Noem

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

VICTOR JESUS VIZARRAGA )

SANCHEZ, )

)

Petitioner, )

)

v. ) Case No. CIV-26-547-R

)

MARKWAYNE MULLIN, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Victor Jesus Vizarraga Sanchez, a noncitizen detainee in the custody of

the U.S. Immigration & Customs Enforcement (“ICE”), filed a Petition for Writ of Habeas

Corpus. Doc. 1. United States District Judge David L. Russell referred this matter to the

undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). This

Report and Recommendation addresses Petitioner’s Emergency Motion to Enjoin Transfer

and for Temporary Restraining Order (“Motion”). Doc. 16. For the reasons stated below,

the undersigned recommends the Court DENY Petitioner’s Motion.

I. Background

On March 19, 2026, Petitioner filed his Petition, which, among other things, alleges

he suffers from “serious and chronic medical conditions” requiring ongoing medical care

and had recently undergone heart surgery and brain surgery while under guard by

immigration authorities. Pet. at 26-28. Petitioner alleges his detention violates the Fifth

Amendment due to these medical conditions and “immediate release is the only

constitutionally adequate remedy.” Id. at 29-31. On March 20, 2026, the matter was

referred to the undersigned. Doc. 5. On the same day, the undersigned ordered

Respondents to respond to the Petition not later than March 27, 2026. Doc. 6. In the Order

for Response, the undersigned directed Respondents to “file written notice at least seventy-

two hours before removing, transferring, relocating, or otherwise moving Petitioner,” Id.

at 2, to keep track of Petitioner’s location during the pendency of these proceedings. On

March 27, 2026, Respondents timely filed a Response. Doc. 10. On March 31, 2026,

Petitioner filed a Motion for Preliminary Injunction seeking release during the pendency

of the habeas proceedings due to his medically vulnerable state. Doc. 13. On April 3,

2026, the undersigned set an expedited briefing schedule for that motion, which has not

been completed. Doc. 14.

On April 3, 2026, Respondents filed a Notice informing the Court that “DHS/ICE

intends to transfer and/or remove Petitioner after at least seventy-two (72) hours have

passed.” Doc. 15. On April 6, 2026, Petitioner filed his Motion requesting “this Court

enjoin any transfer unless and until Respondents demonstrate that his serious medical needs

will be adequately addressed and that the receiving facility is equipped to provide

appropriate and sufficient medical care.” Doc. 16 at 2. On the same day, the Court ordered

Respondents to respond to the Motion and include additional factual information about

Petitioner’s scheduled transfer, including (1) the date of his transfer, (2) the location where

he is being transferred, and (3) whether the purpose of the transfer is related to his medical

conditions. Doc. 18 at 1. Respondents responded timely, arguing (1) the Court does not

have jurisdiction to grant Petitioner’s Motion and (2) Petitioner has not established

entitlement to the extraordinary relief requested. Doc. 21. Respondents also stated:

“Petitioner is currently being transferred from the Diamondback Detention Center to the

Prairieland Detention Center in Anson, Texas for the sole purpose of removal” to Peru on

April 9, 2026, and he “has received medical clearance for his removal flight.” Doc. 21 at

2 (quoting Declaration of ICE Officer Torres) (citation modified). Petitioner did not file

an optional reply by the Court’s deadline of April 9, 2026. The Motion is now at issue.

II. The Court does not have jurisdiction to grant the Motion.

Federal law strips federal district courts of jurisdiction to consider “any cause or

claim by or on behalf of any alien arising from the decision or action by [the Department

of Homeland Security (“DHS”)] to commence proceedings, adjudicate cases, or execute

removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). In the Tenth

Circuit, a court must review whether a habeas petitioner’s claims are “connected directly

and immediately with a decision or action by the Attorney General” to commence

proceedings, adjudicate cases, or execute removal orders. Tsering v. U.S. Immigr. &

Customs Enf’t, 403 F. App’x 339, 343 (10th Cir. 2010). Respondents argue “if Petitioner’s

Motion was granted, it would in effect enjoin Petitioner’s upcoming removal to Peru,”

which “directly relate[s] to decisions to execute removal orders.” Resp. at 6-7 (citation

modified). The undersigned agrees. See Olola v. U.S. Att’y Gen., No. 18-CV-00058, 2018

WL 11446892, at *3 (D. Colo. Feb. 22, 2018) (“Federal law unambiguously strips federal

district courts of jurisdiction to stay or enjoin an alien’s removal.” (citation modified)); see

also, e.g., Makuey v. Scott, No. 2:26-CV-00632, 2026 WL 925647, at *4 (W.D. Wash. Apr.

