Singh v. US Department of Homeland Security et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
LAKHVIR SINGH, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-417-SLP
)
U.S. DEPARTMENT OF HOMELAND
SECURITY, et al.,
)
)
)
Respondents.1 )
REPORT AND RECOMMENDATION
Petitioner Lakhvir Singh, a noncitizen2 and Indian national proceeding with counsel,
filed a Petition for Writ of Habeas Corpus (“Petition”), Doc. 1, challenging under 28 U.S.C.
§ 2241 his detention by U.S. Immigration and Customs Enforcement (“ICE”). 	United
States District Judge Scott L. Palk referred this matter to the undersigned Magistrate Judge
in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). 	Doc. 3. 	The undersigned set an
expedited briefing schedule, Doc. 5, and the Petition is at issue. For the reasons set forth
below, the undersigned recommends that the Court grant the Petition, Doc. 1, in part and
order Respondents to provide Petitioner a bond hearing pursuant to 8 U.S.C. § 1226(a)
1 Todd Blanche was announced as Acting Attorney General on April 2, 2026. He replaces
Pamela Bondi and is substituted as the proper respondent pursuant to Federal Rule of Civil
Procedure 25(d).
2 Unless quoting, 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)).
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within five business days at which the government would bear the burden of proof or
otherwise to release him if there is no hearing within that time.
I. 	Background
Petitioner, a citizen of India, entered the United States on or about January 3, 2013,
without inspection or admission near Douglas, Arizona. Pet. at 7; Resp. at 14-15; Doc. 12-
2 at 1. At some point thereafter, Respondents allege Petitioner was paroled into the United
States. Resp. at 15.3 On March 12, 2013, ICE placed Petitioner into removal proceedings
before the Immigration Court through the issuance of a Notice to Appear (“NTA”) and
charged him with being inadmissible under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as someone who
entered the United States without adequate documents. Resp. at 15; Doc. 12-2 at 1 (March
2013 NTA). 	On March 13, 2014, Petitioner timely filed an application for asylum. Resp.
at 15; Doc. 12-3 (Asylum Application). On March 11, 2024, an Immigration Judge (“IJ”)
granted a joint Motion to Dismiss seeking dismissal of Petitioner’s removal proceedings.
Resp. at 15; Doc. 12-4 (Order Dismissing). Petitioner alleges since his parole in 2013, he
has consistently cooperated with immigration authorities. Pet. at 17.
On October 23, 2025, ICE re-detained Petitioner after taking custody of him from
Oklahoma Highway Patrol. 	Pet. at 7; Resp. at 15; see also Doc. 12-6 (Warrant for
3 Respondents rely on a document they call “ICE Procedural History,” Doc. 12-1. 	The
undersigned cannot discern where this document came from or its reliability as it is not a
declaration signed by an ICE officer. 	However, the exact circumstances of Petitioner’s
release and/or parole do not impact the undersigned’s analysis. 	See Resp. at 20 (arguing
Petitioner’s prior parole does not change his status as a noncitizen detained pursuant to
§ 1225(b)(2)(A)).
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Petitioner’s Arrest). ICE re-detained him pursuant to 8 U.S.C. § 1225(b)(2)(A). Resp. at
9, 13. On the same day, ICE placed Petitioner into new removal proceedings and issued a
new NTA charging Petitioner as inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i). Pet. at 7;
Resp. at 15; Doc. 12-5 at 1 (October 2025 NTA). At some point thereafter, Petitioner filed
a new Application for Asylum. Pet. at 7; Resp. at 15; Doc. 12-7 (2025 Asylum Application
Cover Page). 	Removal proceedings are ongoing. 	Pet. at 7; Resp. at 15; Doc. 12-8
(Immigration Court Hearing Notice).
Respondents state Petitioner has not requested a bond hearing. 	Resp. at 15. 	The
Petition does not state whether Petitioner has requested or been denied a bond hearing.
Such a request would be futile because all IJs are subject to the binding precedent of Matter
of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025), which holds that those who entered the
country without admission or parole are ineligible for a bond hearing.
