Tabares Martinez v. Grant et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NESTOR JOSE TABARES MARTINEZ, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-545-SLP
)
SCARLET GRANT, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Nestor Jose Tabares Martinez, a citizen of Venezuela proceeding with
counsel, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”)
challenging his detention by the U.S. Immigration and Customs Enforcement (“ICE”).1
(Doc. 1).2 United States District Judge Scott L. Palk referred the matter to the undersigned
Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C).
(Doc. 3). In accordance with the briefing schedule, (Doc. 7), Respondents timely filed a
response.3 (Doc. 9). Petitioner timely filed a reply. (Doc. 10). As fully set forth below,
1 Petitioner is housed at Cimarron Correctional Facility in Cushing, Oklahoma. (Doc. 1, at
2).
2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
3 The response was not filed on behalf of Respondent Scarlet Grant, Warden of the
Cimarron Correctional Facility, because she is not a federal official. 	(Doc. 9, at 1 n.1).
The undersigned concludes that a separate response from Warden Grant is not necessary
to resolve this matter.
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the undersigned recommends that Petition be GRANTED in part. Petitioner is entitled to
a bond hearing and, because Petitioner’s due process rights have been violated, the Court
should order Respondents to provide Petitioner with a bond hearing at which the
Government shall bear the burden of proving, by clear and convincing evidence, that
Petitioner is a flight risk and/or a danger to the community in order to justify continued
detention.
I. 	Introduction to the Immigration and Nationality Act
The two sections of the Immigration and Nationality Act (“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). The statute defines “admission” and
“admitted” as “the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer.” Id. § 1101(a)(13). Under § 1225(b)(2)(A), “in
the case of an alien who is an applicant for admission, if the examining immigration 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.” 	(Emphasis
added). In other words, the alien is subject to mandatory detention while he awaits removal
proceedings.
On the other hand, § 1226(a) authorizes detention of an alien “on a warrant issued
by the Attorney General.” 	Id. § 1226(a) (citation modified). 	An alien detained under §
1226(a) is entitled to a bond hearing at which he can argue to an immigration judge that he
should be released while he awaits removal proceedings because he is not a danger to others
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or at risk for non-appearance. 	See Jennings v. Rodriguez, 583 U.S. 281, 306 (2018)
(“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)).
Accordingly, if Petitioner is an “applicant for admission” and “seeking admission”
under § 1225(b)(2)(A), he must be detained and is not entitled to a bond hearing. If he is
not an “applicant for admission” and “seeking admission” under § 1225, then Petitioner
falls within the confines of § 1226(a), which would entitle him to a bond hearing and
potentially release.
For many years, Immigration Judges applying the INA provided bond hearings for
aliens who had entered the country without inspection or admission and were later
apprehended and detained by ICE. See Jonathan Javier Yajure Hurtado, 29 I. & N. Dec.
216, 225 n.6 (BIA 2025) (“Hurtado”). 	But on September 5, 2025, the Board of
Immigration Appeals (“BIA”) determined that an immigration judge does not have
authority to hear a request for bond by an alien present in the United States who has not
been admitted after inspection because the alien was “subject to mandatory detention”
under § 1225. Id. at 229. This change in interpretation of the INA has led to a nationwide
influx of habeas corpus petitions seeking bond hearings for aliens who were recently
detained after living for years in the United States without inspection or admission.
II. 	Factual Background
Petitioner is a citizen of Venezuela who entered the United States without inspection
on or about July 14, 2023. (Doc. 1, at 4, 13; Doc. 9, at 5). 	On August 7, 2023, ICE
instituted removal proceedings against him through issuance of a Notice to Appear
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(“NTA”), alleging he was an alien present in the United States who had not been admitted
or paroled. (Doc. 1, at Ex. 1). On or about September 28, 2023, Petitioner was released
from ICE custody on parole. (Id. at Ex. 2). At some point during his removal proceedings,
Petitioner filed a Form I-589, Application for Asylum and for Withholding of Removal.
(Doc. 9, at Ex. 3).
