Drozdov v. Lyons et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
ALEKSANDR DROZDOV, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-365-SLP
)
TODD M. LYONS, et al., 	)
)
Respondents.1 )
REPORT AND RECOMMENDATION
Petitioner Aleksandr Drozdov, a noncitizen2 and Russian national proceeding with
counsel, filed a Petition for Writ of Habeas Corpus (“Petition”), Doc. 1, challenging under
28 U.S.C. § 2241 his detention by U.S. Immigration and Customs Enforcement (“ICE”).
United States District Judge Scott L. Palk referred this matter to the undersigned Magistrate
Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). Doc. 3. The undersigned set an
expedited briefing schedule, Doc. 8, and the Petition is at issue. For the reasons set forth
below, the undersigned recommends that the Court grant the Petition, Doc. 1, in part and
order Respondents to provide Petitioner a bond hearing pursuant to 8 U.S.C. § 1226(a)
within five business days at which the Government would bear the burden of proof or
1 Markwayne Mullin was confirmed as Secretary of the Department of Homeland Security
on March 23, 2026. He replaces Kristi Noem and is substituted as the proper respondent
pursuant to Federal Rule of Civil Procedure 25(d). Todd Blanche was announced as Acting
Attorney General on April 2, 2026. 	He replaces Pamela Bondi and is substituted as the
proper respondent pursuant to Federal Rule of Civil Procedure 25(d).
2 Unless quoting, 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)).
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otherwise to release him if there is no hearing within that time.
I. 	Background
Petitioner, a citizen of Russia, entered the United States on or about July 26, 2023,
at or near San Ysidro, California. 	Pet. at 3; Resp. at 2. 	Petitioner presented himself to
authorities at the San Ysirdo port and, though neither party alleged it, the undersigned
presumes Petitioner was detained by ICE upon entering the country. 	See Resp. at 6.
Shortly thereafter, Petitioner was released from detention and has resided in the country
since his release. Pet. at 3. He alleges he timely filed an application for asylum at some
point after his release.3 Id. Petitioner claims he has complied with all conditions of release.
Id. at 3-4.
On January 3, 2026, ICE re-apprehended Petitioner and placed him into detention.
Id. at 3. 	Respondents allege ICE detained Petitioner pursuant to 8 U.S.C. § 1225(b)(1).
Resp. at 5. On February 4, 2026, ICE placed Petitioner into removal proceedings before
the Immigration Court through a Notice to Appear (“NTA”). Resp. at 2; Doc. 10-1 (NTA).
Respondents charged him with being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as
someone who entered the United States without inspection or parole. Resp. at 2; Doc. 10-
1. 	On February 20, 2026, Petitioner was served an Additional Charge of Removability,
alleging he was removable under § 212(a)(7)(A)(i)(I) as someone who entered without
adequate documents. Resp. at 2-3; Doc. 10-2 (Notice of Additional Charges). Petitioner
3 Respondents state there is no record of Petitioner applying for asylum. Resp. at 3 n.2.
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did not allege he requested a bond hearing. 	See Resp. at 3 (“Petitioner has not requested
bond or any other form of relief.”).
Neither party addresses under what provision Petitioner was released in July 2023
or why he was not placed into removal proceedings until his re-detention in January 2026.
Respondents allege Petitioner is “an arriving alien from the Southern border of Mexico and
the United States” who “presented himself to Respondents at the port of entry, San Ysidro,
California.” 	Resp. at 5 (citing Doc. 10-2). 	Respondents base this assertion on the
“Additional Charges of Inadmissibility/Deportability” document, dated February 20, 2026,
stating Petitioner is an “Arriving Alien” who, on or about July 26, 2023, “applied for
admission at the San Ysidro, designated as a port of entry.” 	Doc. 10-2. 	However,
Respondents do not explain why Petitioner was initially released from ICE custody or why
he was re-detained more than two years later. The record is also inconsistent as to whether
Petitioner (1) entered the country “without admission or inspection,” see Resp. at 2, or (2)
applied for admission at entry and was subsequently released into the country by ICE, see
Doc. 10-2. Because the latter charging document appears to allege Petitioner did present
himself for inspection and/or admission when he entered the country, Doc. 10-2, the
undersigned proceeds as such. 	Further, neither party alleges what circumstances led to
Petitioner’s release from custody in July 2023. Based on Respondents’ current assertion
that Petitioner is detained under § 1225(b)(1), the undersigned assumes Petitioner was
released on parole. See 8 U.S.C. § 1182(d)(5)(A).
