Salaria v. Blanche et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
VARUN SALARIA,
Petitioner,
v.
TODD BLANCHE, et al.,
Respondents.
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Case No. CIV-26-2357-D
REPORT AND RECOMMENDATION
Petitioner Varun Salaria, a noncitizen proceeding through counsel,1
seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States
District Judge Timothy D. DeGiusti 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. 11, and Petitioner replied, Doc. 12.
So the matter is at issue.
For the reasons below, the undersigned recommends the Court dismiss
Petitioner’s second habeas petition as an abuse of the writ.
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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I. 	Factual background and procedural history.
Petitioner is a citizen and national of India who entered the United
States in May 2022. Doc. 1, at 9. Petitioner was detained in the interior of the
country, received a Notice to Appear, and was placed into removal proceedings.
Id. Petitioner later filed an application for asylum, id., which has since been
denied. Doc. 11, Ex. 1.
On November 6, 2025, Petitioner was detained by state law enforcement
and later transferred to Immigration and Customs Enforcement (ICE) custody.
Doc. 1, at 10. He remains detained at the Cimarron Correctional Facility in
Cushing, Oklahoma. Id. at 5.
Petitioner filed his first habeas petition in this Court on January 27,
2026. Salaria v. Grant, No. CIV-26-141-D, Doc. 1 (Salaria I). Petitioner argued
that his detention violated the Immigration and Nationality Act (INA) and due
process. 	Id. 	This 	Court 	granted 	the 	petition 	in 	part 	and 	ordered 	that
Respondents provide Petitioner with a prompt bond hearing. Salaria I, 2026
WL 735461 (W.D. Okla. Mar. 16, 2026).
Petitioner received a bond hearing after which an Immigration Judge
(IJ) denied him bond. Doc. 1, at 2. In a Motion to Enforce filed in his first
proceeding, Petitioner claimed that “the denial of bond was not supported by
evidence, did not meaningfully engage with the substantial record presented,
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and resulted in continued detention untethered to any demonstrated risk of
flight or danger.” Salaria I, Doc. 12, at 1. This Court denied the motion, finding
that 	it 	did 	“not 	have 	jurisdiction 	to 	review 	the 	immigration 	judge’s
discretionary decision regarding the denial of bond.” Id. Doc. 15, at 4.
On April 29, 2026, an immigration judge denied Petitioner’s application
for asylum and ordered him removed. Doc. 11, Ex. 1. Petitioner timely filed an
appeal of the removal order, which remains pending before the Board of
Immigration 	Appeals. 	Id. 	Ex. 	2; 	EOIR, 	Automated 	Case 	Information,
https://acis.eoir.justice.gov/en/caseInformation (last visited Oct. 13, 2026).
Petitioner filed the instant petition on September 2, 2026. He presents
three claims for relief: (1) unlawful warrantless arrest in violation of 8 U.S.C.
§ 1226(a) and § 1357(a)(2); (2) failure to comply with statutory requirements
for warrantless immigration arrests, 8 U.S.C. § 1357(a)(2); and (3) violation of
Petitioner’s Fifth Amendment due process rights. Doc. 1, at 15-21. He requests
release from custody and declarations that Respondents lacked statutory
authority to arrest Petitioner and keep him in custody, that Petitioner’s bond
hearing did not cure the warrantless arrest, and that Petitioner’s continued
detention violates both the INA and the Fifth Amendment. Id. at 23-24.
II. 	Analysis.
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Respondents urge the Court to dismiss the petition as an abuse of the
writ. Doc. 11, at 3. Petitioner argues that the abuse of the writ doctrine does
not apply where the first petition was granted. 3 Doc. 12, at 3. Alternatively,
Petitioner argues that the Court should hear his new claims notwithstanding
his prior petition because (1) he can show good cause for not presenting those
claims 	in 	the 	first 	action, 	and 	(2) 	failing 	to 	hear 	them 	would 	create 	a
fundamental miscarriage of justice. Id. at 4.
“The principle called ‘abuse of the writ’ developed in case law and is
similar to the statutory bar on successive habeas petitions under 28 U.S.C.
