Sahil Sahil v. Markwayne Mullin, et al.

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

SAHIL SAHIL, )

)

Petitioner, )

)

v. ) Case No. CIV-26-761-SLP

)

MARKWAYNE MULLIN, et al., )

)

Respondents1. )

REPORT AND RECOMMENDATION

Petitioner Sahil Sahil, a noncitizen,2 seeks a writ of habeas corpus under

28 U.S.C. § 2241. Doc. 1.3 Chief United States District Judge Scott L. Palk

referred the case to the undersigned Magistrate Judge for initial proceedings

under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. The Government responded, Doc. 8,

and Petitioner replied, Doc. 9. So the matter is at issue.

1 Respondent Warden Scarlet Grant is not a federal official, and the

response is not filed on her behalf. See Doc. 8, at 1 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)).

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

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

For the reasons below, the undersigned recommends the Court grant

Petitioner’s habeas petition and order Respondents to immediately release

Petitioner.

I. Factual background and procedural history.

Petitioner is a citizen of India who entered the country on August 26,

2023, without inspection or parole. Doc. 1, at 5-6. The Department of Homeland

Security (DHS) placed him into removal proceedings by charging him as

removable under § 212(a)(6)(A)(i) of the Immigration and Nationality Act

(INA).4 Id. at 2. On October 3, 2023, Immigration and Customs Enforcement

(ICE) released him on his recognizance. Id. at 6. Petitioner “timely filed for

asylum based on political persecution” and his “asylum application is currently

pending.” Id.5 On March 25, 2026, he was transferred to ICE custody after

being detained by the Oklahoma Highway Patrol. Id. at 5. Aware that

Immigration Courts feel bound by Matter of Yajure Hurtado, 29 I. & N Dec.

4 This section is codified in the United States Code as 8 U.S.C.

§ 1182(a)(6)(A)(i). Section 1182(a)(6)(A)(i) provides that 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 is ineligible to be admitted to the United States. 8 U.S.C.

§ 1182(a)(6)(A)(i).

5 The parties have not provided the Court with a copy of Petitioner’s

asylum application.

2

216 (BIA 2025),6 Petitioner correctly believed it futile to seek a bond hearing.

Doc. 1, at 5.

II. Petitioner’s claims.

Petitioner raises two grounds for relief:

Ground One: Violation of the INA; and

Ground Two: Violation of Due Process.

Id. at 7-8. In sum, he argues he is not subject to mandatory detention under 8

U.S.C. § 1225(b)(2) and his continued detention without the opportunity for a

bond hearing violates the INA and his due process rights. Id.

Petitioner asks this Court to order Respondents to show cause as to why

the petition should not be granted within three days; not to remove him from

this District;7 release him under his previous terms or, in the alternative, order

Respondents to provide him with a bond hearing within five days; enter

6 In 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.”).

7 The Court addressed Petitioner’s requests when it ordered a response to

the petition, see Doc. 6, and determines a hearing is not necessary.

3

injunctive and declaratory relief; and award him reasonable attorney’s fees and

costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Id. at 9.

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)).8

IV. Discussion.

8 “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.

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).

4

A. Section 1226 governs Petitioner’s detention.

This Court should reject, as it has before, Respondents’ statutory

interpretation of §§ 1226(a) and 1225(b)(2)(A). The Court further adopts the

reasoning set forth in Lopez v. CoreCivic Cimarron Corr. Facility, No. CIV-25-

1175-SLP, 2026 WL 165490 at *3-7 (W.D. Okla. Jan. 21, 2026),9 where this

Court has previously addressed, in a more detailed Order, these same issues.

In doing so, the Court joins the decision reached by the vast majority of district

judges in this judicial district, in district courts within the Tenth Circuit10 and

across the country11 to have addressed the same issues as those raised by

Petitioner.12 The Court’s decision is also in accord with the Second Circuit,

which has rejected the statutory interpretation of § 1225(b)(2) urged by

Respondents. See generally Cunha v. Freden, --- F.4th ---, 2026 WL 1146044

9 Lopez, 2026 WL 165490, at *5 (collecting cases in this judicial district

concluding that § 1225(b)(2) does not govern the petitioner's detention).