When Petitioner filed his Petition, he was detained at Diamondback Correctional
Facility in Watonga, Oklahoma. Pet. at 3; Resp. at 3. He remains detained there. See ICE
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Online Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited Apr.
3, 2026).
II. 	Petitioner’s Claims
Petitioner asserts five counts in his Petition.
• 	Count 	I: 	Entitlement 	to 	Fifth 	Amendment 	Protections 	and
Habeas Review. Petitioner alleges he is entitled to Fifth Amendment
due process protections and habeas review. Pet. at 4-5.
• 	Count II: Violation of the Immigration and Nationality Act
(“INA”). Petitioner alleges he is detained pursuant to 8 U.S.C. § 1226
because he “is not an arriving alien ‘seeking admission’ within the
meaning of 8 U.S.C. § 1225(b)(2)(A).” Pet. at 5-6.
• 	Count 	III: 	Violation 	of 	Due 	Process. 	Petitioner 	alleges 	his
continued detention without an individualized bond hearing violates
his right to due process under Mathews v. Eldridge. Id. at 6-8.
• 	Count IV: Violation of Fifth Amendment. 	Petitioner alleges his
continued detention without an individualized custody hearing as
required by § 1226(a) and due process is unlawful. Pet. at 8.
• 	Count V: Burden of Proof at Bond Hearing. Petitioner alleges the
Government 	should 	bear 	the 	burden 	of 	proving 	by 	clear 	and
convincing evidence at a bond hearing that his continued detention is
justified based on flight risk or danger to the community. Id.
He asks the Court to “issue a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 and
order Respondents to immediately release Petitioner” or, alternatively, “order Respondents
to provide Petitioner with a bond hearing before an immigration judge” where “the
government shall bear the burden of justifying by clear and convincing evidence, the
dangerousness or flight risk posed by Petitioner’s continued detention.” Pet. at 9 (citation
modified). 	Petitioner also requests additional declaratory and injunctive relief enjoining
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Respondents from re-detaining him without written notice, an opportunity to be heard, and
an individualized determination. Id.
III. 	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)).
IV. 	Analysis
A. 	Section 1226(a) applies to Petitioner’s detention.
The two sections of the 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). Section 1225(b)(1) “governs procedures for the inspection of aliens arriving in
the United States who have not been admitted or paroled.” 	M.S.P.C. v. U.S. Customs &
Border Prot., 60 F. Supp. 3d 1156, 1161 (D.N.M. 2014) (citing § 1225(b)(1)).
Aliens who have not been admitted or paroled into the United States and who
have not satisfactorily demonstrated to an immigration officer that the alien
has been physically present in the United States continuously for the prior
two years are subject to expedited removal without further hearing or review,
unless the alien indicates an intention to apply for asylum or a fear of
persecution, at which point the immigration officer shall refer the alien for
an interview by an asylum officer.
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Id. (citing § 1225(b)(1)(A)(i)-(iii)). 	Section 1225(b)(1)(B)(ii) further requires that, if an
asylum officer determines that a noncitizen has a credible fear of persecution, the
noncitizen shall be detained for further consideration of the application for asylum.
