Argenis Vizcaya Farfan v. Don Jones, et al.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ARGENIS VIZCAYA FARFAN, )

)

Petitioner, )

)

v. ) No. CIV-26-452-R

)

DON JONES, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Argenis Vizcaya Farfan seeks a writ of habeas corpus under

28 U.S.C. § 2241. Doc. 1.1 United States District Judge David L. Russell

referred the matter to the undersigned Magistrate Judge for proceedings

consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. Respondents filed a

response, Doc. 11,2 and Petitioner has replied. Doc. 12. For the reasons set

forth below, the undersigned recommends the Court grant habeas corpus relief

and order Petitioner’s immediate release under the terms of his previous Order

of Supervision (OOS).

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

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

2 No response has been filed on behalf of Jail Director Jones because he

is not a federal official. See Doc. 11, at 2.

I. Factual background and Petitioner’s claim.

Petitioner is a citizen of Venezuela who most recently entered the United

States on May 19, 2022. Doc. 1, at 5; Doc. 11, Att. 1, at 2; Att. 3, at 1. The

Department of Homeland Security (DHS) released him on an OOS on May 24,

2022. Doc. 1, at 5; Doc. 11, Att. 4. Petitioner has no criminal history, has not

violated his supervision terms, has purchased a home, and has appeared for

regular check-ins. Doc. 1, at 7. He has a valid employment authorization

through 2030. Id. He was also subject to the Intensive Supervision Appearance

Program, which required weekly check-ins and location monitoring. Id. at 2 &

Att. 2.

The Government granted him Temporary Protected Status (TPS) on

February 7, 2024, which ended April 2, 2025, when the program was

terminated. Id. at 2 & Att. 4. While on TPS, he requested a Reasonable Fear

interview on April 23, 2023. Id. Att. 6. He also applied for Asylum and

Withholding of Removal on February 10, 2025. Id. at 2 & Att. 5.

Immigration and Customs Enforcement (ICE) detained Petitioner on

February 12, 2026, after he presented for an ICE Check in at the Wichita ICE

Field Office. Doc. 1, at 2. On February 19, 2026, DHS conducted a Reasonable

Fear Interview. Id. & Att. 7. Two days later, Petitioner received a positive

decision on his Reasonable Fear Interview and his case was referred to an

Immigration Judge under 8 C.F.R. § 208.31(e) for Withholding Only

Proceedings. Id. at 3 & Atts. 7, 8.

Respondents point out that on February 15, 2019, Petitioner arrived in

Houston, Texas, under a B-1/B-2 visa, ostensibly seeking admission as a

tourist. Doc. 11, Att. 1, at 2. He was not allowed entry in part because he had

“previously engaged in unauthorized employment in the United States.” Id.

Att. 2, at 1. DHS issued Petitioner a Form I-860 Notice and Order of Expedited

Removal and charged him as removable under Section 212(a)(7)(A)(i)(I) of the

Immigration and Nationality Act (INA) (codified at 8 U.S.C.

§ 1182(a)(7)(A)(i)(I)). Id. Att. 2, at 1, 3; Doc. 1, at 2, 7. So when Petitioner

reentered without admission or parole after inspection by an immigration

official, DHS issued a Notice of Intent/Decision to Reinstate Prior Order,

informing him that DHS intended to reinstate the February 15, 2019 order of

removal. Doc. 11, at 3 & Att.3.

Petitioner alleges a violation of his Fifth Amendment Due Process rights

because ICE violated its own regulations in re-detaining him and foregoing a

custody determination. Doc. 1, at 16. He seeks (1) his immediate release under

an order of supervision; or (2) a custody determination hearing where the

Government must show by clear and convincing evidence that Petitioner is a

danger or flight risk; or (3) hold a custody determination hearing in this Court;

and (4) an order enjoining Respondents from moving Petitioner out of this

District or the country during this action; (5) a declaration that his re-detention

violated his due process rights under the Fifth Amendment; and (6) an award

of fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Id. at

17-18.

