Guerra v. Bondi

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MIGUEL MONTERO GUERRA, 	)
)
Petitioner, 	)
)
v. 	) 	No. CIV-25-1240-G
)
PAMELA J. BONDI et al. 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner, proceeding pro se,1 filed a petition for habeas corpus under 28
U.S.C. § 2241, challenging his detention by United States Immigration and
Customs Enforcement (ICE). Doc. 1.2 United States District Judge Charles B.
Goodwin referred the case to the undersigned Magistrate Judge for initial
proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. The United States filed
a response. Doc. 10. So the matter is at issue.
1 	This Court construes “[a] pro se litigant’s pleadings . . . liberally,” holding
them “to a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as
Petitioner’s advocate, creating arguments on his behalf. See Yang v. Archuleta,
525 F.3d 925, 927 n.1 (10th Cir. 2008).
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 set forth below, the undersigned recommends the Court
grant Petitioner’s request for habeas corpus relief.
I. 	Factual background and procedural history.
Petitioner is allegedly a Cuban citizen. Doc. 10, Ex. 1, at 3. Respondents
are currently detaining him within this judicial district. See Doc. 1. Petitioner
has several criminal convictions:
• 	August 1, 1989 Dallas County, Texas conviction for possession with
intent to deliver cocaine, for which he received a sentence of ten years of
confinement;
• 	September 16, 1997 Dallas County, Texas conviction for aggravated
sexual assault, for which he received a sentence of seven years of
confinement;
• 	March 10, 2006 Dallas County, Texas convictions for driving while
intoxicated 	(DWI) 	and 	possession 	of 	marijuana, 	for 	which 	he 	was
sentenced to 81 days of confinement for his DWI conviction and 60 days
for his possession of marijuana conviction, for a total of 141 days; and
• 	May 3, 2006 Dallas County, Texas conviction for failure to comply with
sex offender registration requirements, for which he received a sentence
of ten years of confinement, later suspended, and thereafter, placed on a
four-year term of community supervision.
Doc. 10, Ex. 1, at 2. On October 1, 2003, Petitioner was ordered removed by an
immigration judge (IJ). Id. He did not appeal the IJ’s order. Id. Petitioner was
released pursuant to an order of supervision (OOS) by the Department of
Homeland Security (DHS). Id. On February 11, 2010, Petitioner failed to report
as required by the OOS. Id. On August 3, 2010, Petitioner was detained by
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Enforcement 	Removal 	Operations 	(ERO) 	for 	failure 	to 	report, 	and 	later
released on another OOS on October 22, 2010. Id.
On July 31, 2025, Petitioner reported to the Dallas, Texas ICE office and
was detained. Id. at 3. Petitioner met with an ICE officer, who advised him
that “he had a final order of removal entered by the IJ on October 01, 2003”
and “that if ERO was unable to obtain travel documents for him, he would be
released back on an [OOS].” Id. Ex. 2, at 1-2. He has been in ICE custody since
July 31, 2025, and is detained at the Cimarron Correctional Facility in
Cushing, Oklahoma. Id. Ex. 1, at 3.
Respondents maintain that ERO has completed Petitioner’s required 90-
day custody review under 8 C.F.R. § 241.4(l)(3), and that the decision is
pending. Id.
On October 3, 2025, ICE reached out to Cuba to effectuate Petitioner’s
removal but received no response. Id. Respondents maintain that ERO is
currently working on a third country removal to Mexico, which has been
accepting Cuban citizens for third country removals. Id.
II. 	Petitioner’s claims.
Petitioner presents two grounds for relief:
Ground 	One: 	Respondents 	violated 	his 	due 	process 	rights 	by
redetaining him and revoking his OOS.
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Ground Two: His detention is punitive, arbitrary, and capricious
under 	the 	Administrative 	Procedures 	Act 	(APA) 	because
Respondents “failed to follow their own regulations.”
Doc. 1, at 6.
Petitioner asks the Court to “order his release and reinstate his [prior
OOS] . . . and/or anything else deem[ed] just by [the] Court.” Id. at 7.
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
States.” 28 U.S.C. § 2241(c)(3).
IV. 	Discussion.
A. 	Statutory and regulatory framework.
Petitioner contends that his detention is unlawful as he “should not have
to wait a substantial period time, had there been any significant likelihood of
removal.” Doc. 1, at 6.
Section 1231(a) dictates that “when an alien is ordered removed, the
Attorney General shall remove the alien from the United States within a
period of 90 days (in this section referred to as the ‘removal period’).” 8 U.S.C.