10 See, e.g., Aguilar Tanchez v. Noem, 2026 WL 125184, at *11-12 (D. Utah

Jan. 16, 2026); Hernandez v. Baltazar, 2025 WL 2996643, at *6 (D. Colo. Oct.

24, 2025).

11 See, e.g., Lopez, 2026 WL 165490, at *7 (collecting cases concluding that

§ 1226(a) is the governing statutory framework).

12 But see Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344

at *3-5 (W.D. Okla. Jan. 6, 2026); Montoya v. Holt, No. CIV-235-1231-JD, 2025

WL 3733302, at *5-12 (W.D. Okla. Dec. 26, 2025).

5

(2d Cir. April 28, 2026); see also Lopez-Campos v. Raycraft, --- F.4th ---, 2026

WL 1283891, at *11 (6th Cir. May 11, 2026); Hernandez Alvarez v. Warden,

Fed. Det. Ctr. Miami, 2026 WL 1243395, at *22 (11th Cir. May 6, 2026);

Castañon-Nava v. U.S. Dep’t of Homeland Sec., 2026 WL 1223250, at *21 (7th

Cir. May 5, 2026); but see Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498 (5th

Cir. Feb. 6, 2026); Avila v. Bondi, 170 F.4th 1128, 1134-35 (8th Cir. 2026). The

Court concludes that § 1226(a) governs Petitioner’s detention.13

B. Petitioner is entitled to relief under § 1226(a).

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

years, he 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 [(IJ)] pursuant to § 1226(a).” Cortes v.

Holt, No. CIV-25-1176-SLP, 2026 WL 147435, at *7 (W.D. Okla. Jan. 20, 2026);

13 Petitioner’s asylum request does not change this outcome. This 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 Hernandez Alvarez, 2026 WL

1243395, at *21 (“This argument fails at the gate. Section 1225(b)(2)(A) makes

it clear that an applicant for admission’s status as one ‘seeking admission’

becomes relevant upon examination by an immigration officer, which occurs

before a § 1229a proceeding even commences.” (quoting 8 U.SC § 1225(b)(2)(A)).

6

see also Cunha, 2026 WL 1146044, at *2 (concluding the petitioner’s detention

was “governed by Section 1226(a), not Section 1225(b)(2)(A),” and explaining

that its holding “allows noncitizens . . . who are already present in the United

States and are determined not to be a flight risk or danger to the community

to be released on bond under Section 1226(a) while their removal proceedings

are pending”).

C. Petitioner is entitled to due process.

“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); cf. Trump v.

J.G.G., 604 U.S. 670, 673 (2025) (“‘It is well established that the Fifth

Amendment entitles aliens to due process of law’ in the context of removal

proceedings.” (internal quotation marks omitted)).

“The [INA] establishes procedures for removing [and detaining

noncitizens] living unlawfully in the United States.” Johnson v. Guzman

Chavez, 594 U.S. 523, 527 (2021); see Johnson v. Arteaga-Martinez, 596 U.S.

573, 578 (2022) (“The INA establishes procedures for the Government to use

when removing certain noncitizens from the United States and, in some cases,

7

detaining them.”). The Government does not develop a fulsome argument in

response to Petitioner’s procedural due process Fifth Amendment claim and

instead encourages the Court to rest its decision on the statutory

interpretation question. See Doc. 8, at 2.

This Court analyzes Petitioner’s due process claim to determine whether

he has a protected liberty interest, and what process is necessary to ensure any

deprivation of that liberty interest aligns with the Due Process Clause of the

Fifth Amendment. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989).

In examining the necessary process, the Court turns to the three factors set

forth in Mathews v. Eldridge: (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.” 424 U.S.

319, 335 (1976).

“When the government grants [a noncitizen] parole into the country, it

creates a liberty interest intimately tied to freedom from imprisonment.”

Sanchez v. LaRose, 2025 WL 2770629, at *3 (S.D. Cal. Sept. 26, 2025); see also

Iza v. Arnott, 2026 WL 67152, at *3 (W.D. Mo. Jan. 8, 2026) (“Individuals

8

released on parole or other forms of conditional release have a liberty interest

in their ‘continued liberty.’” (quoting Morrissey v. Brewer, 408 U.S. 471, 482

(1972))); Sahil v. De Anda-Ybarra, 2026 WL 560216, at *3 (D.N.M. Feb. 27,

2026) (finding “that noncitizens acquire a liberty interest once released from

immigration detention”). Petitioner’s interest in physical freedom “is the most

elemental of liberty interests.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004);

see also Zadvydas, 533 U.S. at 690 (stating that an individual’s interest in

being free from detention “lies at the heart of the liberty that [the Due Process]

Clause protects”). Respondents deprived Petitioner of his protected status

when they arrested him and placed him in custody.