Fundamentally, under § 1225(b)(1), a noncitizen who arrives at a port of entry and
applies for admission is ordered removed “without further hearing or review” unless the
noncitizen “indicates either an intention to apply for asylum” or expresses a fear of
persecution. If Petitioner is subject to this “expedited removal” under § 1225(b)(1), he is
not entitled to a bond hearing. But noncitizens detained under § 1225(b)(1)(B)(ii) can be
paroled under 8 U.S.C. § 1182(d)(5)(A). 	On the other hand, Section 1226(a) more
generally authorizes detention of a noncitizen pending removal proceedings and entitles
the noncitizen to a bond hearing. See Jennings v. Rodriguez, 583 U.S. 281, 306 (“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))).
Petitioner argues he “is not an arriving alien ‘seeking admission’ within the meaning
of 8 U.S.C. § 1225(b)(2)(A).” 	Pet. at 6. 	He contends that because he “was living in the
interior of the United States at the time of his re-detention, § 1226(a), and not §1225,
governs his custody.” 	Pet. at 6. 	Respondents contend Petitioner’s detention is not
governed by § 1225(b)(2)(A), but rather it is governed by § 1225(b)(1). 	Resp. at 5-6.
Respondents allege Petitioner’s mandatory detention is authorized because he presented
himself at the San Ysidro port of entry in July 2023, so he is an arriving alien. 	Id.
Respondents also allege § 1226 does not displace the more specific provisions in § 1225,
and § 1225 applies only to “applicants for admission” like Petitioner. Resp. at 6-7.
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Respondents argue in essence that because Petitioner presented himself at a port of
entry in July 2023, he should still be classified as an “arriving alien” during his current re-
detention beginning in January 2026. 	Id. at 5-6. 	However, Petitioner was recently
apprehended in the interior of the country and has been living in the United States for more
than two years since his release in July 2023. The undersigned finds it implausible under
these circumstances that Petitioner remains an “arriving alien.” 	Under § 1225(b)(1)
“someone arriving in the United States is someone who has reached the border or a port of
entry.” 	Rafibaev v. Noem, No. 26-CV-00461, 2026 WL 607559, at *3 (D. Colo. Mar. 4,
2026) (citation modified). Thus, “upon his parole into the interior of the country, petitioner
had arrived in the United States and was no longer a noncitizen arriving in the United
States.” 	Id. 	(emphasis 	added) 	(citation 	modified); 	see 	also 	Rodriguez-Acurio 	v.
Almodovar, 811 F. Supp. 3d 274, 307 (E.D.N.Y. 2025) (finding petitioner, arrested in New
York in October 2025, “can no longer be classified as a noncitizen ‘who is arriving in the
United States’ even though she was initially detained as such in Texas in September
2021”). As such, Petitioner’s current detention is not governed by § 1225(b)(1).
The undersigned instead concludes § 1226(a) governs Petitioner’s detention—
consistent with decisions of this Court and this District holding that when the provisions in
§ 1225 do not apply, more general provisions of § 1226 apply. See, e.g., Lopez v. Corecivic
Cimmaron Corr. Facility, No. CIV-25-1175-SLP, 2026 WL 165490, at *3-7 (W.D. Okla.
Jan. 21, 2026) (finding § 1225(b)(2)(A) inapplicable to petitioner’s detention and the more
general § 1226(a) governed his detention); Ramirez Rojas v. Noem, No. CIV-25-1236-HE,
2026 WL 94641, at *1 (W.D. Okla. Jan. 13, 2026) (same); Valdez v. Holt, No. CIV-25-
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1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025) (same); Colin v. Holt, CIV-
25-1189-D, 2025 WL 3645176, at *5 (W.D. Okla. Dec. 16, 2025) (same); Urbina Garcia
v. Holt, No. CIV-25-1225-J, 2025 WL 3516071, at *4 (W.D. Okla. Dec. 8, 2025) (same).
This conclusion is consistent with other courts in the Tenth Circuit analyzing this
question. See Khubiev v. Baltasar, No. 25-CV-03955, 2026 WL 864237, at *5 (D. Colo.
