Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ORIANNA ANDREINA GARCIA )

RAMIREZ, )

)

Petitioner, )

)

v. ) Case No. CIV-26-426-J

)

JOSHUA JOHNSON, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Orianna Andreina Garcia Ramirez, a citizen of Venezuela proceeding

with counsel, 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”).1

(Doc. 1).2 United States District Judge Bernard M. Jones, II, referred the matter to the

undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §

636(b)(1)(B), (C). (Docs. 3, 13). In accordance with the expedited briefing schedule, (Doc.

14), Respondents timely filed a response.3 (Doc. 16). Petitioner did not file a reply. As

1 Petitioner is housed at Diamondback Correctional Facility in Watonga, Oklahoma. (Doc.

1, at 4).

2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF

pagination.

3 The response was not filed on behalf of Respondent Fred Figueroa, Warden of the

Diamondback Correctional Facility, presumably because he is not a federal official. (Doc.

16, at 1). The undersigned concludes that a separate response from Warden Figueroa is

not necessary to resolve this matter.

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.

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 Petitioner 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) grants ICE the discretion to continue detention of an

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. See Jonathan Javier Yajure Hurtado, 29 I. & N. Dec.

216, 225 n.6 (BIA 2025) (“Hurtado”). But on September 5, 2025, the Board of

Immigration Appeals (“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 citizen of Venezuela who entered the United States without inspection

on or about December 10, 2021. (Doc. 1, at Ex. 3). On December 11, 2021, 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.)

On the same date, Petitioner was released from ICE custody under an Order of Release on

Recognizance. (Doc. 16, at Ex. 2).

On February 5, 2026, Petitioner was taken into custody during a scheduled check-

in at an ICE field office. (Doc. 1, at 5). A second Notice to Appear was issued on the same

date. (Doc. 16, at Ex. 3). Petitioner requested bond, (Doc. 1, at Ex. 1), and on February

20, 2026, an Immigration Judge denied bond for lack of jurisdiction. (Id. at Ex. 4).

Respondents assert that Petitioner is subject to mandatory detention under § 1225(b)(2)(A).

(Doc. 16, at 3, 10). Petitioner’s removal proceeding is ongoing. (See id. at 2).

III. Petitioner’s Claims and Respondents’ Responses

In Count I, Petitioner alleges a violation of the INA and requests relief pursuant to

Bautista v. Santacruz, No. 5:25-CV-01873-SSS-BFM (C.D. Cal.). (Doc. 1, at 7). In that

case, a court in the Central District of California faced the same issue identified above –

should aliens who have not been admitted or inspected, but have lived in the United States

for years, be classified under 8 U.S.C. § 1225, or must they instead be classified as aliens

under 8 U.S.C. § 1226? That court made several rulings relevant to Petitioner’s claim:

• It analyzed both statutes and determined the petitioners who filed for

relief there were detained pursuant to § 1226. Bautista v. Santacruz

(Bautista I), No. 5:25-cv-1873-SSS-BFM, 2025 WL 3289861, at *11

(C.D. Cal. Nov. 20, 2025).

• It certified a “Bond Eligible Class” which was defined as “All noncitizens

in the United States without lawful status who (1) have entered or will

enter the United States without inspection; (2) were not or will not be

apprehended upon arrival; and (3) are not or will not be subject to

detention under 8 U.S.C. § 1226(c), § 1225(b)(1), or § 1231 at the time

the Department of Homeland Security makes an initial custody

determination. Bautista v. Santacruz (Bautista II), No. 5:25-cv-1873-

SSS-BFM, 2025 WL 3288403, at *9 (C.D. Cal. Nov. 25, 2025).

• It entered a partial final judgment in favor of the Bond Eligible Class,

declaring that “the Bond Eligible Class members are detained under 8

U.S.C. § 1226(a), are not subject to mandatory detention under §

1225(b)(2), and are entitled to consideration for release on bond by

immigration officers and, if not released, a custody redetermination

hearing before an immigration judge,” and vacated the policy guiding the

federal government to detain noncitizens according to 8 U.S.C. § 1225

under the Administrative Procedures Act. Bautista v. Santacruz (Bautista

III), No. 5:25-cv-1873-SSS-BFM, 2025 WL 3678485, at *1 (C.D. Cal.

Dec. 18, 2025).

• It entered an order to enforce its prior judgments on February 18, 2026.

Bautista v. Santacruz (Bautista IV), 820 F. Supp.3d 1016 (C.D Cal. 2026).

