Vivas v. Figueroa

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARCEL RAFAEL MALAVE 	)
VIVAS, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-2051-D
)
FRED FIGUEROA, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Marcel Rafael Malave Vivas, 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”).
(Doc. 1).1 	United States District Judge Timothy D. DeGiusti referred the matter to the
undersigned 	Magistrate 	Judge 	for 	initial 	proceedings 	consistent 	with 	28 	U.S.C. 	§
636(b)(1)(B), (C). 	(Doc. 6). 	The matter is at issue. 	As fully set forth below, the
undersigned recommends that the Petition be GRANTED in part because Petitioner’s
detention without a bond hearing violates the Immigration and Nationality Act (“INA”).
The Court should order an individualized bond hearing before a neutral Immigration Judge
within 7 days of the judgment in this matter, or else release him from custody.
1 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
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I. 	Factual Background
The relevant facts in this matter are:
• 	Petitioner is citizen of Venezuela who entered the United States on or about
December 31, 2021. (Doc. 1, at Ex. 7, at 3).
• 	On January 3, 2022, he was charged with being removable from the United
States. 	(Id.) 	On January 4, 2022, an authorized officer released Petitioner
on his own recognizance. (Id. at 6).
• 	Petitioner alleges he was detained by ICE on December 3, 2025, while
attending an ICE check-in. (Doc. 2, at 3).
• 	Petitioner alleges, and Respondents do not contest, that he has not been
provided with an individualized custody redetermination. 	(Doc. 1, at 3).
Indeed, his requests for a custody redetermination were denied by an
immigration judge for lack of jurisdiction. (Id. at Ex. 8, at 2, 4).
• 	Petitioner’s immigration proceedings are ongoing, as he has a pending appeal
of his order of removal. (Id. at Ex. 11, at 2). Thus, he is not subject to a final
order of removal.
• 	Petitioner is detained at Diamondback Correctional Facility in Watonga,
Oklahoma. (Doc. 1, at 2).
II. 	Petitioner’s Claims and Respondents’ Responses
Petitioner makes the following claims in support of his Petition:2
1. 	Prolonged detention without an adequate individualized justification. (Doc.
1, at 8).
2. 	Arbitrary and unreasonable continued immigration detention. (Id.)
2 Petitioner disclosed that he had previously filed a petition for writ of habeas corpus under
§ 2241 in the United States District Court for the Northern District of Texas, and he was
denied relief under Fifth Circuit precedent. (Doc. 1, at Ex. 1, at 3). See Malave-Vivas v.
Valdez, 	No. 	6:26-CV-00056-H, 	Doc. 	19 	(N.D. 	Tex. 	June 	26, 	2026). 	However,
Respondents do address this prior petition and thus have waived any related arguments,
including those based upon the abuse-of-the-writ doctrine.
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3. 	Failure to meaningfully reevaluate continued immigration detention. (Id.)
4. 	Severe 	family 	and 	humanitarian 	hardship 	resulting 	from 	continued
immigration detention. (Id. at 9).
5. 	His detention has become unreasonably prolonged in violation of due
process. (Doc. 3, at 13).
As relief, Petitioner requests his immediate release from custody or, alternatively, “an
individualized hearing before a neutral decisionmaker at which the Government bears the
burden of proving that Petitioner’s continued detention is justified.” (Doc. 1, at 9).
While Respondents contend that Petitioner is held under 8 U.S.C. § 1225(b)(2)(A)
and is not entitled to a bond hearing, they concede that the Tenth Circuit’s recent decision
in Santillan Quiroz v. Mullin, 180 F.4th 1226 (10th Cir. 2026), “compels a different
outcome.” (Doc. 11, at 1). 	“Respondents request that any order entered in this case be
limited to ordering a bond hearing within seven days” and also be limited to Petitioner’s
statutory claim. (Id. at 1-2). In Reply, Petitioner reiterates that Santillan Quiroz controls.
(Doc. 13, at 1).
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)).
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IV. 	Under Santillan Quiroz v. Mullin, Petitioner Is Entitled to a Bond Hearing.
On June 30, 2026, the Tenth Circuit decided Santillan Quiroz, holding “that
noncitizens who entered the United States and were thereafter detained in the interior of
the country are usually subject to [8 U.S.C.] § 1226(a) (and thus eligible for bond), not [8
U.S.C.] § 1225(b)(2)(A).” 180 F.4th at 1237. This statutory interpretation is binding on
this Court and applicable to Petitioner’s factual circumstances, as Respondents concede.
Because Petitioner is subject to § 1226(a) and has not received a bond hearing,
Petitioner has shown that he is in custody in violation of the laws of the United States, and
he is entitled to habeas relief. 28 U.S.C. § 2241(c)(3). While Petitioner seeks immediate
release, a bond hearing is the appropriate remedy. 	Santillan Quiroz, 180 F.4th at 1251
n.13.3
Because the undersigned recommends granting habeas relief on the basis of a
violation of the INA, it is unnecessary to address Petitioner’s due process claim,
particularly as it would result in the same relief. See, e.g., Velasquez Salazar v. Dedos, 806
F. Supp. 3d 1231, 1241 (D.N.M. 2025) (“Because this Court holds that § 1226 governs
3 Under current BIA precedent, the non-citizen bears the burden of proving dangerousness
or flight risk at a § 1226(a) bond hearing. See Hernandez-Lara v. Lyons, 10 F.4th 19, 27
(1st Cir. 2021). Judges in this District have either declined to decide whether due process
requires shifting the burden to the government, see Velazquez v. Johnson, No. CIV-26-
1111-J, 2026 WL 1999247, at *1 (W.D. Okla. July 10, 2026); Karimov v. Grant, No. CIV-
26-639-J, 2026 WL 1493969, at *1 (W.D. Okla. May 28, 2026); Rangel v. Mullin, No.
CIV-26-568-D, Singh v. Figueroa, No. CIV-26-600-R, or concluded that it does not. See
Adediran v. Figueroa, No. CIV-26-801-J, Pupo Socarras v. Figueroa, No. CIV-26-0571-
HE, 2026 WL 2100499, at *1 (W.D. Okla. July 21, 2026); Toro v. Mullin, CIV-26-315-
JD, Doc. 19, at 18 (W.D. Okla. May 12, 2026).
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Petitioner’s detention, the due process owed to Petitioner is that provided for in § 1226 —
namely, an individualized bond hearing before an IJ.”).
V. 	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
Immigration Judge within 7 days of the judgment in this matter, or else release him from
custody. 	Petitioner’s Motion for Expedited Consideration, (Doc. 4), is granted to the
extent consistent with this Report and Recommendation and the Court’s Order for response
(Doc. 8).
The Court advises the parties of their right to object to this Report and
Recommendation by October 21, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2).4 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).
4 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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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.
ENTERED this 14th day of October, 2026.
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