Mar. 30, 2026) (agreeing with petitioner that his detention is governed by § 1226(a)
“because it arises from removal proceedings initiated years after his release [on parole] into
the United States”); Rafibaev, 2026 WL 607559, at *5 (finding § 1226 rather than
§ 1225(b)(1) governed detention of petitioner who had previously entered the United States
through a port of entry and was subsequently paroled); Murzi v. Noem, No. 26-CV-00359,
2026 WL 395111, at *1 (D. Colo. Feb. 12, 2026) (acknowledging rulings by several courts
that “paroled petitioners who go on to live in the United States have been released on their
own recognizance, and therefore that § 1226, rather than § 1225 applies”).
Many district courts outside the Tenth Circuit have similarly ruled. 	See, e.g.,
Suarez-Lugo v. Bondi, No. 26-CV-00029, 2026 WL 332317, at *9 (S.D. Tex. Feb. 6, 2026)
(finding 	petitioner, 	“as 	someone 	who 	was 	previously 	paroled 	from 	custody 	and
continuously resided in the United States while on parole for over two years, is not subject
to mandatory detention under 8 U.S.C. § 1225(b)(1).”); Ahmadi v. Becerra, No. 25-cv-
01044, 2026 WL 309561, at *10 (E.D. Cal. Feb. 5, 2026) (“8 U.S.C. § 1226(a) attaches as
the governing legal scheme. Because Petitioner was released on his own recognizance after
his initial detention at the border, he is also ineligible for expedited removal proceedings
as he has been ‘paroled’ within the meaning of section 1225(b)(1).” (citation modified));
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Aviles-Mena v. Kaiser, No. 25-cv-06783, 2025 WL 2578215, at *4 (N.D. Cal. Sep. 5, 2025)
(finding “section 1225(b)(1) does not authorize designation for expedited removal of any
noncitizen who has, at any point in time, been paroled into the United States” because
“under the plain meaning of section 1225(b)(1), [petitioner] no longer qualifies for
expedited removal because he was paroled into the United States and has been living and
working in the United States for three years” (citation modified)).
Accordingly, the undersigned recommends the Court apply § 1226(a) to govern
Petitioner’s current detention. 	The Court should grant the Petition in part and order
Respondents to provide Petitioner with a bond hearing under § 1226(a) before a neutral
immigration judge (or “IJ”) within five business days or otherwise release him if he does
not have a lawful bond hearing within that period.
B. 	Due Process also entitles Petitioner to a bond hearing.
Petitioner also alleges his continued detention without an opportunity to be heard
violates his due process under Mathews v. Eldridge and ICE’s failure to provide a bond
hearing violates the Fifth Amendment. Pet. at 6-8. As a separate grounds for reaching a
bond hearing, the undersigned concludes that because § 1226(a) applies to Petitioner’s
detention, he is owed the due process provided to him under the statute. 	When Ҥ 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.” 	Velasquez Salazar v.
Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025)
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.
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Const. Amend. V. 	It applies to noncitizens within the United States “whether their
presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693.
Contrary to Respondents’ assertion, in the civil immigration detention context, courts
consistently apply the balancing test set out in Mathews v. Eldridge, 424 U.S. 319, (1976),
to evaluate the level of process owed a noncitizen.4 See, e.g., Black v. Decker, 103 F.4th
133, 147-48 (2d Cir. 2024) (applying Mathews to “due process challenges to prolonged
detention” under § 1226(c) and observing many courts have used Mathews to “determine
what process is due to noncitizens in removal proceedings”).
The Mathews test includes three factors: (1) “the private interest that will be affected
by the official action”; (2) “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”; and (3) “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. All three factors weigh in Petitioner’s favor.
First, Petitioner has a strong liberty interest in being free from physical detention.
This is “the most significant liberty interest there is—the interest in being free from
4 Respondents also rely on Demore v. Kim, 538 U.S. 510 (2003) to contend Petitioner is
not entitled to a bond hearing because the Supreme Court held “mandatory detention
pending removal proceedings does not violate due process.” Resp. at 3-4. The Supreme
Court in Demore, though, did not create a blanket rule permitting detention of noncitizens
without individualized review and left open the question whether prolonged detention
without a bond hearing violates due process. See Merchan-Pacheo v. Noem, No. 25-CV-
03860, 2026 WL 88526, at *4-6 (D. Colo. Jan. 12, 2026) (concluding Demore “created a
framework that permits Petitioner’s release” and “in no way suggests that the court should
decline to consider the Mathews factors”).
