Amefia

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

TAMATEKOU KOKOUVI )

AMEFIA, )

)

Petitioner, )

)

v. )

Case No. CIV-26-975-R

)

DR. SCARLET GRANT,1 )

et al., )

)

Respondents. )

)

REPORT AND RECOMMENDATION

Petitioner Tamatekou Kokouvi Amefia, a noncitizen proceeding pro se,2

seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.3 United States

District Judge David L. Russell referred the case to the undersigned

1 Respondent Chris Gantt is the Warden of the Cimarron Correctional

Facility and is not a federal official and the Government’s response is not filed

on his behalf. Doc. 8, at 1 n.1; https://www.corecivic.com/facilities/cimarron-

facility (last visited July 22, 2026).

2 This Report and Recommendation “uses the term ‘noncitizen’ as

equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578

n.2 (2020) (citing 8 U.S.C. § 1101(a)(3)). Because Petitioner is proceeding pro

se, the Court liberally construes his arguments. Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991). But it is not “the proper function of the district

court to assume the role of advocate for the pro se litigant.” Id.

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

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C).

Doc. 3. The Government responded, Doc. 8, and the time for Petitioner to reply

has lapsed, see Doc. 6. So, the matter is at issue.

For the reasons below, the undersigned recommends the Court grant

Petitioner’s habeas petition and order his immediate release.

I. Factual background and procedural history.

Petitioner is a citizen of Togo who entered the United States at an

unknown location on or about April 19, 2021. Doc. 8, at 4 (citing Ex. 1). On

June 7, 2021, the Department of Homeland Security (DHS) placed him in

removal proceedings through the issuance of a Notice to Appear (NTA),

charging him as removable under Sections 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I)

of the Immigration and Nationality Act (INA).4 Doc. 8, Ex. 1. On July 9, 2021,

DHS released him under a $1,500.00 bond. Doc. 8, Ex. 2. Petitioner later filed

4 These statutory provisions are codified in the United States Code at 8

U.S.C. § 1182(a)(6)(A)(i), (a)(7)(A)(i)(I). Section 1182(a)(6)(A)(i) provides that a

noncitizen present in the United States without being admitted or paroled, or

who arrived in the United States at any time or place other than as designated

by the Attorney General is ineligible to be admitted to the United States. Id.

§ 1182(a)(6)(A)(i). Section 1182(a)(7)(A)(i)(I) provides that any noncitizen, who

at the time of application for admission, was not in possession of (1) a valid

unexpired entry document as required by the INA, and (2) a valid travel

document/document of identity and nationality as required by regulations is

inadmissible. Id. § 1182(a)(7)(A)(i)(I).

2

an Application for Asylum and Withholding of Removal, which remains

pending. Doc. 8, Ex. 3.

On March 21, 2026, Lawton Police Department officers arrested

Petitioner for driving under the influence and for an improper turn. Doc. 8, Ex.

4, at 1-3. On March 25, 2026, he was transferred to Immigration & Customs

Enforcement (ICE) custody and is currently detained at the Cimarron

Correctional Facility. Doc. 8, at 4 (citing Ex. 5). Petitioner maintains that he

followed every requirement of his conditions of release as he awaited his

asylum decision. Doc. 1, at 6.

II. Petitioner’s claims.

Petitioner raises four grounds for relief:

(1) Illegal arrest and detention without a warrant in violation

of his procedural and substantive due process rights;

(2) Illegal arrest and detention in violation of the INA and

Administrative Procedure Act (APA);

(3) Illegal arrest and detention without prior notice and a

meaningful opportunity to respond in violation of the Fifth

Amendment’s Due Process Clause (procedural due process);

and

(4) Detention without a bond hearing in violation of the Fifth

Amendment’s Due Process Clause.

Id. at 6-7.

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Petitioner seeks a grant of the writ of habeas corpus; his immediate

release on an appropriate order of supervision (OOS) or, in the alternative, a

prompt bond hearing before a neutral decisionmaker where the Government

bears the burden of proving he is a flight risk or danger by clear and convincing

evidence; a preliminary and permanent injunction against any future illegal

detention; an injunction against moving Petitioner from this district without

giving 72-hours’ notice; a shortened objection time; a show cause order as to

why his petition should not be granted within three days; and an expedited

decision.5 Id. at 7.

