Kumar v. Johnson et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PARDEEP KUMAR,
Petitioner,
v.
JOSHUA JOHNSON, Field
Office Director of Enforcement
and Removal Operations,
Dallas Field Office,
Immigration and Customs
Enforcement, et al.,
Respondents.
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Case No. CIV-26-415-SLP
REPORT AND RECOMMENDATION
Petitioner Pardeep Kumar, a noncitizen,1 seeks a writ of habeas corpus
under 28 U.S.C. § 2241. Doc. 1.2 United States District Judge Scott L. Palk
referred the case to the undersigned Magistrate Judge for initial proceedings
under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. The Government responded, Doc.
10, and the time for Petitioner to reply has lapsed. See Doc. 6, at 1-2. So the
matter is at issue.
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.
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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 is a citizen of India who has been in Immigration & Customs
Enforcement (ICE) custody since February 2026 after ICE encountered him
while he was driving his truck. Doc. 1, at 11, 20; Doc. 8, at 15.
Petitioner entered the United States on November 15, 2022, without
admission 	or 	parole 	after 	inspection, 	and 	ICE 	placed 	him 	in 	removal
proceedings pursuant to 8 U.S.C. § 1229a by issuing a Notice to Appear (NTA).
Doc. 1, at 19; Doc. 8, at 14-15. 	He was charged by ICE as removable under 8
U.S.C. § 1182(a)(6)(A)(i) of the Immigration and Nationality Act (INA) as an
alien who is present in the United States without being admitted or paroled,
or who arrived in the United States at any time or place other than as
designated by the Attorney General. Doc. 1, at 19; Doc. 8, at 15-16. ICE
released Petitioner on his own recognizance and “[a]s a condition of release,
[he] was required to comply with the laws of the United States and appear for
all scheduled ICE check-ins.” Doc. 1, at 19. He maintains that he “complied
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fully with those conditions.” Id. On February 14, 2023, he filed an application
for asylum and withholding of removal. Doc. 8, at 15 & Ex. 2; see also Doc. 1,
at 19.
He has been detained since February 2026 without a bond hearing. Doc.
1, at 8-9, 11.3
II. 	Petitioner’s claims.
Petitioner raises two grounds for relief:
Ground One: Violation of the INA; and
Ground Two: Violation of Due Process.
Id. at 20-22. At bottom, he argues that he is not subject to mandatory detention
under 	§ 	1225(b)(2) 	and 	his 	continued 	detention 	in 	Respondents’ 	custody
violates the INA and his due process rights. Id.
Petitioner asks this Court to order that he not be transferred outside the
Court’s jurisdiction 	while his habeas 	petition is pending; issue an order
directing Respondents to show cause why the petition should not be granted
3 	In Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), the Board
of Immigration Appeals (BIA) held that those who entered the country without
admission or parole are ineligible for a bond hearing and are detained under 8
U.S.C. § 1225(b)(2)(A). 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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within three days4; declare that his detention is unlawful; issue a writ of
habeas corpus ordering Respondents to immediately release him or, in the
alternative, provide him with a bond hearing within five days; and award him
attorneys’ fees and costs under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412. Id. at 22.
III. 	Standard of review.
An application for a writ of habeas corpus “is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.
475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “is in
custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). “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)).
“When called on to resolve a dispute over a statute’s meaning,” the Court
should “seek[] to afford the [statute’s] terms their ordinary meaning at the time
4 	The Court addressed Petitioner’s request not to be transferred out of the
Court’s jurisdiction 	and for Respondents to show cause 	when it ordered
Respondents to respond to the petition. See Doc. 6.
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Congress adopted them” and to “exhaust all the textual and structural clues
bearing on the meaning.” Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021)
(internal quotation marks omitted). This Court’s “‘sole function’ is to apply the
law as the Court finds it, . . . not defer to some conflicting reading the
government might advance.” Id. (internal citation omitted); see also Oklahoma
v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11 (10th Cir.
2024) (stating that the court “must independently interpret the statutory
phrase irrespective of the parties’ positions”), judgment vacated on other
grounds, 145 S. Ct. 2837 (2025).