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imprisonment.” Velasco Lopez v. Decker, 978 F.3d 842, 851 (2d Cir. 2020) (citing Hamdi
v. Rumsfeld, 542 U.S. 507, 529 (2004)). Because freedom from restraint is “at the core of
the liberty interest protected by the Due Process Clause, commitment for any purpose
constitutes a significant deprivation of liberty that requires due process protection.”
Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (citation modified). 	“Congress may make
rules as to aliens that would be unacceptable if applied to citizens,” see Demore, 538 U.S.
at 522, but that power remains subject to “important constitutional limitations,” Zadvydas,
533 U.S. at 695. 	It does not eliminate Petitioner’s significant interest in being free from
detention. See, e.g., Diaz v. Noem, No. 26-CV-00782, 2026 WL 733587, at *3 (D. Colo.
Mar. 16, 2026) (finding the first Mathews factors supports finding a due process violation
where petitioner “is being held in a detention facility that strongly resembles penal
confinement, is away from his family, and is unable to maintain his employment” (citation
modified)). The undersigned is not persuaded by Respondents’ argument that “Petitioner
has the power to free himself,” Resp. at 9, by leaving the country, especially considering
Petitioner’s claim of a pending asylum application.5
Second, the risk of erroneous deprivation is high here, considering Respondents’
current position to afford him no bond hearing. See, e.g., Montero Cordova v. Noem, No.
26-CV-00526, 2026 WL 867689, at *9 (D.N.M. Mar. 30, 2026) (finding the second
5 While Respondents aver they have no pending asylum claim on file for Petitioner, EOIR
Automated 	Case 	Information 	for 	Petitioner’s 	immigration 	proceeding 	indicates 	an
upcoming hearing on April 6, 2026. See EOIR, Automated Case Information, available at
https://acis.eoir.justice.gov/en/ (last accessed Apr. 3, 2026).
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Mathews factor favors petitioner because “the risk of erroneous deprivation will remain
high” “without the opportunity to have the hearing to which Petitioner is entitled” under
§ 1226(a) and noting “a bond hearing before a neutral immigration judge will provide
immense value as an additional safeguard” (citation modified)); Orellana v. Noem, 807 F.
Supp. 3d 745, 754 (W.D. Ky. 2025) (“A re-detention, without any individualized
assessment, leads to a high risk of erroneous deprivation of an individual’s liberty
interest.”). 	The undersigned rejects Respondents’ bare-bones argument that there is
“virtually no risk of an erroneous deprivation” because Petitioner “has not complied with
the immigration laws” and he might be entitled to parole for “urgent humanitarian reasons
or significant public benefit.” Resp. at 9 (citing 8 U.S.C. § 1182(d)(5)(A)).
Finally, the Court must consider the government’s interest, including any fiscal or
administrative burdens. 	Mathews, 424 U.S. at 335. 	While “control over matters of
immigration is a sovereign prerogative” and the “government’s interest in efficient
administration of immigration laws at the border is weighty,” Landon v. Plasencia, 459
U.S. 21, 34 (1982) (citation modified), such interests in detaining Petitioner without
procedural 	safeguards 	does 	not 	outweigh 	his 	liberty 	interest 	or 	risk 	of 	erroneous
deprivation. 	See Montero Cordova, 2026 WL 867689, at *10 (finding though “the
Government’s interest in enforcing its immigration policies must be afforded considerable
weight,” the third factor favors petitioner because “the fiscal and administrative burdens of
providing a bond hearing under § 1226(a) are minimal and do not provide adequate
justification for foregoing the hearing entirely”); Arostegui-Maldonado v. Baltazar, 794 F.