§§ 2254 and 2255.” Salomov v. Blanche, No. CIV-26-1632-R, 2026 WL 2667458,
at *4 (W.D. Okla. Sept. 10, 2026) (citing Calderon v. Thompson, 523 U.S. 538,
554, 558 (1998) (noting the statutory provisions applicable to § 2254 “do not
govern” § 2241 proceedings, but may “inform [judicial] consideration” of the
abuse of the writ doctrine)). 4 The abuse-of-the-writ doctrine authorizes a court
3 	Although the typical abuse-of-the-writ case involves a denial of the first
petition, Petitioner makes no argument as to why a successful first petition
would not have the same preclusive effect on new claims. Doc. 12, at 3
(explaining that Respondents’ cases all “involved a prior loss on the merits or
a repeat of the same claim,” not “a new claim after the first petition was
granted.”).
4 	28 U.S.C. § 2244(a) itself “does not bar [an immigration] petitioner’s new
§ 2241 habeas challenge since it only applies to a petitioner who is in detention
‘pursuant to a judgment of a court of the United States,’ and [an immigration]
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to dismiss successive § 2241 claims raised in a prior petition as well as any new
“claim that could have been presented in an earlier petition but was not.”
Stanko v. Davis, 617 F.3d 1262, 1269 (10th Cir. 2010). While “the government
bears the burden of pleading abuse of the writ,” once it does so, “[t]he burden
to disprove abuse then becomes petitioner’s.” McCleskey v. Zant, 499 U.S. 467,
494 	(1991). 	To 	excuse 	the 	omission 	of 	a 	claim 	from 	an 	earlier 	petition,
Petitioner must demonstrate cause for failing to raise the claim and resulting
prejudice. Stanko, 617 F.3d at 1271 (Petitioner must “establish that the
omission was not the result of inexcusable neglect in order to proceed on the
new claim.”). Alternatively, he must establish that declining to consider the
claim would result in a “fundamental miscarriage of justice.” McCleskey, 499
U.S. at 494-95.
Here, Respondents have borne their burden to “note[] petitioner’s prior
writ history, identif[y] the claims that appear for the first time, and allege[]
that petitioner has abused the writ” with “clarity and particularity.” Id. at 494;
see Doc. 11, 3-5.
petitioner’s detention is not pursuant to such a judgment.” Lopez Galvan v.
Figueroa, No. CIV-26-943-HE, Doc. 11, at 3 n.3 (W.D. Okla. June 17, 2026)
(citing Ackerman v. Novak, 483 F.3d 647, 650 (10th Cir. 2007)).
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Petitioner offers three reasons why his failure to raise his warrantless
arrest claim in his first petition is excusable.
First, Petitioner argues that he had no reason to raise the warrant issue
because 	an 	administrative 	warrant 	is 	a 	requirement 	under 	§ 	1226, 	but
Respondents argued in his first proceeding that his detention was governed by
§ 1225. Doc. 12, at 5. However, Petitioner argued in his first proceeding that §
1226 should apply to his detention, and this Court agreed. Salaria I, Doc. 1, at
24-25; Doc. 10, at 3 (“Accordingly, § 1226 controls Petitioner’s detention”). If
Petitioner believed he had a valid claim under § 1226 that would support his
release, he had no reason not to raise it.
Second, Petitioner argues that he did not know a warrantless arrest
could support an order of release until after he filed his first petition. Doc. 12,
at 5 (claiming that “Judges in this District first ordered release for warrantless
§ 1226 arrests in February and March 2026”). Before Petitioner filed his first
petition on January 27, 2026, courts outside this district had considered
similar warrantless-arrest claims and ordered release. See Washington G. v.
Bondi, No. 26-CV-250 (JMB), 2026 WL 125173 (D. Minn. Jan. 16, 2026)
(finding that “an arrest warrant is a prerequisite to detention under section
1226(a)” and ordering release); Perez Velasquez v. Noem, 25 Civ. 10338 (AT),
2025 WL 3707526 (S.D.N.Y. Dec. 22, 2025) (ordering release where petitioner
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was 	detained 	without 	a 	warrant 	or 	individualized 	hearing); 	B.D.A.A. 	v.
