Lin

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

JINGTU LIN, )

)

Petitioner, )

)

v. ) Case No. CIV-26-998-R

)

MARKWAYNE MULLIN, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Jingtu Lin, a noncitizen1 and Chinese national proceeding with counsel,

filed a Petition for Writ of Habeas Corpus (“Petition”), Doc. 1, challenging under 28 U.S.C.

§ 2241 his detention by U.S. Immigration and Customs Enforcement (“ICE”). United

States District Judge David L. Russell referred this matter to the undersigned Magistrate

Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). Doc. 3. The undersigned set an

expedited briefing schedule, Doc. 8, and the Petition is at issue. For the reasons set forth

below, the undersigned recommends that the Court grant the Petition, Doc. 1, in part and

order Respondents to provide Petitioner a bond hearing pursuant to 8 U.S.C. § 1226(a)

within five business days or otherwise to release him if there is no hearing within that time.

I. Background

Petitioner, a citizen of China, entered the United States on or around March 27,

2019, without inspection or parole. Pet. at 4; Doc. 1-1 at 2 (Notice to Appear). In

1 Unless quoting, this Report and Recommendation “uses the term ‘noncitizen’ as

equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020)

(citing 8 U.S.C. § 1101(a)(3)).

September 2019, Petitioner filed an Application for Asylum to United States Citizenship

and Immigration Services (“USCIS”). Pet. at 4; Resp. at 4; Doc. 12-1 (Asylum

Application). According to Respondents, USCIS determined Petitioner was ineligible for

asylum and referred the application to the Immigration Court for further proceedings.

Resp. at 4. On February 5, 2020, ICE officially placed him into removal proceedings

before the Immigration Court pursuant to 8 U.S.C. § 1229a through the issuance of a Notice

to Appear. Resp. at 4; Doc. 1-1 at 2. Petitioner was charged with being inadmissible under

8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the United States without inspection.

Resp. at 4-5; Doc. 1-1 at 2.

On October 25, 2025, ICE detained Petitioner after he was found working at a

marijuana grow operation in Stratford, Oklahoma. Pet. at 4; Resp. at 5. Respondents

contend Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(2)(A). Resp. at 1. Petitioner

does not allege whether he requested a bond hearing before an Immigration Judge (“IJ”).

However, such a request would be futile because all IJs are subject to the binding precedent

of Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025), which holds those noncitizens

who entered the country without admission or parole are ineligible for a bond hearing.

On June 10, 2026, an Immigration Judge ordered Petitioner removed. See EOIR,

Automated Case Information, at https://acis.eoir.justice.gov/en/ (last accessed July 8,

2026). However, on June 19, 2026, Petitioner appealed the removal order to the Board of

Immigration Appeals. Id. Therefore, the removal order is not yet final under 8 C.F.R.

§ 1241.1.

When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility

in Cushing, Oklahoma. Pet. at 3; Doc. 1-1 at 4 (EOIR Notice of Alien Address). He

remains detained there. See ICE Online Detainee Locator System, at

https://locator.ice.gov/odls/#/results (last visited July 8, 2026).

II. Petitioner’s Claims

Petitioner asserts three counts in his Petition.

• Count I: Violation of Due Process. Petitioner alleges his re-

detention without changed circumstances violates his substantive and

procedural due process rights. Pet. at 4-6.

• Count II: Violation of the Immigration and Nationality Act

(“INA”). Petitioner alleges his continued detention under 8 U.S.C.

§ 1225(b)(2)(A) violates the INA. Pet. at 6. Rather, Petitioner alleges

§ 1226 governs his current detention. Pet. at 6.

• Count III: Violation of the Administrative Procedures Act

(“APA”). Petitioner alleges his detention violates the APA because

ICE’s decision to deviate from its own policy to detain him while his

immigration proceedings are pending is arbitrary and capricious

agency action. Id. at 6-7.

He asks the Court to “issue a Writ of Habeas Corpus ordering Respondents to release

Petitioner immediately or order Respondent[s] to provide Petitioner with an individualized

bond hearing under 8 U.S.C. § 1226(a)” where the “government shall bear the burden to

demonstrate by clear and convincing evidence that the petitioner is a danger to the

community or a flight risk.” Id. (citation modified). Petitioner also requests an award of

attorney fees and costs under the Equal Access to Justice Act (“EAJA”). Id. at 8. 2

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

must seek those separately after a final judgment. 28 U.S.C. § 2412(d)(1)(B). Thus, the

Court need not address this request at this juncture.