Supp. 3d 926, 943 (D. Colo. 2025) (comparing the “quite limited” harm to government,
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“because the administrative burden of a bond hearing is minimal,” to the “sizeable harm
posed to [petitioner] by continued—and potentially unnecessary—detention”) (citation
modified).
Bond hearings “are a significant procedural safeguard to balance the Government’s
interest in immigration enforcement against individual liberties.” Singh v. Bondi, No. 26-
CV-0125, 2026 WL 690013, at *6 (W.D. Tex. Mar. 6, 2026). Significantly, Petitioner has
had no meaningful opportunity here for an immigration judge to consider whether he is a
danger to society or a flight risk since his re-detention. Further, the fact Petitioner has been
living in the United States for more than two years with no criminal history weighs in his
favor. See Ekenge v. Baltazar, No. 26-CV-00630, 2026 WL 617341, at *5 (D. Colo. Mar.
5, 2026) (finding the government’s interest “not substantial” where petitioner was re-
detained after being released and “any costs are far outweighed by the risk of erroneous
deprivation of the liberty interest at issue” (citation modified)).
Accordingly, in addition to the INA violation, Petitioner’s continued detention
without a bond hearing violates his due process liberty interests, and he is entitled to a
prompt bond hearing before an immigration judge.
C. 	The Court should order the Government to bear the burden of proof at
Petitioner’s bond hearing.
Petitioner further argues he is entitled to a bond hearing at which “the Government
bears the burden of proving my clear and convincing evidence that continued detention is
justified based on flight risk or danger.” Pet. at 8. A noncitizen generally has the burden
at a bond hearing to show his release would not pose a danger to property or persons” and
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he “is likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8).
As discussed above, the Court should grant habeas relief in part and grant Petitioner
a bond hearing because his detention is governed by §1226(a) and due process requires it.
As for the burden of proof at a bond hearing, the Court should adopt the approach of other
courts in the Tenth Circuit and nationwide and use the Mathews balancing test to assess
“the type of process required in a given case.” Vizguerra-Ramirez v. Baltazar, No. 25-CV-
00881, 2025 WL 3653158, at *13 (D. Colo. Dec. 17, 2025); see also, e.g., Velasquez
Salazar, 806 F. Supp. 3d at 1245 (holding the Mathews framework supports shifting the
burden at a § 1226 bond hearing to the government); Hernandez-Lara v. Lyons, 10 F.4th
19, 39 (1st Cir. 2021) (holding the government bears the burden at a bond hearing after
prolonged detention under § 1226(a)); Velasco Lopez, 978 F.3d at 854 (same). 	But see
Miranda v. Garland, 34 F.4th 338, 358-65 (4th Cir. 2022) (applying Mathews to conclude
due process does not require the government to bear the burden at a bond hearing for a
noncitizen detained under § 1226(a), whose detention is not “indefinite and potentially
permanent”).
Under the circumstances presented here, the undersigned concludes all three
Mathews factors favor Petitioner and placing the burden of proof on the government at any
bond hearing. 	First, as discussed above, Petitioner’s “interest in freedom from physical
detention is fundamental.” Pet. at 7 (citing Zadvydas, 533 U.S. at 690); see Requejo Roman
v. Castro, No. 25-CV-01076, --- F. Supp. 3d. ---, 2026 WL 125681, at *9 (D.N.M. Jan. 12,
2026) (finding the first Mathews factors weighs in favor of the government bearing the
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burden of proof because “being free from detention is the most elemental of liberty
interests” (citation modified)). Accordingly, the first Mathews factor favors Petitioner.