When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility
in Cushing, Oklahoma. 	Pet. at 7. 	He remains detained there. 	See ICE Online Detainee
Locator System, at https://locator.ice.gov/odls/#/results (last visited Apr. 9, 2026).
II. 	Petitioner’s Claims
Petitioner asserts three counts in his Petition.
• 	Count 	I: 	Violation 	of 	the 	Immigration 	and 	Nationality 	Act
(“INA”). 	Petitioner 	alleges 	his 	continued 	detention 	under
§ 1225(b)(2) is unlawful and violates the INA because that provision
does not apply to those, like him, “who previously entered the country
and have been residing in the United States before being apprehended
and placed in removal proceedings.” Pet. at 15.
• 	Count II: Violation of Due Process. 	Petitioner alleges he has a
fundamental liberty interest that is substantial and at risk of erroneous
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deprivation 	because 	Respondents 	have 	denied 	him 	a 	bond 	re-
determination at which the government bears the burden to justify his
detention, thus violating his due process rights. Id. at 15-16.
• 	Count 	III: 	Violation 	of 	the 	Administrative 	Procedures 	Act
(“APA”). 	Petitioner alleges DHS and ICE acted arbitrarily and
capriciously 	to 	detain 	Petitioner 	without 	an 	individualized
justification. Further, Petitioner alleges DHS abused its discretion by
continuing to detain Petitioner without individualized justification or
explanation. Id. at 16-18.
He asks the Court to “issue a Writ of Habeas Corpus ordering Respondents to release
Petitioner immediately from custody, or alternatively to schedule a bond hearing before an
immigration judge within 3 days, where DHS bears the burden of proof.” Pet. at 19. In
addition, Petitioner requests the Court grant him further declaratory and injunctive relief,
including 	that 	Respondents 	be 	restrained 	from 	transferring 	Petitioner 	pending 	the
resolution of the Petition, Respondents be restrained from transferring Petitioner for the
purposes of removal, order the removal of any “current or future electronic monitoring
device,” and stay Petitioner’s removal until he exhausts all immigration remedies. 	Id. at
18-19. Petitioner also requests an award of attorney fees and costs under the Equal Access
to Justice Act (“EAJA”).4 Id. at 19.
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
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). Thus, the
Court need not address this request at this juncture.
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habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v.
Davis, 533 U.S. 678, 687-88 (2001)).
IV. 	Analysis5
A. 	Section 1226(a) applies to Petitioner’s detention.
The two sections of the 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). 	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.” 	If Petitioner is an “applicant for admission” and
“seeking admission” under § 1225(b)(2)(A), he is not entitled to a bond hearing. 	On the
other hand, Section 1226(a) more generally authorizes detention of a noncitizen pending
removal proceedings and entitles the noncitizen to a bond hearing. 	See Jennings v.
Rodriguez, 583 U.S. 281, 306 (“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))).
5 Petitioner claims he was not required to exhaust administrative remedies before filing the
Petition. Pet. at 6-7. Respondents do not dispute Petitioner’s assertion. The undersigned
agrees that Petitioner was not required to exhaust before filing the Petition. See Soberanes,
388 F.3d at 1310 (holding that exhaustion requirements do not apply to challenges to
immigration detention brought in habeas proceedings).
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Petitioner argues he is being held in violation of the INA and § 1225(b)(2) does not
apply to him because he had “previously entered the country and [has] been residing in the
United States prior to being apprehended and placed in removal proceedings.” Pet. at 15.
