROBERT CERNA et al.,
Respondents.
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Case No. CIV-26-276-HE
REPORT AND RECOMMENDATION
Petitioner Edwin Fernando Zelaya Losa, a noncitizen proceeding pro se,1
seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States
District Judge Joe Heaton referred the case to the undersigned Magistrate
Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The
Government responded, Doc. 7, and the time for Petitioner to reply has lapsed.
So the matter is at issue.
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)). This Court construes pro se filings
“liberally,” but the Court will not “assume the role of advocate for the pro se
litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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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For the reasons below, the undersigned recommends the Court grant
Petitioner’s 	habeas 	petition, 	in 	part, 	and 	order 	Respondents 	to 	provide
Petitioner with a 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.
I. 	Factual background and procedural history.
Petitioner is a citizen of El Salvador who has been in Immigration and
Customs Enforcement (ICE) custody since July 2025. Doc. 1, at 8. Petitioner
entered the United States on June 26, 2016, without admission or parole after
inspection. Doc. 7, Exs. 1, 2. On June 27, 2025, the Department of Homeland
Security (DHS) placed him in removal proceedings under 8 U.S.C. § 1229a by
issuing a Notice to Appear (NTA). Doc. 7, Exs. 1, 2. DHS charged him as
removable 	under 	8 	U.S.C. 	§ 1182(a)(6)(A)(i) 	of 	the 	Immigration 	and
Nationality Act (INA) as an alien who is present in the United States without
being admitted or paroled, or who arrived in the United States at any time or
place other than as designated by the Attorney General. Id. Ex. 2. On August
13, 2025, he applied for asylum and withholding of removal. Doc. 7, at 4 & Ex.
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1. Petitioner’s next individual hearing is set for May 26, 2026.3 He has been
detained since July 2025 without a bond hearing. Doc. 1, at 8-9, 11.
II. 	Petitioner’s claim.
Petitioner asserts his prolonged detention without a bond hearing or an
individualized custody determination violates the Due Process Clause of the
Fifth 	Amendment. 	Doc. 	1, 	at 	7. 	He 	seeks 	his 	immediate 	release 	or 	an
immediate 	individualized 	bond 	hearing 	that 	places 	the 	burden 	on 	the
Government to justify his continued detention. Doc. 1, at 8.4
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
3 	See 	Edwin 	Fernando 	Zelaya 	Losa, 	A 	241-114-579,
https://acis.eoir.justice.gov/en/caseInformation (last visited April 22, 2026).
The 	Court 	takes 	judicial 	notice 	of 	the 	Executive 	Office 	for 	Immigration
Review’s data portal providing Automated Case Information.
4 	Petitioner seeks attorney’s fees and costs under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. Doc. 1, at 9. Petitioner is proceeding pro
se, so he cannot recover attorney fees under the EAJA. See Demarest v.
Manspeaker, 948 F.2d 655 (10th Cir. 1991) (“[A]ttorney fees are not available
for pro se litigants under the EAJA.”).
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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)).
“When called on to resolve a dispute over a statute’s meaning,” the Court
should “seek[] to afford the [statute’s] terms their ordinary meaning at the time
Congress adopted them” and to “exhaust all the textual and structural clues
bearing on the meaning.” Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021)
(internal quotation marks omitted). This Court’s “‘sole function’ is to apply the
law as the Court finds it, . . . not defer to some conflicting reading the
government might advance.” Id. (internal citation omitted); see also Oklahoma
v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11 (10th Cir.
2024) (stating that the court “must independently interpret the statutory
phrase irrespective of the parties’ positions”), judgment vacated on other
grounds, 145 S. Ct. 2837 (2025).
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IV. 	Discussion.
A. 	Section 1226 governs Petitioner’s detention.5
Respondents assert that 8 U.S.C. § 1225(b)(2)(A) requires Petitioner’s
mandatory detention. Doc. 7, at 2-4, 9. This Court has compared §§ 1225 and
1226 and decided noncitizens like Petitioner are entitled to a bond hearing
under § 1226(a). See, e.g., Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026
WL 94641, at *2 (W.D. Okla. Jan. 13, 2026); see also Cortes v. Holt, No. CIV-
25-1176-SLP, 2026 WL 147435, at *3-7 (W.D. Okla. Jan. 20, 2026); Lopez v.
Corecivic Cimarron Corr. Facility, No. CIV-25-1175-SLP, 2026 WL 165490, at
*3-7 (W.D. Okla. Jan. 21, 2026). The Court should reach the same result in this
case.
Section 1225(b)(2)(A) “unambiguously requires that an ‘applicant for
admission’ 	also 	be 	‘seeking 	admission’ 	for 	the 	section 	to 	control,” 	and
“‘[n]oncitizens ‘seeking admission’ are those who have not effected an entry
into the United States.’” Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176,
at *4 (W.D. Okla. 	Dec. 16, 2025) (quoting 	Sacvin v. Anda-Ybarra, 	2025
5 	Respondents argue that Petitioner’s substantive due process claim under
Zadvydas fails because it is premature. Doc. 7, at 5-6. To the extent that
Petitioner raises such a claim, Respondents are correct, although for the wrong
reasons. Zadvydas comes into play when a petitioner is subject to a final order
of removal. See id. 533 U.S. at 682; 8 U.S.C. § 1231. No final order of removal
exists for Petitioner.
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3187432, at *3 (D.N.M. Nov. 14, 2025)). Petitioner effected entry into the
country over nine years ago, so he is not subject to § 1225(b)(2)(A)’s mandatory
detention requirement. See Ramirez Rojas, 2026 WL 94641, at *2 (“The court
also agrees that § 1226(a), not § 1225(b)(2)(A), governs petitioner’s detention.”).