6, 2026) (holding the court lacks jurisdiction to stay petitioner’s removal under § 1252(g));

Hernandez Llanes v. Warden, Fla. Soft Side Det. Ctr., No. 2:26-CV-1030, 2026 WL

925615, at *2 (M.D. Fla. Apr. 6, 2026) (same). Accordingly, § 1252(g) strips the Court of

jurisdiction to consider Petitioner’s Motion.

In addition, under 8 U.S.C. § 1252(a)(2)(B)(ii), “no court shall have jurisdiction to

review any other decision or action of the Attorney General or the Secretary of Homeland

Security the authority for which is specified under this subchapter to be in the discretion of

the Attorney General or the Secretary of Homeland Security.” Id. (citation modified).

Respondents argue Petitioner seeks an order enjoining transfer, but “the decision as to the

appropriate place for detaining noncitizens is a statutorily defined discretionary power”

and in the sole discretion of the Secretary of DHS. Resp. at 5. Again, the undersigned

agrees. Under 8 U.S.C. § 1231(g)(1), which governs noncitizens like Petitioner who have

a final order of removal, ICE “shall arrange for appropriate places of detention for aliens

detained pending removal or a decision on removal.” The Tenth Circuit has confirmed

“the Attorney General is mandated to arrange for appropriate places of detention for

[persons] detained pending removal.” Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir.

1999) (holding in a civil rights lawsuit “a district court has no jurisdiction to restrain the

Attorney General’s power to transfer [ICE detainees] to appropriate facilities by granting

injunctive relief”). Accordingly, § 1252(a)(2)(B)(ii) also bars judicial review of

Respondents’ decision to remove Petitioner or transfer him to another ICE facility pending

removal. See, e.g., Lway Mu v. Whitaker, 18-cv-06924, 2019 WL 2373883, at *5

(W.D.N.Y. June 4, 2019) (citing § 1231(g)(1) and concluding “it does not have the

authority to dictate to DHS where Petitioner should be housed”); Olola, 2018 WL

11446892, at *4 (finding § 1252(a)(2)(B)(ii) and § 1231(g) preclude judicial review of

respondents’ decision to transfer a noncitizen and “decisions to transfer an alien from one

location to another are within the discretion of the Attorney General and therefore may not

be reviewed or enjoined by the federal district courts”).

Therefore, the undersigned concludes the Court does not have jurisdiction to enjoin

Petitioner’s removal to Peru or transfer to another ICE facility to effect his removal.

III. Petitioner has not established entitlement to the relief requested.

Even if the Court had jurisdiction to enjoin Petitioner’s transfer and removal, he has

not established he is entitled to a temporary restraining order. “A party seeking a temporary

restraining order or preliminary injunction must show ‘(1) a likelihood of success on the

merits; (2) a likelihood that he will suffer irreparable harm in the absence of preliminary

relief; (3) that the balance of equities tips in his favor; and (4) that the injunction is in the

public interest.’” Padres Unidos de Tulsa v. Drummond, 785 F. Supp. 3d 993, 999 n.4

(W.D. Okla. 2025) (citing Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)) (citation

modified). The likelihood-of-success and irreparable-harm factors are “the most critical”

in the analysis. Rocky Mountain Gun Owners v. Polis, 121 F.4th 96, 112 (10th Cir. 2024).

And the third and fourth factors “merge” where, like here, the government is the opposing

party. Id.

