Palacio

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ANDRES PALACIO, )

)

Petitioner, )

)

v. ) Case No. CIV-26-393-PRW

)

WARDEN OF CIMARRON )

CORRECTIONAL FACILITY,1 )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Andres Palacio, a noncitizen proceeding pro se,2 seeks a writ

of habeas corpus under 28 U.S.C. § 2241. Doc. 1.3 United States District Judge

Patrick R. Wyrick referred the case to the undersigned Magistrate Judge under

1 Pursuant to Fed. R. Civ. P. 25(d), the Court adds Department of

Homeland Security (DHS) Secretary Markwayne Mullin, and Todd Blanche

(the acting Attorney General) as Respondents. The Warden of Cimarron

Correctional Facility is not a federal official, so the response is not filed on

behalf of the Warden. See Doc. 7, at 8 n.1.

2 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)). This Court liberally construes a pro se

litigant’s pleadings, but cannot serve as Petitioner’s advocate or create

arguments on his behalf. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991);

Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

3 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondents have responded, Doc. 7, and

the time for a reply has lapsed. So the matter is at issue.

For the reasons below, the undersigned recommends the Court deny the

petition.

I. Factual background and procedural history.

Petitioner, a Nicaraguan citizen, alleges he entered the United States on

September 1, 2010. Doc. 1, Att. 1, at 1. On August 8, 2025, the Department of

Homeland Security (DHS) issued a Notice to Appear (NTA) and charged him

as removable as an immigrant allegedly lacking valid immigrant entry

documents and as a noncitizen present in the United States without being

admitted or paroled under 8 U.S.C. §§ 1182(a)(6)(A)(i) and 1182(a)(7)(A)(i)(I).

Doc. 7, at 9 & Att. 1. Petitioner sought a re-determination of custody, which

the Immigration Court denied, finding it lacked jurisdiction to consider the

request. Id. at 9 & Att. 2. Petitioner sought cancellation of removal and

adjustment of status on October 1, 2025. Id. at 9-10 & Att. 3.

II. Petitioner’s claims.

Petitioner raises four grounds for relief:

Ground One: prolonged detention in excess of six months in violation of

Zadvydas v. Davis, 533 U.S. 678, 701 (2001);

Ground Two: Immigration and Customs Enforcement’s (ICE) prolonged

detention of Petitioner violates the Fifth Amendment due process clause;

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Ground Three: ICE’s violation of the Immigration and Nationality Act

and its own regulations violates his due process rights; and

Ground Four: ICE has violated its own regulations under the

Administrative Procedure Act.

Doc. 1, at 7-8.

Petitioner asks this Court to immediately release him on an order of

supervision. Id. at 8.

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, 533 U.S. at 687-88).

IV. Discussion.

A. Petitioner cannot show a deprivation of his due process

rights under Zadvydas.

In Grounds One and Two, Petitioner asserts that his prolonged detention

violates Zadvydas, and in turn, his substantive due process rights. Doc. 1, at

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7. This Court may issue a writ of habeas corpus when a person is “in custody

in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2241(c)(3). “The Fifth Amendment’s Due Process Clause forbids the

Government to ‘depriv[e]’ any ‘person. . . of . . . liberty . . . without due process

of law.’ Freedom from imprisonment—from government custody, detention, or

other forms of physical restraint—lies at the heart of the liberty that Clause

protects.” Zadvydas, 533 U.S. at 690.

“[W]hen an alien is ordered removed, the Attorney General shall remove

the alien from the United States within a period of 90 days.” 8 U.S.C.

§ 1231(a)(1)(A). This period is called the “removal period.” Id. The removal

period begins once the removal order “becomes administratively final,”

§ 1231(a)(1)(B)(i), meaning the Board of Immigration Appeals (BIA) has

affirmed it on appeal or the time to file an appeal has expired. Id.

§ 1101(a)(47)(B). In certain enumerated circumstances, an alien “may be

detained beyond the removal period.” Id. § 1231(a)(6); see also Johnson v.

Guzman Chavez, 594 U.S. 523, 528-29 (2021) (providing that an alien may be

detained beyond the removal period where (1) the alien fails to make a timely

application for travel documents or acts to prevent his removal; (2) removal is

not practicable or proper; (3) the alien is inadmissible, removable as a result of

violations of status requirements, or there are national security or foreign

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policy reasons for not removing the alien; or (4) the alien is a risk to the

community or unlikely to comply with a removal order).

In Zadvydas, the Supreme Court explained that “[a] statute permitting

indefinite detention of an alien would raise a serious constitutional problem.”

