Ke

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

BAOWEN KE, )

)

Petitioner, )

)

v. ) Case No. CIV-26-671-SLP

)

TODD BLANCHE, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Baowen Ke, a citizen of China proceeding with counsel, filed a petition

for writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his detention by

the U.S. Immigration and Customs Enforcement (“ICE”).1 (Doc. 1).2 Chief United States

District Judge Scott L. Palk referred the matter to the undersigned Magistrate Judge for

initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 3). In accordance

with the expedited briefing schedule, (Doc. 7), Respondents timely filed a response. (Doc.

9). Petitioner timely filed a reply. (Doc. 10). 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

1 Petitioner is housed at Cimarron Correctional Facility in Cushing, Oklahoma. (Doc. 1, at

2).

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

pagination.

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 an alien is an “applicant for admission” and “seeking admission”

under § 1225(b)(2)(A), he must be detained and is not entitled to a bond hearing while he

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. 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 China who entered the United States on or about September

13, 2022. (Doc. 9, at Exs. 1, 4; Doc. 1, at 1). Petitioner then sought protection from

persecution in China and was granted temporary parole until November 12, 2022. (Doc.

1, at 1; Doc. 9, at Ex. 1). On or about October 7, 2022, Petitioner filed a Form I-589,

Application for Asylum and for Withholding of Removal. (Doc. 1, at 1).

On September 26, 2025, ICE instituted removal proceedings against Petitioner

through issuance of a Notice to Appear (“NTA”), alleging he was an alien present in the

United States who had not been admitted or paroled. (Doc. 9, at Ex. 4). He was arrested

the same day with an administrative warrant issued pursuant to § 1226(a). (Id. at Ex. 2).

He received a custody determination by an ICE officer pursuant to § 1226(a), and he was

detained. (Id. at Ex. 3). The Notice of Custody Determination states that the non-citizen

“may request a review of this custody determination by an immigration judge” and has

check boxes for the non-citizen to indicate receipt of this notification and an election to

seek review or not seek review. (Id.) The boxes are blank, and Petitioner did not sign the

form. (Id.)

An immigration judge granted Petitioner asylum on December 19, 2025. (Doc. 9,

at Ex. 5; Doc. 1, at 2). ICE appealed to the BIA on January 13, 2026, (see Doc. 9, at Ex.

6; Doc. 1, at 6), and that appeal is still pending, such that Petitioner’s removal proceedings

are not final, (Doc. 1, at 2, 6; Doc. 9, at 2, 3). Petitioner had been in custody for more than

six months when he filed the Petition. (Doc. 1, at 6). He alleges that he “has had no

opportunity to be released.” (Id.)

III. Petitioner’s Claims and Respondents’ Responses

Petitioner alleges in Count One that his detention violates due process when he has

been granted asylum by an immigration judge but remains detained while ICE pursues its

appeal to the BIA, and when “[t]here is no final order of removal. He is not subject to

mandatory detention. He has no criminal history. He poses no danger.” (Doc. 1, at 8). In

Count Two, Petitioner asserts that his “continued detention absent legitimate changed

circumstances violates 8 C.F.R. § 236.1(c).” (Id. at 9). He observes that “[a]lthough 8

C.F.R. § 236.1(c) authorizes DHS to arrest and detain a noncitizen whose removal

proceedings are pending, that authority is not unlimited. Detention under 8 C.F.R. §

236.1(c) implements [§ 1226(a)], which is discretionary and constrained by fundamental

due process principles.” (Id. at 7). In Count Three, Petitioner asserts that his continued

detention while ICE pursues a BIA appeal of the immigration judge’s grant of asylum is

arbitrary and capricious agency action in violation of the Administrative Procedure Act.

(Id. at 10). As relief, Petitioner asks the Court to

Declare that [his] detention violates the Due Process Clause of the Fifth

Amendment to the United States Constitution, 8 C.F.R. § 236.1(c), and the

Administrative Procedure Act, 5 U.S.C. § 706(2)(A);

Issue a Writ of Habeas Corpus ordering Respondents to immediately release

Petitioner, with or without conditions of supervision;

Enjoin Respondents from transferring Petitioner to any other detention

facility or jurisdiction pending resolution of this matter;

Award Petitioner attorney’s fees and costs under the Equal Access to Justice

Act, 28 U.S.C. § 2412, and any other applicable law.3

(Id. at 10-11).

Respondents contend that (1) Petitioner fails to establish a prima facie claim for

relief under Zadvydas v. Davis, 533 U.S 678, 701 (2001), (Doc. 9, at 2-3); (2) Petitioner’s

3 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); 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.

continued detention does not violate his due process rights under the Fifth Amendment,

(id. at 4-6); (3) “the regulatory provisions cited by Petitioner do not require notice or an

opportunity to be heard for noncitizens released on temporary parole,” (id. at 6-7); and (4)

Petitioner’s claim under the Administrative Procedure Act is without merit, (id. at 8-9).

In Reply, Petitioner clarifies his argument that his detention is governed by § 1226,

not § 1225, and therefore he is entitled to “the full force of due process protections.” (Doc.

10, at 2). He cites as support the Notice of Custody Determination, (Doc. 9, at Ex. 3),

which was issued under § 1226, and observes that this statute grants “discretionary

detention authority but not mandatory detention.” (Doc. 10, at 2) (emphasis in original).