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§ 1231(a)(1)(A). “During the removal period, the Attorney General shall detain
the alien.” Id. § 1231(a)(2). The removal period begins on the latest of the
following dates:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders
a stay of the removal of the alien, the date of the court’s final order.
(iii) 	If 	the 	alien 	is 	detained 	or 	confined 	(except 	under 	an
immigration process), the date the alien is released from detention
or confinement.
Id. § 1231(a)(1)(B).
The removal period may be extended “and the alien may remain in
detention during such extended period if the alien fails or refuses to make
timely application in good faith for travel or other documents . . . or conspires
or acts to prevent the alien’s removal.” Id. § 1231(a)(1)(C).
Finally, detention of an alien subject to a final order of removal may not
be indefinite and is presumptively reasonable for only six months beyond the
removal period. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). After that, the
detainee may bring a habeas action to challenge his detention. Id. at 684-85,
688. To obtain habeas relief, the petitioner has the initial burden to show
“there is no significant likelihood of removal in the reasonably foreseeable
future.” Id. at 701. Presuming the petitioner does so, the burden shifts,
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requiring “the Government [to] respond with evidence sufficient to rebut that
showing.” Id.
B. 	The Court has jurisdiction to hear Petitioner’s claims.
The undersigned begins with a summary of the Court’s circumscribed
jurisdiction under 8 U.S.C. § 1252 as Respondents maintain that the Court
lacks jurisdiction to hear Petitioner’s habeas claims. Doc. 10, at 17.
Section 1252(g) provides that “no court shall have jurisdiction to hear
any cause or claim by or on behalf of any alien arising from the decision or
action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders.” 8 U.S.C. § 1252(g). Section 1252(g) is a “jurisdiction-
stripping ‘zipper clause,’” which “channel[s] review of all ‘decisions and actions
leading up to or consequent upon final orders of deportation’ in the courts of
appeal, following issuance of an order of removal.” Mukantagara v. DHS, 67
F.4th 1113, 1115 (10th Cir. 2023) (quoting Reno v. American-Arab Anti-
Discrimination Comm., 525 U.S. 471, 482-85 (1999)).
Section 1252(g) is to be read narrowly, Reno, 525 U.S. at 482, and it does
not cover “all claims arising from deportation proceedings” or impose “a general
jurisdictional limitation.” Id. Instead, it “applies only to three discrete actions
that the Attorney General may take: her ‘decision or action’ to ‘commence
proceedings, adjudicate cases, or execute removal orders.’” Id. Further, the
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Supreme Court has noted that it is “implausible that the mention of three
discrete events along the road to deportation was a shorthand way of referring
to all claims arising from deportation proceedings.” Id.
The 	undersigned 	is 	not 	persuaded 	§ 	1252(g) 	restricts 	review 	of
Petitioner’s due process claim. “[C]laims that clearly are included within the
definition of ‘arising from’ . . . [are] those claims connected directly and
immediately with a ‘decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders.’” Tsering v. ICE, 403
F. App’x 339, 343 (10th Cir. 2010) (quoting Humphries v. Various Fed. USINS
Emp., 164 F.3d 936, 943 (5th Cir. 1999)).
Respondents contend that Petitioner challenges the Attorney General’s
action taken to execute his order of removal, which precludes the Court from
reviewing his claim. Doc. 10, at 16. Respondents misread Petitioner’s due
process claim. Petitioner does not ask the Court to review the Attorney
General’s decision to act on the order of removal, which would be beyond the
Court’s purview. Instead, he argues, in part, that ICE failed to comply with its
own regulations when it revoked his OOS and the improper revocation violated
his due process rights. See Barrios v. Ripa, 2025 WL 2280485, at *5 (S.D. Fla.
Aug. 8, 2025) (“[T]he Court does have jurisdiction to adjudicate whether
Respondents complied with their own [OOS] revocation procedures.”).
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Likewise, for similar reasons, Respondents’ fleeting reference to 8 U.S.C.
§ 1252(b)(9) also fails to deprive the Court of jurisdiction. Doc. 10, at 18. Section
1252(b)(9) provides that “[j]udicial review of all questions of law and fact,
including 	interpretation 	and 	application 	of 	constitutional 	and 	statutory
provisions, arising from any action taken or proceeding brought to remove an
alien from the United States . . . shall be available only in judicial review of a
final order under this section.” Id. § 1252(b)(9). Section 1252(b)(9) “does not
present a jurisdictional bar,” when, as is the case here, detainees “are not
asking for review of an order of removal,” “challenging the decision to detain
them in the first place or to seek removal,” or “challenging any part of the
process 	by 	which 	their 	removability 	will 	be 	determined.” 	Jennings 	v.
