Doe v. Grant et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOHN DOE, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-188-SLP
)
SCARLET GRANT, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner John Doe,1 a citizen of El Salvador 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”).2 (Doc. 1).3 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. 12), Respondents timely filed a response.4
(Doc. 15). Petitioner timely filed a reply. (Doc. 16). At the order of the Court, the parties
1 Petitioner has been granted permission to proceed under pseudonym. (Doc. 11).
2 Petitioner is housed at Cimarron Correctional Facility in Cushing, Oklahoma. (Doc. 1, at
1).
3 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
4 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. 15, 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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provided supplemental filings. (Docs. 18, 21). As fully set forth below, the undersigned
recommends that Petition be GRANTED in part and that the Court order Respondents to
provide Petitioner with a bond hearing under 8 U.S.C. § 1226(a), and 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.
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.
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II. 	Factual Background
Petitioner entered the United States without inspection or parole on or about August
8, 2014. (Doc. 1, at 7; Doc. 15, at Ex. 1, at 1; Doc. 21, at 2-3).5 	ICE encountered Petitioner
shortly after entry and on September 26, 2014, instituted removal proceedings against him
through issuance of a Notice to Appear (“NTA”). 	(Doc. 15, at Ex. 1, at 2).
On August 24, 2025, Petitioner was arrested in Tulsa County for aggravated DUI,
unsafe lane use, improper stopping, lack of valid driver’s license, failure to carry insurance
and transporting an open container. 	(Doc. 15, at 3-4). 	Petitioner pleaded guilty and
completed his 45-day sentence in September 2025. 	(Doc. 1, at 2, 4; Doc. 15, at 4 n.4).
Petitioner then transferred into ICE custody on an immigration detainer. (Doc. 1, at 2, 4).
Respondents first asserted that Petitioner entered the United States in 2025 and was
detained pursuant to 8 U.S.C. § 1225(b)(1). (Doc. 15, at 9-10). After supplemental briefing
clarified that Petitioner entered the United States in 2014, Respondents asserted that
“Petitioner remains lawfully detained under 8 U.S.C. § 1225(b)(2)(A).” 	(Doc. 21, at 3).
Petitioner asserts he “has not been meaningfully considered for release by [ICE]” and that
seeking administrative relief has proven futile. 	(Doc. 1, at 2). 	Petitioner argues neither
Matter of Q. Li, 29 I. & N. Dec. 66 (BIA 2025), nor Hurtado support detaining him under
§ 1225(b)(2)(A) and his detention should therefore be governed by 8 U.S.C. § 1226(a).
5 Respondents initially alleged Petitioner entered August 8, 2025, based on a document
provided by ICE. (Doc. 15, at 4). Petitioner objected in his Reply, (Doc. 16, at 1-2), and
after further briefing, Respondents conceded the I-213 included a typo and Petitioner
entered in 2014. (Doc. 21, at 2-3).
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(Doc. 1, at 9-12). 	Petitioner’s removal proceeding is ongoing. 	(See Doc. 15, at 5; id. at
Ex. 1, at 2).
III. 	Petitioner’s Claims and Respondents’ Responses
In Count I, Petitioner alleges a violation of the INA, arguing that his detention is
unlawful because § 1225(b)(2)(A) “applies only to noncitizens detained as ‘applicants for
admission’ during the arrival or border inspection process” and his detention arises from
an interior arrest years after his entry. (Doc. 1, at 12-13). In Count II, Petitioner alleges
that denial of bond consideration violates due process under the Fifth Amendment to the
Constitution. 	(Id. at 13-14). 	In Count III, Petitioner alleges dangerous conditions of
confinement violate his substantive due process rights. (Id. at 14-15). Petitioner contends
Respondents “have demonstrated deliberate indifference to [his] serious medical needs,
including failure to evaluate neurological symptoms consistent with stroke risk and failure
to appropriately monitor HIV progression.” (Id. at 15).
As relief Petitioner requests immediate release from custody or, alternatively, a
bond hearing within three days at which
• 	the government bears the burden of proving, by clear and convincing
evidence, that Petitioner is both a flight risk and a danger to the
community; and
• 	the Immigration Judge must consider Petitioner’s medical conditions,
length of detention, family and community ties, and availability of
conditions of release.
(Id.)
Respondents contend that review of Petitioner’s claims is jurisdictionally barred.
(Doc. 15, at 6-9). Respondents further assert that Petitioner is lawfully detained under §
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1225(b)(2)(A). (Doc. 21, at 3-4). Respondents state that Petitioner’s due process argument
is premature and without basis. (Doc. 15, at 10-12). Respondents also argue Petitioner’s
substantive due process claims tied to his conditions of confinement are not cognizable in
habeas. (Id. at 12-14).
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 Court Has Jurisdiction To Consider the Petition.
