Munoz v. Holt et al

OCR transcription for search; preserved printed pages are authoritative

Case 5:25-cv-01190-G Document 10 Filed 11/10/25 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA
JOSE ANGEL AVILA MUNOZ, )
)
Petitioner, )
v.
)
Case No. CIV-25-1190-G
)
RUSSELL HOLT et al.,
)
)
Respondents.
)
REPORT AND RECOMMENDATION
Petitioner Jose Angel Avila Munoz, a noncitizen1, seeks a writ of habeas corpus under 28 U.S.C. § 2241. 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. 4. The United States responded. Doc. 8. So the matter is at issue.3
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.
3 In the order for response, the undersigned gave Petitioner fourteen days to reply to Respondents' response. See Doc. 5. That time has not expired but, given the recommendation, the undersigned concludes it is in the interest of justice to promptly file the Report and Recommendation. Petitioner may still object to this Report and Recommendation in the normal course.
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

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For the reasons below, the undersigned recommends the Court grant
Petitioner’s 	habeas 	petition, 	in 	part, 	and 	order 	Respondents 	to 	provide
Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within five business
days or otherwise release Petitioner if he has not received a lawful bond
hearing within that period.
I. 	Factual background and procedural history.
Petitioner has lived in the United States since at least 2004, and is a
resident of Oklahoma City. Doc. 1, at 11. Petitioner is married to a United
States citizen and has five stepchildren who are also citizens. Id. On July 14,
2025, 	Immigration 	and 	Customs 	Enforcement 	(ICE) 	detained 	him. 	Id.
Petitioner is currently detained at the Cimarron Correctional Facility in
Cushing, Oklahoma. Id. In September 2015, the State of Oklahoma convicted
Petitioner in state court for driving while intoxicated. Doc. 8, Ex. 1, at 2. In
July 2025, Oklahoma authorities arrested and charged Petitioner with driving
while intoxicated. Id. Petitioner’s criminal case is pending, and he cannot
attend proceedings for his pending case due to his detention. Doc. 1, at 11-12.
On September 12, 2025, ICE charged Petitioner in Immigration Court as
being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered
the United States without being admitted or paroled. Doc. 8, Ex. 1, at 2.
Petitioner requested a bond hearing, but as he notes, IJs are constrained by
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the Board of Immigration Appeals’ (BIA) decision in Matter of Yajure Hurtado,
29 I. & N. Dec. 216 (BIA 2025), holding that those who entered the country
without admission or parole are ineligible for a bond hearing and detained
pursuant to 8 U.S.C. § 1225(b)(2)(A). Doc. 1, at 12.4
II. 	Petitioner’s claims.
Petitioner raises two grounds for relief:
Ground One: Respondents’ application of § 1225(b)(2) unlawfully
mandates his continued detention and violates the Immigration
and Nationality Act (INA).
Ground 	Two: 	His 	prolonged 	detention 	without 	a 	bond
redetermination hearing to determine whether he is a flight risk
or danger to others violates his right to due process.
Id. at 12-13.
Petitioner asks the Court to issue a writ of habeas corpus “requiring that
Respondents release Petitioner or, in the alternative, provide Petitioner with
a bond hearing pursuant to [] § 1226(a) within five days” and declare his
detention unlawful. Id. at 14.
III. 	Standard of review.
4 	Hurtado is not binding on this Court. See Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 413 (2024) (“[C]ourts need not and under the APA
may not defer to an agency interpretation of the law simply because a statute
is ambiguous.”).
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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). “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. 	Discussion.
A. 	The Court has jurisdiction to consider the petition.
Respondents contend that 8 U.S.C. §§ 1252(a)(5), (b)(9) and 1252(g) bar
the Court from hearing Petitioner’s claims related to his detention. Doc. 8, at
15-17. The undersigned disagrees.
Section 1252(a)(5) provides that “a petition for review filed with an
appropriate court of appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). Section 1252(b)(9)
provides another bar to judicial review, specifically for “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
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alien from the United States” “[e]xcept as otherwise provided in this section.”
Id. § 1252(b)(9). Section 1252(b)(9) 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) 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). 	The Court 	reads § 	1252(g)
narrowly, Reno, 525 U.S. at 482, as 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.
The 	Court 	has 	jurisdiction 	over 	the 	petition 	as 	Petitioner 	is 	only
challenging the way Respondents are conducting his detention—the lack of
bond hearing. See Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006)
(holding that § 1252(a)(5) does “not eliminate a district court’s jurisdiction to
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review habeas petitions challenging an alien’s detention” and affirming district
court’s finding that it had jurisdiction to review a habeas petition challenging
“DHS’s continued detention [of petitioner] without bond or without providing
a bond hearing”).
