Saidi v. Lyons et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
KOKIE SAIDI, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-738-J
)
TODD LYONS, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Kokie Saidi, a noncitizen1 and Ugandan national proceeding with
counsel, filed a Verified Emergency 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 Bernard M. Jones, II 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. 6, and the Petition
is at issue. For the reasons set forth below, the undersigned recommends 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) within five business days at which the government bears
the burden of proof or otherwise to release him if there is no hearing within that time.
1 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)).
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 1 of 20

2
I. 	Background
Petitioner, a citizen of Uganda, presented himself at an El Paso, Texas, border
crossing seeking to apply for asylum on September 21, 2019. Pet. at 6; Resp. at 2; Doc. 8-
2 at 1 (Notice to Appear). On October 10, 2019, ICE placed him into removal proceedings
before the Immigration Court pursuant to 8 U.S.C. § 1229a through the issuance of a Notice
to Appear 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 3; Doc.
8-2 at 1. On November 5, 2019, Petitioner was granted humanitarian parole pursuant to 8
U.S.C. § 1182(d) and was released from ICE custody. Pet. at 10-11, 16. On August 12,
2020, Petitioner filed an Application for Asylum and Withholding of Removal. Resp. at
3; Doc. 8-4 (Asylum Application). 	Petitioner alleges he has no criminal history and has
complied with the conditions of his parole since his release from ICE custody. Pet. at 11.
He further alleges he has consistently attended immigration-related proceedings and made
proactive, good-faith filings that demonstrate his compliance with immigration laws. 	Id.
at 11-12.
On 	March 	5, 	2026, 	ICE 	re-detained 	Petitioner 	at 	his 	scheduled 	ICE 	status
adjustment interview. Pet. at 10-11; Resp. at 3. Respondents contend Petitioner is detained
pursuant to 8 U.S.C. § 1225. Resp. at 4-5. Petitioner alleges he has been unable to obtain
a custody review by an immigration judge (“IJ”) because all IJs are subject to the binding
precedent of Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025), which holds those
noncitizens who entered the country without admission or parole are ineligible for a bond
hearing. Pet. at 9; Resp. at 3.
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 2 of 20

3
When Petitioner filed his Petition, he was detained at Diamondback Correctional
Facility in Watonga, Oklahoma. Pet. at 11. He remains detained there. 	See ICE Online
Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited Apr. 30,
2026).
II. 	Petitioner’s Claims
Petitioner asserts two counts in his Petition.
• 	Count 	I: 	Violation 	of 	the 	Immigration 	and 	Nationality 	Act
(“INA”). Petitioner alleges he is not subject to mandatory detention
under 	§ 	1225 	because 	he 	was 	previously 	paroled 	under
§ 1182(d)(5)(A). He further alleges his detention should be governed
by § 1226, which requires an opportunity for release on bond. Pet. at
28-29.
• 	Count II: Violation of Due Process. Petitioner alleges his detention
violates due process because he was previously released on parole and
re-detained without a pre-deprivation hearing as required by law. Id.
at 29.
He seeks “a Writ of Habeas Corpus ordering Respondents to release [him] immediately”
and requiring Respondents to hold a “pre-deprivation bond hearing” before re-detaining
him. Id. at 30. Alternatively, he requests the Court to “order a constitutionally compliant
bond hearing before an immigration judge under § 1226(a) with procedural safeguards,
including placing the burden on Respondents to show why detention is necessary, retaining
jurisdiction to review the determination to ensure compliance with the Court’s order, and
ordering Respondents to file a written status report with this Court detailing the outcome
of the bond determination and the legal basis for any continued custody.” 	Id. at 7, 30.
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 3 of 20

4
Petitioner also requests an award of attorney fees and costs under the Equal Access to
Justice Act (“EAJA”).2 Id. at 31.
III. 	Standard of Review
To obtain habeas corpus relief, Petitioner must show that he is “in custody in
violation of the Constitution or laws or treaties of the United States.” 	28 U.S.C.
§ 2241(c)(3). “Challenges to immigration detention are properly brought directly through
habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v.
Davis, 533 U.S. 678, 687-88 (2001)).
IV. 	Analysis
A. 	Section 1226(a) applies to Petitioner’s detention.
The two sections of the INA at issue that govern detention of noncitizens pending
removal proceedings 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)
2 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.
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 4 of 20