On February 10, 2026, Petitioner was taken into custody during a regularly
scheduled check-in with ICE. (Doc. 1, at 13). Petitioner asserts that he was not advised of
any violations of his release conditions and that he has not been afforded a bond hearing.
(Id.) 	Respondents assert that Petitioner is subject to mandatory detention under §
1225(b)(2)(A). (Doc. 9, at 2, 11-15). Petitioner’s removal proceeding is ongoing. (See id.
at 5).
III. 	Petitioner’s Claims and Respondents’ Responses
In Count I, Petitioner alleges that his due process rights under the Fifth Amendment
to the Constitution have been violated by his re-detention “after a period of liberty
previously granted by the government, without providing notice of any alleged violation,
without identifying any material change in circumstances, and without affording Petitioner
any meaningful opportunity to be heard in connection with the deprivation of liberty.”
(Doc. 1, at 15). Petitioner asserts that he is “entitled to habeas relief ordering his release
from custody or, in the alternative, requiring Respondents to provide constitutionally
adequate process governing any continued detention.” (Id.)
In Count II, Petitioner asserts that his revocation of release was in violation of
Respondents’ own binding regulations. (Id. at 15-16).
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In Count III, Petitioner alleges a violation of the INA, arguing that his detention is
unlawful because § 1225(b)(2)(A) “does not apply to noncitizens like the Petitioner
residing in the United States who are subject to the grounds of inadmissibility.” (Doc. 1,
at 16). He asserts that he is properly subject to detention under § 1226(a). (Id. at 17).
As relief Petitioner requests immediate release from custody. (Id.) 	Alternatively,
he asserts that “if the Court were to issue a bond hearing, the requirements of that hearing
would also need to comply with procedural due process.” 	(Id. at 12). 	Petitioner argues
that “due process requires the government to bear the burden of proving, at any bond
hearing, that the noncitizen is a danger, flight risk, or threat to national security. See L.G.
v. Choate, 744 F. Supp. 3d 1172 (D. Colo. 2024) (ordering bond hearing for petitioner
under 8 U.S.C. § 1226(a), holding that DHS must bear the burden to prove by clear and
convincing evidence that petitioner was a flight risk or a danger to the community).” (Id.)
(emphasis in original). Petitioner also requests an award of attorney fees and costs under
the Equal Access to Justice Act (“EAJA”).4 (Id. at 17).
Respondents contend that (1) Petitioner’s due process claim is premature and
baseless, (Doc. 9, at 6-9); (2) immediate release is not an appropriate remedy because
failure to comply with a regulation cannot be a basis for habeas relief, (id. at 9-11); and (3)
Petitioner is lawfully detained under § 1225(b)(2)(A), (id. at 11-15).
4 To the extent Petitioner may be entitled to EAJA fees and costs as a prevailing party, he
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”).
Accordingly, the Court need not address this request at this juncture.
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IV. 	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)).
V. 	Analysis
A. 	The Undersigned Agrees With the Majority of this District Court that
the Detention of Aliens Like Petitioner is Governed by § 1226(a).
According to Petitioner, his continued detention under § 1225(b)(2)(A) is unlawful
and he is properly detained under § 1226(a). (Doc. 1, at 16-17). Respondents contend that
because Petitioner did not enter the country lawfully and has not departed, he is still
considered an “applicant for admission” who is “seeking admission” and therefore he is
properly detained under § 1225(b)(2)(A). (Doc. 9, at 11-15).
The undersigned agrees with Petitioner. 	Indeed, the undersigned has issued more
than twenty Reports and Recommendations setting forth a detailed analysis of the statutory
text and legislative history of § 1225 and § 1226, a discussion of the BIA’s application of
the statutes for the past three decades, and comparison to the reasoning of numerous recent
cases from both within and outside this District that have considered the same issues.
Central to that analysis is the undersigned’s conclusion that for § 1225(b)(2)(A) to apply,
the alien must be both an “applicant for admission” and “seeking admission” and that the
use of “seeking” “implies action – something that is currently occurring, and in this
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instance, would most logically occur at the border upon inspection.” Damian v. Jones, No.