Second, “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” also
favors Petitioner. 	Mathews, 424 U.S. at 335. 	Notably, requiring Petitioner to bear the
burden of proof creates a risk of an erroneous deprivation where Respondents re-detained
him without any alleged violation of law or conditions of release. 	Petitioner had been
released from ICE custody, lived in the country for more than two years, complied with all
immigration requirements, and had no criminal history. 	See Pet. at 7. ICE’s decision to
change course, re-detain Petitioner, and deprive him of physical liberty without changed
circumstances or reason for re-detention weighs in Petitioner’s favor. See Requejo Roman,
2026 WL 125681, at *9 (finding the “risk is even more pronounced” where petitioner had
been released on bond previously and requiring the government to justify detention
“reduces the risk of an ongoing and erroneous deprivation of Petitioner’s liberty”); Garcia
Cortes v. Noem, No. 25-CV-02677, 2025 WL 2652880, at *4 (D. Colo. Sep. 16, 2025)
(finding “a severe risk of erroneous deprivation” based in part on respondents’ “failure to
identify any criminal record or conviction Petitioner has incurred”).
Additionally, assigning the burden of proof to Petitioner puts him in a “difficult”
position of “proving a negative,” L.G. v. Choate, 744 F. Supp. 3d 1172, 1183-84 (D. Colo.
2024)—specifically, proving he is neither a flight risk nor a danger to the community
despite his two-plus years of apparent compliance with the law and any ICE conditions.
To the extent the government may contend risk factors warrant Petitioner’s continued
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detention, the information establishing those risks is likely within the government’s
possession. Accord Owdetallah v. Bondi, No. CIV-25-1546-SLP, 2026 WL 483648, at *4
(W.D. Okla. Feb. 20, 2026) (noting information justifying a noncitizen’s re-detention
would be contained in the government’s own files rather than in the possession of a
petitioner detained in ICE custody). Thus, requiring the government to bear the burden for
Petitioner’s continued detention helps to cure “the risk of an erroneous deprivation,”
Mathews, 424 U.S. at 335, of his liberty interests after the government’s unilateral decision
to re-detain him. The second Mathews factor favors Petitioner.
Finally, “the administrative burden of a bond hearing is minimal.” See Arostegui-
Maldonado, 794 F. Supp. 3d at 943. Having determined a bond hearing must be held, any
additional costs from shifting the burden of proof to the government are negligible. Placing
the burden of proof on the government promotes the government’s interest in “minimizing
the enormous impact of incarceration in cases where it serves no purpose.” Velasco Lopez,
978 F.3d at 854. 	Moreover, the government has not alleged or demonstrated any changed
circumstances since Petitioner’s previous release in July 2023 to support his recent re-
detention. See Requejo Roman, 2026 WL 125681, at *9 (finding the third factor supports
shifting the burden to the government because “the Government has not demonstrated any
change in circumstances” since petitioner’s prior release on bond).
In sum, all three Mathews factors support shifting the burden of proof at Petitioner’s
bond hearing to the government. The undersigned acknowledges that due process may not
require this result in all cases. 	See Boumediene v. Bush, 553 U.S. 723, 779 (2008)
(recognizing habeas corpus as “an adaptable remedy” where the “precise application and
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scope” can “change[] depending upon the circumstances”). 	But in cases like this, where
Petitioner was previously released years ago and ICE re-detained him without any
allegation that he violated the law or conditions of release, the burden should be shifted to
the government at a bond hearing to justify his continued detention. See Mieles-Parraga
v. Bondi, No. 26-CV-00646, 2026 WL 776489, at *2 (D.N.M. Mar. 19, 2026) (shifting the
burden to the government to prove petitioner is a flight risk or danger to community where
petitioner had previously been released on bond); Abanil v. Baltazar, No. 25-CV-4029, ---
F. Supp. 3d ---, 2026 WL 100587, at *8 (D. Colo. Jan. 14, 2026) (holding “the weight of
authority in this District is clear: it is the Government’s burden to justify a noncitizens
continued detention at a bond hearing” (citation modified)); Requejo Roman, 2026 WL
125681, at *8-10 (shifting the burden to the government to prove petitioner is a flight risk
or danger to community where petitioner had previously been released on bond); see also
Singh v. Grant, No. CIV-26-88-G, Doc. 14 at 17-22 (W.D. Okla. Mar. 30, 2026) (R&R)
(Judge Maxfield recently recommending the same).