Turning to the Mathews factors, the Court finds that Petitioner has a

significant private interest in remaining free from detention after spending

two years here. To be sure, “Congress may make rules as to aliens that would

be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510, 522 (2003).

But that power remains “subject to important constitutional limitations.”

Zadvydas, 533 U.S. at 695. And it does not erase Petitioner’s significant

interest in remaining free from detention.

Respondents do not suggest Petitioner violated any laws while in the

United States. During his release, Petitioner’s interest in release grew even

stronger as he worked and presumably “form[ed] the other enduring

9

attachments of normal life.” Morrissey, 408 U.S. at 482. The first Mathews

factor favors Petitioner.

Second, the Court considers “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.” Mathews, 424 U.S. at 335. The

risk of an erroneous deprivation of Petitioner’s liberty interest is considerable

where he was arrested without any notice of the reason, no explanation of any

changed circumstances, and no hearing.

“Constitutionally inadequate notice also often leads to constitutionally

inadequate opportunity to be heard, because opportunity to be heard must be

meaningful to be constitutionally sufficient.” Saqib v. Andrews, 2026 WL

350830, at *6 (E.D. Cal. Feb. 9, 2026). This factor weighs in Petitioner’s favor.

See, e.g., E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316, 1322 (W.D. Wash. 2025)

(“That the Government may believe it has a valid reason to detain Petitioner

does not eliminate its obligation to effectuate the detention in a manner that

comports with due process.”).

Finally, the Court considers the Government’s interest, including any

fiscal or administrative burdens. Mathews, 424 U.S. at 335. “While this Court

recognizes that the government has an interest in enforcing immigration

laws,” the government’s interest in arresting Petitioner without a

10

determination whether he posed a risk of flight or danger is low. Saqib, 2026

WL 350830, at *6; see, e.g., Diaz v. Kaiser, 2025 WL 1676854, at *3 (N.D. Cal.

June 14, 2025) (“[T[he Court concludes that the government’s interest in re-

detaining Petitioner . . . is ‘low,’ particularly in light of the fact that Petitioner[]

has long complied with his reporting requirements.”). And the Court can

discern no significant administrative or fiscal burden associated with placing

the burden on the government to follow its own laws and regulations. See, e.g.,

Iza, 2026 WL 67152, at *3 (“An alien’s opportunity to be heard regarding the

revocation of his parole is only meaningful if the government comports with its

own internal standards regarding parole revocation.”). Especially given that

Petitioner’s detention was not deemed necessary for more than two years.

D. Remedy.

Habeas is “a remedy for unlawful executive detention.” Munaf v. Geren,

553 U.S. 674, 693 (2008) “The typical remedy for such detention is, of course,

release.” Id.; see also Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103,

107 (2020) (“Habeas has traditionally been a means to secure release from

unlawful detention.”). Federal district courts have broad equitable powers to

craft habeas relief. Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992).

District courts have the power and authority to dispose of habeas corpus

matters “as law and justice require.” 28 U.S.C. § 2243.

11

The undersigned recommends that Petitioner’s continuing due process

violation requires his immediate release subject to the same conditions of his

earlier release. This view is shared by numerous courts across the country,

including courts in this Circuit.14

Further, there is “mounting evidence” that bond hearings in

Immigration Court have preordained outcomes. Singh v. Valdez, 2026 WL

890240, at *5 (D. Colo. Apr. 1, 2026) (“As a result, courts across the country

have, with increasing frequency, ceased ‘order[ing] even initial bond hearings

. . . involving unlawful detention under § 1225(b) because Respondents’ conduct

can no longer be attributed to mere negligence or ineptitude, . . . and doing so

would effectively allow the Government to transform an unlawful detention

14 See Ewere v. Cerna, No. CIV-26-320-SLP, 2026 WL 1207088, at *1-2

(W.D. Okla. May 4, 2026) (ordering Petitioner’s “immediate release” for due

process violation and denial of a bond hearing); Singh v. Noem, 2026 WL

766228, at *10 (D.N.M. Mar. 18, 2026) ( “Petitioner’s . . . release is required to