CIV-25-1561-J, 	2026 	WL 	682545, 	at 	*7 	(W.D. 	Okla. 	Feb. 	2, 	2026), 	report 	and
recommendation adopted, 2026 WL 446295 (W.D. Okla. Feb. 17, 2026). Thus, the
undersigned has consistently concluded that § 1226(a), not § 1225(b)(2)(A), governs the
detention of aliens who were apprehended when they were already present in the country
without admission, as opposed to arriving at the border.
In response to a growing number of habeas challenges in the Western District of
Oklahoma, Chief Judge DeGiusti, Judge Palk, Judge Jones, Judge Russell, and Judge
Heaton have repeatedly come to the same conclusion. 	See, e.g., 	Colin v. Holt, CIV-25-
1189-D, 2025 WL 3645176, at *4-5 (W.D. Okla. Dec. 16, 2025); Gonzalez Cortes v. Holt,
No. CIV-25-1176-SLP, 2026 WL 147435, at *5 (W.D. Okla. Jan. 20, 2026); Damian, 2026
WL 446295, at *2; Valdez v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D.
Okla. Dec. 22, 2025); Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at *1 (W.D.
Okla. Jan. 20, 2026). 	Accordingly, the Judges have granted habeas relief in the form of
bond hearings under § 1226(a).
The Seventh Circuit Court of Appeals is in agreement, ruling that “while a
noncitizen arrested in the Midwest might qualify as ‘an alien present in the United States
who had not been admitted,’ § 1225(a)(1), the mandatory detention provision upon which
Defendants rely, limits its scope to an ‘applicant for admission’ who is ‘seeking admission,’
§ 1225(b)(2)(A).” Castanon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061-
62 (7th Cir. 2025). Judges in this District have found the Seventh Circuit’s analysis to be
persuasive. Maldonado v. Noem, No. CIV-25-1379-J, 2026 WL 160950, at *1 (W.D. Okla.
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Jan. 21, 2026); Valdez, 2025 WL 3709021, at *2; Toledo Santos v. Grant, No. CIV-25-
1433-SLP, 2026 WL 184287, at *2 (W.D. Okla. Jan. 23, 2026).5
Significant to the instant case, Judges in this District have held that an alien’s
application for asylum does not render him subject to §1225(b)(2)(A). See, e.g., Singh v.
Bondi, No. CIV-26-43-J, 2026 WL 483482, at *2 (W.D. Okla. Feb. 20, 2026) (rejecting
Respondents’ argument that Petitioner is seeking admission and § 1225(b)(2) therefore
applies because he filed a Form I-589 asylum application during his removal proceedings);
Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL 227155, at *3 (W.D. Okla. Jan. 28,
2026) (concluding “a pending asylum application does not render § 1225(b)(2)(A)
applicable to Petitioner”); Li, 2026 WL 147438, at *1 (finding “§ 1225(b)(2)(A) does not
apply even though petitioner filed an application for asylum”).
Based on the foregoing analysis and the weight of authority in this Court, the
undersigned recommends that the Court finds that § 1226(a) governs Petitioner’s detention.
5 In contrast, Judge Dishman and Judge Wyrick in this District have adopted Respondents’
position that aliens like Petitioner fall under § 1225(b)(2)(A) and are subject to mandatory
detention. 	See Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344 (W.D.
Okla. Jan. 6, 2026); Alvarado Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302
(W.D. Okla. Dec. 26, 2025). The Fifth and Eighth Circuit Courts of Appeals are in accord.
Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498, 502-08 (5th Cir. 2026); Avila v. Bondi,
170 F.4th 1128 (8th Cir. 2026). 	The undersigned respectfully disagrees with the textual
analysis and statutory interpretations by these courts. Several Judges in this District have
expressly acknowledged the Fifth and Eighth Circuit rulings but have not altered their
analysis. See Campa v. Johnson, No. CIV-26-1-HE, 2026 WL 446978, at *1 (W.D. Okla.
Feb. 17, 2026); Abhishek v. Holt, No. CIV-26-221-SLP, 2026 WL 852091, at *2 & n.6
(W.D Okla. Mar. 27, 2026); Raj v. Anda-Ybarra, No. CIV-26-125-D, 2026 WL 852093, at
*1 & n.1 (W.D. Okla. Mar. 27, 2026).