Petitioner contends § 1226(a) “explicitly applies to people charged as being inadmissible,
including those who entered without inspection.” 	Id. at 12. 	According to Petitioner,
§ 1225(b)(2) “does not apply to people like [him], who have already entered and were
residing in the United States at the time [he was] apprehended.” 	Id. at 13. 	Respondents
contend Petitioner is an “applicant for admission” and therefore properly detained under
§ 1225(b)(2)(A). 	Resp. at 11. 	Further, Respondents claim (1) § 1225(b)(2)(A) is not
limited only to noncitizens “arriving” in the United States, (2) prior discretionary
application of § 1226 to allow bond hearing does not mean all noncitizens in the United
States are “applicants for admission under § 1225,” (3) § 1225 applies to all noncitizens
who enter without inspections, and (4) Petitioner’s prior parole does not impact his current
detention under § 1225(b)(2)(A). Id. at 16-20.
The undersigned has reviewed the statutory text, Congressional intent, legislative
history, and § 1226(a)’s application for the past three decades, as well as numerous recent
cases addressing this exact issue. For the reasons stated below, and adopting this Court’s
reasoning in Lopez v. Corecivic Cimmaron Corr. Facility, No. CIV-25-1175-SLP, 2026
WL 165490, at *3-7 (W.D. Okla. Jan. 21, 2026), the undersigned recommends the Court
grant the Petition in part to the extent Petitioner seeks a bond hearing under § 1226(a).
First, the INA limits the scope of the term “seeking admission” in § 1225(b)(2)(A)
so that section does not apply to noncitizens living in the United States when detained.
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Section 1225(b)(2)(A) “only applies when a noncitizen ‘applicant for admission’ is actively
‘seeking admission’ into the United States.” 	Valdez v. Holt, No. CIV-25-1250-R, 2025
WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025). 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 superfluous. 	Lopez, 2026 WL 165490, at *4. 	The undersigned
best 	understands 	mandatory 	detention 	under 	§ 	1225(b)(2)(A) 	to 	apply 	to 	arriving
noncitizens actively seeking admission at or near the border or port of entry—not those
like Petitioner who have resided in the United States for years and were not arrested when
trying to cross the border.
In addition, the legislative history and recent amendment of § 1226 indicate that
section applies to noncitizens who previously entered without inspection and were residing
in the United States when apprehended. Notably, after passage of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, the Department of Justice explained
that “despite being applicants for admission, aliens who are present without having been
admitted or paroled . . . will be eligible for bond and bond redetermination.” 	Inspection
and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997) (citation
modified). Further, Congress’ recent amendment to § 1226 mandating detention for certain
criminal noncitizens renders Respondents’ interpretation of § 1225(b)(2)(A) superfluous.
Finally, this Court, Chief Judge DeGiusti, Judge Jones, Judge Russell, Judge
Heaton, and myriad district courts have recently applied § 1226(a) to govern detention of
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noncitizens like Petitioner.6 See Norboev v. Lyons, No. CIV-26-107-SLP, 2026 WL
497800, at *2 (W.D. Okla. Feb. 23, 2026) (finding § 1226(a) governs a similarly situated
petitioner’s detention and “join[ing] the decision reached by the vast majority of district
courts in this judicial district, in district courts within the Tenth Circuit and across the
country to have addressed the same issues as those raised by Petitioner”). This Court has
found the plain language, legislative history, and past immigration practices all support a
finding that “Petitioner’s detention is not governed by §1225(b)(2).” 	Lopez, 2026 WL
165490, at *7. The undersigned agrees with this Court’s reasoning, the majority of Judges
in this District, and the great weight of authority to conclude Petitioner falls within the
confines of § 1226(a), and not § 1225(b)(2)(A). This conclusion is also in accord with the
Seventh Circuit, which rejected the statutory interpretation of § 1225(b)(2) as urged by
Respondents. See Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061
(7th Cir. 2025). But see Avila v. Bondi, No. 25-3248, --- F.4th ----, 2026 WL 819258, at
*3-6 (8th Cir. Mar. 25, 2026) (agreeing with Respondents’ interpretation); Buenrostro-
Mendez v. Bondi, 166 F.4th 494, 501-08 (5th Cir. 2026) (same).
