The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARISLEIDY PUPO SOCARRAS, )
)
Petitioner, )
)
v. ) Case No. CIV-26-571-HE
)
WARDEN, DIAMONDBACK )
CORRECTIONAL FACILITY,1 et al., )
)
Respondents. )
REPORT AND RECOMMENDATION
1 Petitioner named as Respondents the Warden of Diamondback Correctional Facility, U.S.
Immigration and Customs Enforcement, and Enforcement and Removal Operations. (Doc.
1, at 1). “The proper respondent to a habeas petition is the person who has custody over
the petitioner.” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (citation modified). Thus,
“the default rule is that the proper respondent is the warden of the facility where the
prisoner is being held, not the Attorney General or some other remote supervisory official.”
Id. at 435. Thus, Fred Figueroa, Warden of Diamondback Correctional Facility, is an
appropriate respondent. And because ICE “is in complete control of detainees’ admissions
and release” and is housed within the Department of Homeland Security, “the Attorney
General of the United States [Todd Blanche, Acting] and the Secretary of Homeland
Security [Markwayne Mullin]” are also appropriate respondents. Rafati v. Barr, Case No.
20-CIV-411, 2020 WL 12968837, at *1 (E.D. Okla. Dec. 22, 2020) (quoting Calderon v.
Sessions, 330 F. Supp. 3d 944, 953 (S.D.N.Y. 2018)); cf. Castillo-Hernandez v. Longshore,
6 F. Supp. 3d 1198, 1212 (D. Colo. 2013) (“[T]his Court concludes that either the Attorney
General or [the Department of Homeland Security] Secretary is the proper respondent.”).
“If a petitioner names the wrong respondent, this Court may simply substitute the correct
party.” Dopp v. McCoin, No. CIV-18-520-D, 2019 WL 3071984, at *2 (W.D. Okla. Feb.
28, 2019), adopted, 2019 WL 1952693 (W.D. Okla. May 2, 2019). The undersigned does
so here by substituting Markwayne Mullin, Todd Blanche, and Fred Figueroa as
respondents.
Petitioner Marisleidy Pupo Socarras, a citizen of Cuba proceeding pro se,2 filed a
petition for writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging her
detention by the U.S. Immigration and Customs Enforcement (“ICE”).3 (Doc. 1).4 United
States District Judge Joe Heaton referred the matter to the undersigned Magistrate Judge
for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 10). In
accordance with the expedited briefing schedule, (Doc. 4), Respondents timely filed a
Response.5 (Doc. 9). Petitioner filed an untimely reply. (Doc. 11). As fully set forth
below, the undersigned recommends that the Petition be GRANTED in part. Petitioner is
entitled to a bond hearing that comports with due process. Accordingly, the Court should
order Respondents to provide Petitioner with a bond hearing at which the Government shall
bear the burden of proving, by clear and convincing evidence, that Petitioner is a flight risk
and/or a danger to the community in order to justify continued detention.
2 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court
cannot serve as Petitioner’s advocate, creating arguments on his behalf. See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
3 Petitioner is housed at Diamondback Correctional Facility in Watonga, Oklahoma. (Doc.
1, at 1).
4 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
5 The Response was not filed on behalf of Respondent Fred Figueroa, Warden of the
Diamondback Correctional Facility, because he is not a federal official. (Doc. 9, at 1 n.1).
The undersigned concludes that a separate response from Warden Figueroa is not necessary
to resolve this matter.
I. Introduction to the Immigration and Nationality Act
The two sections of the Immigration and Nationality Act (“INA”) at issue are 8
U.S.C. § 1225 and § 1226. Section 1225(a)(1) describes an “applicant for admission” as
“an alien present in the United States who has not been admitted or who arrives in the
United States.” Id. § 1225(a)(1) (citation modified). The statute defines “admission” and
“admitted” as “the lawful entry of the alien into the United States after inspection and
authorization by an immigration officer.” Id. § 1101(a)(13). Under § 1225(b)(2)(A), “in
the case of an alien who is an applicant for admission, if the examining immigration officer
determines that an alien seeking admission is not clearly and beyond a doubt entitled to be
admitted, the alien shall be detained for a proceeding under section 1229a.” (Emphasis
added). In other words, if an alien is an “applicant for admission” and “seeking admission”
under § 1225(b)(2)(A), she must be detained and is not entitled to a bond hearing while she
awaits removal proceedings.
On the other hand, § 1226(a) provides for the arrest of aliens on a warrant and grants
ICE the discretion to continue detention of the alien or to release the alien on bond. 8
U.S.C. § 1226(a). The regulations accompanying the statute explain the various levels of
review for this determination. An ICE officer makes the initial detention or release
determination, and the alien bears the burden of “demonstrat[ing] to the satisfaction of the
officer that . . . release would not pose a danger to property or persons, and that the alien is
likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8). If the officer
determines the alien should be detained, the alien can seek review of that decision at a bond
hearing before an immigration judge. Id. § 236.1(d)(1). An immigration judge’s decision
to detain may be further appealed to the Board of Immigration Appeals (“BIA”). Id. §
236.1(d)(3). See Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (“Federal regulations
provide that aliens detained under § 1226(a) receive bond hearings at the outset of
detention.”) (citing 8 C.F.R. §§ 236.1(d)(1), 1236.1(d)(1)).