III. Standard of Review

To obtain habeas corpus relief, Petitioner must show that he 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)).

IV. Analysis

A. Section 1226(a) applies to Petitioner’s detention.

The two sections of the INA at issue that govern detention of noncitizens pending

removal proceedings 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). Under

§ 1225(b)(2)(A), “if the examining immigration officer determines that an alien seeking

admission is not clearly and beyond a doubt entitled to be admitted,” applicants for

admission “shall be detained.” If Petitioner is detained under § 1225(b)(2)(A), he is not

entitled to a bond hearing. On the other hand, Section 1226(a) more generally authorizes

detention of a noncitizen pending removal proceedings and entitles the noncitizen to a bond

hearing. 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))).

Petitioner alleges his continued detention under § 1225(b)(2) is unlawful and

violates the INA because he is properly detained under § 1226(a). Pet. at 6. Respondents

maintain Petitioner is an “applicant for admission” properly detained under

§ 1225(b)(2)(A). Resp. at 4, 9-11.

The Tenth Circuit recently rejected the statutory interpretation of § 1225(b)(2) as

urged by Respondents and applied § 1226(a) to govern detention of noncitizens like

Petitioner. Santillan Quiroz v. Mullin, --- F.4th ---, No. 26-6019, 2026 WL 1876709, at

*4-17 (10th Cir. June 30, 2026). In Santillan Quiroz, the Tenth Circuit concluded “those

who entered the United States without admission and who have lived here since are

categorically unable to seek admission while they remain in the country.” Id. at *7 (citation

modified). Accordingly, “noncitizens who entered the United States and were thereafter

detained in the interior of the country are usually subject to § 1226(a) (and thus eligible for

bond), not § 1225(b)(2)(A).” Id. at *5. Therefore, based on Tenth Circuit precedent and

this Court’s prior reasoning in Valdez v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at

*3 (W.D. Okla. Dec. 22, 2025), the undersigned recommends the Court apply § 1226(a) to

govern Petitioner’s current detention. See Bohorquez Bravo v. Lyons, No. CIV-26-912-R,

2026 WL 1896141, at *1 (W.D. Okla. July 1, 2026) (holding in accordance with Santillan

Quiroz that a similarly situated petitioner is entitled to a bond hearing under § 1226(a)).3

3 This conclusion is also in accord with persuasive authority in the Second, Sixth, and

Eleventh Circuits, which rejected Respondents’ statutory interpretation of § 1225(b)(2).

See Lopez-Campos v. Raycraft, 175 F.4th 713, 722 (6th Cir. 2026); Hernandez Alvarez v.

Warden, Fed. Det. Ctr. Miami, 175 F.4th 1258, 1285 (11th Cir. 2026); Cunha v. Freden,

175 F.4th 61, 69 (2d Cir. 2026). In contrast, the Fifth and Eighth Circuits recently applied

§ 1225 to similar habeas challenges, agreeing with Respondents’ position. Avila v. Bondi,

170 F.4th 1128, 1134-38 (8th Cir. 2026); Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498,

502-08 (5th Cir. 2026). Respondents have filed a cert petition to the Supreme Court. See

Cert. Pet., Raycraft v. Lopez-Campos, No. 25-1415 (filed June 22, 2026).

Further, Petitioner’s application for asylum does not change the analysis or render

him “seeking admission” and thereby subject to § 1225(b)(2)(A). See Santillan Quiroz,

2026 WL 1876709, at *6 (holding a noncitizen “cannot make a present request for

permission to enter the United States, lawfully or otherwise, once he or she has already

entered” and “the only time a noncitizen can be said to be seeking admission is when he is

seeking to enter the United States at the border” (citation modified)).

Accordingly, the Court should apply § 1226(a) to govern Petitioner’s detention.

B. The proper remedy is a bond hearing.

Petitioner asks the Court to “issue a Writ of Habeas Corpus ordering Respondents

to release Petitioner immediately or order Respondent[s] to provide Petitioner with an

individualized bond hearing under 8 U.S.C. § 1226(a)”.” Pet. at 7. The undersigned

concludes a bond hearing is the proper remedy for a noncitizen detained under § 1226(a).

See Santillan Quiroz, 2026 WL 1876709 at *17 n.13; see also Bohorquez Bravo, 2026 WL

1896141, at *1 (citing Santillan Quiroz and concluding “the appropriate remedy is a bond

hearing”); Karimov v. Cerna, No. CIV-26-304-R, 2026 WL 950130, at *1 (W.D. Okla.