III. Standard of review.

An application for a writ of habeas corpus “is an attack by a person in

custody upon the legality of that custody, and . . . the traditional function of

the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.

475, 484 (1973). “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)).

5 The Court addressed these last four requests in its Order for Response,

Doc. 6.

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IV. Discussion.

A. Section 1226 governs Petitioner’s detention.

Respondents maintain that § 1225(b) applies to Petitioner’s detention

and that Petitioner is an applicant for admission. Doc. 8, at 6-8.6 But

Respondents are incorrect. Petitioner effected entry into the country over five

years ago, so he is not subject to § 1225(b)(2)(A)’s mandatory detention

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

*5 (10th Cir. June 30, 2026) (holding “that noncitizens who entered the United

States and . . . thereafter detained in the interior of the country are usually

subject to § 1226(a) (and thus eligible for bond), not § 1225(b)(2)(A)”); see also

Barbosa da Cunha v. Freden, 175 F.4th 61, 70 (2d Cir. 2026) (concluding the

petitioner’s detention was “governed by Section 1226(a), not Section

1225(b)(2)(A),” and explaining that its holding “allows noncitizens . . . who are

already present in the United States and are determined not to be a flight risk

6 Section 1225(b)(2) mandates detention for noncitizens who are

“applicant[s] for admission, [where] the examining immigration officer

determines that [the noncitizen] seeking admission is not clearly and beyond

a doubt entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A).

5

or danger to the community to be released on bond under Section 1226(a) while

their removal proceedings are pending”).7

Quiroz involved a noncitizen who had never been seen by an Immigration

Judge (IJ). 2026 WL 1876709, at *1-2. Here, Petitioner received an initial bond

hearing and the IJ necessarily determined he was neither a flight risk nor a

danger to the community. See Doc. 8, Ex. 2; 8 C.F.R. § 241.4(e) (criteria for

discretionary release under 8 U.S.C. § 1226(a) includes determining that the

noncitizen “is not likely to pose a threat to the community following release,”

and “does not pose a significant risk of flight if released”). And the IJ released

Petitioner subject to a $1,500.00 bond. Id.

The precise nature of the alleged Due Process violation here differs

slightly from that in Quiroz. Given Petitioner was previously granted bond, a

decision predicated on a finding that he posed neither a danger to the public

7 Petitioner’s asylum request does not change this outcome. This Court

has “declined to find” that either refusing to voluntarily depart or seeking

asylum “‘constitutes ‘seeking admission’ for purposes of this subsection.’”

Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL 227155, at *3 (W.D. Okla.

Jan. 28, 2026) (quoting Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL

18932, at *1 (W.D. Okla. Jan. 2, 2026)); see also Hernandez Alvarez v. Warden,

Fed. Det. Ctr. Miami, 175 F.4th 1258, 1284 (11th Cir. 2026) (“This argument

fails at the gate. Section 1225(b)(2)(A) makes it clear that an applicant for

admission’s status as one ‘seeking admission’ becomes relevant upon

examination by an immigration officer, which occurs before a § 1229a

proceeding even commences.” (quoting 8 U.S.C. § 1225(b)(2)(A))).

6

nor a flight risk, he asserts that Respondents’ violation of his procedural Due

Process rights stems from his re-detention without notice, a pre-deprivation

hearing, or any material change in circumstances. Doc. 1, at 6; Otero v. Kaiser,

2025 WL 3301056, at *8 (N.D. Cal. Nov. 26, 2025) (Because the government

originally released Petitioner pursuant to 1226(a), he is “protected by the Due

Process Rights created by § 1226(a).”).

B. Petitioner was denied due process.

“The Fifth Amendment’s Due Process Clause forbids the Government to

deprive any person of liberty without due process of law. Freedom from

imprisonment—from government custody, detention, or other forms of physical

restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533

U.S. at 690 (internal quotation marks and alterations omitted); cf. Trump v.

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

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

proceedings.” (internal quotation marks omitted)).

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

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

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

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

7

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

detaining them.”).

