Zheng

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

WEI ZHENG, )

)

Petitioner, )

)

v. ) Case No. CIV-26-834-HE

)

TODD LYONS1, et al., )

)

Respondents.2 )

REPORT AND RECOMMENDATION

Petitioner Wei Zheng, a citizen of the People’s Republic 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”).3

(Doc. 1).4 United States District Judge Joe Heaton referred the matter to the undersigned

1 David Venturella was announced as Acting Director of U.S. Immigration and Customs

Enforcement on June 1, 2026. He replaces Todd Lyons and is substituted as the proper

respondent pursuant to Federal Rule of Civil Procedure 25(d).

2 Chris Gantt has succeeded Dr. Scarlet Grant as Warden of Cimarron Correctional Facility.

Pursuant to Federal Rule of Civil Procedure, 25(d), Mr. Gantt is automatically substituted

as a Respondent in this action. The Response was not filed on behalf of Mr. Gantt because

he is not a federal official. (Doc. 14, at 2 n.1). The undersigned concludes that a separate

response from Warden Gantt is not necessary to resolve this matter.

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

1, at 4).

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

pagination.

Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C).

(Doc. 5). In accordance with the briefing schedule (Doc. 12), Respondents timely filed a

response. (Doc. 14). Petitioner timely filed a reply. (Doc. 15). As fully set forth below,

the undersigned recommends that the Petition be DENIED and that this action be

DISMISSED WITHOUT PREJUDICE.

I. Factual Background

Petitioner is a citizen of the People’s Republic of China. (Doc. 14, at Ex. 1, at 1).

Petitioner was admitted to the United States on May 20, 2017, at John F. Kennedy

International Airport in New York, as an F-1 non-immigrant student authorized to attend

the University of Massachusetts Boston for duration of status. (Id.)

Petitioner filed an affirmative application for asylum and withholding of removal

with United States Citizenship and Immigration Services (“USCIS”). (Doc. 14, at Ex. 7).

USCIS did not grant the application and referred the matter to an immigration judge for

adjudication. (Id. at Ex. 8). On March 1, 2018, the Department of Homeland Security

(“DHS”) issued a Notice to Appear charging Petitioner as removable under 8 U.S.C. §

1227(a)(1)(C)(i), as a non-immigrant who failed to maintain or comply with the conditions

of the status under which he was admitted. (Id. at Ex. 1, at 1).

On July 7, 2025, an Immigration Judge ordered Petitioner removed to China.5 (Id.

at Ex. 2, at 3). Petitioner appealed to the Board of Immigration Appeals (“BIA”). (Id. at

5 The written removal order reflects an oral decision entered on July 7, 2025, with an appeal

due August 6, 2025. (Doc. 14, at Ex. 2, at 1, 4). Other documents in the record state that

Ex. 3). The appeal remains pending, and no final order of removal has been entered. (Doc.

14, at 2; Doc. 1, at 7).

On February 26, 2026, Petitioner was arrested by officers from the Oklahoma

Bureau of Narcotics, who encountered him while executing a search warrant for an illegal

marijuana growing operation. (Doc. 14, at Ex. 5, at 2). On February 27, 2026, DHS issued

a warrant for Petitioner’s arrest. (Id. at Ex. 4). Petitioner was transferred from the Tulsa

County Jail to the ICE Enforcement and Removal Operations Tulsa sub-office for

administrative processing. (Id. at Ex. 5, at 2). At some point, Petitioner was transferred to

the Cimarron Correctional Facility in Cushing, Oklahoma, where he remains detained.6

Petitioner requested a custody redetermination hearing before an Immigration

Judge. (Id. at Ex. 9). At the hearing on April 2, 2026, an Immigration Judge denied

Petitioner’s request for bond, finding that Petitioner’s lack of employment history and

family ties in the United States in combination with his pending order of removal created

a “significant flight risk, which [could not] be mitigated by the evidence submitted.” (Id.

at Ex. 6, at 2). The Immigration Judge issued a written order detailing the findings

supporting the denial and advising Petitioner of his right to appeal the decision to the BIA.

(Id.) Petitioner did not appeal. (Doc. 14, at 8). Petitioner filed the instant Petition on April

16, 2026, two weeks after the bond hearing. (Doc. 1).

the asylum application was denied on July 25, 2025. (Id. at Ex. 6, at 2). The undersigned

concludes the discrepancy is immaterial to the issues presented.

6 See ICE Detainee Locator, locator.ice.goc/odls/#/results (last visited July 29, 2026).

II. Petitioner’s Claims

As an initial matter, the Petition relied on factual assumptions that Respondents have

since proven to be inaccurate. Most significantly, Petitioner assumed (1) that Respondents

were taking the position that Petitioner’s detention is governed by the mandatory detention

provision at 8 U.S.C. § 1225(b) and (2) that Petitioner had not received a bond hearing.