remedy the ongoing due process violation caused by Petitioner being detained

while his conditional parole has not yet been terminated.”); Velasquez Montillo

v. Brooksby, 2026 WL 592355, at *10 (D. Utah Mar. 3, 2026) (concluding

immediate release was the appropriate remedy where “there has been no notice

of a change in circumstances requiring modification of the November 2021

[order of release on recognizance]”); Vielma Uzcategui v. Brooksby, 2026 WL

622751, at *13 (D. Utah Mar. 5, 2026) (same as to petitioner ordered released

on her own recognizance in September 2023); Murzi v. Noem, 2026 WL 395111,

at *2 (D. Colo. Feb. 12, 2026) (ordering petitioner’s immediate release where

petitioner had previously been released on parole).

12

into a lawful one through post-hoc justifications.’” (quoting Zheng v. Rokosky,

2026 WL 800203, at *11 (D.N.J. Mar. 23, 2026) (collecting cases)).15 Given this

reality, the Court recommends Petitioner’s immediate release.16

15 See, e.g., Zheng, 2026 WL 800203, at *6 (ordering immediate release

after “IJ erroneously stated that she lacked jurisdiction in direct defiance of

[the] Court’s Order, failed to provide any explanation whatsoever for her

supposed alternative holding that Petitioner is a flight risk, and by all

appearances acted as a ‘mere rubber-stamp’. . . for Respondents’ predetermined

decision to deny bond”); Montero-Martinez v. Mattos, 2026 WL 674497, at *1–

2 (D. Nev. Mar. 9, 2026) (ordering release after petitioner’s due process rights

were violated when his bond was “revoked based on materially false

information” regarding his criminal record); Miri v. Bondi, 2026 WL 622302,

at *9 (C.D. Cal. Mar. 5, 2026) (ordering release after finding IJ abused its

discretion in denying bond where they “did not explain the reasons for denying

Miri’s bond and the record does not establish that the [IJ] relied on the

appropriate factors”); Rodriguez v. Greene, 2026 WL 574961, at *12 (N.D. Ohio

Mar. 2, 2026) (finding due process violation where “the IJ’s decision . . .

contain[ed] zero reference to any record or arguments put forth by either

party,” denied bond “exclusively on jurisdictional grounds,” and held in the

“alternative” that the petitioner was a danger to the community and a flight

risk “without supplying any reasoning [as to] how the IJ came to such a

conclusion”).

16 Should the Court determine a bond hearing is the appropriate remedy,

the undersigned recommends that, 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. Under these circumstances, the

government ought to bear the burden of proving that Petitioner poses a danger

to the community or a risk of flight such that he should remain in detention.

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

13

V. Recommendation and notice of right to object.

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

• grant Petitioner’s habeas petition and order his immediate release

or, in the alternative, order a bond hearing to be held within five

days at which the Government bears the burden of proving, by

clear and convincing evidence, that Petitioner is a flight risk and

a danger to the community17; and

• Order the Government to certify compliance by filing a

status report within ten business days of the Court’s order,

and to promptly provide a copy of this order to Counsel for the

Warden of the Cimarron Correctional Facility; and

• Order that Respondents cannot re-detain Petitioner without notice

and a pre-deprivation hearing before a neutral decision-maker

where the government bears the burden of proving, by clear and

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)).

17 Adoption of this Report and Recommendation will moot Petitioner’s

request for “injunctive relief necessary to preserve jurisdiction and prevent

irreparable harm . . . upon the Court’s finding that the Winter factors are

satisfied.” Doc. 1, at 9 (citing Winter v. Nat. Res. Def. Council Inc., 555 U.S. 7

(2008)).

14

convincing evidence that Petitioner is a flight risk and a danger to

the community.18

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 21, 2026,

in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.19

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

18 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”).

19 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

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

application would undermine the habeas review process.”).

15

disposes of the issues referred to the undersigned Magistrate Judge in the

captioned matter.

ENTERED this 18th day of May, 2026.

hea tere _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

16