Respondents first argue this Court lacks jurisdiction to consider Petitioner’s claims,
based on 8 U.S.C. §§ 1252(g) and 1252(b)(9). (Doc. 15, at 6-9). However, Judges of this
District have consistently ruled the INA “does not jurisdictionally bar” a habeas claim like
Petitioner’s because such a claim does not arise from and “does not challenge Respondents’
decision to commence or adjudicate proceedings or execute removal orders.” Colin v. Holt,
CIV-25-1189-D, 2025 WL 3645176, at *2 (W.D. Okla. Dec. 16, 2025); see also Gonzalez
Cortes v. Holt, No. CIV-25-1176-SLP, 2026 WL 147435, at *3 (W.D. Okla. Jan. 20, 2026)
(same); Alvarado Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302, at *4-5
(W.D. Okla. Dec. 26, 2025) (same); Valdez v. Holt, No. CIV-25-1250-R, 2025 WL
3709021, at *1 (W.D. Okla. Dec. 22, 2025) (same); Urbina Garcia v. Holt, No. CIV-25-
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1225-J, 2025 WL 3516071, at *2 (W.D. Okla. Dec. 8, 2025) (same); Li v. Grant, No. CIV-
25-1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20, 2026) (same). But see Gutierrez
Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D. Okla. Jan. 6, 2026)
(expressing “grave doubts over whether it has subject matter jurisdiction” but assuming it
had jurisdiction to proceed to the merits). 	The undersigned agrees with the majority of
Judges of this District in finding that jurisdiction exists to consider Petitioner’s habeas
challenge to detention.
B. 	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 entitled to a bond hearing under § 1226(a). 	(Doc. 1, at 11-12). 	Respondents
contend that because Petitioner did not enter the country lawfully and has not departed, he
is 	an 	“applicant 	for 	admission” 	and 	therefore 	he 	is 	properly 	detained 	under 	§
1225(b)(2)(A). (Doc. 21, at 3).
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., Damian, 2026 WL 446295,
at *2; Li, 2026 WL 147438, at *1; Gonzalez Cortes, 2026 WL 147435, at *5; Valdez, 2025
WL 3709021, at *3; Colin, 2025 WL 3645176, at *4-5. 	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.
Jan. 21, 2026); Valdez, 2025 WL 3709021, at *2; Toledo Santos v. Grant, No. CIV-25-
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1433-SLP, 2026 WL 184287, at *2 (W.D. Okla. Jan. 23, 2026).6
Because Petitioner was not detained at the border while “seeking admission,” the
undersigned recommends that the Court finds that § 1226(a) governs Petitioner’s detention.
C. 	Petitioner’s Detention Without a Bond Hearing Violates Procedural Due
Process.
Petitioner alleges that denial of bond consideration violates due process under the
Fifth Amendment to the Constitution. 	(Doc. 1, at 13-14). 	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
6 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, 2026 WL 36344; Alvarado Montoya, 2025 WL 3733302.
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, No. 25-3248, --- F.4th ----,
2026 WL 819258 (8th Cir. Mar. 25, 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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custody, detention, or other forms of physical restraint — lies at the heart of the liberty that
Clause protects.” Zadvydas, 533 U.S. at 690.
Respondents argue that “[g]ranting the Petition under the premise that all detention
must be subject to bond hearings would require a reading of the Due Process Clause that
the Supreme Court has never endorsed and in fact has repeatedly avoided.” 	(Doc. 15, at
12). 	The undersigned’s decision does not reach “all detention.” 	But for non-citizens
subject to § 1226(a), the INA provides the due process of a bond hearing. 	Indeed, the
undersigned finds that (1) as a non-citizen properly classified under § 1226, Petitioner has
a protected liberty interest in freedom from immigration detention, and (2) the procedure
of the bond 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 §
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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.”) (first quoting Garcia Cortes v. Noem, No. 1:25-CV-02677-CNS, 2025 WL
2652880, at *4 (D. Colo. Sept. 16, 2025), then quoting Lopez Benitez v. Francis, 795 F.
Supp. 3d 475, 495 (S.D.N.Y. 2025)); Lopez-Campos v. Raycraft, 797 F.Supp.3d 771, 785
(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.
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D. 	Requiring the Government To Justify Detention at the Bond Hearing
Reduces 	the 	Risk 	of 	an 	Ongoing 	and 	Erroneous 	Deprivation 	of
Petitioner’s Liberty.
Petitioner requests that at a bond hearing, the government should bear the burden of
proving by clear and convincing evidence that he is a flight risk or danger to the
community. (Doc. 1, at 15).
Generally, it is the non-citizen’s burden to demonstrate his release on bond “would
not pose a danger to property or persons, and that the alien is likely to appear for any future
proceeding.” 8 C.F.R. § 236.1(c)(8); see also Velasquez Salazar, 806 F. Supp. 3d at 1242
(quoting same). 	However, courts within the Tenth Circuit and around the country 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. 	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 v.
Lyons, 10 F.4th 19, 28 (1st Cir. 2021) (“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
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articulated in [Mathews].”). 	But see Miranda v. Garland, 34 F.4th 338, 358-65 (4th Cir.
2022) (concluding due process does not require burden shifting). Here, all three Mathews
factors support affording a Petitioner a bond hearing at which the Government bears the
burden of proof.