II. 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)).

III. Analysis.

A. Statutory and regulatory framework.

Petitioner argues Respondents violated his Fifth Amendment procedural

due process rights when they revoked his OOS and re-detained him without

(1) adequate notice, (2) a reasonable opportunity to be heard as to why he

should not be detained; and (3) without any showing of a change in

circumstances showing that he is likely to be removed in the foreseeable future.

Doc 1, at 12-16; Doc, 12, at 1-4. In doing so, he asserts they violated 8 C.F.R.

§§ 241.4 and 241.13.

Petitioner’s allegations require the Court to consider the regulations

Respondents are obligated to follow in revoking his OOS. See Saqib v. Andrews,

2026 WL 350830, at *2 (E.D. Cal. Feb. 9, 2026) (“Because these claims require

examination of whether the government followed its own regulations that set

out procedures in revoking release, procedures that protect important due

process rights, the Court discusses these claims together.”), adopted, 2026 WL

440566 (E.D. Cal. Feb. 17, 2026); see e.g., Kong v. United States, 62 F.4th 608,

620 (1st Cir. 2023) (“The plain language of the regulation, however, does not

allow a court in the first instance to make the required individualized finding.

To the extent ICE claims that it made such a determination, the court should

review that claim in light of the regulations instructing ICE on how it should

make such a determination.” (referencing 8 C.F.R. § 241.13)).

Agencies must follow their own regulations. United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260, 265-68 (1954); Webster v. Doe, 486 U.S. 592, 602

n.7 (1988)). When a noncitizen has been detained pursuant to a final order of

removal, ICE is required to release the noncitizen on an OOS if ICE determines

there is no significant likelihood of the noncitizen’s removal in the reasonably

foreseeable future. See 8 C.F.R. § 241.13(g)-(h); see also Zadvydas, 533 U.S. at

699-700 (“[I]f removal is not reasonably foreseeable, the court should hold

continued detention unreasonable and no longer authorized by statute.”).

Once DHS releases a noncitizen under an OOS, as they did with

Petitioner, the agency may revoke the OOS in two circumstances: (1) for

violations of “conditions of release” specified in the OOS; or (2) “if, on account

of changed circumstances, [ICE] determines that there is a significant

likelihood that the [noncitizen] may be removed in the reasonably foreseeable

future.” 8 C.F.R. § 241.13(i)(1)-(2).

The decision to revoke an OOS on account of changed circumstances

must be based on an “individualized determination” that those changed

circumstances render removal significantly likely in the reasonably foreseeable

future. See Kong, 62 F.4th at 619-20 (citing 8 C.F.R. § 241.13(i)(2)). ICE should

make this determination based on the following factors:

[T]he history of the [noncitizen’s] efforts to comply with the order

of removal, the history of [ICE’s] efforts to remove [noncitizens] to

the country in question or to third countries, including the ongoing

nature of [ICE’s] efforts to remove this [noncitizen] and the

[noncitizen’s] assistance with those efforts, the reasonably

foreseeable results of those efforts, and the views of the

Department of State regarding the prospects for removal of

[noncitizens] to the country or countries in question.

8 C.F.R. § 241.13(f). The regulations place the burden to establish changed

circumstances on ICE. See Saqib, 2026 WL 350830, at *3 (“The regulations at

[] § 241.13(i) . . . . indicate that when ICE revokes release to effectuate removal,

‘it is [ICE’s] burden to show a significant likelihood that the alien may be

removed.’” (quoting Escalante v. Noem, 2025 WL 2206113, at *3 (E.D. Tex. Aug.

2, 2025))).