Petitioner asserts that, “[a]s a member of the Bond Eligible Class, [she] is entitled

to consideration for release on bond under 8 U.S.C. § 1226(a).” (Doc. 1, at 7). According

to Petitioner, “[t]he order granting partial summary judgment in [Bautista I] holds that

Respondents violate the INA in applying the mandatory detention statute at § 1225(b)(2)

to class members” and “[w]hen considering this determination with the [order in Bautista

II], the Court extends the same declaratory relief granted to Petitioners to the Bond Eligible

Class as a whole.” (Id.) “By denying Petitioner a bond hearing under § 1226(a) and

asserting that she is subject to mandatory detention under § 1225(b)(2),” Petitioner

contends that “Respondents violate Petitioner’s statutory rights under the INA and the

Court’s judgment in [Bautista].” (Id.)

As relief, Petitioner seeks release from custody within one day of an order granting

habeas relief. (Id. at 7). Alternatively, she seeks a bond hearing within seven days of an

order granting habeas relief, or otherwise that she be released. (Id.) Petitioner also requests

an award of attorney fees and costs under the Equal Access to Justice Act (“EAJA”).4 (Id.

at 8).

Respondents contend that Bautista’s holdings do not entitle Petitioner to her

requested relief for a variety of reasons. (Doc. 16, at 6-10). Respondents also argue that

Petitioner did not fairly raise a claim that she is entitled to a bond hearing under § 1226,

but if she did Petitioner is not entitled to a bond hearing. (Id. at 10).

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)).

4 To the extent Petitioner may be entitled to EAJA fees and costs as a prevailing party, she

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”).

Accordingly, the Court need not address this request at this juncture.

V. Analysis

The Petition is largely devoted to seeking relief because Petitioner is a class member

in Bautista. Nevertheless, Petitioner asserts a violation of the INA and seeks a bond

hearing under 8 U.S.C. § 1226(a). (Doc. 1, at 7). This Court has determined that similar

petitions have raised a statutory claim under § 1226(a) independent of Bautista. See

Gutierrez Ramirez v. Noem, No. CIV-25-1540-J, ECF No. 11 (W.D. Okla. Mar. 9, 2026)

(“Although the question is a close one and Petitioner concedes the ‘allegation was brief,’

the Court concludes that the Petition adequately raises a claim under § 1226(a) that can be

reached independent of Petitioner’s reliance on the class-based relief recognized in

Bautista.”) (internal citation omitted). So over Respondents’ arguments that Petitioner

failed to meet the pleading standard, (Doc. 16, at 10), the undersigned finds Petitioner

adequately alleged a claim under § 1226(a) and recommends that relief be granted on that

claim.

A. The Undersigned Agrees With the Majority of this District Court that

the Detention of Aliens Like Petitioner is Governed by § 1226(a).

According to Petitioner, “by denying [her] a bond hearing under § 1226(a) and

asserting that she is subject to mandatory detention under § 1225(b)(2), Respondents

violate [her] statutory rights under the INA.” (Doc. 1, at 7). Respondents contend that

“Petitioner is properly held pursuant to § 1225(b)(2)(A).” (Doc. 16, at 10).

The undersigned agrees with Petitioner, who has been detained in the interior of the

United States well after entering without admission. In response to a growing number of

habeas challenges in the Western District of Oklahoma, 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, Nos. 25-1965/1969,1978/1982, --- F.4th ----,

2026 WL 1283891, at *11 (6th Cir. May 11, 2026) (“Because 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, No. 25-14065, -

-- F.4th ----, 2026 WL 1243395, at *14 (11th Cir. May 6, 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., No. 25-3050, --- F.4th ----,

2026 WL 1223250, at *11 (7th Cir. May 5, 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. Apr. 28, 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).”).5

5 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

(W.D. Okla. Dec. 26, 2025). The Fifth and Eighth Circuit Courts of Appeals are in accord.

Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498, 502-08 (5th Cir. 2026); 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

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 her own recognizance into the United States pursuant to § 1226.

(Doc. 16, at Ex. 2). 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 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).

*1 & n.1 (W.D. Okla. Mar. 27, 2026).

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.

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. 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, 2026 WL 1283891, at *13 (“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”).

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 seek 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 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.6

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

6 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 bond hearing. (Doc. 1, at 7). She also requested that the Court “grant

any other and further relief that [it] deems just and proper.” (Id. at 8). 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 v. Lyons, 10 F.4th 19, 39-40 (1st

Cir. 2021). 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 is 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).

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.

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 9, 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 2nd day of June, 2026.

AMANDA L. MAXFIELD i

UNITED STATES MAGISTRATE JUDGE

7 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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