For many years, Immigration Judges applying the INA provided bond hearings for
aliens who had entered the country without inspection or admission and were later
apprehended and detained by ICE pending removal proceedings. See Jonathan Javier
Yajure Hurtado, 29 I. & N. Dec. 216, 225 n.6 (BIA 2025) (“Hurtado”). But on September
5, 2025, the BIA determined that an immigration judge does not have authority to hear a
request for bond by an alien present in the United States who has not been admitted after
inspection because the alien was “subject to mandatory detention” under § 1225. Id. at
229. This change in interpretation of the INA has led to a nationwide influx of habeas
corpus petitions seeking bond hearings for aliens who were recently detained after living
for years in the United States without inspection or admission.
II. Factual Background
Petitioner is a native and citizen of Cuba who entered the United States on or about
September 2, 2022. (Doc. 1, at 1, 12; id. at Ex. 1). The next day, ICE instituted removal
proceedings against her through issuance of a Notice to Appear (“NTA”), alleging she was
an alien present in the United States who had not been admitted or paroled. (Id. at Ex. 1).
She was released under ICE supervision and required to periodically check in. (Doc. 1, at
13). On or about August 23, 2023, she filed a Form I-589, Application for Asylum and for
Withholding of Removal. (Doc. 1, at Ex. 2). On February 24, 2026, Petitioner was
detained by ICE. (Doc. 1, at 13; Doc, 9, at 2). Respondents assert that Petitioner is subject
to mandatory detention under § 1225(b)(2)(A). (Doc. 9, at 2).
On June 5, 2026, an immigration judge ordered Petitioner removed. See EOIR
Automated Case Information, https://acis.eoir.justice.gov/en/caseInformation (last visited
June 22, 2026). Petitioner may file an appeal by July 6, 2026. Id.
III. Petitioner’s Claims and Respondents’ Responses
In Count I, Petitioner alleges that her prolonged civil immigration detention violates
the due process clause of the Fifth Amendment to the Constitution. (Doc. 1, at 9). She
alleges that her “detention has continued for an extended period without a determination
that such detention is necessary.” (Id.) In Count II, Petitioner asserts that she was
previously released by ICE and that her “[r]e-detention without new individualized
justification raises serious constitutional concerns.” (Id.) Count III does not raise a
separate claim for relief but argues that “[t]he government’s regulatory interests can be
satisfied through less restrictive alternatives to detention.” (Id.) In Count IV, Petitioner
asserts that her prolonged civil immigration detention “under conditions that closely
resemble incarceration” violates the due process clause. (Id. at 10). As relief, Petitioner
requests that the Court “determine that [her] continued civil immigration detention violates
the Constitution” and “order [her] release from immigration detention under appropriate
supervision conditions.” (Id.) In the alternative, she requests “prompt individualized
constitutional review of the necessity of [her] continued detention.” (Id. at 10, 21). She
also requests that the Court “order Respondents not to transfer [her] from the Diamondback
Correctional Facility while this petition remains pending.” (Id. at 21).
Respondents contend that because Petitioner “has chosen to rely on due process
arguments and has abandoned the typical arguments asserted in these types of cases
regarding whether she is properly classified as being detained pursuant to § 1225(b)(2)(A),
rather than § 1226,” she has conceded that § 1225(b)(2)(A) applies to her and permits
mandatory detention. (Doc. 9, at 2-3). Respondents further argue that Petitioner’s due
process claims fail, essentially because mandatory detention does not violate due process.
(Id. at 3-12).
Petitioner’s Reply, untimely filed, focuses on the alleged unconstitutionality of
ICE’s re-detention of Petitioner without justification after she was previously released on
supervision. (Doc. 11).
IV. Standard of Review
To obtain habeas corpus relief, Petitioner must show that she 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)).
V. Analysis
A. Petitioner’s Detention Is Governed By § 1226(a).
In Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), the Fifth Circuit held
that all non-citizen “applicants for admission” were necessarily “seeking admission” and
therefore subject to mandatory detention under § 1225(b)(2)(A). In an apparent attempt to
avoid the application of Buenrostro to her, (see Doc. 1, at 15), Petitioner – who was arrested
and originally detained in Texas, one of the states comprising the Fifth Circuit – asserts
that she “does not seek a statutory bond hearing, but instead . . . . challenges the
constitutional reasonableness of continued detention under the Due Process Clause.” (Id.
at 16) (citation modified). Because of this, Respondents argue she has conceded that §
1225(b)(2)(A) applies to her. (Doc. 9, at 2). The undersigned disagrees.
The pro se Petition is entitled to liberal construction, and the undersigned finds that
the allegations that Petitioner was released by ICE pending removal proceedings and then
was re-arrested in the interior of the United States and remains detained “without a
determination that such detention is necessary,” (Doc. 1, at 9), is sufficient to raise the issue
of whether her detention is lawful under the applicable immigration statutes. This is
especially so considering that it is Respondents’ position that she is subject to mandatory
detention under § 1225(b)(2)(A), (Doc. 9, at 2), and thus has been lawfully denied the bond
hearing procedures available under § 1226(a), which would otherwise afford Petitioner
with “a determination that such detention is necessary.” (Doc. 1, at 9). The undersigned
does not intend to avoid the due process concerns raised by Petitioner but instead will
address them in context of the applicable statutory framework.