If ICE elects to revoke an OOS, the noncitizen must “be notified of the

reasons for revocation of his or her release,” and ICE must “conduct an initial

informal interview promptly after [the noncitizen’s] return to [ICE] custody to

afford the [noncitizen] an opportunity to respond to the reasons for revocation

stated in the notification.” 8 C.F.R. § 241.13(i)(3). The “reasons for revocation”

that ICE must provide when revoking a noncitizen’s OOS cannot be mere

conclusory assertions about changed circumstances but must contain specific

facts supporting ICE’s decision to revoke the OOS.3 And at the interview, the

noncitizen “may submit any evidence or information that he or she believes

shows there is no significant likelihood he or she [will] be removed in the

reasonably foreseeable future.” Id. ICE must then consider the contested facts

and determine whether revocation of release was warranted. Id.

3 “Courts across the country have repeatedly held that . . . boiler plate

language is simply insufficient to give notice under § 241.13.” Ahmed v. Olson,

2026 WL 836123, at *4 (E.D. Ky. Mar. 26, 2026) (collecting cases).

B. ICE violated Petitioner’s procedural due process rights by

revoking his OOS without following its own regulations

requiring adequate notice and the opportunity to respond.

Respondents do not specify why Petitioner’s OOS was originally issued

but they agree DHS released him in 2022 under supervision. When DHS re-

detained Petitioner they did so not because Petitioner violated any conditions

of release or because of changed circumstances justifying re-detention, rather

the agency explained it now had “the ability and means to effectuate

[Petitioner’s] removal.” Doc. 11, Att. 6. Based on this statement, it is

reasonable to infer that DHS must have determined that there was no

significant likelihood of Petitioner’s removal in the reasonably foreseeable

future before it released him on an OOS in 2022. See, e.g., Pham v. Bondi, No.

CIV-25-1157-SLP, 2025 WL 3477023, at *3 (W.D. Okla. Oct. 30, 2025), adopted,

2025 WL 3243870 (W.D. Okla. Nov. 20, 2025).

“Individuals released on parole or other forms of conditional release have

a liberty interest in their ‘continued liberty.’” Iza v. Arnott, 2026 WL 67152, at

*3 (W.D. Mo. Jan. 8, 2026) (quoting Morrissey v. Brewer, 408 U.S. 471, 482

(1972)). “The Fifth Amendment’s Due Process Clause forbids the Government

to deprive 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 (internal quotation marks and alterations omitted). Individuals

who have been conditionally released from detention have a protected interest

in their “continued liberty.” Young v. Harper, 520 U.S. 143, 147 (1997). “This

is true even when the released individual is subject to extensive conditions of

release.” Villanueva v. Tate, 801 F. Supp. 3d 689, 704 (S.D. Tex. 2025). And

Due Process is also implicated where “an individual has reasonably relied on

agency regulations promulgated for his guidance or benefit and has suffered

substantially because of their violation by the agency.” United States v.

Caceres, 440 U.S. 741, 752-53 (1979).

As noted, Petitioner’s Notice of Revocation of Release provides no reason

for the revocation of his OOS apart from stating that “it is appropriate to

enforce the removal order against you as ICE has the ability and means to

effectuate your removal.” See Doc. 11, Att. 6, at 1. But, other than a statement

that “ICE is seeking a travel document” to remove Petitioner to Venezuela, it

gives no further information on the likelihood of Petitioner’s removal in the

near future. Id.

Respondents had the opportunity to apprise the Court of all facts related

to the revocation of Petitioner’s OOS when they responded to the petition. They

did not provide additional information, and they do not suggest there are any

changed circumstances that necessitated the revocation of Petitioner’s OOS.

Respondents instead argue that the written Notice of Revocation of

Release adequately notified Petitioner of the reasons for the revocation. Doc.

11, at 8 & Att. 6, at 1-2. They maintain that Petitioner received an initial

informal interview on February 12, 2026, “promptly after he was returned to

custody.” Doc. 11, at 9. And they state that during the interview, Petitioner

neither made an oral statement, nor provided a written statement or any

documentation. Id.