The Court should also follow other district judges in this Circuit concluding the
government must show Petitioner is a flight risk or danger to the community by clear and
convincing evidence. See Requejo Roman, 2026 WL 125681, at *10 (holding “the standard
of proof the Government must meet is one of clear and convincing evidence” (citation
modified); Vizguerra-Ramirez, 2025 WL 3653158, at *16 (applying § 1226(a) to a
similarly situated petitioner and ordering a bond hearing at which “the Government must
prove by clear and convincing evidence that [petitioner] is either a flight risk or a danger
to the community in order to justify continued detention”); L.G., 744 F. Supp. 3d at 1186
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(“In sum, in order to continue detaining Petitioner under § 1226(a), due process requires
that the Government is required to establish that continued detention is justified by clear
and convincing evidence.”); see also Singh v. Grant, No. CIV-26-88-G, Doc. 14 at 17-22
(W.D. Okla. Mar. 30, 2026) (R&R) (Judge Maxfield recently recommending the same).
In coming to this conclusion, the undersigned has also considered the burden of
proof applicable to the government for pre-trial detention of a criminal defendant under the
Bail Reform Act. 	In that context, “the government must prove risk of flight by a
preponderance of the evidence, and it must prove dangerousness to any other person or to
the community by clear and convincing evidence.” 	United States v. Cisneros, 328 F.3d
610, 616 (10th Cir. 2003) (citation modified); see, e.g., Garcia v. Bondi, No. 26-CV-01012,
2026 WL 835766, at *4 (D. Colo. Mar. 26, 2026) (applying burden of proof from criminal
pre-trial detention proceedings and “finding no persuasive justification to conclude that a
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”
(citation modified)). The undersigned has also considered the approach of Judge Mitchell’s
recent Report and Recommendation to this Court concluding, after balancing the Mathews
factors, that a similarly situated petitioner should be immediately released and not re-
detained without a pre-deprivation hearing. Rodriguez-Navarrete v. Mullin, No. CIV-26-
224-SLP, Doc. 11, at 14-17 (W.D. Okla. Apr. 3, 2026).
The 	undersigned 	is 	persuaded, 	though, 	after 	a 	careful 	Mathews 	analysis 	to
recommend the predominant view from judges in this Circuit—that a detainee like
Petitioner is entitled to a § 1226(a) bond hearing where the government bears the burden
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of proof by clear and convincing evidence for his continued detention. See also Vizguerra-
Ramirez, 2025 WL 3653158, at *15 n.5 (analysis by Judge Wang explaining she imposed
a burden of proof akin to the Bail Reform Act on the government in a 2019 case involving
a noncitizen’s detention, but now “is persuaded by the weight of authority since [her 2019
decision] to reconsider [her] prior analysis,” concluding “clear and convincing evidence is
the appropriate evidentiary standard”).
Accordingly, at Petitioner’s bond hearing, the government should bear the burden
to prove by clear and convincing evidence that he is either a flight risk or a danger to the
community to justify continued detention.
V. 	Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court GRANT in
part the Petition for habeas relief by ordering Respondents to provide Petitioner within
five business day a bond hearing under 8 U.S.C. § 1226(a) at which the Government bears
the burden of proof or otherwise release Petitioner if he has not received a lawful bond
hearing within that period.6 The undersigned further recommends the Court require the
government to bear the burden at any bond hearing to prove by clear and convincing
evidence that Petitioner is either a flight risk or a danger to the community to justify
continued detention. Finally, the Court should order Respondents to certify compliance by
filing a status report within seven business days of the Court’s order.
6 To the extent Petitioner is seeking additional injunctive and declaratory relief, the Court
should decline to address these requests. Pet. at 9.
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The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. Any objection must be filed not later than April 10, 2026. See id.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). 	If a party wishes to respond to the other party’s
objections, such response must be filed not later than April 15, 2026. See Fed. R. Civ. P.
72(b)(2). 	Failure to object timely waives the right to appellate review of the factual and
legal issues addressed in this Report and Recommendation. 	See Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 3rd day of April, 2026.
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