Rodriguez, 583 U.S. 281, 294-95 (2018).
C. 	Petitioner’s failure to name the proper custodian.
Respondents also argue this Court should dismiss the petition because
Petitioner 	has 	failed 	to 	name 	his 	immediate 	physical 	custodian 	as 	a
Respondent. Doc. 10, at 24-25. The Court granted Petitioner’s request to add
as Respondents the Secretary of Homeland Security, the Acting Director of
ICE, ERO Acting Executive Associate Director, and the warden of Cimmaron
Correctional 	Facility 	as 	Respondents 	in 	this 	matter. 	Doc. 	12. 	So 	the
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undersigned recommends the Court deny Respondents’ request to dismiss on
this basis as moot.
D. 	Respondents improperly revoked Petitioner’s OOS.
Petitioner alleges that his detention is unlawful as Respondents violated
his due process rights in the process of revoking his existing OOS. Doc. 1, at 6.
Specifically, Petitioner alleges that his OOS was revoked “without any notice
of revocation” and that he was not “given a reason for the revoking of his OOS.”
Id. at 2, 6.
“‘It is well established that the Fifth Amendment entitles aliens to due
process of law’ in the context of removal proceedings.” Trump v. J.G.G., 604
U.S. 670, 673 (2025) (per curiam) (quoting Reno v. Flores, 507 U.S. 292, 306
(1993)). The Due Process Clause is also implicated where “an individual has
reasonably relied on agency regulations promulgated for his guidance or
benefit and has suffered substantially because of their violation by the agency.”
United States v. Caceres, 440 U.S. 741, 752-53 (1979).
Section 1231(a)(3) governs the revocation of Petitioner’s OOS, as he was
released from ICE detention on October 22, 2010. Doc. 10, Ex. 1, at 2.3
3 	Petitioner was also released and placed on an OOS following the final
order of removal issued in 2003. Doc. 10, Ex. 1, at 2.
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Respondents 	contend 	that 	the 	revocation 	of 	Petitioner’s 	OOS 	was
governed solely by 8 C.F.R. § 241.4 rather than § 241.13. Doc. 10, at 19-20. The
undersigned agrees.
The parties have not provided the Court with a copy of the revoked OOS,
but 	Respondents 	do 	not 	indicate 	that 	the 	OOS 	was 	issued 	due 	to 	a
determination that there was “no significant likelihood of removal in the
reasonably foreseeable future” under § 241.13. Therefore, the Court presumes
that Petitioner’s OOS was issued pursuant to § 241.4, as Petitioner has failed
to rebut Respondents’ position. See 8 C.F.R. § 241.13(b)(1); see e.g., Momennia
v. Bondi, No. CIV-25-1067-J, 2025 WL 3011896, at *4 (W.D. Okla. Oct. 15,
2025) (“Mr. Momennia alleges that his release was revoked . . . pursuant to §
241.13(i). This is incorrect. Section 241.13(i) provides that procedures for a
revocation of release under this section are only applicable when the alien was
originally released under an [OOS] “under this section.”) (internal citations
omitted), 	adopted, 2025 WL 3006045 (W.D. Okla. Oct. 27, 2025); cf. Pham v.
Bondi, No. CIV-25-1157-SLP, 2025 WL 3477023, at *3 (W.D. Okla. Oct. 30,
2025) (“Respondent states that when it detained Petitioner ‘[he] was informed
that he would be detained because he was subject to a final order of removal
and there is now a likelihood of removal to Vietnam’” . . . “[s]o, it is reasonable
to 	infer 	that 	ICE 	must 	have 	made 	a 	determination 	that 	‘there 	was 	no
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significant likelihood of removal in the reasonably foreseeable future’ before
issuing the OOS in 2005.”), adopted, 2025 WL 3243870 (W.D. Okla. Nov. 20,
2025).
Respondents contend that Petitioner’s OOS was not revoked due to
violations of his conditions of release, but instead pursuant to 241.4(l)(2). Doc.
