Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

JESSICA ELIZABETH GUNCAY )

JUELA, )

)

Petitioner, )

v. ) Case No. CIV-26-501-G

)

WARDEN, DIAMONDBACK )

CORRECTIONAL FACILITY1, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Jessica Elizabeth Guncay Juela, a noncitizen appearing pro

se, seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States

District Judge Charles B. Goodwin referred the case to the undersigned

1 Pursuant to Fed. R. Civ. P. 25(d), Department of Homeland Security

(DHS) Secretary Markwayne Mullin is substituted for former Secretary Noem

as a party. https://www.dhs.gov/news/2026/03/24/us-senate-confirms-

markwayne-mullin-secretary-department-homeland-security (last visited Apr.

30, 2026). Todd Blanche is the acting Attorney General and is substituted for

former Attorney General Pam Bondi as a party. https://www.justice.gov/ag

(last visited Apr. 30, 2026). Respondent Warden of Diamondback Correctional

Facility is a not federal official, and the response is not filed on the Warden’s

behalf. See Doc. 15, 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 construes “[a] pro se

litigant’s pleadings . . . liberally,” holding them “to a less stringent standard

than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991).

Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C).

Doc. 10.3 The Government responded, Doc. 15, and the time for Petitioner to

reply has lapsed. See Doc. 11, at 1. So the matter is at issue.

For the reasons below, the undersigned recommends the Court grant

Petitioner’s habeas petition, in part, and order Respondents to provide

Petitioner with a bond hearing under 8 U.S.C. § 1226(a) within five business

days or otherwise release Petitioner if she has not received a lawful bond

hearing within that period.

I. Factual background and procedural history.

Petitioner is a citizen of Ecuador who has been in Immigration &

Customs Enforcement (ICE) custody since January 2026 after ICE

encountered her “on her way to work,” “stopped the vehicle in which she was

traveling,” and placed “Petitioner and her husband . . . into custody.” Doc. 1, at

2.

Petitioner entered the United States in November 2022, without

admission or parole after inspection, and “sought protection through the

asylum process.” Id. at 1; see also Doc. 15, Ex. 2 (I-589 Application for Asylum

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

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

2

and Withholding of Removal). She maintains “that she has no criminal history

whatsoever and has never been arrested for or convicted of any crime.” Doc. 1,

at 1-2.

ICE placed her in removal proceedings pursuant to 8 U.S.C. § 1229a by

issuing a Notice to Appear (NTA). Doc. 15, Ex. 1. She was charged by DHS as

removable under 8 U.S.C. § 1182(a)(6)(A)(i) of the Immigration and

Nationality Act (INA) as an alien who is present in the United States without

being admitted or paroled, or who arrived in the United States at any time or

place other than as designated by the Attorney General. Id.

Petitioner has been detained since January 2026 without a bond hearing.

Doc. 1, at 2.4 She is “the mother of a seven-year old child,” and “[b]ecause both

parents were detained . . ., the child had no one available to care for him in the

United States and had to be sent to Ecuador.” Id. She states that “[t]he

separation has caused severe emotional harm to both [her] and [the] child.” Id.

II. Petitioner’s claims.

4 In Matter of Yajure Hurtado, 29 I. & N. Dec. 216 (BIA 2025), the Board

of Immigration Appeals (BIA) held that those who entered the country without

admission or parole are ineligible for a bond hearing and are detained under 8

U.S.C. § 1225(b)(2)(A). Hurtado is not binding on this Court. See Loper Bright

Enters. v. Raimondo, 603 U.S. 369, 413 (2024) (“[C]ourts need not and under

the APA may not defer to an agency interpretation of the law simply because

a statute is ambiguous.”).

3

Petitioner raises two grounds for relief:

Ground One: Violation of the Immigration and Nationality Act (INA);

and

Ground Two: Violation of the Due Process Clause of the Fifth

Amendment.

Id. at 8-9. At bottom, she argues that she is not subject to mandatory detention

under § 1225(b)(2) and her continued detention in Respondents’ custody

violates the INA and her due process rights. Id.