6 See, e.g., Lopez, 2026 WL 165490, at *7; Ramirez Rojas v. Noem, No. CIV-25-1236-HE,
2026 WL 94641, at *1 (W.D. Okla. Jan. 13, 2026); Valdez, 2025 WL 3709021, at *3; Colin
v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *5 (W.D. Okla. Dec. 16, 2025); Urbina
Garcia v. Holt, No. CIV-25-1225-J, 2025 WL 3516071, at *4 (W.D. Okla. Dec. 8, 2025).
Two Judges in the District have applied § 1225(b)(2)(A) to a similarly situated petitioner.
See Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D. Okla.
Jan. 6, 2026); Alvarado Montoya v. Holt, No. CIV-25-01231-JD, 2025 WL 3733302, at
*12 (W.D. Okla. Dec. 26, 2025).
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Accordingly, the undersigned recommends the Court apply § 1226(a) to govern
Petitioner’s current detention. 	The Court should grant the Petition in part and order
Respondents to provide Petitioner with a bond hearing under § 1226(a) before a neutral IJ
within five business days or otherwise release him if he does not have a lawful bond hearing
within that period.
B. 	Due Process also entitles Petitioner to a bond hearing.
Petitioner also alleges his continued detention without an opportunity to be heard
violates his due process under Mathews v. Eldridge and ICE’s failure to provide a bond
hearing violates the Fifth Amendment. Pet. at 15-16. As separate grounds for reaching a
bond hearing, the undersigned concludes that because § 1226(a) applies to Petitioner’s
detention, he is owed the due process provided to him under the statute. 	When Ҥ 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.” 	Velasquez Salazar v.
Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025).
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 applies to noncitizens within the United States “whether their
presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693.
Contrary to Respondents’ assertion, in the civil immigration detention context, courts
consistently apply the balancing test set out in Mathews v. Eldridge, 424 U.S. 319, (1976),
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to evaluate the level of process owed a noncitizen.7 See, e.g., Hernandez-Lara v. Lyons,
10 F.4th 19, 27-39 (1st Cir. 2021) (applying Mathews to due process challenges to
prolonged detention under § 1226(a)); Velasco Lopez v. Decker, 978 F.3d 842, 851-55 (2d
Cir. 2020) (same).
The Mathews test includes three factors: (1) “the private interest that will be affected
by the official action”; (2) “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”; and (3) “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. All three factors weigh in Petitioner’s favor.
First, Petitioner has a strong liberty interest in being free from physical detention.
This is “the most significant liberty interest there is—the interest in being free from
imprisonment.” Velasco Lopez, 978 F.3d at 851 (citing Hamdi v. Rumsfeld, 542 U.S. 507,
529 (2004)). Because freedom from restraint is “at the core of the liberty interest protected
by the Due Process Clause, commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.” Foucha v. Louisiana, 504 U.S.
7 Respondents also rely on Demore v. Kim, 538 U.S. 510 (2003) to contend Petitioner is
not entitled to a bond hearing because the Supreme Court held “mandatory detention
pending removal proceedings does not violate due process.” 	Resp. at 20. 	The Supreme
Court in Demore, though, did not create a blanket rule permitting detention of noncitizens
without individualized review and left open the question whether prolonged detention
without a bond hearing violates due process. See Merchan-Pacheo v. Noem, No. 25-CV-
03860, 2026 WL 88526, at *4-6 (D. Colo. Jan. 12, 2026) (concluding Demore “created a
framework that permits Petitioner’s release” and “in no way suggests that the court should
decline to consider the Mathews factors”).
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71, 80 (1992) (citation modified). 	“Congress may make rules as to aliens that would be
unacceptable if applied to citizens,” Demore, 538 U.S. at 522, but that power remains
subject to “important constitutional limitations,” Zadvydas, 533 U.S. at 695. 	It does not
eliminate Petitioner’s significant interest in being free from detention. 	See, e.g., Diaz v.