(See Doc. 1, at 5, 7, 9). However, Petitioner requested and received a bond hearing on

April 2, 2026, two weeks before filing the instant Petition. (Doc. 14, at Ex. 6, at 1).

Respondents do not dispute that Petitioner is detained under § 1226(a). (Doc. 14, at 7). In

his Reply, Petitioner abandons many of the claims raised in the Petition, including the

grounds premised on 8 U.S.C. § 1231 and on constitutional avoidance. (See Doc. 15).

Construing the Reply as supplementing the Petition, Petitioner raises a procedural

due process claim directed at the April 2, 2026, bond hearing, resting on two distinct

arguments. First, Petitioner contends the governing framework is itself constitutionally

deficient because it required him to prove his entitlement to release rather than requiring

the government to justify his continued confinement by clear and convincing evidence.

(Doc. 15, at 10-11). Second, Petitioner contends the Immigration Judge’s flight risk

determination rested on generalized assumptions tied to his immigration status rather than

on individualized evidence. (Id.) Petitioner separately raises a substantive due process

claim, asserting that his continued civil detention has become excessive in relation to its

regulatory purpose and therefore punitive. (Doc. 1, at 9-10; Doc. 15, at 18-19).

Petitioner’s requested relief has narrowed. The Petition sought a bond hearing

within seven days or, alternatively, immediate release. (Doc. 1, at 10). The Reply instead

requests only a new bond hearing at which the government “bear[s] the burden of proving

by clear and convincing evidence that continued detention is necessary.” (Doc. 15, at 20).

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).

IV. Analysis

A. Petitioner Is Not Required to Exhaust Administrative Remedies.

A non-citizen detained under § 1226(a) is entitled to a bond hearing at which he can

argue to an Immigration Judge that he should be released while he awaits removal

proceedings because he is not a danger to others or at risk for non-appearance. 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)). An Immigration Judge’s decision to continue detention

may in turn be appealed to the BIA. 8 C.F.R. § 236.1(d)(3). A non-citizen may also seek

further custody redetermination at any time his circumstances have materially changed. Id.

§ 1003.19(e). Respondents argue that the Petition should be dismissed because Petitioner

failed to exhaust these administrative remedies, having neither appealed the Immigration

Judge’s bond denial to the BIA nor sought a second custody redetermination. (Doc. 14, at

7-9).

While generally “the exhaustion of available administrative remedies is a

prerequisite for § 2241 habeas relief[,] . . . the statute itself does not expressly contain such

a requirement.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (citation modified).

The Tenth Circuit has held that “[c]hallenges to immigration detention are properly brought

through habeas[,] [a]nd the exhaustion deficiencies we have noted in other respects do not

affect habeas jurisdiction over such claims.” Soberanes v. Comfort, 388 F.3d 1305, 1310

(10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001)).

Moreover, “[e]xhaustion is typically nonjurisdictional,” and courts “treat a rule as

jurisdictional only if Congress clearly states that it is.” Santos-Zacaria v. Garland, 598

U.S. 411, 416-17 (2023) (citation modified). Section 1226(a), the statute governing

Petitioner’s detention, does not contain any express exhaustion requirement. See Salvador

F.-G. v. Noem, No. 25-CV-0243, 2025 WL 1669356, at *6 (N.D. Okla. June 12, 2025)

(“[Section] 1226 contains no clear rule that requires exhaustion of administrative

remedies.”). “Where Congress has not clearly required exhaustion,” making it

nonjurisdictional, “sound judicial discretion governs.” McCarthy v. Madigan, 503 U.S.

140, 144 (1992). District courts in this circuit have consistently found exhaustion

unnecessary for non-citizens challenging detention under § 1226(a). See Repela v. ICE

Field Off. Dir., No. 26-CV-00552, 2026 WL 776123, at *2 (D. Colo. Mar. 19, 2026)

(“[E]ven though a noncitizen detained pursuant to § 1226 may request a bond hearing, they

are not required to do so before they can pursue § 2241 habeas relief.”).

Because neither § 2241 nor § 1226(a) requires exhaustion, the undersigned is not

persuaded that Petitioner was obligated to appeal the Immigration Judge’s bond

determination or request a second custody redetermination hearing before seeking habeas

relief. The undersigned recommends that the Court reach the merits of the Petition.

B. Section 1226(e) Forecloses Review of the Immigration Judge’s

Discretionary Bond Determination.

Respondents assert that 8 U.S.C. § 1226(e) deprives the Court of jurisdiction to

review an Immigration Judge’s discretionary bond decision and that Petitioner’s challenge

amounts to a request to reweigh the factors the Immigration Judge already considered.