He also argues that he is “a court-recognized asylee” and “there is no ‘significant likelihood

of removal’ or any removal pathway that could justify continued detention.” (Id. at 3). He

further makes arguments relating to the termination of his parole. (Id. at 6-7). Petitioner

also asserts that he

was not notified of any individualized determination supporting his

continued detention. He received no written statement of reasons articulating

why he should remain detained after the IJ granted his asylum application.

No interview was conducted, no changed circumstances were identified, and

no individualized assessment of flight risk or danger was made.

(Id. at 7).

IV. 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)).

V. Analysis

A. Petitioner’s Detention Is Governed By § 1226(a).

Many portions of the arguments of Petitioner and Respondents are like ships passing

in the night on the issue of what law governs Petitioner’s detention, and the facts seem to

be on a distant shore. Both sides have confused statutes, regulations, and cases relating to

pre-removal-order detention with those relating to post-removal-order detention.

However, the undersigned finds the matter to be sufficiently briefed for the Court to make

a determination.

Petitioner complains that he was detained on September 26, 2025, years after he

entered the United States, and that during the pendency of his removal proceedings,

including during ICE’s current appeal of the immigration judge’s grant of asylum, he “has

had no opportunity to be released,” (Doc. 1, at 6), and “no individualized assessment of

flight risk or danger was made.” (Doc. 10, at 7). Petitioner asserts that his detention should

be governed by § 1226 and its related regulations. (Doc. 1, at 7, 9; Doc. 10, at 2-3).

In defending their right to detain Petitioner while the asylum appeal is pending,

Respondents assert that “for any non-citizen who has not been admitted into the country

pursuant to law, the INA provides the only process due under the Constitution,” and they

cite Montoya v. Holt, No. CIV-25-01231-JD, 2025 WL 3733302, at *13-15 (W.D. Okla.

Dec. 26, 2025), a case finding that non-citizens pending removal proceedings are

“applicants for admission” who are “seeking admission” and thus are properly subject to

mandatory detention under § 1225(b)(2)(A). (Doc. 9, at 5). Thus, Respondents appear to

contend that this Petitioner is also subject to § 1225(b)(2)(A).

The undersigned agrees with Petitioner that he is only properly detained under §

1226(a). Since ICE has appealed to the BIA the immigration judge’s grant of asylum,

Petitioner’s removal proceedings are not yet final. Petitioner was re-detained in the interior

of the United States well after entry. 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 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

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).”).4

4 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); Montoya, 2025 WL 3733302. 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

Significant to the instant case, Judges in this District have held that an alien’s

application for asylum does not render him 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 detention is only bolstered

in cases like the instant one, in which Petitioner has been treated by ICE as subject to §

1226 – for instance during his arrest under an administrative warrant issued pursuant to §

1226(a), (Doc. 9, at Ex. 2), and his initial custody determination by an ICE officer pursuant

to § 1226(a), (id. at Ex. 3). “As 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.” Vielma

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).

Uzcategui v. Brooksby, Case No. 4:26-cv-20-DN-PK, 2026 WL 622751, at *9 (D. Utah

Mar. 5, 2026) (citation modified) (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 under § 1225(b)); see also 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’ continued detention of Petitioner without providing the opportunity for a

bond hearing, violates the INA. Thus, Petitioner has shown that he is in custody in

violation of the laws of the United States, and he 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.

Petitioner alleges that his continued detention violates his due process rights under

the Fifth Amendment to the Constitution. (Doc. 1, at 8). 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 him the opportunity to be heard regarding his

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 him

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”).

Although Petitioner asks the Court to immediately release him from custody, the

undersigned finds that the appropriate remedy for the violation of his due process rights is

the bond hearing contemplated by § 1226(a).

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 his release through all the opportunities set

forth in the INA and its regulations. To date, he 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.5

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)].

5 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 a bond hearing nor that the burden of proof be shifted to the

government. However, he did request that the Court address the violation of his due

process rights. (Doc. 1, at 8). He also requested that the Court “grant such other and further

relief as [it] deems just, equitable, and proper.” (Id. at 11). 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).

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

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 he 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 his 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 his 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 [he]

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 he 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 his unlawful detention without the opportunity for a bond hearing. This Court can

implement its flexible habeas jurisdiction to protect him from further erroneous deprivation

of his 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. Petitioner’s Administrative Procedure Act Claim Should Be Denied.

The Court cannot grant Petitioner relief on Count III of the Petition. Petitioner’s

APA claim is improperly brought in a habeas action. “The APA provides a cause of action

only where there is no other adequate remedy in court. See 5 U.S.C. § 704. Challenges to

the fact or duration of immigration detention are cognizable in habeas and ‘must be brought

in habeas.’ Trump v. J.G.G., 604 U.S. 670, 672 (2025). The relief Petitioner seeks, his

release from custody, is attainable through habeas corpus. So, the APA does not supply an

independent cause of action.” Ali v. Warden Cimarron Corr. Facility, No. CIV-26-655-

PRW, 2026 WL 1538147, at *3 (W.D. Okla. June 1, 2026). Thus, the undersigned

recommends that the Court deny Count Three.

E. This Court Lacks Jurisdiction To Prohibit Petitioner’s Transfer.

Petitioner requests that the Court “[e]njoin Respondents from transferring Petitioner

to any other detention facility or jurisdiction pending resolution of this matter.” (Doc. 1,

at 11). 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 him 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 29, 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 22nd 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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