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B. 	Petitioner’s Detention Without a Bond Hearing Violates Procedural Due
Process. 	He Is Entitled To Receive a Bond Hearing with Appropriate
Procedural Protections.
Petitioner alleges that his due process rights have been violated by his re-detention
after parole “without affording Petitioner any meaningful opportunity to be heard in
connection with the deprivation of liberty.” (Doc. 1, at 15). He asserts that he is “entitled
to habeas relief ordering his release from custody or, in the alternative, requiring
Respondents 	to 	provide 	constitutionally 	adequate 	process 	governing 	any 	continued
detention.” (Id.)
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.
Const. amend. V. It is well established that the Due Process Clause applies to non-citizens
within the United States “whether their presence here is lawful, unlawful, temporary, or
permanent.” 	Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 	Courts examine procedural
due process claims in two steps: (1) is there a protected liberty interest, and (2) if so, what
procedures are necessary to ensure deprivation of that protected liberty interest accords
with due process. 	Morrissey v. Brewer, 408 U.S. 471, 481 (1972). 	“Freedom from
imprisonment — from government custody, detention, or other forms of physical restraint
— lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690.
1. 	Due Process Requires that Petitioner Receive a Bond Hearing.
For non-citizens subject to § 1226(a), the INA provides the due process of a bond
hearing. As a non-citizen properly classified under § 1226, Petitioner has (1) a protected
liberty interest in freedom from immigration detention, and (2) the procedure of the bond
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hearing as provided in § 1226 is necessary to ensure that deprivation of that protected
liberty interest accords with due process. Thus, Petitioner’s procedural due process rights
have been violated by Respondents’ decision to detain him without a bond hearing. 	As
articulated by a district court of this Circuit:
Because this Court holds that § 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 [immigration judge]. 	Having
erroneously concluded that Petitioner was mandatorily detained under §
1225, 	the 	IJ 	in 	Petitioner’s 	case 	declined 	to 	make 	an 	individualized
assessment of whether Petitioner posed any danger to the community,
threatened national security, or was at risk of flight. Thereafter, Petitioner’s
continued detention without the bond hearing that should have been provided
to 	him 	pursuant 	to 	§ 	1226 	constitutes 	an 	ongoing 	violation 	of 	his
constitutional right to due process.
Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025) (internal citation
omitted); see also Requejo Roman v. Castro, No. 2:25-cv-1076-DHU-JHR, --- F. Supp. 3d
----, 2026 WL 125681, at *8 (D.N.M. Jan. 12, 2026) (“Because Petitioner is subject to §
1226’s discretionary detention provision rather than mandatory detention under § 1225, he
is entitled to a bond hearing. Classifying Petitioner under § 1225 has thus deprived him of
due process by denying him the opportunity to be heard at such a hearing.”) (citations
omitted); Facio v. Baltazar, No. 25-CV-03592-CYC, 2025 WL 3559128, at *3 (D. Colo.
Dec. 12, 2025) (“[T]he Court agrees with other courts that have, against substantially
similar factual backgrounds, concluded that detention without a bond hearing amounts to
a due process violation. 	After all, the facts clearly demonstrate that [the petitioner] was
entitled to more process than he received pursuant to § 1226(a) and its implementing
regulations.”) (citation modified); Lopez-Campos v. Raycraft, 797 F. Supp. 3d 771, 785
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(E.D. Mich. Aug. 29, 2025) (“[T]he Court has specifically held that Section 1226(a)
governs Lopez-Campos’ detention, therefore the process due to him is that which is
afforded under Section 1226(a). The discretionary bond framework under Section 1226(a)
requires a bond hearing to make an individualized custody determination – a hearing the IJ
did not conduct. Therefore, without first evaluating Lopez-Campos’ risk of flight or
dangerousness, his detention is a violation of his due process rights.”).
Thus, the undersigned recommends that Petitioner be provided a prompt bond
hearing under § 1226(a) in order to rectify the violation of his due process rights.