A. Likelihood of success on the merits

Petitioner asserts he is “likely to succeed on the merits” because he “is entitled to

conditions of confinement that do not amount to punishment and that meet constitutional

standards of due process.” Doc. 16 at 6. He argues “proceeding with the transfer of a

medically fragile detainee without ensuring that his serious medical needs will be

adequately addressed” “demonstrates deliberate indifference to a substantial risk of serious

harm.” Id. (citation modified). So, according to Petitioner, “proceeding with transfer under

these circumstances is likely unconstitutional.” Id. (citation modified). However,

Petitioner fails to address how any of this shows he is likely to succeed on the merits of his

Petition.

In his Petition, Petitioner argues his detention violates due process because he has

not been given “any individualized determination that his continued confinement is

necessary.” Pet. at 30. Notably, Petitioner was ordered removed on January 7, 2026. Doc.

1-2 at 2. His appeal was dismissed by the BIA on February 27, 2026. Id. at 2. An order

of removal becomes final “upon dismissal of an appeal by the Board of Immigration

Appeals [(“BIA”)].” 8 C.F.R. § 1241.1(a). Petitioner’s order of removal therefore became

final on February 27, 2026.1 He is now subject to 8 U.S.C. § 1231, which governs the

“detention and removal of aliens ordered removed.” Section 1231(a) dictates “when an

alien is ordered removed, the Attorney General shall remove the alien from the United

States within a period of 90 days,” during which time “the Attorney General shall detain

1 Petitioner’s BIA appeal was “summarily dismissed” as untimely. Resp. at 5. According

to the removal order, Petitioner’s appeal was due February 6, 2026, but was not filed until

February 9, 2026. Id.; see also Doc. 10-4. Petitioner contends he underwent surgery on

January 26 and 28, 2026, which impacted his ability to timely appeal the removal order

that he is attempting to challenge. Pet. at 28; Reply at 6-7. However, Petitioner’s intention

to continue to challenge the removal order does not change the fact that it is now a final

order of removal and Respondents can now remove him. Rather, if Petitioner seeks to stay

his removal pending further proceedings, he would need to seek an administrative stay of

removal from DHS or from the relevant Court of Appeals. See 8 C.F.R. § 1241.6

(governing administrative stay of removal); 8 U.S.C. § 1252 (governing judicial review of

orders of removal).

the alien.” This “removal period” begins “the date the order of removal becomes

administratively final.” Id. § 1231(a)(1)(B)(i).2

As such, any argument that Petitioner is entitled to a bond hearing or release from

detention during the pendency of his removal proceedings, such as under § 1226(a), is not

applicable to a noncitizen, like Petitioner, who has a final order of removal. See Castillo

v. De Andra Ybarra, No. CIV 25-1074, 2026 WL 370497, at *44 (D.N.M. Feb. 10, 2026)

(“Once the Petitioners receive a final order of removal, the United States ceases to detain

the Petitioners or put them on bond under § 1226(a), but instead they transfer to § 1231’s

statutory authority. At that time, the Court loses jurisdiction to hear the habeas petitions for

release under § 1226(a), because the habeas petitions will be moot.”).

While Petitioner acknowledges the BIA dismissed his appeal and he is now subject

to an administratively final order of removal, he argues without case citations that

“continued detention is unconstitutional regardless of the statutory authority invoked.” Pet.

at 30. Petitioner doubles down on this argument in his Reply asserting, again without case

citations, “the legality of his detention remains a live controversy” because he never

received a bond hearing and Respondents “cannot evade judicial review by relabeling

detention authority after the fact.” Reply at 3. He further argues “the Court may review

the legality of detention notwithstanding § 1231” and “Respondents’ reliance on § 1231

does not foreclose relief.” Id. The undersigned disagrees. Respondents have not

2 If the removal order is judicially reviewed and if a court orders a stay of removal, the

removal period begins on the date of the court’s final order. 8 U.S.C. § 1231(a)(1)(B)(ii).

Petitioner has not alleged there is a court-ordered stay of his removal.