Bostock, Civ. No. 25-cv-2062-AA, 2025 WL 3484912 (D. Or. Dec. 4, 2025)
(granting release in part based on improper arrest without a warrant or
probable cause); Chogllo Chafla v. Scott, 804 F. Supp. 3d 247, 264 (D. Me. 2025)
(finding sua sponte that the lack of a warrant justified petitioners’ immediate
release pending individualized bond hearings); Rosado v. Figueroa, No. CV-25-
02157 (CDB), 2025 WL 2337099 (D. Ariz. Aug. 11, 2025), adopted by 2025 WL
2349133 (D. Ariz. Aug. 13, 2025) (granting release based in part on improper
warrantless arrest); cf. Castanon Nava v. Dep’t of Homeland Security, 806 F.
Supp. 3d 823 (N.D. Ill. 2025) (finding that ICE was bound by terms of
settlement 	agreement 	requiring 	compliance 	with 	warrant 	requirement).
Although such claims were not as common at the time as they are now, it was
not “so novel that its legal basis [was] not reasonably available to counsel[.]”
Daniels v. United States, 254 F.3d 1180, 1190 (10th Cir. 2001).
Third, Petitioner argues that “the facts that decide this claim are in
Respondents’ hands.” Doc. 12, at 5. But while Petitioner may not know whether
a warrant ever issued, “Petitioner knows that ICE showed him no warrant.”
Id. Petitioner could have alleged in good faith that ICE lacked a warrant in his
first petition.
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Finally, Petitioner argues that declining to hear his claim would be a
miscarriage of justice because he remains “in detention Congress did not
authorize.” Id. at 6. But Petitioner provides no authority for this argument.
Petitioner relies on the report and recommendation in Rabadanov v. Figueroa,
No. CIV-26-1441-J, but the district judge subsequently declined to adopt that
recommendation and dismissed the petition as an abuse of the writ. Id. Doc.
15.
Generally, a “fundamental miscarriage of justice” requires a finding that
“a constitutional violation probably has caused” the conviction or detention at
issue. McCleskey, 499 U.S. at 494. Although Petitioner also invokes the Due
Process Clause, his argument rests on Respondents’ alleged failure to comply
with the statutory arrest requirements. He does not identify an independent
constitutional defect beyond that alleged noncompliance. See Doc. 1, at 15-19
(warrantless arrest violated 8 U.S.C. §§ 1226(a) and 1357(a)(2)); Doc. 12, at 4
(current petition “asserts that detention without statutory authority is a
deprivation of liberty without due process”). 5
5 	Petitioner also litigated his due process rights in his first petition and
was granted the relief available to him under § 1226(a): a constitutionally valid
bond hearing.
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Petitioner’s appeal of his removal order to the Board of Immigration
Appeals is still pending. Doc. 12, at 2. So he remains detained under 8 U.S.C.
§ 1226(a). See, e.g., Prieto-Romero v. Clark, 534 F.3d 1053, 1058 (9th Cir. 2008)
(holding that the statutory authority under § 1226(a) for the petitioner’s initial
detention remained while the petitioner was appealing his removal order to
the court of appeals); see also Salaria I, 2026 WL 735461, at *2 (finding §
“1226(a) controls Petitioner’s detention”). Petitioner received a bond hearing
under § 1226(a) in front of an IJ, at which the IJ found that Petitioner was a
flight risk. See Salaria I, Doc. 15, at 2-4.
Because Petitioner could have raised his new claims in his first petition,
the current petition is an abuse of the writ and the Court should dismiss it.
See, e.g., Mannu v. Gantt, No. 26-cv-2068-JD, Doc. 8 (W.D. Okla. Sept. 10,
2026) (dismissing second petition as abuse of the writ after first petition was
granted in part and Petitioner was provided a bond hearing); Chiniakov v.
Lyons, No. 26-cv-4106-DMK, 2026 WL 2525611 (C.D. Cal. Aug. 26, 2026)
(denying petition as abuse of the writ where Petitioner raised new claims that
could have been raised in the first petition).
III. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
dismiss Petitioner’s habeas petition for abuse of the writ.
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The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by October 30,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72. 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 Recommendation
disposes of the issues referred to the undersigned Magistrate Judge in the
captioned matter.
ENTERED this 16th day of October, 2026.
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