2. 	Requiring the Government To Justify Detention at the Bond
Hearing 	Reduces 	the 	Risk 	of 	an 	Ongoing 	and 	Erroneous
Deprivation of Petitioner’s Liberty.
Petitioner argues that “due process requires the government to bear the burden of
proving, at any bond hearing, that the noncitizen is a danger, flight risk, or threat to national
security. See L.G. v. Choate, 744 F. Supp. 3d 1172 (D. Colo. 2024) (ordering bond hearing
for petitioner under 8 U.S.C. § 1226(a), holding that DHS must bear the burden to prove
by clear and convincing evidence that petitioner was a flight risk or a danger to the
community).” (Doc. 1, at 12) (emphasis in original).
Section 1226(a) does not specify who bears the burden of proving a non-citizen’s
eligibility for bond, but federal regulations suggest “that, under normal circumstances, the
burden is on the noncitizen to demonstrate that their ‘release would not pose a danger to
property 	or 	persons, 	and 	that 	the 	[noncitizen] 	is 	likely 	to 	appear 	for 	any 	future
proceeding.’” Velasquez Salazar, 806 F. Supp. 3d at 1241 (quoting 8 C.F.R. § 236.1(c)(8)).
“Neither the Supreme Court nor the Tenth Circuit has directly addressed whether the
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burden of proof should shift when a noncitizen has been unlawfully detained in violation
of the Due Process Clause.” Id. at 1242. However, the First, Second, and Ninth Circuits
hold the government must bear the burden of proof to justify a non-citizen’s detention
pending removal proceedings. 	See Hernandez-Lara v. Lyons, 10 F.4th 19, 39 (1st Cir.
2021); Velasco Lopez v. Decker, 978 F.3d 842, 855-57 (2d Cir. 2020); Singh v. Holder,
638 F.3d 1196 (9th Cir. 2011). But see Miranda v. Garland, 34 F.4th 338, 358-65 (4th Cir.
2022) (concluding due process does not require burden shifting). As set forth fully below,
the undersigned finds that this Court has the ability to order habeas relief that is specifically
designed to address the type of due process violation presented here and that shifting the
burden of proof to the government is the appropriate relief.6
“Habeas corpus, as the Supreme Court has said, is an adaptable remedy, the precise
application and scope of which changes depending upon the circumstances. The equitable
and flexible nature of habeas relief also gives the reviewing court considerable latitude to
correct errors that occurred during the [prior] proceedings.” 	Velasco Lopez, 978 F.3d at
855 (quoting Boumediene v. Bush, 553 U.S. 723, 779, 786 (2008)); see also Hilton v.
Braunskill, 481 U.S. 770, 775 (1987) (holding that federal courts have “broad discretion in
conditioning a judgment granting habeas relief” and “are authorized, under 28 U.S.C. §
2243, to dispose of habeas corpus matters ‘as law and justice require’”). Moreover, “due
6 But see Singh v. Grant, No. CIV-26-279-J, 2026 WL 1035100, at *2 (W.D. Okla. April
16, 2026) (finding the issue of burden shifting “premature” and “not ripe for adjudication”
because “[a]t this point in time, no immigration judge has conducted a bond hearing in
Petitioner’s case, much less allocated the burden of proof or applied the particular facts of
this case to that evidentiary framework. Accordingly, the Court declines to issue an
advisory opinion instructing the Immigration Judge to apply a particular burden of proof.”).
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process is flexible and calls for such procedural protections as the particular situation
demands.” Morrissey, 408 U.S. at 481. Indeed,
[t]he power of federal courts to issue injunctions to protect rights guaranteed
by the Constitution has long been recognized. See Maehr v. U.S. Dep’t of
State, 5 F.4th 1100, 1106 (10th Cir. 2021) (citing Bell v. Hood, 327 U.S. 678,
684 (1946)). And “[o]nce a right and a violation have been shown, the scope
of a district court’s equitable powers to remedy past wrongs is broad, for
breadth and flexibility are inherent in equitable remedies.” 	Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15, (1971). It is the “nature
of the violation” that “determines the scope of the remedy.” Id. at 17.