Noem, No. 26-CV-00782, 2026 WL 733587, at *3 (D. Colo. Mar. 16, 2026) (concluding
the first Mathews factors supports finding a due process violation where petitioner “is being
held in a detention facility that strongly resembles penal confinement, is away from his
family, and is unable to maintain his employment” (citation modified)). The undersigned
is not persuaded by Respondents’ argument that “Petitioner has the power to free himself,”
Resp. at 24, by leaving the country, especially in light of his pending asylum application.
Second, the risk of erroneous deprivation is high here, considering Respondents’
current position to afford him no bond hearing. See, e.g., Montero Cordova v. Noem, No.
26-CV-00526, 2026 WL 867689, at *9 (D.N.M. Mar. 30, 2026) (finding the second
Mathews factor favors petitioner because “the risk of erroneous deprivation will remain
high” “without the opportunity to have the hearing to which Petitioner is entitled” under
§ 1226(a) and noting “a bond hearing before a neutral immigration judge will provide
immense value as an additional safeguard” (citation modified)); Orellana v. Noem, 807 F.
Supp. 3d 745, 754 (W.D. Ky. 2025) (“A re-detention, without any individualized
assessment, leads to a high risk of erroneous deprivation of an individual’s liberty
interest.”). 	The undersigned rejects Respondents’ bare-bones argument that there is
“virtually no risk of an erroneous deprivation” because Petitioner “has not complied with
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the immigration laws” and he might be entitled to parole for “urgent humanitarian reasons
or significant public benefit.” Resp. at 24 (citing 8 U.S.C. § 1182(d)(5)(A)).
Finally, the Court must consider the government’s interest, including any fiscal or
administrative burdens. 	Mathews, 424 U.S. at 335. 	While “control over matters of
immigration is a sovereign prerogative” and the “government’s interest in efficient
administration of immigration laws at the border is weighty,” Landon v. Plasencia, 459
U.S. 21, 34 (1982) (citation modified), such interests in detaining Petitioner without
procedural safeguards do not outweigh his liberty interest or risk of erroneous deprivation.
See Montero Cordova, 2026 WL 867689, at *10 (finding though “the Government’s
interest in enforcing its immigration policies must be afforded considerable weight,” the
third factor favors petitioner because “the fiscal and administrative burdens of providing a
bond hearing under § 1226(a) are minimal and do not provide adequate justification for
foregoing the hearing entirely”); Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926,
943 (D. Colo. 2025) (comparing the “quite limited” harm to government, “because the
administrative burden of a bond hearing is minimal,” to the “sizeable harm posed to
[petitioner] by continued—and potentially unnecessary—detention” (citation modified)).
Bond hearings “are a significant procedural safeguard to balance the Government’s
interest in immigration enforcement against individual liberties.” Singh v. Bondi, No. 26-
CV-0125, 2026 WL 690013, at *6 (W.D. Tex. Mar. 6, 2026). Significantly, Petitioner has
had no meaningful opportunity for an immigration judge to consider whether he is a danger
to society or a flight risk since his re-detention. Further, the fact Petitioner has been living
in the United States for more than 12 years with no criminal history weighs in his favor.
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See Ekenge v. Baltazar, No. 26-CV-00630, 2026 WL 617341, at *5 (D. Colo. Mar. 5, 2026)
(finding the government’s interest “not substantial” where petitioner was re-detained after
being released and “any costs are far outweighed by the risk of erroneous deprivation of
the liberty interest at issue” (citation modified)).
Accordingly, in addition to the INA violation, Petitioner’s continued detention
without a bond hearing violates his due process liberty interests, and he is entitled to a
prompt bond hearing before an immigration judge.
C. 	The Court should order the government to bear the burden of proof at
Petitioner’s bond hearing.
Petitioner further asserts 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.” Pet. at 13. A noncitizen generally has the burden at a bond hearing to
show his “release would not pose a danger to property or persons” and he “is likely to
appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8).
As discussed above, the Court should grant habeas relief in part and grant Petitioner
a bond hearing because his detention is governed by § 1226(a) and due process requires it.