Petitioner asks this Court to issue an order directing Respondents to

show cause why the petition should not be granted within three days, and set

a hearing on the petition within five days of return5; declare that her

“continued detention violates 8 U.S.C. § 1226(a), 8 C.F.R. § 236.1, and the Due

Process Clause of the Fifth Amendment”; issue “a writ of habeas corpus

ordering Respondents to immediately release [her] from the Diamondback

Correctional Facility” or, in the alternative, “[o]rder a bond hearing to be held

as soon as practicable, with bond set at an amount [she] can reasonably pay,

and enjoin any further detention absent a valid bond hearing.” Id. at 9-10. She

5 The Court addressed Petitioner’s request for an order to show cause

when it ordered Respondents to respond to the petition, see Doc. 10, and

determines a hearing is unnecessary.

4

also seeks attorneys’ fees and costs under the Equal Access to Justice Act

(EAJA), 28 U.S.C. § 2412. Id. at 10.

III. Standard of review.

An application for a writ of habeas corpus “is an attack by a person in

custody upon the legality of that custody, and . . . the traditional function of

the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.

475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “is in

custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3). “Challenges to immigration detention are

properly brought directly through habeas.” Soberanes v. Comfort, 388 F.3d

1305, 1310 (10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687-88

(2001)).

“When called on to resolve a dispute over a statute’s meaning,” the Court

should “seek[] to afford the [statute’s] terms their ordinary meaning at the time

Congress adopted them” and to “exhaust all the textual and structural clues

bearing on the meaning.” Niz-Chavez v. Garland, 593 U.S. 155, 160 (2021)

(internal quotation marks omitted). This Court’s “‘sole function’ is to apply the

law as the Court finds it, . . . not defer to some conflicting reading the

government might advance.” Id. (internal citation omitted); see also Oklahoma

v. U.S. Dep’t of Health & Hum. Servs., 107 F.4th 1209, 1222 n.11 (10th Cir.

5

2024) (stating that the court “must independently interpret the statutory

phrase irrespective of the parties’ positions”), judgment vacated on other

grounds, 145 S. Ct. 2837 (2025).

IV. Discussion.

A. Section 1226 governs Petitioner’s detention.6

Petitioner asserts that Respondents violated the INA by detaining her

without a bond hearing. Doc. 1, at 8. She argues that she is “detained pursuant

to 8 U.S.C. § 1226(a)” which “does not authorize indefinite detention without a

6 Respondents maintain that Petitioner’s INA claim is barred by the INA’s

jurisdiction channeling and stripping provisions in 8 U.S.C. § 1252(a)(5), (b)(9),

and (g). Doc. 15, at 16-19. This Court, consistent with other district courts

throughout the country, has dispensed with arguments by the Government

that § 1252(a)(5), (b)(9), and (g) deprive the Court of jurisdiction when a

noncitizen challenges their detention under 8 U.S.C. § 1225(b). See, e.g., Cortes

v. Holt, No. CIV-25-1176-SLP, 2026 WL 147435, at *3 (W.D. Okla. Jan. 20,

2026) (“Petitioner’s claim that Respondents are detaining him without a bond

hearing in violation of the INA does not divest the Court of jurisdiction. Such

a claim does not ‘arise from’ and is not directly connected to the commencement

of removal proceedings, the adjudication of removability, or the execution of

any removal order. Rather, Petitioner challenges the legality of his continued

detention under the statutory framework governing custody and bond

determinations.”); Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL

18932, at *1 (W.D. Okla. Jan. 2, 2026) (“Here, because Petitioner challenges

the legal question of whether he is subject to mandatory detention under

§ 1225(b)(2)(A) or detention under § 1226(a), and he does not challenge

Respondents’ decision to commence or adjudicate proceedings or execute

removal orders, § 1252(g) does not jurisdictionally bar consideration of the

Petition.”). So, the undersigned recommends the Court find there is no

jurisdictional bar to consideration of Petitioner’s claims.

6

bond hearing, particularly for individuals with no criminal history.” Id.

Respondents maintain that she is detained under 8 U.S.C. § 1225(b)(2)(A). Doc.

15, at 8, 19-28. The undersigned agrees with Petitioner and determines she is

detained pursuant to § 1226(a) and entitled to a bond hearing.