Velasquez Salazar, 806 F. Supp. 3d at 1241 (parallel citations omitted).
Courts within the Tenth Circuit and around the country considering habeas petitions
have increasingly applied the framework in Mathews v. Eldridge, 424 U.S. 319 (1976), to
determine 	the 	type 	of 	process 	required 	in 	immigration 	detention 	cases 	where 	the
Government has unlawfully detained a non-citizen without a bond hearing – often for many
months. See Requejo Roman, 2026 WL 125681, at *8 (D.N.M. Jan. 12, 2026) (“[U]nder
normal circumstances, the burden is on the noncitizen . . . . 	But these are not normal
circumstances. . . . In determining what procedures sufficiently protect due process in the
immigration context, courts have applied the [Mathews] framework.”); Vizguerra-Ramirez
v. Baltazar, No. 25-cv-881-NYW, 2025 WL 3653158, at *13 (D. Colo. Dec. 17, 2025)
(“As for the burden of proof, the Court assesses the type of process required in a given case
using 	the 	so-called Mathews balancing 	test.”) 	(internal 	citation 	omitted); 	see 	also
Hernandez-Lara, 10 F.4th at 28 (“Whether the Due Process clause of the Fifth Amendment
entitles a noncitizen detained pursuant to section 1226(a) to a bond hearing at which the
government bears the burden” “is guided by the three-part balancing test articulated
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in [Mathews].”). Here, all three Mathews factors support affording a Petitioner a bond
hearing at which the Government bears the burden of proof of establishing risk of flight
and dangerousness.
The first Mathews factor is “the private interest that will be affected.” 	Mathews,
424 U.S. at 335. 	Here, “[f]reedom from imprisonment — from government custody,
detention, or other forms of physical restraint — lies at the heart of the liberty” interest in
the Fifth Amendment’s Due Process Clause. Zadvydas, 533 U.S. at 687-88. “In our society
liberty is the norm, and detention . . . is the carefully limited exception.” United States v.
Salerno, 481 U.S. 739, 755 (1987). Petitioner’s private interest in being free from detention
– specifically unlawful detention – is at stake. Thus, the first factor weighs heavily in favor
of procedures that carefully protect Petitioner’s liberty interest. 	See Velasquez Salazar,
806 F. Supp. 3d at 1243; Requejo Roman, 2026 WL 125681, at *9.
The second Mathews factor is “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.” 	Mathews, 424 U.S. at 335. 	“Procedural due process rules are
shaped by the risk of error inherent in the truth-finding process.” Velasco Lopez, 978 F.3d
at 852 (citing Mathews, 424 U.S. at 344). The usual burden at a § 1226(a) bond hearing
places the burden on Petitioner to prove two negatives, i.e., that he is not a flight risk and
not a danger to the community, which “can often be more difficult than proving a cause for
concern.” 	L.G. v. Choate, 744 F. Supp. 3d 1172, 1183-84 (D. Colo. 2024) (quoting
Hernandez-Lara, 10 F.4th at 31). Moreover, the ability of a detained non-citizen to obtain
evidence for the bond hearing is seriously constrained, especially compared to the
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“substantial resources” of the government in the form of “computerized access to numerous
databases and to information collected by DHS, DOJ, and the FBI, as well as information
in the hands of state and local authorities . . . [and] broad regulatory authority to obtain it.”
Velasco Lopez, 978 F.3d at 853. Thus, the second factor also favors additional procedures
that protect Petitioner from the risk of the erroneous deprivation of his liberty, such as
shifting the burden of proof to the government.
The final Mathews factor is “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. The government has no
legitimate governmental interest “in the prolonged detention of noncitizens who are neither
dangerous nor a risk of flight[,] [and] . . . shifting the burden of proof to the Government
to justify continued detention 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 administrative burden of a bond hearing is minimal.”
Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926, 943 (D. Colo. 2025). Shifting the
burden at the bond hearing similarly does not “impose an unreasonable administrative or
fiscal burden on the Government . . . . The United States has vast resources at its disposal
to gather information about Petitioner’s eligibility for bond. And requiring the Government
to justify detention may actually promote their separate interest in conserving resources
and managing overcrowding at ICE detention facilities.” 	Requejo Roman, 2026 WL
125681, at *10. 	Thus, the third factor also supports burden shifting at Petitioner’s bond
hearing.
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In being misclassified as subject to detention under § 1225(b)(2)(A), Petitioner has
for over two months suffered the erroneous deprivation of his ability to seek his liberty
through a bond hearing – a due process protection he should have received before or
promptly following his detention by ICE. 	“[A]s the period of confinement grows, so do
the required procedural protections no matter what level of due process may have been
sufficient at the moment of initial detention. . . . [I]ndividuals subject to prolonged
detention under § 1226(a) must be afforded process in addition to that provided by the
ordinary bail hearing.” Velasco Lopez, 978 F.3d at 853-54 (citation modified). Given the
lengthy and ongoing violation of Petitioner’s due process rights, shifting the burden of
proof to the government at his belated bond hearing is an appropriate correction and
protection.
This approach has been followed by multiple district judges in this Circuit. 	See,
e.g., Requejo Roman, 2026 WL 125681, at *10 (Judge Urias finding “the Government’s
misclassification of Petitioner under § 1225 deprived him of a bond hearing,” considering
the Mathews factors, and concluding that “due process requires that he be provided a bond
hearing at which the Government bear the burden of proving that Petitioner is not a flight
risk or a danger to the community.”); Mieles-Parraga v. Bondi, No. 2:26-CV-00646-KG-
JHR, 2026 WL 776489, at *2 (D.N.M. Mar. 19, 2026) (Chief Judge Gonzales utilizing
same analysis); Lopez-Romero v. Lyons, No. 2:25-CV-01113-MIS-JHR, 2026 WL 92873,
at *1 (D.N.M. Jan. 13, 2026) (Judge Strickland utilizing same analysis); Abanil v. Baltazar,
No. 25-CV-4029-WJM-STV, 2026 WL 100587, at *8 (D. Colo. Jan. 14, 2026) (finding
that in the District of Colorado, “the weight of authority. . . is clear: it is the Government’s
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burden to justify a noncitizen’s continued detention at a bond hearing”) (collecting cases);
Peña Becerra v. Sparks, No. 2:26-CV-00212-JNP-DBP, 2026 WL 915439, at *7 (D. Utah
Apr. 3, 2026) (finding petitioner met his burden to show a deprivation of his rights by his
unlawful detention, ordering petitioner’s release, and ordering that if respondents “seek to
re-detain him, they must provide him with notice and a pre-deprivation hearing, in which
the government bears the burden of establishing by clear and convincing evidence that [he]
is a flight risk or danger to the community”).
It should be noted that numerous courts have found that burden shifting is
appropriate whether or not the petitioner has ever had a previous bond hearing and/or
release from detention by ICE. 	See, e.g., Pu Sacvin v. De Anda-Ybarra, No. 2:25-CV-
01031-KG-JFR, 2025 WL 3187432, at *3 (D.N.M. Nov. 14, 2025) (finding when petitioner
entered the United States in 2006, and was detained for the first time in September 2025
that “the proper habeas remedy is a prompt bond hearing at which the Government must
prove, by clear and convincing evidence, that Mr. Pu Sacvin is a flight risk or danger to the
community.”); Lopez-Romero, 2026 WL 92873, at *1 (ordering Respondents to provide a
bond hearing and shifting burden to the government when petitioner entered the United
States in 2001 and was first detained by ICE in October 2025); Abanil, 2026 WL 100587,
at *8 (ordering Respondents to provide a bond hearing and shifting burden to the
government when petitioner entered the United States in 2010 and was first detained by
ICE and placed in removal proceedings in July 2025). For the reasons stated above, and
under the specific factual background of this case, the undersigned recommends this Court
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join these courts and shift the burden of proof to the Government at Petitioner’s bond
hearing.7
3. 	The Government Should Be Required To Establish Flight and/or
Dangerousness By Clear and Convincing Evidence.