Likewise, § 1252(b)(9) does not bar this Court’s review. Petitioner is not
asking the Court to review a removal order (which has not been issued), or
Respondents’ decision to detain him or seek his removal. And, by addressing
the petition, the Court is not reviewing any part of the process by which
Respondents 	will 	determine 	his 	eligibility 	for 	removal. 	See 	Jennings 	v.
Rodriguez, 583 U.S. 281, 294-95 (2018) (holding § 1252(b)(9) “does not present
a jurisdictional bar” when “detained aliens” “are not asking for review of an
order of removal; they are not challenging the decision to detain them in the
first place or to seek removal; and they are not . . . challenging any part of the
process by which their removability will be determined”); see also Cabalerro v.
Baltazar, 2025 WL 2977650, at *4 (D. Colo. Oct. 22, 2025) (finding § 1252(b)(9)
does not present a jurisdictional bar to a noncitizen challenging “the legality of
his continued detention without a bond hearing”); cf. Nielsen v. Preap, 586 U.S.
392, 402 (2019) (holding § 1252(b)(9) did not strip the court of jurisdiction to
address the issue of mandatory detention without bond under § 1226(c)).
Finally, § 1252(g) does not present a jurisdictional bar to this Court’s
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review. 	Respondents 	argue 	§ 1252(g)’s 	language 	strips 	this 	Court 	of
jurisdiction 	to 	review 	any 	claim 	arising 	from 	the 	decision 	to 	commence
proceedings against Petitioner—including the “basis on which DHS chooses to
commence removal proceedings.” Doc. 8, at 16. But the Supreme Court finds
this interpretation “implausible” because “the mention of three discrete events
along the road to deportation was [not] a shorthand way of referring to all
claims arising from deportation proceedings.” Reno, 525 U.S. at 482. And, in
Jennings, the Supreme Court reaffirmed this narrow reading, explaining that
Reno “did not interpret [§1252(g)] to sweep in any claim that can technically
be said to ‘arise from’ the three listed actions of the Attorney General.” 583
U.S. at 294. Because Petitioner is only challenging his detention without a
bond hearing and not the commencement of the removal proceeding itself, his
claim falls outside the narrow jurisdictional limitations of § 1252(g). See, e.g.,
Gutierrez v. Baltasar, 2025 WL 2962908, at *3 (D. Colo. Oct. 17, 2025) (finding
Ҥ 1252(g) does not deprive the Court of jurisdiction to consider the narrow
legal questions of whether Mr. Gutierrez’s detention under 8 U.S.C. § 1225
violates the INA and whether he is entitled to a bond hearing under § 1226’s
discretionary detention framework” because these “‘purely legal’ questions fit
the exception to § 1252(g)’s jurisdiction-stripping provision, as they can be
decided in the abstract on an undisputed factual record and do not challenge
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the Attorney General’s discretionary authority”).
B. 	Section 1226 governs Petitioner’s detention.
Petitioner asserts that Respondents have violated the Immigration and
Nationality 	Act 	(INA) 	by 	detaining 	him 	under 	the 	mandatory 	detention
provision in § 1225(b)(2). Doc. 1, at 12-13. He argues this provision does not
apply to him because, prior to Respondents’ apprehension of him, he had
previously entered and had been residing in the United States. So, as someone
who is not a recent arrival seeking inspection and admission into the United
States, his detention is governed—not by § 1225(b)(2)—but by § 1226(a). Id. at
6-11.
Section 1225(b)(2)(a) provides that:
[I]n 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 1229(a) of [Title 8].
8 U.S.C. § 1225(b)(2)(a). This section “authorizes the Government to detain
certain aliens seeking admission into the country.” Jennings, 583 U.S. at 289.
Section 1226(a), on the other hand, “authorizes the Government to
detain certain aliens already in the country pending the outcome of removal
proceedings.” Id. (emphasis added). “Section 1226(a) sets out the default rule:
The Attorney General may issue a warrant for the arrest and detention of an
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alien ‘pending a decision on whether the alien is to be removed from the United
States.’” Id. (quoting § 1226(a)). “Except as provided in [Section 1226(c)]’, the
Attorney General ‘may release’ an alien detained under § 1226(a) ‘on . . . bond’
or ‘conditional parole.’” Id. (quoting § 1226(a)(1)-(2)).5
The resolution of Petitioner’s claim turns on whether he is an “alien
seeking admission” as that phrase is utilized in § 1225, or simply a detained
alien under § 1226 who may be released on conditional parole or bond pending
the outcome of his removal proceeding. The undersigned finds that § 1226
governs Petitioner’s detention.
As Petitioner notes, his “mandatory” detention arises out of a novel
interpretation 	of §§ 1225 	and 	1226, 	which has ensnared other similarly
positioned petitioners around the country. Doc. 1, at 6-9; see, e.g., Savane v.