In reply, Petitioner argues that ICE did not give him copy of the Notice

when it re-detained him, and that Respondents provided his counsel with a

copy only during this action. Doc. 12, at 2. He also points out that the Notice is

in English, but he does not speak English. Id. And, as already described, the

Notice specified no reasons or a change in circumstances. Id. (citing 8 C.F.R.

§ 241.4(b)(4)). Petitioner also asserts ICE did not give him advance notice of

the plan to re-detain him and it has yet to disclose any reason for his continued

detention. Id. (citing 8 C.F.R. § 241.4((h)(2) and 241.4(d)).

Petitioner continues:

Despite his signature being requested on the Notice of Revocation

Petitioner did not comprehend what document he was signing or

that it had any bearing to his re-detention procedures. For

Petitioner to have a meaningful opportunity to be heard he would

have to first understand what was happening. Petitioner in fact

did not understand that 1. That he was being “interviewed”. 2.

That he could object and 3. That he could present evidence to

attempt to prevent his re-detention. Thus, he had no meaningful

opportunity to be heard.

Id. at 4.

In his affidavit, Petitioner states he appeared “[a]s always” for his check

in. Doc. 12, Att. 1. On February 12, 2026, an officer told him, “in English,” that

“he was going to be detained.” Id. Another officer told him he would be taken

to Oklahoma at 3pm that same day. Id. When fingerprinted, he received the

Notice only in the English language, which he does not speak, and stated that

no translation or copy was provided to him. Id. He states he signed the Notice,

but he did not believe it to be related to deportation. Id. He was asked questions

through an interpreter line about his family and where they lived. Id. Officers

did not provide him with a copy of the documents he signed that day. Id.

Petitioner contends he did not voluntarily sign any documents as he was

already detained when they were presented to him. Id.

Petitioner participated in a “Reasonable Fear” interview in connection

with his asylum application while in custody. Doc. 1, at 11. Two days later, the

interviewing officer determined that Petitioner had offered credible testimony

that he suffered a threat of persecution or torture if he returned to Venezuela.

Doc. 11, Att. 7. He has been issued an I-863 and faces the real prospect of many

months of further detention before his application for withholding of removal

is resolved.4

4 Once a reasonable fear determination has been made, the asylum officer

“issue[s] a Form I-863, Notice of Referral to an Immigration Judge, for full

consideration of the request for withholding of removal only.” 8 C.F.R.

§ 208.31(e). That has occurred in this case and the Immigration Judge denied

Petitioner’s application for withholding of removal on April 24, 2026. See

https://acis.eoir.justice.gov/en/caseInformation (last visited May 12, 2026).

The undersigned finds that Respondents failed to comply with ICE’s

revocation procedures when they re-detained Petitioner after his release on an

OOS. See Pham, 2025 WL 3243870, at *1 (“ICE[] failed to comply with §

241.13(i)(2) in establishing a change of circumstances that demonstrated a

significant likelihood of removal in the reasonably foreseeable future at the

time of Petitioner’s re-detention. District courts in the Tenth Circuit facing this

same issue have found that a failure to establish changed circumstances

amounts to a due process violation that justifies release.” (collecting cases)).

Respondents do not argue that they gave Petitioner written notification

of the reasons for his renewed detention in Spanish or that officials believed

Petitioner understood the circumstances of his re-detention. Under

§ 241.13(i)(3), “[u]pon revocation, the [noncitizen] will be notified of the reasons

for revocation of his or her release,” after which the noncitizen will be afforded

“an initial informal interview promptly after his or her return to [ICE] custody

to afford the [noncitizen] an opportunity to respond to the reasons for

revocation stated in the notification.” Id (emphasis added).5 Though

Petitioner has appealed to the Board of Immigration Appeals which has yet to

set a briefing schedule. Id. A stay of Petitioner’s removal order will remain in

effect through the completion of the appeal.