5
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
(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)).
Petitioner argues he is being held in violation of the INA because he was previously
paroled, foreclosing application of § 1225(b)(1) to him. Pet. at 16-17. He also alleges he
“is also not an ‘arriving alien’” because he was detained in the interior after prolonged
residence in the United States and, accordingly, his detention is governed by § 1226(a)
rather than § 1225(b)(2). Id. at 17-18. 	Respondents maintain Petitioner is “properly
detained pursuant to 8 U.S.C. § 1225,” but acknowledge this Court’s contrary position on
the issue. Resp. at 3-4.
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 Coreas v. Noem, No. CIV-26-151-J, 2026 WL 541151, at *2 (W.D. Okla. Feb.
26, 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 already living in the United States when
apprehended. 	Section 1225(b)(2)(A) “only applies when a noncitizen ‘applicant for
admission’ is actively ‘seeking admission’ into the United States.” 	Coreas, 2026 WL
541151, at *2. 	“If all ‘applicants for admission’ are also ‘seeking admission,’ then
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 5 of 20

6
§ 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.”
Diaz v. Holt, No. CIV-25-1179-J, 2025 WL 3296310, at *2 (W.D. Okla. Nov. 26, 2025)
(citation 	modified). 	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, Petitioner’s prior release under humanitarian parole does not impact the
analysis or application of § 1226(a). 	Pet. at 17. 	His current detention is governed by
§ 1226(a) because expiration or revocation of parole under § 1182(d)(5)(A) does not
convert his status to an “applicant for admission” who is “seeking admission.” This Court
has previously addressed a petitioner under § 1182(d)(5)(A) and recognized “Petitioner’s
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 6 of 20

7
detention does not arise from any ongoing entry or inspection process, but from ICE’s
decision to place him in removal proceedings.” 	Kumar v. Johnson, No. CIV-26-352-J,
2026 WL 937560, at *2 (W.D. Okla., Apr. 7, 2026) (citation modified). “In that posture,
detention is properly understood as detention pending a decision on whether the alien is to
be removed, which falls within Section 1226(a), notwithstanding Petitioner’s initial
classification at the time of entry.” 	Id. (citation modified); see also id. (rejecting
Respondents’ argument that issuing a Notice to Appear to petitioner terminated parole
under § 1182(d)(5)(A) and reverted his status “to that of any ordinary applicant for
admission”); Rafibaev v. Noem, No. 26-CV-00461, 2026 WL 607559, at *4 (D. Colo. Mar.
4, 2026) (finding termination of petitioner’s parole did not render him an applicant seeking
admission) (collecting cases); Sukuev v. Grant, No. 26-532-SLP, Doc. 15 at 7-9 (W.D.
Okla. Apr. 13, 2026) (R&R) (collecting cases). But see Arevalo Castillo v. Figueroa, No.
CIV-26-162-HE, Doc. 13 at 11-14 (W.D. Okla. Apr. 20, 2026) (R&R) (recommending
application of § 1225 to govern detention of habeas petitioner previously released under
§ 1182(d)(5) humanitarian parole).
In sum, this Court, Chief Judge Palk, Judge DeGiusti, Judge Russell, Judge Heaton,
and myriad district courts have recently applied § 1226(a) to govern detention of
noncitizens like Petitioner.3 This conclusion is also in accord with the Second and Seventh
3 See, e.g., Coreas, 2026 WL 541151, at *2; Lopez v. Corecivic Cimarron Corr. Facility,
No. CIV-25-1175-SLP, 2026 WL 165490, at *1 (W.D. Okla. Jan. 21, 2026); Ramirez Rojas
v. Noem, No. CIV-25-1236-HE, 2026 WL 94641, at *1 (W.D. Okla. Jan. 13, 2026); Valdez
v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025); Colin
v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *5 (W.D. Okla. Dec. 16, 2025). 	Two
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 7 of 20

8
Circuits, 	which 	rejected 	the 	statutory 	interpretation 	of 	§ 	1225(b)(2) 	as 	urged 	by
Respondents. See Cunha v. Freden, No. 25-3141-PR, --- F.4th ---, 2026 WL 1146044, at
*2 (2d Cir. Apr. 28, 2026); Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th
1048, 1061 (7th Cir. 2025). 	But see Avila v. Bondi, 170 F.4th 1128, 1134-38 (8th Cir.
2026) (agreeing with Respondents’ interpretation); Buenrostro-Mendez v. Bondi, 166 F.4th
494, 501-08 (5th Cir. 2026) (same).
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). 	See Coreas, 2026 WL 541151, at *2 (finding
§ 1226(a) governs a similarly situated petitioner’s detention and “agree[ing] with the
Seventh 	Circuit’s 	reasoning, 	the 	majority 	of 	the 	other 	courts 	in 	this 	district, 	the
overwhelming number of other courts that recently addressed this question, and this
Court’s prior rulings”);4 accord Puentes-Puentes v. Grant, No. CIV-26-192-J, 2026 WL
657199, at *2 (W.D. Okla. Mar. 9, 2026) (concluding “unless the Tenth Circuit and/or
Supreme Court hold differently, the matter is well settled in this Court and further
discussion is unwarranted” (citation modified)).
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).
4 Indeed, on April 28, 2026, a Second Circuit panel unanimously held § 1226 applies to
noncitizens similarly situated to Petitioner. Da Cunha, 2026 WL 1146044, at *4 (agreeing
with the Seventh Circuit and the majority of district courts and finding the analysis in Avila
and Buenrostro-Mendez “unpersuasive”).
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 8 of 20

9
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.5
Petitioner also alleges he has acquired a protected liberty interest based on his
previous parole and residence in the United States, and therefore his continued detention
without adequate processes or an individualized hearing violates his due process rights.
Pet. at 19-25. 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 under the statute. When “§ 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.
5 The undersigned acknowledges this Court’s recent Orders in Singh v. Grant, No. CIV-
26-279-J, 2026 WL 1035100, at *1-2 (W.D. Okla. Apr. 16, 2026) and Batista Ronda v.
Figueroa, No. CIV-26-565-J, 2026 WL 1146026, at *2 (W.D. Okla. Apr. 28, 2026),
declining to reach similar due process issues and concluding burden shifting to the
government in a § 1226(a) bond hearing is premature and not ripe for adjudication before
a bond hearing has been conducted. The undersigned respectfully continues to recommend
the government bear the burden of proof at a bond hearing based on due process and the
particular circumstances of Petitioner’s case.
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 9 of 20

10
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.
In the civil immigration detention context, courts consistently apply the balancing test set
out in Mathews v. Eldridge, 424 U.S. 319, (1976), to evaluate the level of process owed a
noncitizen. 	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.
71, 80 (1992) (citation modified). 	“Congress may make rules as to aliens that would be
unacceptable if applied to citizens,” Demore, 538 U.S. 510, 522 (2003), but that power
remains subject to “important constitutional limitations,” Zadvydas, 533 U.S. at 695. 	It
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 10 of 20

11
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 ultimately
has the power to free himself,” Resp. at 7, by leaving the country, especially with a pending
asylum claim.
Second, the risk of erroneous deprivation is high here, considering Respondents’
current position to afford Petitioner 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.”).
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
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 11 of 20

12
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 six years with no criminal history and was re-detained
while at an ICE facility for a scheduled immigration interview weighs in his favor. 	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)). Finally, the undersigned is not persuaded
by Respondents’ assertion that granting Petitioner a bond hearing “would compel a change
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 12 of 20

13
in policy and procedures with associated burdens on the Immigration Court system, [the
Department of Homeland Security], and ICE.” Resp. at 8. Noncitizens similarly situated
to Petitioner were routinely provided bond hearings under § 1226(a) for decades before last
year’s policy change.
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 that he receive “a bond hearing in
which the government bears the burden of justifying his continued detention and the IJ
considers his ability to pay and alternatives to detention when setting any bond amount.”
Pet. at 25. 	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
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 13 of 20

14
burden at a § 1226 bond hearing to the government); 	Hernandez-Lara, 10 F.4th at 39
(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, 816
F. Supp. 3d 1267, 1283 (D.N.M. 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 for more than six years, complied with all
immigration requirements, and had no criminal history. See Pet. at 11-12. ICE’s decision
to change course, re-detain Petitioner, and deprive him of physical liberty without changed
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 14 of 20

15
circumstances or reason for re-detention weighs in Petitioner’s favor. See Requejo Roman,
816 F. Supp. 3d at 1283 (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 six 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
of proof 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
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 15 of 20

16
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 November 2019 to support his recent
re-detention. 	See Requejo Roman, 816 F. Supp. 3d at 1283 (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, 816 F. Supp.
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 16 of 20

17
3d at 1282-84 (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,
e.g., 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); 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).
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, 816 F. Supp. 3d at 1284 (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 [she] 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, e.g., 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); 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,
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 17 of 20

18
e.g., Foucha, 504 U.S. at 86 (confinement of “insanity acquittees who are no longer
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 coming to this recommendation, 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)). 	The undersigned has also
considered the approach akin to Judge Mitchell’s recent Reports and Recommendations,
where she concluded after review of the Mathews factors that a similarly situated petitioner
should be immediately released and not re-detained without a pre-deprivation hearing. See,
e.g., Rodriguez-Navarrete v. Mullin, No. CIV-26-224-SLP, Doc. 11, at 14-17 (W.D. Okla.
Apr. 3, 2026) (R&R).
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 18 of 20

19
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
a § 1226(a) bond hearing where the government bears the burden of proof by clear and
convincing evidence for his continued detention. 	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.
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 May 7, 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 May 12, 2026. See Fed. R. Civ. P.
72(b)(2). 	Failure to object timely waives the right to appellate review of the factual and
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 19 of 20

20
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.
ENTERED this 30th day of April, 2026.
Case 5:26-cv-00738-J Document 10 Filed 04/30/26 Page 20 of 20