Francis, 2025 WL 2774452, at *1 (S.D.N.Y. Sep. 28, 2025) (explaining that
“[t]his is another case in a recent line of cases concerning the scope of the
government’s authority to detain noncitizens during the pendency of removal
proceedings”); see also Vega v. Holt, No. CIV-25-1184-JD, Doc. 11, at 22-23 &
5 	Under § 1226(c), the “Attorney General shall take into custody any alien”
who falls into one of several enumerated categories. 8 U.S.C. § 1226(c)(1). None
of the categories are relevant to Petitioner’s case.
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n.6 (W.D. Okla. Oct. 30. 2025) (Report & Recommendation) (collecting cases).
Under ICE’s new internal guidance:
An ‘applicant for admission’ is an alien present in the United
States who has not been admitted or who arrives in the United
States, whether or not at a designated port of arrival. Effective
immediately, it [sic] the position of DHS that such aliens are
subject 	to 	detention 	under 	[§ 	1225(b)(2)(A)] 	and 	may 	not 	be
released from ICE custody except by [§ 1182] parole. . . . For
custody purposes, these aliens are now treated in the same manner
that ‘arriving aliens’ have historically been treated. The only aliens
eligible for a custody determination and release on recognizance,
bond, 	or 	other 	conditions 	under 	[§ 	1226(a)] 	during 	removal
proceed[ings] are aliens admitted to the United States . . . with the
exception 	of 	those 	subject 	to 	mandatory 	detention 	under 	[§
1226(c)].
Savane, 2025 WL 2774452, at *5-6 (quoting ICE Memo: Interim Guidance
Regarding Detention Authority for Applications for Admission).
The Court begins with the INA’s statutory definitions. See BP Am. Prod.
Co. v. Haaland, 87 F.4th 1226, 1235 (10th Cir. 2023) (analyzing statute by
leaning “on related statutory definitions in the Royalty Management Act.”).
Section 1225(a)(1) defines an “applicant[] for admission” as:
An alien present in the United States who has not been admitted
or who arrives in the United States (whether or not at a designated
port of arrival and including an alien who is brought to the United
States after having been interdicted in international or United
States waters)[.]
8 U.S.C. § 1225(a)(1).
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Section 1101(13)(A) of United State Code Chapter 8 provides that “[t]he
terms ‘admission’ and ‘admitted’ mean, with respect to an alien, the lawful
entry of the alien into the United States after inspection and authorization by
an immigration officer.”
Respondent contends that Petitioner is technically an applicant for
admission 	under 	§ 	1225(a)(1) 	because 	he 	entered 	the 	country 	without
inspection. Doc. 8, at 13-14. While the undersigned may agree with that
technical interpretation, that does not mean Petitioner is subject to automatic
detention under § 1225(b)(2)(A). Cf. Vega, Doc. 11, at 12-13 (rejecting expansive
interpretation 	of 	“applicant 	for 	admission” 	and 	“seeking 	admission” 	and
agreeing with courts that find § 1225 “governs the entrance of noncitizens to
the United States.”).
Section 1225(b)(2)(A) introduces a different phrase: “an alien seeking
admission.” It provides that:
Subject to subparagraphs (B) and (C), 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 of this title.
Id. § 1225(b)(2)(A).
So, for Respondents’ position to control, the Court must read “alien
seeking admission” as synonymous with “applicant for admission.” See Doc. 8,
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at 20-21. But when Congress “uses certain language in one part of the statute
and different language in another, the [C]ourt assumes different meanings
were 	intended.” 	Sosa 	v. 	Alvarez-Machain, 	542 	U.S. 	692, 	712 	n.9 	(2004)
(internal quotation marks omitted). And Respondents have presented nothing
to the Court supporting a synonymous reading of the two terms besides a
conclusory argument that they are “plainly synonymous.” Doc. 8, at 20-21.
So, an “alien seeking admission” must have a different meaning than
“applicant for admission.” Section 1225(a)(3) bolsters this conclusion, to which
Respondents make a fleeting reference, id. at 9:
All 	aliens 	(including 	alien 	crewmen) 	who 	are 	applicants 	for
admission or otherwise seeking admission or readmission to or
transit 	through 	the 	United 	States 	shall 	be 	inspected 	by
immigration officers.
Id. (emphasis added).
As noted, the INA defines “admission” as “the lawful entry of the alien
into the United States after inspection and authorization by an immigration
officer.” 8 U.S.C. § 1101(a)(13)(A). “Seeking,” however, is undefined. “When a
term is undefined in a statute, [the Court] must look to its ordinary meaning.”
Rocky 	Mountain 	Wild 	v. 	Dallas, 	98 	F.4th 	1263, 	1291 	(10th 	Cir. 	2024).