10, at 19-20. Section 241.4 “govern[s] the detention of aliens under a final order
of removal . . . unless the Service makes a determination under [§ 241.13] that
there is no significant likelihood of removal in the reasonably foreseeable
future.” 8 C.F.R. § 241.13(b)(1). Section 241.4(l)(2) grants ICE “exceptionally
broad authority . . . to revoke release under § 241.4.” Momennia, 2025 WL
3011896, at *4. Still, even though “[t]he lawful revocation of Petitioner’s
supervised release presents a low bar to the Government,” the Government
must 	still 	comply 	with 	its 	regulations. 	E.M.M. 	v. 	Almodovar, 	2025 	WL
3077995, at *6 (S.D.N.Y. Nov. 4, 2025).
Section 241.4(l)(2) provides that:
The 	Executive 	Associate 	Commissioner 	shall 	have
authority, in the exercise of discretion, to revoke release
and return to Service custody an alien previously approved
for release under the procedures in this section. A district
director may also revoke release of an alien when, in the district
director’s 	opinion, 	revocation 	is 	in 	the 	public 	interest 	and
circumstances do not reasonably permit referral of the case to the
Executive Associate Commissioner. Release may be revoked in the
exercise of discretion when, in the opinion of the revoking official:
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(i) The purposes of release have been served;
(ii) The alien violates any condition of release;
(iii) It is appropriate to enforce a removal order or to commence
removal proceedings against an alien; or
(iv) The conduct of the alien, or any other circumstance, indicates
that release would no longer be appropriate.
8 C.F.R. § 241.4(l)(2) (emphasis added).
Respondents state that Petitioner was informed that “he had a final
order of removal,” Doc. 10, Ex. 2, at 1, so it appears that Respondent relied on
its “exceptionally broad authority” under § 241.4(l)(2) to revoke his supervised
release “to enforce” Petitioner’s removal order.
Following revocation of an OOS under § 241.4(l)(2), ICE is required to
provide an informal interview, and then, a 90-day custody review. 8 C.F.R.
§ 241.4(l)(3).
Respondents contend that § 241.4(l)(2) contains “no requirement that
Petitioner receive an interview after his return to custody,” Doc. 10, at 20, but
this assertion contradicts the language of the regulation. Section 241.4(l)(3)
provides:
If the alien is not released from 	custody following the
informal interview provided for in paragraph (l)(1) of this
section, the HQPDU Director shall schedule the review process in
the 	case 	of 	an 	alien 	whose 	previous 	release 	or 	parole 	from
immigration custody pursuant to a decision of either the district
director, Director of the Detention and Removal Field Office, or
Executive Associate Commissioner under the procedures in this
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section has been or is subject to being revoked. The normal review
process will commence with notification to the alien of a records
review and scheduling of an interview, which will ordinarily be
expected to occur within approximately three months after release
is revoked. That custody review will include a final evaluation of
any contested facts relevant to the revocation and a determination
whether the facts as determined warrant revocation and further
denial of release. Thereafter, custody reviews will be conducted
annually under the provisions of paragraphs (i), (j), and (k) of this
section.
8 C.F.R. § 241.4(l)(3) (emphasis added).
Respondents do state that they have conducted the required custody
review, but more troubling is the apparent lack of notice provided to Petitioner
before being detained.4 Section 241.4(l)(1) provides that “[u]pon revocation, the
alien will be notified of the reasons for revocation of his or her release or
parole.” 8 C.F.R. § 241.4(l)(1). “[C]ourts have ‘interpreted section 241.4(l) as
requiring an informal interview upon the revocation of release regardless of
the reason for the revocation’—meaning that the notice and informal interview
requirement stated in [§ 241.4(l)(1)] applies to revocation under [§ 241.4(l)(2)].”
4 	Respondents have also not attempted to show that the appropriate
official exercised their discretion to revoke under § 241.4(l)(2). Failure by the
appropriate official to revoke an OOS under § 241.4(l)(2) may constitute a
separate ground for granting habeas relief. See E.M.M., 2025 WL 3077995, at
*6 (finding unlawful revocation where assistant field officer revoked rather
than “the Executive Associate Commissioner or a district director”). Given that
Petitioner only cites the lack of notice in his petition, Doc. 1, at 2, the
undersigned does not elaborate on this issue any further.
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Grigorian v. Bondi, 2025 WL 2604573, at *6 (S.D. Fla. Sept. 9, 2025) (collecting
cases) (quoting Ceesay v. Kurzdorfer, 781 F. Supp. 3d 137, 163 (W.D.N.Y. May
2, 2025)).