Apr. 8, 2026) (“As a remedy, Petitioner requests his immediate release, but the Court

concludes that a bond or custody redetermination hearing is the appropriate remedy.”).

Therefore, the Court should grant the Petition in part and order Respondents to provide

Petitioner with a bond hearing under § 1226(a) before a neutral IJ within five business days

or otherwise release him if he does not have a lawful bond hearing within that period.4

C. The Court should decline to address Petitioner’s due process and APA

claims.

Petitioner also argues his continued detention without a bond hearing violates his

rights to due process and the APA. Pet. at 4-7. If the Court grants Petitioner relief with a

bond hearing under § 1226(a), the undersigned recommends the Court decline to decide

the merits of Petitioner’s due process and APA claims based on his continued detention.

See, e.g., Valdez, 2025 WL 3709021, at *3 n.2 (declining to decide the merits of a

petitioner’s due process claim when granting a bond hearing pursuant to § 1226(a)).5

4 In some cases, Judges in this District have ordered release for noncitizens whose earlier

release was improperly revoked in the absence of changed circumstances or proper

procedures. See, e.g., Singh v. Grant, No. CIV-26-289-R, 2026 WL 1483557, at *1 (W.D.

Okla. May 27, 2026) (ordering release where ICE improperly revoked petitioner’s prior

bond ordered by an immigration judge); Ewere v. Cerna, No. CIV-26-320-SLP, 2026 WL

1207088, at *2 (W.D. Okla. May 4, 2026) (ordering release where ICE improperly revoked

petitioner’s prior humanitarian parole); Skutar v. Mullin, CIV-26-0036-HE, Doc. 15, at 2-

3 (W.D. Okla. Apr. 24, 2026) (ordering petitioner’s immediate release and stating “while

the Attorney General has authority to revoke bond at any time under 8 U.S.C. § 1226(b),

if an immigration judge has determined the noncitizen should be released, the DHS may

not re-arrest that noncitizen absent a change of circumstance”) (citation modified).

However, Petitioner has not alleged or provided evidence that the circumstances of his re-

detention entitle him to release rather than a bond hearing. See Singh v. Mullin, No. CIV-

26-471-SLP, 2026 WL 1255801, at *2 (W.D. Okla. May 7, 2026) (finding petitioner is

entitled to a bond hearing but not release because he “has not provided the Court with

evidence of his prior Order of Release or its terms, nor has Petitioner supported his

requested form of relief with legal authority”). Accordingly, the undersigned concludes

Petitioner is entitled only to a bond hearing and not release.

5 Magistrate Judges in this District, including the undersigned, have previously addressed

whether detention of a similarly situated petitioner violates due process when a petitioner

raises such a claim and seeks burden shifting with a due process claim. However, Judges

V. Recommendation and Notice of Right to Object

For the foregoing reasons, the undersigned recommends that the Court GRANT in

part the Petition for habeas relief by ordering Respondents to provide Petitioner with a

bond hearing under 8 U.S.C. § 1226(a) within five business days or otherwise release

Petitioner if he has not received a lawful bond hearing within that period.

The parties are advised of their right to object to this Report and Recommendation.

See 28 U.S.C. § 636. Any objection must be filed not later than July 15, 2026. See id.

§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). If a party wishes to respond to the other party’s

objections, such response must be filed not later than July 20, 2026. See Fed. R. Civ. P.

72(b)(2). Failure to object timely waives the right to appellate review of the factual and

legal issues addressed in this Report and Recommendation. 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 in this matter.

in this District, including this Court, have declined to order burden shifting. See Singh v.

Figueroa, No. CIV-26-600-R, 2026 WL 1181699, at *1 n.2 (W.D. Okla. Apr. 30, 2026)

(denying petitioner’s request for burden shifting, and holding “although petitioner is

entitled to a bond hearing under § 1226(a), the Court declines to specify or alter the burden

of proof at this stage”) (citation modified); see also, e.g., Singh v. Mullin, No. CIV-26-712-

HE, Order, Doc. 13 at 2-7 (W.D. Okla. June 18, 2026) (same); Rangel v. Mullin, No. CIV-

26-568-D, 2026 WL 1625653, at *2 n.2 (W.D. Okla. June 5, 2026) (same); Singh v. Grant,

No. CIV-26-279-J, 2026 WL 1035100, at *1-2 (W.D. Okla. Apr. 16, 2026) (same).

Accordingly, the undersigned does not recommend burden shifting in this case.

ENTERED this 8" day of July, 2026.

CHRIS M. STEPHENS

UNITED STATES MAGISTRATE JUDGE