“relabeled” Petitioner’s detention. Rather, during his detention Petitioner became subject

to a final order of removal, which necessarily re-classified him from a noncitizen currently

undergoing removal proceedings—governed by § 1226—to a noncitizen subject to a final

order of removal—governed by § 1231. Thus, because Petitioner is not entitled to any

individualized determination of his detention because he is within the 90-day mandatory

detention period for noncitizens subject to a final order of removal. The undersigned,

therefore, concludes Petitioner is not likely to succeed on the merits of his due process

claim asserting he is entitled to such an individualized determination.3 Accordingly, this

factor weighs heavily in favor of denying the Motion.

B. Likelihood of irreparable harm

Petitioner alleges transfer “creates a substantial risk of further compromising

Petitioner’s already inadequate and inconsistent medical care, as Respondents have

provided no assurance that his treatment will be stabilized, improved, or even maintained

during or after transfer.” Doc. 16 at 4. Petitioner further argues where the government’s

conduct “exposes a civil detainee to a substantial risk of serious medical harm, such

conditions may rise to the level of unconstitutional punishment.” Id. at 5 (citing Basank v.

3 Petitioner’s Motion does not address the likelihood of success on the merits of his INA

or Administrative Procedures Act (“APA”) claims. However, the undersigned concludes

he is not likely to succeed on the merits of those claims either. See, e.g., Carbajal v.

Holder, 43 F. Supp. 3d 1184, 1188 (D. Colo. 2014) (“Applicant’s claims challenging his

mandatory detention without an individualized bond hearing during the pre-removal period

now are moot because the Board of Immigration Appeals dismissed his administrative

appeal.”); Trump v. J. G. G., 604 U.S. 670, 674 (2025) (Kavanaugh, J. concurring) (noting

that a claim cannot be brought under APA when habeas corpus is the proper vehicle).

Decker, 613 F. Supp. 3d 776 (S.D.N.Y. 2020), Malam v. Adducci, 459 F. Supp. 3d 867

(E.D. Mich. 2020), and Grant v. Decker, No. 20 CIV. 2946 (AKH), 2020 WL 3402445, at

*1 (S.D.N.Y. June 19, 2020)). However, these cases are factually distinguishable and do

not involve petitioners governed by § 1231 with a final order of removal and immediate

plans by the government for removal.4 Further, Respondents assert Petitioner has been

medically cleared for his removal. Doc. 21 at 2.

The undersigned acknowledges Petitioner’s treatment while in Respondents’

custody—as alleged in his filings—is certainly concerning. Petitioner is subject to a final

order of removal and is scheduled to be removed from the country soon. His planned

transfer is intended to effect that removal. Petitioner fails to provide a legal and factual

basis to justify preliminary or habeas relief based on his alleged harm with medical

conditions in light of his final removal order, medical clearance, and imminent plans for

his removal. Accordingly, this factor also weighs in favor of denying the Motion.

C. Balance of equities and public interest

Petitioner argues “the public interest is served by ensuring that individuals in

government custody receive constitutionally adequate medical care” and “preventing

actions that pose a substantial risk of serious harm to detainees is firmly in the public

4 Even if petitioners in these cases did have final orders of removal, the cited cases involved

early risks of COVID-19 in ICE detention facilities for medically vulnerable detainees.

These cases did not involve a detainee, like Petitioner, who has a final order of removal,

was medically cleared after surgery, and is now scheduled for transfer and removal.

interest.” Doc. 16 at 7. However, these allegations do not outweigh the two previous

factors, which weigh heavily in favor of Respondents.

IV. Recommendation and Notice of Right to Object

For the foregoing reasons, the undersigned recommends that the Court DENY

Petitioner’s Emergency Motion to Enjoin Transfer and for Temporary Restraining Order,

Doc. 16. The parties are advised of their rights to object to this Report and

Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of

Court not later than April 14, 2026. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Ifa party

wishes to respond to the other party’s objections, such response must be filed not later than

April 16, 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 does not dispose of all issues referred to the

undersigned Magistrate Judge in this matter.

ENTERED this 10" day of April, 2026.

UNITED STATES MAGISTRATE JUDGE

10