IV. 	Discussion.
A. 	Section 1226 governs Petitioner’s detention.5
5 	Respondents maintain that Petitioner’s INA claim is barred by the INA’s
jurisdiction channeling and stripping provisions in 8 U.S.C. § 1252(a)(5), (b)(9),
and (g). Doc. 8, at 16-17. This Court, consistent with other district courts
throughout the country, has dispensed with arguments by the Government
that § 1252(a)(5), (b)(9), and (g) deprive the Court of jurisdiction when a
noncitizen challenges their detention under 8 U.S.C. § 1225(b). See, e.g., Cortes
v. Holt, No. CIV-25-1176-SLP, 2026 WL 147435, at *3 (W.D. Okla. Jan. 20,
2026) (“Petitioner’s claim that Respondents are detaining him without a bond
hearing in violation of the INA does not divest the Court of jurisdiction. Such
a claim does not ‘arise from’ and is not directly connected to the commencement
of removal proceedings, the adjudication of removability, or the execution of
any removal order. Rather, Petitioner challenges the legality of his continued
detention 	under 	the 	statutory 	framework 	governing 	custody 	and 	bond
determinations.”); Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL
18932, at *1 (W.D. Okla. Jan. 2, 2026) (“Here, because Petitioner challenges
the legal question of whether he is subject to mandatory detention under
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Petitioner asserts that Respondents violated the INA by detaining him
under the mandatory detention provision in § 1225(b)(2). Doc. 1, at 20. He
argues this provision does not apply to him because he previously entered and
had been residing in the United States before being apprehended. Id. So, as
someone who is not a recent arrival seeking inspection and admission into the
United 	States, 	Petitioner 	asserts 	his 	detention 	is 	governed—not 	by
§ 1225(b)(2)—but by § 1226(a). Id.
This Court has compared §§ 1225 and 1226 and decided noncitizens like
Petitioner are entitled to a bond hearing under § 1226. See, e.g., Cortes, 2026
WL 147435, at *3-7; see also Lopez v. Corecivic Cimarron Corr. Facility, No.
CIV-25-1175-SLP, 2026 WL 165490, at *3-7 (W.D. Okla. Jan. 21, 2026). The
Court should reach the same result in this case.
Section 1225(b)(2)(A) “unambiguously requires that an ‘applicant for
admission’ 	also 	be 	‘seeking 	admission’ 	for 	the 	section 	to 	control,” 	and
§ 1225(b)(2)(A) 	or 	detention 	under 	§ 	1226(a), 	and 	he 	does 	not 	challenge
Respondents’ 	decision 	to 	commence 	or 	adjudicate 	proceedings 	or 	execute
removal orders, § 1252(g) does not jurisdictionally bar consideration of the
Petition.”); see also Hasan v. Crawford, 800 F. Supp. 3d 641, 650 n.7 (E.D. Va.
2025) (“Federal courts throughout the country have similarly found that these
jurisdiction-stripping 	provisions 	do 	not 	deprive 	the 	federal 	courts 	of
jurisdiction to review a noncitizen’s challenge to the legality of his detention.”)
(collecting cases). So, the undersigned recommends the Court find there is no
jurisdictional bar to consideration of Petitioner’s claims.
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“‘[n]oncitizens ‘seeking admission’ are those who have not effected an entry
into the United States.’” Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176,
at *4 (W.D. Okla. 	Dec. 16, 2025) (quoting 	Sacvin v. Anda-Ybarra, 	2025
3187432, at *3 (D.N.M. Nov. 14, 2025)). Petitioner effected entry into the
country over two years ago, so he is not subject to § 1225(b)(2)(A)’s mandatory
detention requirement. Numerous Judges in this District have held likewise.
See Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026 WL 94641, at *2 (W.D.
Okla. Jan. 13, 2026) (“The court also agrees that § 1226(a), not § 1225(b)(2)(A),
governs petitioner’s detention.”); Valdez v. Holt, No. CIV-25-1250-R, 2025 WL
3709021, at *3 (W.D. Okla. Dec. 22, 2025) (“Because Petitioner has been
unlawfully 	living 	in 	the 	United 	States 	for 	many 	years 	without 	seeking
admission, this provision does not apply to him. Instead, Petitioner’s detention
is controlled by § 1226(a).”); Escarcega v. Olson, No. CIV-25-1129-J, 2025 WL
3243438, at *2 (W.D. Okla. Nov. 20, 2025) (“[B]ased on the plain language of
§ 1225(b)(2)(A), the phrase ‘seeking admission’ only applies to noncitizens who
are presently and actively seeking lawful entry into the United States at the
border.”) 	(internal 	quotation 	marks 	and 	alterations 	omitted)6; 	see 	also
6 	But see Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344,
at *3 (W.D. Okla. Jan. 6, 2026) (holding § 1225 applied to the petitioner’s
detention); Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302, at *12
(W.D. Okla. Dec. 26, 2026) (same).