This Court analyzes Petitioner’s procedural due process claim to

determine whether he has a protected liberty interest, and what process is

necessary to ensure any deprivation of that liberty interest aligns with the Due

Process Clause of the Fifth Amendment. See Ky. Dep’t of Corr. v. Thompson,

490 U.S. 454, 460 (1989). In examining the necessary process, the Court turns

to the three factors set forth in Mathews v. Eldridge: (1) “the private interest

that will be affected by the official action”; (2) “the risk of an erroneous

deprivation of such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural safeguards”; and (3) “the

Government’s interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural

requirement would entail.” 424 U.S. 319, 335 (1976).

“Just as people on preparole, parole, and probation status have a liberty

interest, so too does [Petitioner] have a liberty interest in remaining out of

custody on bond.” Ortega v. Bonnar, 415 F. Supp. 3d 963, 969-70 (N.D. Cal.

2019) (first citing Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (parolee), and

then citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (probation)); see Sahil

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

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“that noncitizens acquire a liberty interest once released from immigration

detention”); cf. Sanchez v. LaRose, 2025 WL 2770629, at *3 (S.D. Cal. Sept. 26,

2025) (“When the [G]overnment grants [a noncitizen] parole into the country,

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

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

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

in their ‘continued liberty.’” (quoting Morrissey, 408 U.S. at 482 ). Petitioner’s

interest in physical freedom “is the most elemental of liberty interests.” Hamdi

v. Rumsfeld, 542 U.S. 507, 529 (2004); see also Zadvydas, 533 U.S. at 690

(stating that an individual’s interest in being free from detention “lies at the

heart of the liberty that [the Due Process] Clause protects”). Respondents

deprived Petitioner of his liberty interest when ICE detained him and placed

him into custody.

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

significant private interest in remaining free from detention after spending

five years in the United States before his present detention. By initially

releasing Petitioner subject to bond, the Government necessarily determined

that was “not likely to pose a threat to the community follow release” and did

not “not pose a significant risk of flight if released.” 8 C.F.R. § 241.4(e).

Respondents have presented no evidence that there was a change in this

9

assessment. Dos Santos v. Noem, 2025 WL 2370988, at *9 (D. Mass. Aug. 14,

2025) (noting Board of Immigration Appeals (BIA) “has held . . . that ‘where a

previous bond determination has been made by an [IJ], no change should be

made by a District Director absent a change of circumstance.’” (quoting Matter

of Sugay, 17 I. & N. Dec. 637, 640 (B.I.A. 1981)). By permitting Petitioner to

remain at liberty for five years following the issuance of his NTA, the

Government enabled Petitioner to develop a protected liberty interest in

remaining out of custody. To be sure, “Congress may make rules as to aliens

that would be unacceptable if applied to citizens.” Demore v. Kim, 538 U.S. 510,

522 (2003). But that power remains “subject to important constitutional

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

significant interest in remaining free from detention.

Apart from his arrest and the state charges, Respondents do not suggest

Petitioner violated any laws while in the United States. During his release,

Petitioner’s interest in continued liberty grew even stronger as he presumably

“form[ed] the other enduring attachments of normal life.” Morrissey, 408 U.S.

at 482. The first Mathews factor favors Petitioner.

Second, the Court considers “the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. The

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

where he was detained without notice or a hearing. And “[b]y releasing

Petitioner into the interior, the government has already concluded that he does

not present a flight or security risk.” Castaneda v. Bondi, 2026 WL 911416, at

*13 (W.D. Tex. Mar. 23, 2026).

“Constitutionally inadequate notice also often leads to constitutionally

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

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

350830, at *6 (E.D. Cal. Feb. 9, 2026), adopted, 2026 WL 440566 (E.D. Cal.

Feb. 17, 2026). Respondents detained Petitioner with no procedural safeguards

to determine whether the revocation of his release and bond were justified.

This factor weighs in Petitioner’s favor. See, e.g., E.A. T.-B. v. Wamsley, 795 F.

Supp. 3d 1316, 1322 (W.D. Wash. 2025) (“That the Government may believe it

has a valid reason to detain Petitioner does not eliminate its obligation to

effectuate the detention in a manner that comports with due process.”).