The undersigned finds that Petitioner is only properly detained under § 1226(a).6
After a period of release on supervision while pending removal proceedings, she was re-
6 Even though Petitioner has now been ordered removed by an immigration judge, she may
appeal that determination until July 6, 2026, and so her removal proceedings are not yet
administratively final. See 8 U.S.C. § 1101(a)(47)(B) (setting forth that a removal order
becomes administratively final “upon the earlier of a determination by the Board of
Immigration Appeals affirming such order; or the expiration of the period in which the
alien is permitted to seek review of such order by the Board of Immigration Appeals”).
detained in the interior of the United States well after entering without admission or parole.
The majority of the District Judges in this District have found that such habeas Petitioners
are subject to § 1226(a). Indeed, Chief Judge Palk, Judge DeGiusti, Judge Jones, Judge
Russell, and Judge Heaton have engaged in a detailed analysis of the statutory text and
legislative history of § 1225 and § 1226 and a discussion of the BIA’s application of the
statutes for the past three decades. These Judges have repeatedly concluded that §
1225(b)(2)(A) “only applies when a noncitizen ‘applicant for admission’ is actively
‘seeking admission’ into the United States” and thus that § 1226(a) governs the detention
of non-citizens who were apprehended when they were already present in the country
without admission, as opposed to arriving at the border. Damian v. Jones, No. CIV-25-
1561-J, 2026 WL 446295, at *2 (W.D. Okla. Feb. 17, 2026); see, e.g., Colin v. Holt, No.
CIV-25-1189-D, 2025 WL 3645176, at *4-5 (W.D. Okla. Dec. 16, 2025); Gonzalez Cortes
v. Holt, No. CIV-25-1176-SLP, 2026 WL 147435, at *5 (W.D. Okla. Jan. 20, 2026); Valdez
v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025); Li v.
Grant, No. CIV-25-1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20, 2026).
Accordingly, the Judges have granted such petitioners habeas relief in the form of bond
hearings under § 1226(a).
The Sixth, Eleventh, Seventh, and Second Circuit Courts of Appeals are in
agreement. See Lopez-Campos v. Raycraft, 175 F.4th 713, 732 (6th Cir. 2026) (“Because
The date that the removal order becomes administratively final is usually the earliest date
that the pre-removal period, which is governed by either § 1225 or § 1226, shifts to the 90-
day “removal period” under § 1231(a), where detention is mandatory. See 8 U.S.C. §
1231(a)(1)-(2).
no Petitioner is alleged to be seeking admission or lawful entry into the United States, §
1225(b)(2)(A)’s mandatory detention scheme does not apply to them. And since § 1226
applies to aliens already present in the United States and creates a default rule for those
aliens by permitting—but not requiring—the Attorney General to issue warrants for their
arrest and detention pending removal proceedings, Petitioners could have been detained
pursuant to only § 1226.”) (citation modified); Hernandez Alvarez v. Warden, Fed. Det.
Ctr. Miami, 175 F.4th 1258, 1276 (11th Cir. 2026) (Ҥ 1225 applies to arriving aliens
seeking entry at the border, whereas § 1226 applies to aliens unlawfully in the interior.”);
Castanon-Nava v. U.S. Dep’t of Homeland Sec., 175 F.4th 828, 845 (7th Cir. 2026)
(“[R]eading § 1225(b)(2)(A) to apply only to unadmitted noncitizens seeking lawful entry
at our country’s border and ports of entry faithfully adheres to each word in the statute, its
grammatical structure, and statutory context, while accurately reflecting the statute’s
historical background, consistent with the government’s long-standing understanding and
application of it.”); Da Cunha v. Freden, 175 F.4th 61, 96 (2d Cir. 2026) (“Petitioner
entered the United States unlawfully in 2004 or 2005 and has resided here ever since. He
is therefore deemed to be an ‘applicant for admission’ by Section 1225(a), but he is not
‘seeking admission’ because he is not requesting lawful entry into the United States after
inspection and authorization. . . . Accordingly, we conclude that Petitioner’s detention is
governed by Section 1226(a), not Section 1225(b)(2)(A).”).7
7 In contrast, Judge Dishman and Judge Wyrick in this District have adopted Respondents’
position that aliens like Petitioner fall under § 1225(b)(2)(A) and are subject to mandatory
detention. See Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344 (W.D.
Okla. Jan. 6, 2026); Alvarado Montoya v. Holt, No. CIV-25-1231-JD, 2025 WL 3733302
Significant to the instant case, Judges in this District have held that an alien’s
application for asylum does not render her subject to § 1225(b)(2)(A). See, e.g., Singh v.
Bondi, No. CIV-26-43-J, 2026 WL 483482, at *2 (W.D. Okla. Feb. 20, 2026) (rejecting
Respondents’ argument that Petitioner is seeking admission and § 1225(b)(2) therefore
applies because he filed a Form I-589 asylum application during his removal proceedings);
Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL 227155, at *3 (W.D. Okla. Jan. 28,
2026) (concluding “a pending asylum application does not render § 1225(b)(2)(A)
applicable to Petitioner”); Li, 2026 WL 147438, at *1 (finding “§ 1225(b)(2)(A) does not
apply even though petitioner filed an application for asylum”).