As for the burden of proof at a bond hearing, the Court should adopt the approach of other
courts in the Tenth Circuit and nationwide and use the Mathews balancing test to assess
“the type of process required in a given case.” Vizguerra-Ramirez v. Baltazar, No. 25-CV-
00881, 2025 WL 3653158, at *13 (D. Colo. Dec. 17, 2025); see also, e.g., Velasquez
Salazar, 806 F. Supp. 3d at 1245 (holding the Mathews framework supports shifting the
burden at a § 1226 bond hearing to the government); 	Hernandez-Lara, 10 F.4th at 39
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(holding the government bears the burden at a bond hearing after prolonged detention under
§ 1226(a)); Velasco Lopez, 978 F.3d at 854 (same). But see Miranda v. Garland, 34 F.4th
338, 358-65 (4th Cir. 2022) (applying Mathews to conclude due process does not require
the government to bear the burden at a § 1226(a) bond hearing for a noncitizen whose
detention is not “indefinite and potentially permanent”).
Under the circumstances presented here, the undersigned concludes all three
Mathews factors favor Petitioner and placing the burden of proof on the government at any
bond hearing under § 1226(a). 	First, as discussed above, Petitioner has a fundamental
interest in liberty and being free from official restraint. See Requejo Roman v. Castro, No.
25-CV-01076, --- F. Supp. 3d. ---, 2026 WL 125681, at *9 (D.N.M. Jan. 12, 2026) (finding
the first Mathews factors weighs in favor of the government bearing the burden of proof
because “being free from detention is the most elemental of liberty interests” (citation
modified)). Accordingly, the first Mathews factor favors Petitioner.
Second, “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” also
favor Petitioner. 	Mathews, 424 U.S. at 335. 	Notably, requiring Petitioner to bear the
burden of proof creates a risk of an erroneous deprivation where Respondents re-detained
him without any alleged violation of law or conditions of release. 	Petitioner had been
released from ICE custody, lived in the country since 2013, complied with all immigration
requirements, has been actively going through immigration proceedings, and had no
criminal history. See Resp. at 14-15. ICE’s decision to change course, re-detain Petitioner,
and deprive him of physical liberty without changed circumstances or reason for re-
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detention weighs in Petitioner’s favor. 	See Requejo Roman, 2026 WL 125681, at *9
(finding the “risk is even more pronounced” where petitioner had been released on bond
previously and requiring the government to justify detention “reduces the risk of an
ongoing and erroneous deprivation of Petitioner’s liberty”); Garcia Cortes v. Noem, No.
25-CV-02677, 2025 WL 2652880, at *4 (D. Colo. Sep. 16, 2025) (finding “a severe risk
of erroneous deprivation” based in part on respondents’ “failure to identify any criminal
record or conviction Petitioner has incurred”).
Additionally, assigning the burden of proof to Petitioner puts him in a “difficult”
position of “proving a negative,” L.G. v. Choate, 744 F. Supp. 3d 1172, 1183-84 (D. Colo.
2024)—specifically, proving he is neither a flight risk nor a danger to the community
despite his more than 12 years of apparent compliance with the law and any ICE conditions.
To the extent the government may contend risk factors warrant Petitioner’s continued
detention, the information establishing those risks is likely within the government’s
possession. Accord Owdetallah v. Bondi, No. CIV-25-1546-SLP, 2026 WL 483648, at *4
(W.D. Okla. Feb. 20, 2026) (noting information justifying a noncitizen’s re-detention
would be contained in the government’s own files rather than in the possession of a
petitioner detained in ICE custody). Thus, requiring the government to bear the burden for
Petitioner’s continued detention helps to cure “the risk of an erroneous deprivation,”
Mathews, 424 U.S. at 335, of his liberty interests after the government’s unilateral decision
to re-detain him. The second Mathews factor favors Petitioner.