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

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

recognizes that the [G]overnment has an interest in enforcing immigration

laws,” the Government’s interest in arresting Petitioner without any

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

11

WL 350830, at *6. And the Court can discern no significant administrative or

fiscal burden associated with placing the burden on the Government to follow

its own laws and regulations. See, e.g., Iza, 2026 WL 67152, at *3 (“An alien’s

opportunity to be heard regarding the revocation of his parole is only

meaningful if the [G]overnment comports with its own internal standards

regarding parole revocation.”). This is especially true given that Petitioner’s

detention was not deemed necessary for five years.

C. Remedy.

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

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

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

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

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

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

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

matters “as law and justice require.” 28 U.S.C. § 2243; see also United States

v. Allen, 139 F.3d 913 (10th Cir. 1998) (“If the imprisonment cannot be shown

to conform with the fundamental requirements of law, the individual is

entitled to his immediate release.” (quoting Johnson v. Rogers, 917 F.2d 1283,

1284 (10th Cir. 1990))).

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The undersigned finds Petitioner’s unlawful detention and the ongoing

violation of Petitioner’s due process rights require his immediate release

subject to the same conditions of his earlier release.8 Numerous courts across

the country have ordered immediate released in similar circumstances.9

V. Recommendation and notice of right to object.

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

grant Petitioner’s habeas petition in part and order his immediate

8 “Many orders in similar cases require that a bond hearing be set in a

short period of time with an automatic release if the hearing does not occur.

Those cases do not examine the effect of a pending asylum petition or a clear

conditional release order under § 1226.” Velasquez Montillo v. Brooksby, 2026

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

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

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

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

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

remedy the ongoing due process violation caused by Petitioner being detained

while his conditional parole has not yet been terminated.”); Montillo, 2026 WL

592355, at *10 (concluding immediate release was the appropriate remedy

where “there has been no notice of a change in circumstances requiring

modification of the November 2021 [order of release on recognizance]”); Vielma

Uzcategui v. Brooksby, 2026 WL 622751, at *13 (D. Utah Mar. 5, 2026) (same

as to petitioner ordered released on her own recognizance in September 2023);

Murzi v. Noem, 2026 WL 395111, at *2 (D. Colo. Feb. 12, 2026) (ordering

petitioner’s immediate release where petitioner had previously been released

on parole).

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release.10 The undersigned also recommends the Court order the

Government to certify compliance with the Court’s order by filing a

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

promptly provide a copy of the Court’s order to counsel for the Warden of the

Cimarron Correctional Facility. The Court should order that Respondents may

not re-detain Petitioner without notice and a pre-deprivation hearing before a

neutral decisionmaker where the Government bears the burden of proving by

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

the community.11

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

the undersigned recommends that, given Petitioner’s prolonged detention, the

Court should find that it is more appropriate for the Government to bear the

burden of proof in this context. See, e.g., Garcia Cortes v. Noem, 2025 WL

2652880, at *5 (D. Colo. Sept. 16, 2025) (placing the burden of proof on the

Government to justify the petitioner’s continued detention (citing L.G. v.

Choate, 744 F. Supp. 3d 1172, 1185 (D. Colo. 2024)). Having released Petitioner

in 2022, the Government ought to now bear the burden of proving by clear and

convincing evidence that Petitioner poses a danger to the community or a risk

of flight such that he should remain in detention. See L.G., 744 F. Supp. 3d at

1186 (“In general, the Supreme Court has held that the clear and convincing

standard applies to civil detention where liberty is at stake.” (first citing

United States v. Salerno, 481 U.S. 739, 751 (1987), and then citing Addington

v. Texas, 441 U.S. 418, 433 (1979))).

11 The undersigned finds it is not necessary to reach Petitioner’s remaining

claims for relief under the APA and for warrantless arrest.

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The undersigned advises the parties of their right to file an objection to

this Report and Recommendation with the Clerk of this Court by July 27, 2026,

in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.!”

The undersigned further advises the parties that failure to make timely

objections to this Report and Recommendation waives the right to appellate

review of both factual and legal questions contained herein. Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation

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

captioned matter.

ENTERED this 22nd day of July, 2026.

hea “ered _

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

Given the expedited nature of these proceedings, the undersigned has

reduced the typical objection time to this Report and Recommendation. 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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