Moreover, the conclusion that § 1226 governs an alien’s recent detention by ICE is
only bolstered in cases like the instant one, in which Petitioner was previously detained by
ICE and later released on some form of bond or supervision into the United States, an
option only available under § 1226. (Doc. 1, at 9). See, e.g., Vielma Uzcategui v. Brooksby,
Case No. 4:26-cv-20-DN-PK, 2026 WL 622751, at *9 (D. Utah Mar. 5, 2026) (finding
petitioner was entitled to a bond hearing under § 1226(a) when she had been originally
released on her own recognizance under § 1226(a) and then later detained without bond
(W.D. Okla. Dec. 26, 2025). The Fifth and Eighth Circuit Courts of Appeals are in accord.
Buenrostro, 166 F.4th at 498, 502-08; Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026). The
undersigned respectfully disagrees with the textual analysis and statutory interpretations
by these courts. Several Judges in this District have expressly acknowledged the Fifth and
Eighth Circuit rulings but have not altered their analysis. See Campa v. Johnson, No. CIV-
26-1-HE, 2026 WL 446978, at *1 (W.D. Okla. Feb. 17, 2026); Abhishek v. Holt, No. CIV-
26-221-SLP, 2026 WL 852091, at *2 & n.6 (W.D Okla. Mar. 27, 2026); Raj v. Anda-
Ybarra, No. CIV-26-125-D, 2026 WL 852093, at *1 & n.1 (W.D. Okla. Mar. 27, 2026).
because “[a]s numerous courts have observed, the initial decision to pursue petitioner’s
detention under § 1226(a) precludes the government from later switching tracks to subject
her to mandatory detention under § 1225(b)(2). The rule is simple: Sections 1226(a) and
1225(b) cannot be applied simultaneously.”) (citation modified); Bello Chacon v.
Hermosillo, No. 25-CV-2299, 2025 WL 3562666, at *2 (W.D. Wash. Dec. 12, 2025)
(finding petitioner’s prior release on recognizance under § 1226 indicates he “was—and
continues to be—subject to discretionary detention under § 1226”); Chen v. Soto, No. CV
25-17198, 2025 WL 3527239, at *3 (D.N.J. Dec. 9, 2025) (granting habeas relief and
ordering respondents to provide a bond hearing for petitioner previously released on his
own recognizance pursuant to § 1226 because previously treating petitioner under § 1226
“defeats respondents’ new position that a different statutory provision applies”).
Based on the foregoing analysis and the weight of authority in this Court, the
undersigned concludes that Petitioner is subject to detention only under § 1226(a).
Respondents’ detention of Petitioner under § 1225, which denied her the opportunity for a
bond hearing, violates the INA. Thus, Petitioner has shown that she is in custody in
violation of the laws of the United States, and she is entitled to habeas relief. 28 U.S.C. §
2241(c)(3).
B. Petitioner’s Detention Without a Bond Hearing Also Violates Procedural
Due Process.
All counts of the Petition allege that Petitioner’s re-detention and prolonged
detention without an individualized justification or determination that detention is
necessary violates her due process rights. (Doc. 1, at 9-10). The Fifth Amendment’s Due
Process Clause protects all persons within the United States from being “deprived of life,
liberty, or property, without due process of law.” U.S. Const. amend. V. It is well
established that the Due Process Clause applies to non-citizens within the United States
“whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v.
Davis, 533 U.S. 678, 693 (2001). Courts examine procedural due process claims in two
steps: (1) is there a protected liberty interest, and (2) if so, what procedures are necessary
to ensure deprivation of that protected liberty interest accords with due process. Morrissey
v. Brewer, 408 U.S. 471, 481 (1972). “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.
As a non-citizen facing discretionary detention or release while removal
proceedings are pending, (1) Petitioner has a liberty interest in freedom from immigration
detention, and (2) it is necessary to afford her the opportunity to be heard regarding her
release to ensure that any deprivation of that protected liberty interest accords with due
process. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.”) (citation modified). The bond hearing process, codified at § 1226(a)
and its related regulations, provides such an opportunity to be heard. Thus, Petitioner’s
procedural due process rights have been violated by Respondents’ decision to detain her
under § 1225 without a bond hearing. As articulated by a district court of this Circuit:
Because this Court holds that § 1226 governs Petitioner’s detention, the due
process owed to Petitioner is that provided for in § 1226—namely, an
individualized bond hearing before an IJ [immigration judge]. Having
erroneously concluded that Petitioner was mandatorily detained under §
1225, the IJ in Petitioner’s case declined to make an individualized
assessment of whether Petitioner posed any danger to the community,
threatened national security, or was at risk of flight. Thereafter, Petitioner’s
continued detention without the bond hearing that should have been provided
to him pursuant to § 1226 constitutes an ongoing violation of his
constitutional right to due process.
Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025) (internal citation
omitted); see also Requejo Roman v. Castro, 816 F. Supp. 3d 1267, 1282 (D.N.M. 2026)
(“Because Petitioner is subject to § 1226’s discretionary detention provision rather than
mandatory detention under § 1225, he is entitled to a bond hearing. Classifying Petitioner
under § 1225 has thus deprived him of due process by denying him the opportunity to be
heard at such a hearing.”) (citations omitted); Facio v. Baltazar, No. 25-CV-03592-CYC,
2025 WL 3559128, at *3 (D. Colo. Dec. 12, 2025) (“[T]he Court agrees with other courts
that have, against substantially similar factual backgrounds, concluded that detention
without a bond hearing amounts to a due process violation. After all, the facts clearly
demonstrate that [the petitioner] was entitled to more process than he received pursuant to
§ 1226(a) and its implementing regulations.”) (citation modified); Lopez-Campos v.
Raycraft, 797 F. Supp. 3d 771, 785 (E.D. Mich. Aug. 29, 2025) (“[T]he Court has
specifically held that Section 1226(a) governs Lopez-Campos’ detention, therefore the
process due to him is that which is afforded under Section 1226(a). The discretionary bond
framework under Section 1226(a) requires a bond hearing to make an individualized
custody determination – a hearing the IJ did not conduct. Therefore, without first
evaluating Lopez-Campos’ risk of flight or dangerousness, his detention is a violation of
his due process rights.”), aff’d, 175 F.4th at 734 (“find[ing] no reason to disturb” the district
courts’ holdings “that the government’s detention of Petitioners without bond under §
1226(a) was a deprivation of liberty that violated Petitioners’ due process rights”).
Although Petitioner seeks immediate release from custody, in the alternative she
requests “prompt individualized constitutional review of the necessity of [her] continued
detention.” (Doc. 1, at 10, 21). As set forth below, the undersigned finds that the
appropriate remedy for the violation of Petitioner’s due process rights is the bond hearing
contemplated by § 1226(a), which provides such review.
C. Petitioner Is Entitled To a Bond Hearing that Comports With Due
Process.
It is clear that Petitioner, now properly classified under § 1226(a), has the statutory
and Constitutional right to be heard regarding her release through all the opportunities set
forth in the INA and its regulations. To date, she has not been provided with a bond hearing
before an immigration judge, and this Court’s grant of habeas relief should order such a
hearing to take place. But the undersigned finds that ordering a bond hearing, without more,
does not ensure that Petitioner will receive complete and meaningful habeas relief. If the
procedures used in the hearing are insufficient to protect non-citizens from erroneous
deprivations of liberty, merely ordering a bond hearing will lead to further violations of
their due process rights. The Court must investigate what it means to receive a § 1226(a)
bond hearing as administered by immigration judges under current BIA precedent,
specifically as to the burden and quantum of proof, in order to determine whether those
procedures permit a non-citizen to be heard “in a meaningful manner,” Mathews, 424 U.S.
at 333, and thereby comport with due process.
The Court is not acting beyond its jurisdiction or its authority in making such an
inquiry. First, even though under the INA, “a district court has no jurisdiction to consider
a habeas petitioner’s challenge to the decision to either grant or deny bond,” Kumar v. De
Anda-Ybarra, No. CIV-26-164-R, 2026 WL 753944, at *2 (W.D. Okla. Mar. 17, 2026)
(citing 8 U.S.C. § 1226(e)), the Court retains “habeas jurisdiction over constitutional claims
or questions of law” relating to the bond hearing. Hernandez Casallas v. Jones, No. CIV-
26-53-J, 2026 WL 324646, at *2 (W.D. Okla. Feb. 6, 2026). See Demore v. Kim, 538 U.S.
510, 517 (2003) (The “clear text [of § 1226(e)] does not bar respondent’s constitutional
challenge . . . .”). Second, Congress has granted courts the authority to “summarily hear
and determine the facts” when considering an application for a writ of habeas corpus and
to “dispose of the matter as law and justice require.” 28 U.S.C. § 2241. And the Supreme
Court has advised that “[t]he very nature of the writ demands that it be administered with
the initiative and flexibility essential to insure that miscarriages of justice within its reach
are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969); see also
Boumediene v. Bush, 553 U.S. 723, 779 (2008) (observing that habeas is “an adaptable
remedy” and “its precise application and scope change[s] depending upon the
circumstances”); Schlup v. Delo, 513 U.S. 298, 319 (1995) (“[H]abeas corpus is, at its core,
an equitable remedy.”); Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (holding that federal
courts have “broad discretion in conditioning a judgment granting habeas relief”).
As set forth fully below, the undersigned finds that bond hearings as they are
currently administered by ICE do not comport with due process and that substitute
procedures should be ordered, namely shifting the burden of proof to the Government to
justify a non-citizen’s detention.8
1. Bond Hearings Under Current BIA Precedent
Section 1226(a) does not specify who bears the burden of proving a non-citizen’s
eligibility for bond or what burden of proof applies. Indeed, the only place in which the
burden is addressed is in the regulation pertaining to the custody determination by the
arresting ICE officer, 8 C.F.R. § 236.1(c)(8). However,
the BIA . . . adopted that standard for section 1226(a) bond hearings before
an IJ. . . . See Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (B.I.A. 1999);
Matter of Guerra, 24 I. & N. Dec. [37, 38 (B.I.A. 2006)].
Accordingly, under current BIA precedent, a noncitizen detained under
section 1226(a) must demonstrate “to the satisfaction of the Immigration
Judge that he or she merits release on bond,” Matter of Guerra, 24 I. & N.