Respondents contend that verbally informing Petitioner of the reasons
for revocation suffices for Notice under ICE regulations, Doc. 10, at 21, but a
review of other district court cases involving renewed detentions to effectuate
removal shows that ICE typically will provide the detainee with written notice
at some point during detention and provide it to the Court when responding to
the detainee’s 	habeas petition. 	Zhu 	v. Genalo, 2025 	WL 2452352, 	at 	*8
(S.D.N.Y. Aug. 26, 2025) (citing cases); see also Yee S. v. Bondi, 2025 WL
2879479, at *2 (D. Minn. Oct. 9, 2025) (“The next day, having already detained
Petitioner, ICE served a [Notice] on him.”); see e.g., K.E.O. v. Woosley, 2025 WL
2553394, at *6 (W.D. Ky. Sept. 4, 2025) (noting that the United States provided
the district court a copy of the Petitioner’s Notice to correct deficiencies
identified by the Petitioner and recognizing that “[she was] entitled to a Notice
. . . pursuant to authority delegated by regulation”) internal quotation marks
omitted)); Umanzor-Chavez v. Noem, 2025 WL 2467640, at *2 (D. Md. Aug. 27,
2025) (noting that when Petitioner reported to ICE check-in his OOS “was
revoked, and he was served with a notice that ICE intends to remove him to
Mexico.” (internal quotation marks omitted)).
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And Respondents do not address, § 214.4(d), which provides that:
A copy of any decision by the district director, Director of the
Detention 	and 	Removal 	Field 	Office, 	or 	Executive 	Associate
Commissioner 	to 	release 	or 	to 	detain 	an 	alien 	shall 	be
provided to the detained alien.
8 C.F.R. § 241.4(d) (emphasis added).
Here, 	there 	is 	no 	indication 	that 	Petitioner 	received 	a 	copy 	of
Respondents’ decision to revoke his OOS and detain him. And Respondents
have not provided a copy of the decision to the Court. So, the undersigned
concludes that Respondents failed to properly revoke Petitioner’s OOS. The
appropriate 	remedy 	for 	Respondents’ 	unlawful 	revocation 	is 	to 	reinstate
Petitioner’s existing OOS that governed his earlier release. See Pham, 2025
WL 3243870, at *2; see e.g., Grigorian, 2025 WL 2604573, at *10 (“[T]he
Government may revoke Petitioner’s [OOS] for any of the reasons stated in §
241.4(l)(2),” “[b]ut they may not detain him without offering a meaningful
opportunity to contest those reasons.”); E.M.M., 2025 WL 3077995, at *6
(“[T]he 	Government’s 	own 	regulations 	. 	. 	. 	grant 	it 	enormous 	discretion
regarding when and how the previously-authorized release of removable aliens
may be revoked. But that discretion is not unlimited. If the Government does
choose to embark upon a campaign of mass removal, the Constitution, its
guarantees of due process to all persons present in the United States, and the
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rule of law all demand that detention and removal be conducted lawfully.”).
Accordingly, 	the 	undersigned 	recommends 	that 	the 	Court 	grant
Petitioner’s habeas petition and order his immediate release.5
E. 	Petitioner’s remaining claims.
The Court should decline to rule on Petitioner’s remaining claims as to
how the revocation of his release is otherwise unlawful under the APA or
whether his detention is unlawful under Zadvydas because the Court can grant
him relief solely for ICE’s failure to follow its own regulations.
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s request for habeas relief, and order his immediate release
from 	custody 	subject 	to 	the 	terms 	of 	his 	unlawfully 	revoked 	OOS. 	The
5 	Respondents cite Bahadorani v. Bondi, No. CIV-25-1091-PRW, 2025 WL
3048932 (W.D. Okla. Oct. 31, 2025) as support for their contention that
immediate 	release 	is 	an 	inappropriate 	remedy, 	but 	Petitioner’s 	case 	is
distinguishable for the same reasons cited by District Judge Palk in Pham:
In 	Bahadorani, 	the 	petitioner 	underwent 	a 	particularized
interview process regarding their removal after being detained.
Here, similar to the facts of [Roble v. Bondi, 2025 WL 2443453 at
*3 	(D. 	Minn. 	Aug. 	25, 	2025)], 	Respondents 	only 	provided 	a
perfunctory and generalized statement to Petitioner regarding the
reason for revocation of his release.
2025 WL 3243870, at 1 n.2 (internal citations omitted).
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undersigned further recommends that the Court order Respondents submit a
declaration pursuant to 28 U.S.C. § 1746 affirming that Petitioner has been
released from custody.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by January 6,
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 December, 2025.
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