Numerous Judges in this District have held likewise. See Valdez v. Holt, No.
CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025) (“Because
Petitioner has been unlawfully living in the United States for many years
without seeking admission, this provision does not apply to him. Instead,
Petitioner’s detention is controlled by § 1226(a).”); Escarcega v. Olson, No. CIV-
25-1129-J, 2025 WL 3243438, at *2 (W.D. Okla. Nov. 20, 2025) (“[B]ased on the
plain language of § 1225(b)(2)(A), the phrase ‘seeking admission’ only applies
to noncitizens who are presently and actively seeking lawful entry into the
United States at the border.”) (internal quotation marks and alterations
omitted);6 see also Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th
1048, 1061 (7th Cir. 2025) (“[I]t is Congress’s prerogative to define a term
however it wishes, and it has chosen to limit the definition of an ‘applicant for
6 	But see Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344,
at *3 (W.D. Okla. Jan. 6, 2026) (holding § 1225 applied to the petitioner’s
detention); Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302, at *12
(W.D. Okla. Dec. 26, 2026) (same).
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admission’ to ‘an alien present in the United States who has not been admitted
or who arrives in the United States.’ It could easily have included noncitizens
who are ‘seeking admission’ within the definition but elected not to do so.”
(internal citation omitted)).7 As well as determining that 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 	courts 	should 	avoid
statutory interpretations that ‘make[] any part [of the statute] superfluous.’”
Escarcega, 2025 WL 3243438, at *3 (quoting Fuller v. Norton, 86 F.3d 1016,
1024 (10th Cir. 1996)). And the Court has “declined to find” that either refusing
to voluntarily depart or seeking asylum “‘constitutes ‘seeking admission’ for
purposes of this subsection.’” Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL
227155, at *3 (W.D. Okla. Jan. 28, 2026) (quoting Cruz-Hernandez v. Noem,
No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla. Jan. 2, 2026)); see also
Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20,
2026) (finding Ҥ 1225(b)(2)(A) does not apply even though petitioner filed an
application for asylum”).
7 	But see Avila v. Bondi, 170 F.4th 1128, 1134-36 (8th Cir. 2026) (applying
§ 1225 to a similar habeas challenge); Buenrostro-Mendez v. Bondi, 166 F.4th
494, 506 (5th Cir. 2026) (same).
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When Petitioner was detained after residing in the country for over nine
years, he was not subject to mandatory detention under § 1225(b)(2)(A).
Instead, Petitioner is subject to § 1226, and “is entitled to a prompt bond
hearing before an immigration judge pursuant to § 1226(a).” Cortes, 2026 WL
147435, at *7.
The undersigned therefore recommends the Court grant Petitioner’s
habeas 	petition 	and 	order 	Respondents 	to 	provide 	Petitioner 	with 	an
individualized 	bond 	hearing 	before 	a 	neutral 	immigration 	judge 	under
§ 1226(a) within five business days of the Court’s adoption of this Report and
Recommendation or, in the alternative, immediately release Petitioner.
Normally, at a bond hearing authorized under § 1226(a), the noncitizen
bears the burden of proving that he is neither a danger to the community nor
a flight risk. See 8 C.F.R. § 236.1(c)(8); Matter of Guerra, 24 I. & N. Dec. 37, 40
(BIA 2006). Given Petitioner’s prolonged detention under the incorrect statute,
the Court should find that it is more appropriate for the Government to bear
the burden of proof in this context. See, e.g., Garcia Cortes v. Noem, 2025 WL
2652880, at *5 (D. Colo. Sept. 16, 2025) (citing L.G. v. Choate, 744 F. Supp. 3d
1172, 1185 (D. Colo. 2024)). “Freedom from imprisonment . . . lies at the heart
of the liberty that [the Due Process] Clause protects.” Zadvydas, 533 U.S. at
690. Petitioner has now been detained without a bond hearing for nearly ten
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months, depriving him of a core liberty interest. Under these circumstances,
the Government ought to bear the burden of proving that he poses a danger to
the community or a risk of flight such that he should remain in detention. And
the clear and convincing standard that generally “applies to civil detention
where liberty is at stake” is appropriate here as well. See L.G., 744 F. Supp. 3d
at 1186 (citing 	United States v. Salerno, 481 U.S. 739, 	751 (1987), and
Addington v. Texas, 441 U.S. 418, 433 (1979)).
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s habeas application, in part, and order Respondents to
provide 	Petitioner 	with 	an 	individualized 	bond 	hearing 	before 	a
neutral 	immigration 	judge 	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. 	At 	that 	hearing, 	the
Government 	should 	bear 	the 	burden 	of 	justifying 	Petitioner's
detention by clear and convincing evidence.
The 	undersigned 	further 	recommends 	that 	the 	Court 	order
Respondents certify compliance by filing a status report within ten
business days of the Court’s order.
The undersigned further recommends the Court order that:
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• 	Respondents 	shall 	not 	re-detain 	Petitioner 	without 	a 	pre-
deprivation hearing before a neutral IJ under 8 U.S.C. § 1226(a);
and
• 	Counsel for Respondents provide a copy of the Court’s order to
Counsel for the Warden of the Cimarron Correctional Center
without delay.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by April 27,
2026, 2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil
Procedure 72.8 The undersigned further advises the parties that failure to
make timely 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
8 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to three
days. 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.”).
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Recommendation disposes of the issues referred to the undersigned Magistrate
Judge in the captioned matter.
ENTERED this 23rd day of April, 2026.
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