Dec. at 40, “even though section [1226(a)] does not explicitly contain such a
requirement.” Matter of Adeniji, 22 I. & N. Dec. at 1113. To do so, the
8 But see Singh v. Grant, No. CIV-26-279-J, 2026 WL 1035100, at *2 (W.D. Okla. Apr.
16, 2026) (finding the issue of burden shifting “premature” and “not ripe for adjudication”
because “[a]t this point in time, no immigration judge has conducted a bond hearing in
Petitioner’s case, much less allocated the burden of proof or applied the particular facts of
this case to that evidentiary framework. Accordingly, the Court declines to issue an
advisory opinion instructing the Immigration Judge to apply a particular burden of proof.”);
Singh v. Figueroa, No. CIV-26-600-R, 2026 WL 1181699, at *1 n.2 (“[T]he Court declines
to specify or alter the burden of proof at this stage.”) (citation omitted).
Petitioner did not request that the burden of proof be shifted to the government. However,
she did request a “prompt individualized constitutional review of the necessity of [her]
continued detention,” and for the Court “to grant any additional relief it deems just and
proper.” (Doc. 1, at 10). Basic fairness requires that all non-citizens who are entitled to a
bond hearing should receive the same sort of bond hearing – one that comports with due
process. Granting burden shifting to only those Petitioners who explicitly or properly
request it, while granting a bond hearing under the ordinary procedures of § 1226(a) to
those who do not, would create inconsistent results for similarly situated non-citizens. But
see Singh, 2026 WL 1035100, at *2 (finding that Petitioner waived the issue of burden
shifting when he raised it for the first time in his reply).
noncitizen must prove that he or she is neither a danger to the community nor
a flight risk. See, e.g., Matter of R-A-V-P-, 27 I. & N. Dec. 803, 804 (B.I.A.
2020). In contrast, the government “need not show anything to justify
incarceration for the pendency of removal proceedings, no matter the length
of those proceedings.” Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir.
2020).
Hernandez-Lara v. Lyons, 10 F.4th 19, 27 (1st Cir. 2021). Thus, the bond hearings as
currently administered provide non-citizens with some procedural protections against a
deprivation of liberty. But those protections must be assessed against the requirements of
the Constitution.
2. Requiring the Government To Justify Detention at the Bond
Hearing Reduces the Risk of an Ongoing and Erroneous
Deprivation of Petitioner’s Liberty.
Neither the Supreme Court nor the Tenth Circuit has directly addressed whether
requiring the non-citizen to bear the burden of proving that she is neither a danger to the
community nor a flight risk at a § 1226(a) bond hearing violates due process. There is a
split among the Circuits that have considered the question. The First Circuit has squarely
held that at a § 1226(a) bond hearing, due process requires the government to bear the
burden of proving the alien’s dangerousness by clear and convincing evidence or flight risk
by a preponderance of the evidence. Hernandez-Lara, 10 F.4th at 39-40. The Second
Circuit has similarly held that when an alien is subject to prolonged incarceration under §
1226(a), the appropriate remedy is a bond hearing at which the government bears the
burden of proving dangerousness or flight risk by clear and convincing evidence. Velasco
Lopez v. Decker, 978 F.3d 842, 855-57 (2d Cir. 2020). In contrast, the Ninth Circuit has
held that due process does not require the government to bear the burden of proving
dangerousness or flight risk when a non-citizen has been “subject to § 1226(a) and its bond
determination processes from the onset of her detention.” Rodriguez Diaz v. Garland, 53
F.4th 1189, 1211-12 (9th Cir. 2022). The Fourth Circuit and Third Circuit are substantially
in accord. See Miranda v. Garland, 34 F.4th 338, 366 (4th Cir. 2022) (concluding “the
current procedures used for detention under § 1226(a) satisfy due process” and thus burden
shifting was not required); Borbot v. Warden Hudson Cnty. Corr. Facility, 906 F.3d 274,
278-79 (3d Cir. 2018) (finding that non-citizen was “granted meaningful process prior to
filing his habeas petition” when he was “afforded a prompt bond hearing, as required by
§ 1226(a) and its implementing regulations” at which he bore the burden of proof, and
“perceive[ing] no problem with [the] distinction” between § 1226(a) placing the burden on
the detainee and § 1226(c) shifting the burden to the government in certain circumstances).
The undersigned recommends that this Court follow the thorough and well-reasoned
analyses of the First and Second Circuits, both of which evaluated the procedures for §
1226(a) bond hearings under the Supreme Court’s three-factor balancing test in Mathews
v. Eldridge, 424 U.S. 319 (1976). The Mathews factors aid courts in determining whether
procedural protections meet the Constitutional requirements of due process. The
undersigned agrees that all three Mathews factors support affording Petitioner a bond
hearing at which the Government, rather than the non-citizen, bears the burden of proof of
establishing risk of flight and dangerousness.
