Zhang

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LEI ZHANG, )

)

Petitioner, )

)

v. )

Case No. CIV-26-1022-D

)

UNITED STATES DISTRICT )

COURT, et al., )

)

Respondents.1 )

REPORT AND RECOMMENDATION

Petitioner Lei Zhang, 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

Timothy D. DeGiusti referred the case to the undersigned Magistrate Judge

under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The Government responded, Doc. 7,

1 Petitioner’s custodian is the warden of the Cimarron Correctional

Facility. Doc. 1, at 1. Counsel for the Government did not file a response on the

warden’s behalf because he is not a federal official. See Doc. 7, at 1 n.1.

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.

and Petitioner filed a letter, which the Court construes as a reply, Doc. 8. So

the matter is at issue.

For the reasons below, the undersigned recommends the Court grant

Petitioner’s habeas petition and order Respondent to immediately release

Petitioner.

I. Factual background and Petitioner’s claims.

Petitioner is a citizen of the People’s Republic of China who entered the

United States on August 17, 2024, according to Department of Homeland

Security (DHS) records. Doc. 7, Ex. 1, at 1-2. DHS issued a Notice to Appear

(NTA) charging Petitioner as removable under § 212(a)(6)(A)(i) of the

Immigration and Nationality Act (INA)4 and placing him5 into standard

removal proceedings. Id. at 2. DHS then released Petitioner from the border

into the United States with a pending court date of September 9, 2028. Id.

Immigration and Customs Enforcement (ICE) officials “encountered”

Petitioner on March 10, 2026, at the Oklahoma County Jail after Oklahoma

4 This section, codified at 8 U.S.C. § 1182(a)(6)(A)(i), provides that any

noncitizen who is “present in the United States without being admitted or

paroled, or who arrives in the United States at any time or place other than as

designated by the Attorney General, is inadmissible.”

5 DHS uses both male and female pronouns to identify Petitioner. As the

documentation is unclear, the Court will adopt the male pronoun,

acknowledging this could be error. Doc. 7, Ex. 1.

2

City Police arrested him for petty larceny. Id. Ex. 1, at 2. ICE detained him on

March 16, 2026, with a notation that he “will remain in custody until next court

date.” Id. Petitioner claims he has filed an application for asylum. Doc. 8.

On May 4, 2026, an Immigration Judge (IJ) ordered his removal, and

Petitioner timely appealed.6 That appeal remains pending.

Petitioner claims in his first ground for relief that ICE officials did not

provide him with notice of the reasons for the revocation of his release or grant

him an initial informal interview, in violation of 8 C.F.R. § 241.4. Doc. 1, at 7.

In his second ground for relief, he claims the Government has not granted him

an individualized bond hearing, in violation of INA regulations. Id. He seeks

his immediate release, or, alternatively, a bond hearing. Id. at 8.

II. 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). Habeas corpus relief is warranted only if the petitioner

“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

6 See https://acis.eoir.justice.gov/en/caseInformation (last visited July 20,

2026).

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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)).

III. Discussion.

A. Petitioner’s unsuccessful claim.

The undersigned agrees with Respondents that Petitioner cannot

succeed on his claim that ICE violated 8 C.F.R. § 241.4. Doc. 7, at 2-3. This

provision comes into play only when a noncitizen has a final order of removal.

See 8 C.F.R. §§ 241.1; 1241.1. Petitioner’s appeal is pending before the Board

of Immigration Appeals, so this provision does not apply to him.

B. Section 1226 governs Petitioner’s detention.

Liberally construed, Petitioner claims that his ongoing detention without

a hearing violates the INA. Doc. 1, at 7; Doc. 8. To the extent that Respondents

substantively address Petitioner’s argument, they assert that Petitioner is

subject to mandatory detention under 8 U.S.C. § 1225(b)(2)(A) of the INA and

therefore categorically ineligible for a bond hearing. Doc. 7, at 1-2. The

undersigned concludes that Petitioner is undergoing § 1226’s standard removal

process. See, e.g., Santillan Quiroz v. Mullin, No. 26-6019, 2026 WL 1876709,

at *17 (10th Cir. June 30, 2026) (holding noncitizens like Petitioner “need not”

continue to be detained without a bond hearing).

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Section 1226 governs “the usual removal process.” Salcedo Aceros v.

Kaiser, 2025 WL 2637503, at *1 (N.D. Cal. Sept. 12, 2025) (quoting Dep’t of

Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 108 (2020)). The § 1226 process

starts when the Government files an NTA with an immigration court. Id.

Section 1226 then lets the Government arrest and detain noncitizens or release

them on bond or on conditional parole. Id. Release is required if the noncitizen

can show they are not a danger and will show up at future hearings. Id. If

detention continues, the noncitizen gets a bond hearing before an IJ. Id. To be

released, noncitizens must show by a preponderance of the evidence that they

are not a security threat, community danger, or flight risk. Id.

The initial decision to pursue Petitioner’s detention “under § 1226(a)

precludes the [G]overnment from later ‘switch[ing] tracks’ to subject him to

mandatory detention under § 1225(b)(2).” Gutierrez v. Chesnut, 2025 WL

3514495, at *5 (E.D. Cal. Dec. 8, 2025) (citing Salcedo Aceros, 2025 WL

2637503 at *8). The rule is simple: “Sections 1226(a) and 1225(b) cannot be

applied simultaneously.” Salcedo Aceros, 2025 WL 2637503 at *8.7

7 Petitioner’s request for asylum 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,

5

To release Petitioner, DHS had to determine that Petitioner’s release

“would not pose a danger to property or persons,” and that he was “likely to

appear for any future proceeding.” 8 C.F.R. § 1236.1(c)(8). Respondents identify

no change in circumstances that required revocation of Petitioner’s conditional

release. So, he is entitled to release. See, e.g., Cunha v. Freden, 165 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 or danger to the community to be released on

bond under Section 1226(a) while their removal proceedings are pending”).

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 Thuraissigiam, 591 U.S. at 107 (“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,

Fed. Det. Ctr, 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)).

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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)).

The undersigned finds that Respondents’ violation of the INA requires

Petitioner’s immediate release subject to the same conditions of his earlier

release.8 Numerous courts across the country have ordered immediate release

in similar circumstances.9

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 Velasquez 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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IV. Recommendation and notice of right to object.

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

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

release.10 The undersigned also recommends that the Court order the

Government to certify compliance by filing a status report within ten

business days of the Court’s order, and to promptly provide a copy of this

order to Counsel for the Warden of the Cimarron Correctional Facility. Finally,

the Court should order that the Government cannot re-detain Petitioner

without notice and a pre-deprivation hearing before a neutral decision-maker

10 The Court could determine that a bond hearing is the only necessary

remedy. See, e.g., Santillan Quiroz, 2026 WL 1876709, at *5 (“We hold that

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).”). If so, the undersigned recommends that, given

Petitioner’s prolonged detention under the incorrect statute, the Court should

find that it is more appropriate for the Government to bear the burden of proof

at the hearing. 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 2024, the

Government ought to 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))).

8

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.

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 72.11

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.

11 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 & 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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ENTERED this 22nd day of July, 2026.

ga Ler

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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