“‘Dictionary definitions are useful touchstones to determine the ‘ordinary
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meaning’ of an undefined statutory term.’” Id. (quoting In re Mallo, 774 F.3d
1313, 1321 (10th Cir. 2014)).
“Seeking” is the present participle of “seek,” which Merriam-Webster
defines as “to resort to,” “go to,” “to go in search of,” “look for,” “to try and
discover,” “to ask for,” “request,” “to try to acquire or gain,” “aim at,” “to make
an 	attempt,” 	or 	“try.” 	Seek, 	Merriam-Webster, 	https://www.merriam-
webster.com/dictionary/seeking#dictionary-entry-1 (last visited Nov. 10, 2025).
So the use of the word “seeking” “denotes an active and present effort.”
Valverde v. Olson, 2025 WL 3022700, at *3 (E.D. Wis. Oct. 29, 2025); see also
Cabalerro, 2025 WL 2977650, at *6 (“The plain meaning of the phrase ‘seeking
admission’ requires that the applicant must be presently and actively seeking
lawful entry into the United States. The use [of] the present participle in
§ 1225(b)(2)(A) ‘implies action – something that is currently occurring, and in
this instance, would most logically occur at the border upon inspection.’”
(quoting Lopez-Campos v. Raycraft, 2025 WL 2496379, at *6 (E.D. Mich. Aug.
29, 2025))). As a result, an alien seeking admission is a noncitizen who, at the
time of his arrest, is actively and presently pursuing lawful admission into the
United States. See Hernandez v. Baltazar, 2025 WL 2996643, at *5 (D. Colo.
Oct. 24, 2025) (“Courts have found that ‘[n]oncitizens who are just ‘present’ in
the country . . ., who have been here for years upon years and never proceeded
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to obtain any form of citizenship[,] . . . are not ‘seeking’ admission” under
§ 1225(b)(2)(A).” (quoting Lopez-Campos, 2025 WL 2496379, at *6)).
Petitioner is not “seeking admission” as he has been in the United States
for 21 years. See Doc. 1, at 11. And, as far as the Court is aware, has never
sought a form of citizenship (asylum, permanent residency, refugee status, visa
application, 	etc.). 	Nor 	does 	Petitioner’s 	Application 	for 	Cancellation 	of
Removal, Doc. 8, Ex. 2, automatically convert him into an “alien seeking
admission” as Respondents urge, Doc. 8, at 20. See Lomeu v. Soto, 2025 WL
2981296, at *8 (D.N.J. Oct. 23, 2025) (“[Petitioner] sought to remain in, not
enter, 	the 	United 	States 	. 	. 	. 	by 	seeking 	Cancellation 	of 	Removal 	and
Adjustment of Status”). And Respondents have provided the Court with no
legal authority to support such a proposition.
Petitioner was not “an alien seeking admission” under § 1225(b)(2)(A)
when 	he 	was 	arrested. 	He 	is 	thus 	not 	subject 	to 	mandatory 	detention.
Petitioner is instead subject to § 1226, and “is entitled to an individualized
bond hearing as a detainee under [§] 1226(a).” See Cabalerro, 2025 WL
2977650, at *8 (“The Court joins the numerous courts across the country that
have held that [noncitizens not apprehended at the border, who have been
present in the United States for many years without lawful status] are subject
to the discretionary detention framework of § 1226(a).”).
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So the undersigned recommends the Court grant Petitioner’s habeas
petition in part and order Respondents to provide Petitioner with a bond
hearing under § 1226(a) within five days of the Court’s adoption of this Report
and Recommendation or in the alternative, immediately release Petitioner.
C. 	The 	Court 	should 	decline 	to 	address 	the 	merits 	of
Petitioner’s due process claim.
Given 	the 	undersigned’s 	recommendation 	as 	to 	the 	disposition 	of
Petitioner’s claim for relief under the INA, the undersigned recommends the
Court refrain from addressing the merits of Petitioner’s due process claim. Doc.
1, at 13. The Court can grant him the relief he seeks under § 1226(a). See
Pizarro Reyes v. Raycraft, 2025 WL 2609425, at *8 (E.D. Mich. Sep. 9, 2025)
(“The Court will decline to decide the merits of [petitioner’s] due process claim
given that the Court will grant the relief he seeks based on its interpretation
of the applicability of § 1226(a).”).
V. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s habeas application, in part, and order Respondents to
provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within
five 	business 	days 	or 	otherwise 	release 	Petitioner 	if 	he 	has 	not
received a lawful bond hearing within that period. The undersigned
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further recommends that the Court order Respondents to certify
compliance by filing a status report within seven business days of the
Court’s order.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by November
17, 2025, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil
Procedure 72.6 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 10th day of November, 2025.
6 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to seven
days. 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 “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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Liza No
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
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