The first Mathews factor is “the private interest that will be affected.” 424 U.S. at
335. Here, “[f]reedom from imprisonment — from government custody, detention, or
other forms of physical restraint — lies at the heart of the liberty” interest in the Fifth
Amendment’s Due Process Clause. Zadvydas, 533 U.S. at 687-88. “In our society liberty
is the norm, and detention . . . is the carefully limited exception.” United States v. Salerno,
481 U.S. 739, 755 (1987). The Second Circuit has emphasized that for a non-citizen
subject to § 1226(a) (as opposed to § 1226(c)), immigration detention was “not the result
of a criminal adjudication,” but “he was held alongside criminally charged defendants and
those serving criminal sentences. The deprivation he experienced while incarcerated was,
on any calculus, substantial. He was locked up in jail. He could not maintain employment
or see his family or friends or others outside normal visiting hours. The use of a cell phone
was prohibited, and he had no access to the internet or email and limited access to the
telephone.” Velasco Lopez, 978 F.3d at 851-52 (internal citation omitted). See also
Hernandez-Lara, 10 F.4th at 28 (“Hernandez was incarcerated alongside criminal inmates
at the Strafford County Jail for over ten months. During that time, she was separated from
her fiancé and unable to maintain her employment. But for the relief ordered in this action,
she would still be incarcerated more than two years after the jailor first locked the door
behind her. There is no question that Hernandez suffered a substantial deprivation of
liberty.”) (internal citation omitted). Thus, the first factor weighs heavily in favor of
procedures that carefully protect Petitioner’s substantial interest in being free from quasi-
criminal detention.
The second Mathews factor is “the risk of an erroneous deprivation of [the private]
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards.” 424 U.S. at 335. “Procedural due process rules are
shaped by the risk of error inherent in the truth-finding process.” Velasco Lopez, 978 F.3d
at 852 (citing Mathews, 424 U.S. at 344). The First Circuit observed five reasons that “a
detainee often starts out behind the eight ball in a bond proceeding, and the opportunities
for prejudicial error abound” due to the way that § 1226(a) hearings are conducted under
current BIA precedent:
[1] noncitizens have no right to be provided with counsel in immigration
proceedings and very often cannot obtain counsel on their own, particularly
if they are detained;
[2] detained individuals will likely experience difficulty in gathering
evidence on their own behalf;
[3] noncitizens subject to immigration detention often lack full proficiency
in English;
[4] immigration law and procedures and the particular preferences of
individual IJs are likely much better known to government representatives
than to detainees; and
[5] proving a negative (especially a lack of danger) can often be more
difficult than proving a cause for concern.
Hernandez-Lara, 10 F.4th at 30-31 (citation modified); see also Velasco Lopez, 978 F.3d
at 853 (observing that the ability of a detained non-citizen to obtain evidence for the bond
hearing is constrained, especially compared to the “substantial resources” of the
government in the form of “computerized access to numerous databases and to information
collected by DHS, DOJ, and the FBI, as well as information in the hands of state and local
authorities . . . [and] broad regulatory authority to obtain it”). Thus, the second factor
weighs heavily in favor of requiring substitute procedures that would protect Petitioner
from the risk of the erroneous deprivation of her liberty, such as shifting the burden of
proof from the non-citizen to the Government.
The final Mathews factor is “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. at 335. “The prompt execution of removal
orders is a legitimate governmental interest, which detention may facilitate.” Hernandez-
Lara, 10 F.4th at 32. However, the government has no legitimate interest “in the prolonged
detention of noncitizens who are neither dangerous nor a risk of flight[,] [and] . . . shifting
the burden of proof to the Government to justify continued detention promotes the
Government’s interest . . . in minimizing the enormous impact of incarceration in cases
where it serves no purpose.” Velasco Lopez, 978 F.3d at 854. Indeed, “limiting the use of
detention to only those noncitizens who are dangerous or a flight risk may save the
government, and therefore the public, from expending substantial resources on needless
detention.” See Hernandez-Lara, 10 F.4th at 33 (also noting the “substantial societal costs”
of unnecessary detention, which “separates families and removes from the community
breadwinners, caregivers, parents, siblings and employees”). “In short, given the risk that
the current procedures lead to many instances of needless detention, entailing substantial
social and financial costs, the public interest in placing the burden of proof on the detainee
is uncertain at best, and may well be negative.” Id. Thus, the third factor also supports
shifting the burden of proof to the government.
“In sum, the balance of the Mathews factors weighs in favor of [Petitioner]: The
private interest affected is commanding; the risk of error from placing the burden of proof
on the noncitizen is substantial; and the countervailing governmental interest is
comparatively slight.” Id. (citation modified).
Multiple district judges in this Circuit have come to the same conclusion. See, e.g.,
Requejo Roman, 816 F. Supp. 3d at 1284 (Judge Urias considering the Mathews factors,
and concluding that “due process requires that [petitioner] be provided a bond hearing at
which the Government bear the burden of proving that Petitioner is not a flight risk or a
danger to the community.”); Mieles-Parraga v. Bondi, No. 2:26-CV-00646-KG-JHR, 2026
WL 776489, at *2 (D.N.M. Mar. 19, 2026) (Chief Judge Gonzales utilizing same analysis);
Lopez-Romero v. Lyons, No. 2:25-CV-01113-MIS-JHR, 2026 WL 92873, at *1 (D.N.M.
Jan. 13, 2026) (Judge Strickland utilizing same analysis); Abanil v. Baltazar, No. 25-CV-
4029-WJM-STV, 2026 WL 100587, at *8 (D. Colo. Jan. 14, 2026) (finding that in the
District of Colorado, “the weight of authority. . . is clear: it is the Government’s burden to
justify a noncitizen’s continued detention at a bond hearing”) (collecting cases); Peña
Becerra v. Sparks, No. 2:26-CV-00212-JNP-DBP, 2026 WL 915439, at *7 (D. Utah Apr.