This Court has compared §§ 1225 and 1226 and decided noncitizens like

Petitioner are entitled to a bond hearing under § 1226. See, e.g., Cortes, 2026

WL 147435, at *3-7; Lopez v. Corecivic Cimarron Corr. Facility, No. CIV-25-

1175-SLP, 2026 WL 165490, at *3-7 (W.D. Okla. Jan. 21, 2026). The Court

should reach the same result in this case.

Section 1225(b)(2)(A) “unambiguously requires that an ‘applicant for

admission’ also be ‘seeking admission’ for the section to control,” and

“‘[n]oncitizens ‘seeking admission’ are those who have not effected an entry

into the United States.’” Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176,

at *4 (W.D. Okla. Dec. 16, 2025) (quoting Sacvin v. Anda-Ybarra, 2025

3187432, at *3 (D.N.M. Nov. 14, 2025)). Petitioner effected entry into the

country over three years ago, so she is not subject to § 1225(b)(2)(A)’s

mandatory detention requirement. Numerous Judges in this District have held

likewise. See Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026 WL 94641, at

*2 (W.D. Okla. Jan. 13, 2026) (“The court also agrees that § 1226(a), not §

1225(b)(2)(A), governs petitioner’s detention.”); Valdez v. Holt, No. CIV-25-

7

1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025) (“Because

Petitioner has been unlawfully living in the United States for many years

without seeking admission, this provision does not apply to him. Instead,

Petitioner’s detention is controlled by § 1226(a).”); Escarcega v. Olson, No. CIV-

25-1129-J, 2025 WL 3243438, at *2 (W.D. Okla. Nov. 20, 2025) (“[B]ased on the

plain language of § 1225(b)(2)(A), the phrase ‘seeking admission’ only applies

to noncitizens who are presently and actively seeking lawful entry into the

United States at the border.”) (internal quotation marks and alterations

omitted).7 As well as determining that if “all ‘applicants for admission’ are also

‘seeking admission,’ then § 1225(b)(2)(A)’s inclusion of the phrase ‘seeking

admission’ would be redundant and courts should avoid statutory

interpretations that ‘make[] any part [of the statute] superfluous.’” Escarcega,

7 Cunha v. Freden, 2026 WL 1146044, at *2 (2d Cir. Apr. 28, 2026) (“Today,

although we part ways with two other circuits that have addressed this

question, we join the overwhelming majority of federal judges across the

Nation to consider it and conclude that the government’s novel interpretation

of the immigration statutes defies their plain text.”); see also Castañon-Nava

v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061 (7th Cir. 2025); but see

Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D.

Okla. Jan. 6, 2026) (holding § 1225 applied to the petitioner’s detention);

Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302, at *12 (W.D. Okla.

Dec. 26, 2026) (same); Avila v. Bondi, 2026 WL 819258, at *3 (8th Cir. Mar. 25,

2026) (applying § 1225 to a similar habeas challenge); Buenrostro-Mendez v.

Bondi, 166 F.4th 494, 506 (5th Cir. 2026) (same).

8

2025 WL 3243438, at *3 (quoting Fuller v. Norton, 86 F.3d 1016, 1024 (10th

Cir. 1996)).

Respondents briefly suggest the Court should reconsider because

“Petitioner has affirmatively sought a form of admission by applying for

asylum.” Doc. 15, at 27. But the Court has “declined to find” that either

refusing to voluntarily depart or seeking asylum “‘constitutes ‘seeking

admission’ for purposes of this subsection.’” Malacidze v. Noem, No. CIV-25-

1527-D, 2026 WL 227155, at *3 (W.D. Okla. Jan. 28, 2026) (quoting Cruz-

Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla.

Jan. 2, 2026)); see also Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at

*1 (W.D. Okla. Jan. 20, 2026) (finding Ҥ 1225(b)(2)(A) does not apply even

though petitioner filed an application for asylum”).

When Petitioner was detained after residing in the country for over three

years, she was not subject to mandatory detention under § 1225(b)(2)(A).

Instead, Petitioner is subject to § 1226, and “is entitled to a prompt bond

hearing before an immigration judge pursuant to § 1226(a).” Cortes, 2026 WL

147435, at *7.

Petitioner has been unlawfully detained since January 27, 2026, see Doc.