5 This requirement of written notice tracks the requirements of another

ICE regulation, § 241.4(d), which provides:

A copy of any decision by the district director, Director of the

Respondents state ICE conducted an interview, there is nothing to suggest

Petitioner understood he was being interviewed as he did not respond to the

questions. The only questions he heard in Spanish focused on his children and

family and where they lived.

“The essence of due process is notice and an opportunity to respond.”

Roble v. Bondi, 803 F. Supp. 3d 766, 772 (D. Minn. 2025). But Petitioner

“cannot be expected to ‘respond to the reasons for revocation stated in the

notification’ if the notification does not actually state any reasons for

revocation.” Id. And the Notice of Revocation of Release Petitioner signed

contains no allegation of a change in circumstances or a violation of the

conditions of his release in his OOS. See Doc. 11, Att. 6.

In sum, Respondents fail to show that ICE made the proper

determination when it revoked Petitioner’s OOS and the Notice provided to

Petitioner did not provide him with the reason behind the revocation of his

OOS. Santamaria Orellana v. Baker, 2025 WL 2444087, at *8 (D. Md. Aug. 25,

2025) (“[T]he record is clear that ICE’s revocation of release violated its own

regulations by failing to have an authorized official make the revocation

Detention and Removal Field Office, or Executive Associate

Commissioner to release or to detain an alien shall be provided to

the detained alien.

8 C.F.R. § 241.4(d).

decision, failing to provide [the petitioner] with notification of the reasons for

his re-detention, failing to provide [the petitioner] with an informal interview,

or some combination of these deficiencies.”). Further, the undersigned finds

that Petitioner received no notice as required and did not understand he was

participating in an “interview” where he was allowed to present evidence.

C. Appropriate remedy.

Respondents violated Petitioner’s procedural due process rights when

ICE ignored its own regulations, depriving him of adequate notice and the

opportunity to respond knowingly to any reasons for the revocation. So, the

Court must determine the adequate remedy. Under the circumstances of this

case, the undersigned concludes the only appropriate remedy is immediate

release pursuant to the conditions of Petitioner’s previous OOS. See Pham,

2025 WL 3243870, at *1 (finding “that Respondents failed to demonstrate

changed circumstances justifying re-detention” and ordering the petitioner’s

immediate release “subject to the terms of his previous Order of Supervision”);

Ahmed, 2026 WL 836123, at *5-6 (collecting cases granting immediate release

where ICE detainees were denied notice under § 241.13).6

6 The undersigned does not address Petitioner’s potential remaining

argument about the alleged violation of his substantive due process rights

under Zadvydas, see Doc. 1, at 9-11, because this Report and Recommendation,

if adopted, will moot the argument.

IV. Recommendation and notice of right to object.

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

grant Petitioner’s request for habeas relief and order his immediate release

from custody subject to the terms of his previous OOS. The undersigned further

recommends that the Court order Respondents to submit a declaration

pursuant to 28 U.S.C. § 1746 affirming that Petitioner has been released from

custody within ten business days of the Court’s order.7

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

this Report and Recommendation with the Clerk of this Court on or before May

18, 2026, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil

Procedure 72(b)(2).8 The undersigned further advises the parties that failure

7 To the extent that Petitioner may be entitled to EAJA fees and costs as

a prevailing party, Petitioner must seek those separately after a final

judgment. 28 U.S.C. § 2412(d)(1)(B); see also Daley v. Ceja, 158 F.4th 1152,

1166 (10th Cir. 2025) (interpreting “EAJA’s broad language to unambiguously

authorize fees in habeas actions challenging immigration detention”).

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

reduced the typical objection time to this Report and Recommendation. 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 proceedings, they

need not be in every instance – particularly where strict application would

undermine the habeas review process.”).

to make a timely objection 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 all issues and terminates

the referral to the undersigned Magistrate Judge in this matter.

ENTERED this 13th day of May, 2026.

ga Ler

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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