Having determined the burden should be on the Government to prove risk of flight
and danger to the community, the undersigned must determine which standard of proof
should apply.
The function of a standard of proof, as that concept is embodied in the Due
Process Clause and in the realm of factfinding, is to instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication. The
standard serves to allocate the risk of error between the litigants and to
indicate the relative importance attached to the ultimate decision.
Addington v. Texas, 441 U.S. 418, 423 (1979) (citation modified). 	“The Supreme Court
has consistently held the Government to a standard of proof higher than a preponderance
of the evidence where liberty is at stake, and has reaffirmed the clear and convincing
standard for various types of civil detention.” Velasco Lopez, 978 F.3d at 856 (citing
Addington, 441 U.S. at 426, 432-33 (upholding the clear and convincing standard for civil
confinement of individuals with severe mental illnesses); Salerno, 481 U.S. at 751 (noting
that pretrial detention is permitted “[w]hen the Government proves by clear and convincing
evidence that an arrestee presents an identifiable and articulable threat to an individual or
the community”); Foucha v. Louisiana, 504 U.S. 71, 75-76 (1992) (requiring the same
standard for involuntary civil commitment); United States v. Comstock, 560 U.S. 126, 130-
7 While the undersigned recommends burden shifting at Petitioner’s bond hearing, a
Mathews analysis may not result in such a recommendation in all cases.
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31 (2010) (noting the same standard in upholding the constitutionality of a federal statute
which permits a continued confinement of a mentally ill, sexually dangerous prisoner
beyond a date that the prisoner would otherwise be released)). District courts in this Circuit
have adopted the clear-and-convincing-evidence standard when shifting the burden to the
government for § 1226(a) bond hearings. See e.g., Martinez Escobar v. Baltazar, No. 26-
cv-296-NYW, 2026 WL 503313, at *5 (D. Colo. Feb. 24, 2026) (collecting cases in District
of Colorado imposing clear and convincing standard and imposing same); Requejo Roman,
2026 WL 125681, at *10 (“[T]he standard of proof the Government must meet is one of
clear and convincing evidence.”).
4. 	Conclusion
Petitioner’s due process rights have been violated by his prolonged unlawful
detention without a bond hearing. This Court can implement its flexible habeas jurisdiction
to protect him from further erroneous deprivation of his fundamental liberty interest by
providing adequate procedural protections. A bond hearing at which the government bears
the burden of proof to establish flight risk and/or dangerousness by clear and convincing
evidence is an appropriate remedy.8
VI. 	Recommendation and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition
(Doc. 1) be GRANTED in part. 	The undersigned recommends that the Court order
Respondents to provide Petitioner an individualized bond hearing before a neutral
8 Because the undersigned recommends granting habeas relief on the basis of Count I and
Count III, it is unnecessary to address the claims in Count II.
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Immigration Judge within 7 days of the judgment in this matter, or else release him from
custody. It is recommended that the Court order that at the bond hearing, the Government
shall bear the burden of proving, by clear and convincing evidence, that Petitioner is a
flight risk and/or a danger to the community in order to justify continued detention. The
undersigned further recommends that the Court order Respondents to certify compliance
by filing a status report within ten days of the Court’s order.
The Court advises the parties of their right to object to this Report and
Recommendation by April 28, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2).9 The Court advises the parties that failure to make timely objection to this report
and recommendation waives their right to appellate review of both factual and legal issues
contained herein. 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 and terminates the referral unless and until the matter is re-referred.
9 Given the expedited nature of these proceedings, the undersigned has reduced the typical
objection time to Report and Recommendations. 	See Fed. R. Civ. P. 72(b)(2) advisory
committee’s note to 1983 addition (noting that rule establishing 14-day response time
“does not extend to habeas corpus petitions, which are covered by the specific rules relating
to proceedings under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker,
484 F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (“The Rules Governing § 2254 Cases may
be applied discretionarily to habeas petitions under § 2241” and that “while the Federal
Rules of Civil Procedure may be applied in habeas proceedings, they need not be in every
instance – particularly where strict application would undermine the habeas review
process.”).
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ENTERED this 21st day of April, 2026.
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