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. Thus, the first
factor favors Petitioner. See 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. “Given that Petitioner is appropriately
classified under § 1226 and subject to discretionary detention, the risk of erroneously
depriving him of his freedom is high if no [immigration judge] has assessed his risk of
flight or dangerousness. Requejo Roman, 2026 WL 125681, at *9. Moreover, placing the
burden on Petitioner to prove two negatives, i.e., that he is not a flight risk and not a danger
to the community, “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 v. Lyons,
10 F.4th 19, 31 (1st Cir. 2021)). The second factor also favors Petitioner.
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. “[T]he administrative
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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; see also Velasco Lopez v.
Decker, 978 F.3d 842, 854 (2d Cir. 2020) (“[S]hifting 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.”).
The third factor also supports burden shifting at Petitioner’s bond hearing.
In being misclassified as subject to detention under § 1225(b)(2)(A), Petitioner has
for six months suffered the erroneous deprivation of his ability to seek his liberty through
a bond hearing. Imposing the additional procedural safeguard of shifting the burden to the
government at the bond hearing is reasonably designed to protect further deprivation of his
due process rights. This approach has been followed by multiple judges in New Mexico.
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
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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). Moreover, in the District of Colorado, “the weight of authority. . . is clear: it is
the Government’s burden to justify a noncitizen’s continued detention at a bond hearing.”
Abanil v. Baltazar, No. 25-CV-4029-WJM-STV, 2026 WL 100587, at *8 (D. Colo. Jan.
14, 2026) (collecting cases and ordering Respondents to provide petitioner “with a bond
hearing under § 1226(a) within seven days of this Order, at which the Government shall
bear the burden of justifying [his] continued detention by clear and convincing evidence of
his dangerousness to the safety of the community, or of his risk of flight”).
It should be noted that many courts have found that burden shifting is appropriate
when the petitioner has never had a previous bond hearing and release 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 first
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
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background of this case, the undersigned recommends this Court join these courts and shift
the burden to the Government at Petitioner’s bond hearing.7
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 undersigned is convinced by the weight of authority in this Circuit
holding that the proper standard is clear and convincing evidence for both risk of flight and
danger. See 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); Requejo Roman, 2026
WL 125681, at *10 (“the standard of proof the Government must meet is one of
clear and convincing evidence.”) 	(internal 	quotation 	marks 	omitted). 	As 	one 	court
persuasively explained,
In general, the Supreme Court has held that the clear and convincing standard
applies to civil detention where liberty is at stake. See, e.g., United States v.
Salerno, 481 U.S. 739, 751 (1987) (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”); Addington v. Texas, 441 U.S. 418, 433 (1979) (upholding the
clear and convincing standard for civil confinement of individuals with
severe mental illnesses). . . . 	The Court recognizes that the rights of
noncitizens are not the same as citizens; however, the Court agrees . . . that
there is no persuasive justification to conclude that the same noncitizen must
face different standards for the same actions, depending upon the forum, i.e.,
an administrative charge for removal versus a criminal charge of illegal
reentry.
L.G., 744 F. Supp. 3d at 1186 (citation modified).
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. “[D]ue process is
flexible and calls for such procedural protections as the particular situation demands.”
Morrissey, 408 U.S. at 482.
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E. 	Petitioner’s Conditions of Confinement Claims Are Not Cognizable in
Habeas.
In Count III of the Petition, Petitioner alleges dangerous conditions of confinement
at Cimarron Correctional Facility violate his substantive due process rights. (Doc. 1, at 14-
15). Petitioner contends Respondents “have demonstrated deliberate indifference to [his]
serious medical needs, including failure to evaluate neurological symptoms consistent with
stroke risk and failure to appropriately monitor HIV progression.” (Id. at 15). While the
undersigned takes those concerns seriously, such claims cannot form the basis for habeas
relief.
“It is well-settled law that prisoners who wish to challenge only the conditions of
their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits
filed pursuant to 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971) — not through federal habeas proceedings.” Standifer v. Ledezma, 653 F.3d 1276,
1280 (10th Cir. 2011) (citation modified) (citing McIntosh v. U.S. Parole Comm’n, 115
F.3d 809, 812 (10th Cir. 1997) (“A habeas corpus proceeding attacks the fact or duration
of a prisoner’s confinement and seeks the remedy of immediate release or a shortened
period of confinement. 	In contrast, a civil rights action [ ] attacks the conditions of the
prisoner’s confinement....”) (quotation omitted)). 	See also Cruz Bonilla v. Anda-Ybarra,
No. 2:26-cv-824-KG-GBW, 2026 WL 867706, at *2 (D.N.M. Mar. 30, 2026) (finding no
basis to grant habeas relief on the claim of immigration detainee challenging deficient
medical care) (quoting Standifer). 	Accordingly, the undersigned recommends that the
Court deny Count III.
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VI. 	Recommendation and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition
(Doc. 1) be DENIED as to Count III and as to immediate release but GRANTED as to a
bond hearing under § 1226. It is further recommended 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. 	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 17, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2).8 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).
8 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 10th day of April, 2026.
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