1, at 1, without the bond hearing she is entitled to by law. Normally, at a bond

hearing authorized under § 1226(a), the noncitizen bears the burden of proving

9

that he is neither a danger to the community nor a flight risk. See 8 C.F.R. §

236.1(c)(8); Matter of Guerra, 24 I. & N. Dec. 37, 40 (BIA 2006). Given

Petitioner’s prolonged detention under the incorrect statute, the Court should

find that it is more appropriate for the government to bear the burden of proof

in this context. See, e.g., Garcia Cortes v. Noem, 2025 WL 2652880, at *5 (D.

Colo. Sept. 16, 2025) (citing L.G. v. Choate, 744 F. Supp. 3d 1172, 1185 (D. Colo.

2024)). “Freedom from imprisonment . . . lies at the heart of the liberty that

[the Due Process] Clause protects.” Zadvydas, 533 U.S. at 690. Petitioner has

now been detained without a bond hearing for nearly ten months, depriving

her of a core liberty interest. Under these circumstances, the government ought

to bear the burden of proving that she poses a danger to the community or a

risk of flight such that she should remain in detention. And the clear and

convincing standard that generally “applies to civil detention where liberty is

at stake” is appropriate here as well. See L.G., 744 F. Supp. 3d at 1186 (first

citing United States v. Salerno, 481 U.S. 739, 751 (1987), and then citing

Addington v. Texas, 441 U.S. 418, 433 (1979)).

The undersigned therefore recommends the Court grant Petitioner’s

habeas petition and order Respondents to provide Petitioner with an

individualized bond hearing before a neutral IJ under § 1226(a) within five

10

business days of the Court’s adoption of this Report and Recommendation or,

in the alternative, immediately release Petitioner.

B. The Court should decline to address the merits of

Petitioner’s due process claim.

Given the undersigned’s recommendation as to the disposition of

Petitioner’s claim for relief under the INA, the undersigned recommends the

Court refrain from addressing the merits of Petitioner’s due process claim. The

Court can grant her the relief she seeks under § 1226(a). See Cortes, 2026 WL

147435, at *7 (“The Court declines to decide the merits of such claim and

Petitioner may renew such a claim if he is not provided with a bond hearing or

released within seven days of this Order.”).

V. Recommendation and notice of right to object.

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

grant Petitioner’s habeas application, in part, and order Respondents to

provide Petitioner with an individualized bond hearing before a

neutral IJ under 8 U.S.C. § 1226(a) where the Government must

establish by clear and convincing evidence that Petitioner poses a

danger to the community or is a flight risk within five business days

or otherwise release Petitioner if she has not received a lawful bond

hearing within that period. The undersigned further recommends

11

that the Court order Respondents certify compliance by filing a status

report within five business days of the Court’s order. 8

The undersigned further recommends the Court order that:

• Respondents shall not re-detain Petitioner without a pre-

deprivation hearing before a neutral IJ under 8 U.S.C. § 1226(a);

and

• Counsel for Respondents provide a copy of the Court’s order to

Counsel for the Warden of the Diamondback Correctional Facility

without delay.

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 4, 2026,

in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.9

8 Petitioner seeks EAJA fees, Doc. 1, at 9, but she proceeds pro se and

“attorney fees are not available for pro se litigants under the EAJA.” Demarest

v. Manspeaker, 948 F.2d 655, 655 (10th Cir. 1991).

9 Given the expedited nature of these proceedings, the undersigned has

reduced the typical objection time to this Report and Recommendation to three

days. See Fed. R. Civ. P. 72(b)(2) advisory committee’s note to 1983 addition

(noting that rule establishing 14-day response time “does not extend to habeas

corpus petitions, which are covered by the specific rules relating to proceedings

under Sections 2254 and 2255 of Title 28.”); see also Whitmore v. Parker, 484

F. App’x 227, 231, 231 n.2 (10th Cir. 2012) (“The Rules Governing § 2254 Cases

may be applied discretionarily to habeas petitions under § 2241” and that

“while the Federal Rules of Civil Procedure may be applied in habeas

12

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.

ENTERED this 30th day of April, 2026.

hea tere _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

proceedings, they need not be in every instance — particularly where strict

application would undermine the habeas review process.”).

13