Finally, “the administrative burden of a bond hearing is minimal.” 	Arostegui-
Maldonado, 794 F. Supp. 3d at 943. Having determined a bond hearing must be held, any
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additional costs from shifting the burden of proof to the government are negligible. Placing
the burden of proof on the government 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 government has not alleged or demonstrated any changed
circumstances since Petitioner’s previous release in January 2013 to support his recent re-
detention. See Requejo Roman, 2026 WL 125681, at *9 (finding the third factor supports
shifting the burden to the government because “the Government has not demonstrated any
change in circumstances” since petitioner’s prior release on bond).
In sum, all three Mathews factors support shifting the burden of proof at Petitioner’s
bond hearing to the government. The undersigned acknowledges that due process may not
require this result in all cases. 	See Boumediene v. Bush, 553 U.S. 723, 779 (2008)
(recognizing habeas corpus as “an adaptable remedy” where the “precise application and
scope” can “change[] depending upon the circumstances”). 	But in cases like this, where
Petitioner was previously released years ago and ICE re-detained him without any
allegation that he violated the law or conditions of release, the burden should be shifted to
the government at a bond hearing to justify his continued detention. See Mieles-Parraga
v. Bondi, No. 26-CV-00646, 2026 WL 776489, at *2 (D.N.M. Mar. 19, 2026) (shifting the
burden to the government to prove petitioner is a flight risk or danger to community where
petitioner had previously been released on bond); Abanil v. Baltazar, No. 25-CV-4029, ---
F. Supp. 3d ---, 2026 WL 100587, at *8 (D. Colo. Jan. 14, 2026) (holding “the weight of
authority in this District is clear: it is the Government’s burden to justify a noncitizens
continued detention at a bond hearing” (citation modified)); Requejo Roman, 2026 WL
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125681, at *8-10 (shifting the burden to the government to prove petitioner is a flight risk
or danger to community where petitioner had previously been released on bond); see also
Singh v. Grant, No. CIV-26-88-G, Doc. 14 at 17-22 (W.D. Okla. Mar. 30, 2026) (R&R)
(Judge Maxfield recently recommending the same).
The Court should also follow other district judges in this Circuit concluding the
government must prove Petitioner is a flight risk or danger to the community by clear and
convincing evidence. See Requejo Roman, 2026 WL 125681, at *10 (holding “the standard
of proof the Government must meet is one of clear and convincing evidence” (citation
modified)); Vizguerra-Ramirez, 2025 WL 3653158, at *16 (applying § 1226(a) to a
similarly situated petitioner and ordering a bond hearing at which “the Government must
prove by clear and convincing evidence that [he] is either a flight risk or a danger to the
community in order to justify continued detention”); L.G., 744 F. Supp. 3d at 1186 (“In
sum, in order to continue detaining Petitioner under § 1226(a), due process requires that
the Government is required to establish that continued detention is justified by clear and
convincing evidence.”); see also Singh v. Grant, No. CIV-26-88-G, Doc. 14 at 17-22 (W.D.
Okla. Mar. 30, 2026) (R&R) (Judge Maxfield recommending the same); Singh v. Grant,
No. CIV-26-279-J, Doc. 11 at 17-19 (W.D. Okla. Apr. 3, 2026) (R&R) (same); Drozdov v.
Lyons, No. CIV-26-365-SLP, Doc. 12 at 13-19 (W.D Okla. Apr. 3, 2026) (R&R) (the
undersigned recommending the same).
This approach is consistent with other contexts where the government must justify
a person’s detention by clear and convincing evidence to meet due process demands. See,
e.g., Foucha, 504 U.S. at 86 (confinement of “insanity acquittees who are no longer
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mentally ill”); Santosky v. Kramer, 455 U.S. 745, 769-70 (1982) (termination of parental
rights); Addington v. Texas, 441 U.S. 418, 432-33 (1979) (involuntary civil commitment
proceedings to a mental hospital); Woodby v. Immigr. & Naturalization Serv., 385 U.S.
276, 286 (1966) (deportation of a noncitizen); Chaunt v. United States, 364 U.S. 350, 353
(1960) (denaturalization of an individual).
In arriving at this conclusion, the undersigned has considered the burden of proof
applicable to the government for pre-trial detention of a criminal defendant under the Bail
Reform Act. In that context, “the government must prove risk of flight by a preponderance
of the evidence, and it must prove dangerousness to any other person or to the community
by clear and convincing evidence.” 	United States v. Cisneros, 328 F.3d 610, 616 (10th
Cir. 2003) (citation modified); see, e.g., Garcia v. Bondi, No. 26-CV-01012, 2026 WL
835766, at *4 (D. Colo. Mar. 26, 2026) (applying burden of proof from criminal pre-trial
detention to immigration habeas proceedings and “finding no persuasive justification to
conclude that a 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” (citation modified)). Further, the undersigned has considered the approach
of Judge Mitchell’s recent Report and Recommendation, where she concluded after
reviewing the Mathews factors that a similarly situated petitioner should be immediately
released and not re-detained without a pre-deprivation hearing. 	Rodriguez-Navarrete v.
Mullin, No. CIV-26-224-SLP, Doc. 11, at 14-17 (W.D. Okla. Apr. 3, 2026).
The undersigned is persuaded after a careful Mathews analysis to recommend the
predominant view from judges in this Circuit—that a detainee like Petitioner is entitled to
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a § 1226(a) bond hearing where the government bears the burden of proof by clear and
convincing evidence for his continued detention.8 Accordingly, at Petitioner’s bond
hearing, the government should bear the burden to prove by clear and convincing evidence
that he is either a flight risk or a danger to the community to justify continued detention.
D. 	The Court should 	decline to 	address 	Petitioner’s 	APA 	claim 	and
requests for additional injunctive relief.
Petitioner also argues his continued detention without a bond hearing violates the
APA. Pet. at 16-18. He further requests additional declaratory and injunctive relief. Id.
at 18-19. 	If the Court grants Petitioner’s requested relief for a bond hearing under
§ 1226(a), the undersigned recommends the Court decline to decide the merits of the APA
claim. See, e.g., Colin v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *6 n.3 (W.D. Okla.
Dec. 16, 2025) (declining to decide the merits of petitioner’s due process claim when
granting a bond hearing under § 1226(a)); see also Singh v. Mullin, No. CIV-26-347-SLP,
2026 WL 893186, at *2 (W.D. Okla. Apr. 1, 2026) (recognizing “a district court is not
obligated to adopt the precise remedy requested in the Petition and may decline to decide
the merits of remaining claims as it deems appropriate” (citation modified)). 	The Court
should further decline to address Petitioner’s additional requests for relief because they
were only superficially raised without supporting case citations.
8 See also Vizguerra-Ramirez, 2025 WL 3653158, at *15 & 15 n.5 (explaining how a
district judge imposed a burden of proof on the government from criminal, pre-trial
detention in a 2019 case involving a noncitizen’s detention, but “is persuaded by the weight
of authority since [her 2019 decision] to reconsider [her] prior analysis,” and now
concluding “clear and convincing evidence is the appropriate evidentiary standard” for the
government in a bond hearing for an immigration habeas petitioner).
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V. 	Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court GRANT in
part the Petition for habeas relief by ordering Respondents to provide Petitioner within
five business day a bond hearing under 8 U.S.C. § 1226(a) at which the government bears
the burden of proof or otherwise release Petitioner if he has not received a lawful bond
hearing within that period. 	The undersigned further recommends the Court require the
government to bear the burden at any bond hearing to prove by clear and convincing
evidence that Petitioner is either a flight risk or a danger to the community to justify
continued detention. Finally, the Court should order Respondents to certify compliance by
filing a status report within seven business days of the Court’s order.
The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. Any objection must be filed not later than April 16, 2026. See id.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). 	If a party wishes to respond to the other party’s
objections, such response must be filed not later than April 21, 2026. See Fed. R. Civ. P.
72(b)(2). 	Failure to object timely waives the right to appellate review of the factual and
legal issues addressed in this Report and Recommendation. 	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 in this matter.
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ENTERED this 9 th day of April, 2026.
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