(Doc. 14, at 9-10). Petitioner responds that § 1226(e) forecloses review of discretionary

bond judgments but leaves intact habeas jurisdiction over constitutional challenges to

detention procedures. (Doc 15, at 14-16). Each side is in part correct, and the two

procedural arguments Petitioner raises fall on opposite sides of the line drawn by the

statute, as will be described below.

Congress has withdrawn from the federal courts the authority to review

discretionary custody determinations made under § 1226. See 8 U.S.C. § 1226(e) (“The

Attorney General’s discretionary judgment regarding the application of this section shall

not be subject to review. No court may set aside any action or decision by the Attorney

General under this section regarding the detention of any alien or the revocation or denial

of bond or parole”). Section 1226(e) precludes this Court from reviewing the Immigration

Judge’s weighing of the bond factors and the resulting conclusion drawn from that

weighing. See Makarevich v. Bondi, No. 1:25-CV-01002-KG-JHR, 2025 WL 3653895, at

*1 (D.N.M. Dec. 17, 2025) (“Any challenge to the IJ’s bond determination seeks review

of a discretionary judgment that § 1226(e) expressly bars.”); Cruz v. Mullin, No. 26-CV-

00312-PAB-NRN, 2026 WL 1020491, at *2 (D. Colo. Apr. 15, 2026); Adejola v. Barr, 439

F. Supp. 3d 120, 130 (W.D.N.Y. 2020) (finding that arguments that the IJ assessed the

evidence incorrectly or improperly weighed particular aspects of the record fall beyond the

court’s jurisdiction).

However, the statute does not displace jurisdiction over constitutional challenges to

the detention framework itself. See L.G. v. Choate, 744 F. Supp. 3d 1172, 1178 n.12 (D.

Colo. 2024) (citing Rodriguez Diaz v. Garland, 53 F.4th 1189, 1209 (9th Cir.

2022)); Hernandez Casallas v. Jones, No. CIV-26-53-J, 2026 WL 324646, at *2 (W.D.

Okla. Feb. 6, 2026). The distinction is between an attack on the procedures employed and

an attack on the result those procedures produced. A petitioner may not evade the

jurisdictional bar by characterizing the latter as the former. See Hernandez v. Holder, 450

F. App’x 773, 775 (10th Cir. 2011) (“Discretionary agency decisions may not be recast as

constitutional claims or questions of law simply to invoke [the Court’s]

jurisdiction.”); Mwangi v. Terry, 465 F. App’x 784, 786 (10th Cir. 2012) (affirming that

the district court lacked jurisdiction to review an immigration judge’s discretionary denial

of bond); Salaria v. Grant, No. CIV-26-141-D (W.D. Okla. May 13, 2026) (“Although

Petitioner couches his claim in constitutional terms, he is asking the Court to re-weigh the

evidence presented at the bond hearing and second guess the immigration judge’s

assessment.”).

Petitioner’s second procedural argument falls on the barred side of that line. There,

Petitioner argues that the Immigration Judge’s flight risk determination rested on

generalized assumptions tied to his immigration status instead of individualized evidence.

(Doc. 15, at 12). However, the record establishes that the Immigration Judge identified the

governing bond factors and assessed these factors in relation to Petitioner’s circumstances.

The Immigration Judge made factual determinations including Petitioner’s manner of

entry, the denial of his asylum application, his employment history, and his familial ties in

the United States; the Immigration Judge then took these findings into account and declined

to permit Petitioner’s release on bond. (Doc. 14, at Ex. 6, at 1-2). Petitioner’s quarrel is

with the weight assigned to those facts and with the conclusion drawn from them. The

relief sought would require the Court to reweigh the bond record and substitute its own

judgment for that of the Immigration Judge. Section 1226(e) forecloses that review. See

Perez v. Grant, No. CIV-26-596-SLP, 2026 WL 1182039, at *5 (W.D. Okla. Apr. 30,

2026) (habeas relief is appropriate only where the exercise of discretion “was so arbitrary

that it would offend fundamental tenets of due process,” and courts “cannot override an

immigration judge’s bond decision simply because they might have reached a different

result”) (quoting Nucamendiz v. Hyde, No. 25-CV-13851, 2026 WL 221449, at *2 (D.

Mass. Jan. 28, 2026)).

To the extent Petitioner challenges the constitutionality of the procedures

themselves rather than the outcome they produced, the Court retains jurisdiction, and the

undersigned addresses that argument below.

C. Petitioner’s Procedural Due Process Claim Should Be Denied.

“[U]nder current BIA precedent, a noncitizen detained under § 1226(a) must

demonstrate to the satisfaction of the immigration judge that he merits release on bond,

which requires proof that he is neither a danger to the community nor a flight risk.”