533 U.S. at 690. As a result, the Court construed § 1231(a)(6) to limit “an alien’s

post-removal-period detention to a period reasonably necessary to bring about

that alien’s removal from the United States.” Id. at 689. “Thus, if removal is

not reasonably foreseeable, the court should hold continued detention

unreasonable and no longer authorized by statute.” Id. at 699-700.

Under Zadvydas, six months of post-removal order detention is

“presumptively reasonable.” Id. at 701. After this point, “once the alien

provides good reason to believe that there is no significant likelihood of removal

in the reasonably foreseeable future, the Government must respond with

evidence sufficient to rebut that showing.” Id. This presumption does not mean

that every alien must be released if not removed after six months in detention.

Id. Rather, “an alien may be held in confinement until it has been determined

that there is no significant likelihood of removal in the reasonably foreseeable

future.” Id.

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Petitioner’s removal proceedings began August 8, 2025. On April 1, 2026,

the Immigration Judge (IJ) issued an order of removal.4 Petitioner filed this

action before the IJ issue the removal order, so his claim is premature.

B. Petitioner does not state a due process violation.

In Ground Two, Petitioner argues he

has been detained since 08/09/2025 and without any given

adequate notice that demonstrate changed circumstances that

render my removal significantly likely in the reasonably

foreseeable future, which has caused me and my family not just a

financial burden but also mental stress and severe depression.

Doc. 1, at 7.

Petitioner does not challenge the procedures of his arrest and detention,

nor does he allege he was denied a bond hearing. Although he has been

detained since August 2025, the IJ issued an order of removal on April 1, 2026,

and Petitioner may appeal that ruling. Even liberally construing the petition,

the Court identifies no procedural due process claim.

4 The undersigned takes judicial notice of the Immigration Court’s filings

in Petitioner’s case, available at Automated Case Information,

https://acis.eoir.justice.gov/en/caseInformation (last visited Apr. 21, 2026). See

United States v. Pursley, 577 F.3d 1204, 1214 n.6 (10th Cir. 2009) (exercising

discretion “to take judicial notice of publicly-filed records in [this] court and

certain other courts concerning matters that bear directly upon the disposition

of the case at hand”) (quoting United States v. Ahidley, 486 F.3d 1204, 1192 n.5

(10th Cir. 2007)).

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C. Petitioner identifies no statutory or regulatory violation.

When the government promulgates regulations “with the force and effect

of law,” agencies are bound to follow their own “existing valid regulations.”

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 265, 268 (1954).

Pertinent here, “[t]he statutes and regulations governing immigration and

removal proceedings afford important procedural safeguards to detainees.”

Villanueva v. Tate, 801 F. Supp. 3d 689, 698-99 (S.D. Tex. 2025).

Petitioner entered the United States without admission or parole after

inspection. Doc. 7, Att. 5, at 2. DHS issued an NTA and detained Petitioner

pending the outcome of his removal proceedings. Id. Atts. 1-4. An IJ issued an

order of removal on April 1, 2026, and Petitioner can appeal that order to the

BIA.

In Ground Three, Petitioner simply restates his supporting facts for

Ground Two. Doc. 1, at 7-8. He identifies no statutory or regulatory violation

related to his removal proceedings. So the Court should deny Ground Three.

D. The Court should decline to consider Petitioner’s APA

claim.

Petitioner alleges Respondents violated the APA because they have

detained him for over six months. Id. at 8. Because Petitioner’s claim for relief

“‘necessarily imply the invalidity’ of [his] confinement,” his claim “fall[s] within

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the ‘core’ of the writ of habeas corpus and thus must be brought in habeas.”

Trump v. J.G.G., 604 U.S. 670, 672 (2025); see also id. at 674 (“[G]iven 5 U.S.C.

§ 704, which states that claims under the APA are not available when there is

another ‘adequate remedy in a court,’ I agree with the Court that habeas

corpus, not the APA, is the proper vehicle here.”) (Kavanaugh, J. concurring);

Soberanes, 388 F.3d at 1310 (“Challenges to immigration detention are

properly brought directly through habeas.” (citing Zadvydas, 533 U.S. at 687).

The Court should deny Petitioner’s request for relief under the APA.

V. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the Court

deny Petitioner’s habeas petition and dismiss the petition without prejudice.

The undersigned advises the parties of their right to file an objection to

this Report and Recommendation with the Clerk of this Court by May 15, 2026,

in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 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 disposes of

the issues referred to the undersigned Magistrate Judge in the captioned

matter.

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ENTERED this 24th day of April, 2026.

ga Ler

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE