Pandey v. Cerna et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BHUPA RAJ PANDEY, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-327-SLP
)
ROBERT CERNA, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Bhupa Raj Pandey, a noncitizen,1 seeks a writ of habeas
corpus under 28 U.S.C. § 2241. Doc. 1.2 United States District Judge Scott L.
Palk 	referred 	the 	case 	to 	the 	undersigned 	Magistrate 	Judge 	for 	initial
proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. The Government
responded, Doc. 10, and Petitioner replied, Docs. 12 & 13. So the matter is at
issue.
For the reasons below, the undersigned recommends the Court grant
Petitioner’s 	habeas 	petition, 	in 	part, 	and 	order 	Respondents 	to 	provide
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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Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within seven 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 Nepal who entered the country on or about June
10, 2023. Doc. 1, at 4-5. “[H]e applied for affirmative asylum” on January 5,
2024. Id. at 5. He alleges he was placed in removal proceedings under § 240,
and attended his immigration court hearings while on release. Id. He was
charged with possession of a controlled substance on September 14, 2025. Id.
at 2. Petitioner alleges his case was refused for felony prosecution. Id. & Att.
1, at 1. The Stephenville District Attorney’s records show that Petitioner was
released on a “Personal Recognizance Bond” on January 2, 2026. Id. Att. 1, at
3. Immigration and Customs Enforcement (ICE) placed a hold on him and took
him into custody on January 4, 2026. Doc. 1, at 2.
Respondents maintain Petitioner was placed in removal proceedings on
January 5, 2026, and charged as removable under 8 U.S.C. § 1182(a)(6)(A)(i),
and (a)(7)(i)(I) of the Immigration and Nationality Act (INA). Doc. 10, at 2.3
3 	Section 1182(a)(6)(A)(i) provides that 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
are ineligible to be admitted to the United States. 8 U.S.C. § 1182(a)(6)(A)(i).
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Petitioner 	claims 	exhaustion 	would 	be 	futile 	because 	Immigration
Judges 	(IJs) 	take 	the 	position 	they 	are 	constrained 	by 	the 	Board 	of
Immigration Appeals’ (BIA) decision in the Matter of Q. Li, 29 I. & N. Dec. 66
(BIA 2025). Doc, 1 at 3, 10; see also Matter of Yajure Hurtado, 29 I. & N. Dec.
216 (BIA 2025).4
II. 	Petitioner’s claims.
Petitioner raises five grounds for relief:
Ground 	One: 	Unlawful 	detention 	in 	violation 	of 	the 	INA 	and 	its
implementing regulations;
Ground 	Two: 	Violation 	of 	the 	Due 	Process 	Clause 	of 	the 	Fifth
Amendment;
Ground Three: Violation of the Administrative Procedure Act (APA) –
Arbitrary and Capricious Agency Action;
Ground Four: Violation of the Fifth Amendment’s Equal Protection
Clause; and
Section 1182(a)(7)(i)(I)) provides that any immigrant, who at the time of
application for admission, was not in possession of (1) a valid unexpired entry
document as required by the INA, and (2) a valid travel document/document of
identity and nationality as required by regulations is inadmissible. 8 U.S.C. §
1182(a)(7)(i)(I).
4 	In Q. Li and Hurtado, the BIA held that those who entered the country
without admission or parole are ineligible for a bond hearing and are detained
under 8 U.S.C. § 1225(b)(2)(A). 29 I. & N. Dec. at 69; 29 I. & N. Dec. at 216.
Neither Q. Li nor Hurtado binds this Court. See Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 413 (2024) (“[C]ourts need not and under the APA
may not defer to an agency interpretation of the law simply because a statute
is ambiguous.”).
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Ground Five: Violation of the Suspension Clause of the United States
Constitution.
Doc. 1, at 17-27. At bottom, he argues he is not subject to mandatory detention
under 	§ 	1225(b)(2) 	and 	his 	continued 	detention 	in 	Respondents’ 	custody
violates the INA and his due process rights. Id.
Petitioner asks this Court to order Respondents to show cause directing
Respondents to respond within three days, and set a prompt hearing; enjoin
Respondents 	from 	transferring 	him 	during 	the 	pendency 	of 	his 	habeas
proceeding5; declare his continued detention violates the INA, 8 U.S.C. §
1226(a), the APA, and/or the Due Process Clause of the Fifth Amendment;
grant the writ of habeas corpus and issue a writ requiring his immediate
release; and award him costs and reasonable attorney’s fees under the Equal
Access to Justice Act (EAJA), 28 U.S.C. § 2412. Id. at 27-28.
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
5 	The Court addressed Petitioner’s requests when it ordered a response to
the petition, and does not deem a hearing necessary. See Doc. 5.
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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)).
“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).
IV. 	Discussion.
A. 	Section 1226 governs Petitioner’s detention.6
6 	Respondents do not challenge the Court’s jurisdiction to consider the
petition. So the undersigned has dispensed with the general jurisdictional
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Petitioner asserts that Respondents violated the INA by detaining him
under the mandatory detention provision in § 1225(b)(2). Doc. 1, at 12-16. He
argues this provision does not apply to him because he previously entered and
had been residing in the United States before being apprehended. See id. at
16. So, as someone who is not a recent arrival seeking inspection and admission
into the United States, Petitioner asserts his detention is governed—not by
§ 1225(b)(2)—but 	by 	§ 1226(a). 	Id. 	at 	16-18. 	Respondents 	contend 	that
Petitioner 	and 	other 	noncitizens 	who 	have 	entered 	the 	country 	without
inspection are applicants for admission under § 1225(a)(1) and are seeking
analysis and recommends the Court find there is no jurisdictional bar to
consideration of Petitioner’s claims. See, e.g., Cortes v. Holt, No. CIV-25-1176-
SLP, 2026 WL 147435, at *3 (W.D. Okla. Jan. 20, 2026) (“Petitioner’s claim
that Respondents are detaining him without a bond hearing in violation of the
INA does not divest the Court of jurisdiction. Such a claim does not ‘arise from’
and is not directly connected to the commencement of removal proceedings, the
adjudication of removability, or the execution of any removal order. Rather,
Petitioner 	challenges 	the 	legality 	of 	his 	continued 	detention 	under 	the
statutory framework governing custody and bond determinations.”); Cruz-
Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla.
Jan. 2, 2026) (“Here, because Petitioner challenges the legal question of
whether 	he 	is 	subject 	to 	mandatory 	detention 	under 	§ 1225(b)(2)(A) 	or
detention under § 1226(a), and he does not challenge Respondents’ decision to
commence or adjudicate proceedings or execute removal orders, § 1252(g) does
not jurisdictionally bar consideration of the Petition.”); see also Hasan v.
Crawford, 800 F. Supp. 3d 641, 650 n.7 (E.D. Va. 2025) (“Federal courts
throughout the country have similarly found that these jurisdiction-stripping
provisions 	do 	not 	deprive 	the 	federal 	courts 	of 	jurisdiction 	to 	review 	a
noncitizen’s challenge to the legality of his detention.”) (collecting cases).
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admission under § 1225(b)(2)(A), whether they are passively residing in the
country or not. Doc. 10, at 6-10.
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). 	According 	to 	its 	plain 	language,
“§ 1225(b)(2)(A) applies ‘in 	the case 	of an alien who is 	an 	applicant for
admission, if the examining 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 of this title.’” Cortes, 2026 WL
147435, at *4 (quoting 8 U.S.C. § 1225(b)(2)(A) (emphasis added by Cortes)).
This section “authorizes the Government to detain certain aliens seeking
admission into the country.” Jennings v. Rodriguez, 583 U.S. 281, 289 (2018).
Section 1226(a), on the other hand, “authorizes the Government to
detain certain aliens already in the country pending the outcome of removal
proceedings.” Id. at 289 (emphasis added). “Section 1226(a) sets out the default
rule: The Attorney General may issue a warrant for the arrest and detention
of an alien ‘pending a decision on whether the alien is to be removed from the
United 	States.’” 	Id. 	(quoting 	§ 1226(a)). 	“‘Except 	as 	provided 	in 	[Section
1226(c)],’ the Attorney General ‘may release’ an alien detained under § 1226(a)
‘on . . . bond’ or ‘conditional parole.’” Id. (quoting § 1226(a)(1)-(2)).
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This Court has previously compared §§ 1225 and 1226 and decided
noncitizens like Petitioner are entitled to a bond hearing under § 1226. See,
e.g., Cortes, 2026 WL 147435, at *3-7; see also 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
3187432, at *3 (D.N.M. Nov. 14, 2025)). Because Petitioner effected entry into
the country over two years ago, he is not subject to § 1225(b)(2)(A)’s mandatory
detention requirement. Numerous Judges in this District have held likewise.
See Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026 WL 94641, at *2 (W.D.
Okla. Jan. 13, 2026) (“The court also agrees that § 1226(a), not § 1225(b)(2)(A),
governs petitioner’s detention.”); 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
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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))7; 	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 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).8 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,
7 	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).
8 	But see Avila v. Bondi, 2026 WL 819258, at *3 (8th Cir. Mar. 25, 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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2025 WL 3243438, at *3 (quoting Fuller v. Norton, 86 F.3d 1016, 1024 (10th
Cir. 1996)).
Petitioner’s asylum request does not change this outcome. This 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”).
When Petitioner was detained after residing in the country for over two
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 IJ under § 1226(a) within seven
business days of the Court’s adoption of this Report and Recommendation or,
in the alternative, immediately release Petitioner.
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B. 	The 	Court 	should 	decline 	to 	address 	the 	merits 	of
Petitioner’s remaining claims.
Given 	the 	undersigned’s 	recommendation 	as 	to 	the 	disposition 	of
Petitioner’s claim for relief under the INA, the undersigned recommends the
Court refrain from addressing the merits of Petitioner’s remaining claims. The
Court can grant him the relief he seeks under § 1226(a). See Cortes, 2026 WL
147435, at *7 (“The Court declines to decide the merits of such claim and
Petitioner may renew such a claim if he is not provided with a bond hearing or
released within seven days of this Order.”).9
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 IJ under 8 U.S.C. § 1226(a) within seven business days or
otherwise release Petitioner if he has not received a lawful bond
hearing within that period. The undersigned further recommends
9 	Petitioner has also requested EAJA fees. Doc. 1, at 28. To the extent
Petitioner may be entitled to EAJA fees and costs as a prevailing party,
Petitioner must seek those separately after a final judgment. 28 U.S.C. §
2412(d)(1)(B); see also Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir. 2025)
(interpreting “EAJA’s broad language to unambiguously authorize fees in
habeas actions challenging immigration detention”).
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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:
• 	Respondents 	shall 	not 	re-detain 	Petitioner 	without 	a 	pre-
deprivation hearing before a neutral IJ pursuant to 8 U.S.C. §
1226(a);
• 	Counsel for Respondents provide a copy of the Court’s order to
Counsel for the Warden of the Diamondback Correctional Facility
without delay; and
• 	Respondents file a Notice of Compliance with this Order with the
Court as soon as is practicable.
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 21,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.10 The undersigned further advises the parties that failure to make timely
10 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to five
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
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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 16th day of April, 2026.
“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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