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Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir.
2025) (“[I]t is Congress’s prerogative to define a term however it wishes, and it
has chosen to limit the definition of an ‘applicant for admission’ to ‘an alien
present in the United States who has not been admitted or who arrives in the
United States.’ It could easily have included noncitizens who are ‘seeking
admission’ within the definition but elected not to do so.”) (internal citation
omitted).7 As well as determining that if “all ‘applicants for admission’ are also
‘seeking admission,’ then § 1225(b)(2)(A)’s inclusion of the phrase ‘seeking
admission’ 	would 	be 	redundant 	and 	courts 	should 	avoid 	statutory
interpretations that ‘make[] any part [of the statute] superfluous.’” Escarcega,
2025 WL 3243438, at *3 (quoting Fuller v. Norton, 86 F.3d 1016, 1024 (10th
Cir. 1996)).
Respondents argue the Court should reconsider because Petitioner’s
asylum request transforms him into one who is actively seeking admission into
the country. Doc. 8, at 15. But the Court has “declined to find” that either
refusing 	to 	voluntarily 	depart 	or 	seeking 	asylum 	“‘constitutes 	‘seeking
admission’ for purposes of this subsection.’” Malacidze v. Noem, No. CIV-25-
7 	But see Avila v. Bondi, 2026 WL 819258, at *3 (8th Cir. Mar. 25, 2026)
(applying § 1225 to a similar habeas challenge); Buenrostro-Mendez v. Bondi,
166 F.4th 494, 506 (5th Cir. 2026) (same).
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1527-D, 2026 WL 227155, at *3 (W.D. Okla. Jan. 28, 2026) (quoting Cruz-
Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla.
Jan. 2, 2026)); see also Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at
*1 (W.D. Okla. Jan. 20, 2026) (finding Ҥ 1225(b)(2)(A) does not apply even
though petitioner filed an application for asylum”).
When Petitioner was detained after residing in the country for over three
years, he was not subject to mandatory detention under § 1225(b)(2)(A).
Instead, Petitioner is subject to § 1226, and “is entitled to a prompt bond
hearing before an immigration judge pursuant to § 1226(a).” Cortes, 2026 WL
147435, at *7.
The undersigned therefore recommends the Court grant Petitioner’s
habeas 	petition 	and 	order 	Respondents 	to 	provide 	Petitioner 	with 	an
individualized bond hearing before a neutral IJ under § 1226(a) within five
business days of the Court’s adoption of this Report and Recommendation or,
in the alternative, immediately release Petitioner.
B. 	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. The
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Court can grant him the relief he seeks under § 1226(a). See Cortes, 2026 WL
147435, at *7 (“The Court declines to decide the merits of such claim and
Petitioner may renew such a claim if he is not provided with a bond hearing or
released within seven days of this Order.”).
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 	an 	individualized 	bond 	hearing 	before 	a
neutral 	IJ 	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 further recommends
that the Court order Respondents certify compliance by filing a status
report within ten business days of the Court’s order.
The undersigned further recommends the Court order that:
• 	Respondents 	shall 	not 	re-detain 	Petitioner 	without 	a 	pre-
deprivation hearing before a neutral IJ under 8 U.S.C. § 1226(a);
• 	Counsel for Respondents provide a copy of the Court’s order to
Counsel for the Warden of the Cimarron Correctional Center
without delay; and
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• 	Respondents file a Notice of Compliance with this Order with the
Court and file it within ten days.8
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by April 22,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.9 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
8 	To the extent Petitioner may be entitled to EAJA fees and costs as a
prevailing party, Petitioner 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”).
9 	Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation to five
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 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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disposes of the issues referred to the undersigned Magistrate Judge in the
captioned matter.
ENTERED this 17th day of April, 2026.
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