3, 2026) (finding petitioner met his burden to show a deprivation of his rights by his
unlawful detention, ordering petitioner’s release, and ordering that if respondents “seek to
re-detain him, they must provide him with notice and a pre-deprivation hearing, in which
the government bears the burden of establishing by clear and convincing evidence that
[she] is a flight risk or danger to the community”).
The undersigned recommends this Court join these courts and order that Petitioner
be provided a bond hearing at which the Government bears the burden of proof to justify
detention by showing she is a risk of flight or danger to the community.
3. The Government Should Be Required To Establish Flight and/or
Dangerousness By Clear and Convincing Evidence.
Part and parcel of considering who bears the burden of proof is a determination of
which standard of proof should apply.
The function of a standard of proof, as that concept is embodied in the Due
Process Clause and in the realm of factfinding, is to instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication. The
standard serves to allocate the risk of error between the litigants and to
indicate the relative importance attached to the ultimate decision.
Addington v. Texas, 441 U.S. 418, 423 (1979) (citation modified). “The Supreme Court
has consistently held the Government to a standard of proof higher than a preponderance
of the evidence where liberty is at stake, and has reaffirmed the clear and convincing
standard for various types of civil detention.” Velasco Lopez, 978 F.3d at 856 (citing
Addington, 441 U.S. at 426, 432-33 (upholding the clear and convincing standard for civil
confinement of individuals with severe mental illnesses); Salerno, 481 U.S. at 751 (noting
that pretrial detention is permitted “[w]hen the Government proves by clear and convincing
evidence that an arrestee presents an identifiable and articulable threat to an individual or
the community”); Foucha v. Louisiana, 504 U.S. 71, 75-76 (1992) (requiring the same
standard for involuntary civil commitment); United States v. Comstock, 560 U.S. 126, 130-
31 (2010) (noting the same standard in upholding the constitutionality of a federal statute
which permits continued confinement of a mentally ill, sexually dangerous prisoner beyond
a date that the prisoner would otherwise be released). But see Hernandez-Lara, 10 F.4th
at 41 (holding that “due process requires the government to either (1) prove by clear and
convincing evidence that [the non-citizen] poses a danger to the community or (2) prove
by a preponderance of the evidence that she poses a flight risk”).
District courts in this Circuit have adopted the clear-and-convincing-evidence
standard when shifting the burden to the government for § 1226(a) bond hearings. See e.g.,
Martinez Escobar v. Baltazar, No. 26-cv-296-NYW, 2026 WL 503313, at *5 (D. Colo.
Feb. 24, 2026) (collecting cases in District of Colorado imposing clear and convincing
standard and imposing same); Requejo Roman, 816 F. Supp. 3d at 1284 (“[T]he standard
of proof the Government must meet is one of clear and convincing evidence.”) (citation
modified).
4. Conclusion
Petitioner’s rights under § 1226(a) and the Due Process Clause have been violated
by her unlawful detention without the opportunity for a bond hearing. This Court can
implement its flexible habeas jurisdiction to protect her from further erroneous deprivation
of her fundamental liberty interest by providing adequate procedural protections. A bond
hearing at which the Government bears the burden of proof to establish flight risk and/or
dangerousness by clear and convincing evidence is an appropriate remedy.
D. This Court Lacks Jurisdiction To Prohibit Petitioner’s Transfer.
Petitioner requests that the Court “order Respondents not to transfer [her] from the
Diamondback Correctional Facility while this petition remains pending.” (Doc. 1, at 21).
The Court cannot do so. 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). The decision regarding where to detain non-citizens awaiting removal
proceedings is a discretionary power of the Secretary of DHS. Under 8 U.S.C. §
1231(g)(1), 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 any decision by
Respondents to transfer Petitioner to another ICE facility. 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 v. U.S. Att’y Gen., No. 18-CV-00058, 2018 WL 11446892, at *4 (D. Colo.
Feb. 22, 2018) (finding § 1252(a)(2)(B)(ii) and § 1231(g) preclude judicial review of
respondents’ decision to transfer a non-citizen 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 prohibit Petitioner’s transfer to another
ICE facility.
VI. Recommendation and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition
(Doc. 1) be GRANTED in part. The undersigned recommends that the Court order
Respondents to provide Petitioner an individualized bond hearing before a neutral
Immigration Judge within 7 days of the judgment in this matter, or else release her from
custody. It is recommended that the Court order that at the bond hearing, the Government
shall bear the burden of proving, by clear and convincing evidence, that Petitioner is a
flight risk and/or a danger to the community in order to justify continued detention.
The Court advises the parties of their right to object to this Report and
Recommendation by June 30, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2).? The Court advises the parties that failure to make timely objection to this report
and recommendation waives their right to appellate review of both factual and legal issues
contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge and terminates the referral unless and until the matter is re-referred.
ENTERED this 23" day of June, 2026.
AMANDA L. MAXFIELD i
UNITED STATES MAGISTRATE JUDGE
? Given the expedited nature of these proceedings, the undersigned has reduced the typical
objection time to Report and Recommendations. 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.”).
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