Hernandez-Lara v. Lyons, 10 F.4th 19, 27 (1st Cir. 2021) (citation modified). The

Immigration Judge applied that framework here. (Doc. 14, at Ex. 6, at 1). Petitioner

contends the framework is constitutionally deficient and asks the Court to order a new

hearing at which the government must justify continued detention by clear and convincing

evidence. (Doc. 15, at 10-11). Respondents argue that the record defeats any challenge to

the adequacy of the previous bond hearing, because the Immigration Judge provided a

reasoned, individualized determination denying bond based on evidence in the record.

(Doc. 14, at 10).

“[This] court has previously determined the Fifth Amendment Due Process clause

is not offended by leaving the burden of proof on the non-citizen in a § 1226(a) bond

hearing.” Pupo Socarras v. Figueroa, No. CIV-26-0571-HE, 2026 WL 2100499, at *1

(W.D. Okla. July 21, 2026) (citing Singh v. Mullin, CIV 26-712-HE, Doc. 13, at 6 (W.D.

Okla. June 18, 2026) (“[T]he court concludes petitioner is not entitled, as a matter of Fifth

Amendment Due Process, to a hearing at which the burden of proof is on the

government.”). See also Adediran v. Figueroa, No. CIV-26-801-J, Doc. 15, at 5 (W.D.

Okla. July 24, 2026) (addressing request for burden shifting and finding, “[a]bsent binding

authority resolving this issue, and because Petitioner’s request would substantially alter the

existing framework, the Court declines to hold on this limited record that due process

requires a different procedure”); Toro v. Mullin, CIV-26-315-JD, Doc. 19, at 18 (W.D.

Okla. May 12, 2026) (“Balancing all three factors, the Court agrees with the Fourth and

Ninth Circuits in concluding that, at least on the facts of this case, § 1226(a)’s existing

bond procedures supply adequate process.”). In the interests of judicial economy, the

undersigned recommends that the Court follow its previous reasoning declining to order a

burden-shifted bond hearing.7

D. Petitioner’s Substantive Due Process Claim Also Fails.

Petitioner separately raises a substantive due process claim. (Doc. 15, at 19). Where

procedural due process asks whether adequate procedures were used, substantive due

process asks whether the Government has a constitutionally sufficient justification to detain

Petitioner at all. See Santillan Quiroz v. Mullin, --- F.4th ----, 2026 WL 1876709, at *16

n.12 (“[Q]uestions about the types of justifications capable of supporting detention sound

in substantive due process, while questions about procedures used for proving the

satisfaction of a given justification sound in procedural due process.”). Civil detention

comports with substantive due process where “in certain special and narrow nonpunitive

circumstances . . . a special justification . . . outweighs the individual’s constitutionally

protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at 690

(quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)). The inquiry is comparative,

7 The undersigned has routinely recommended, on due process grounds, ordering a bond

hearing that requires the government to prove dangerousness or risk of flight by clear and

convincing evidence. See, e.g., Velazquez v. Johnson, No. CIV-26-1111-J, Doc. 11, at 6-

19 (W.D. Okla. July 2, 2026). In the absence of authority from the Supreme Court or the

Tenth Circuit, the undersigned continues to find the First and Second Circuit’s rulings on

the issue persuasive, while acknowledging the well reasoned approach of this Court. See

Hernandez-Lara v. Lyons, 10 F.4th 19, 39-40 (1st Cir. 2021) (holding 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); Velasco Lopez v. Decker, 978 F.3d 842, 855-57 (2d Cir. 2020) (holding 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).

requiring the Court “to weigh [the petitioner’s] constitutionally protected interest in

avoiding detention against the Government’s special justification for detaining [him].”

Requejo Roman, 816 F. Supp. 3d at 1284-85. A non-citizen thus retains a “substantive due

process right to be free of arbitrary confinement pending deportation

proceedings.” Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991).

Respondents do not address the substantive due process claim separately,

contending more generally that Petitioner’s arrest and continued detention under § 1226(a)

are lawful and that the Petition should be dismissed. (Doc. 14, at 7, 11).

The special justification supporting Petitioner’s detention is the one the Supreme

Court has long recognized as sufficient during the pendency of removal proceedings:

securing the non-citizen’s appearance and protecting the community until those

proceedings conclude. See Demore v. Kim, 538 U.S. 510, 523 (2003); Zadvydas, 533 U.S.

at 690-91. Detention under § 1226(a) is bound by that purpose and terminates when

removal proceedings end. See Jennings, 583 U.S. at 303. Petitioner’s detention therefore

differs in kind from the post-final-order detention at issue in Zadvydas, where the Supreme

Court confronted the prospect of confinement without any foreseeable endpoint. Zadvydas,

533 U.S. at 690-91.

Weighed against that justification, Petitioner’s showing is insufficient. Petitioner’s

arrest followed the execution of a state narcotics search warrant, and the immigration

warrant rested on the pendency of ongoing removal proceedings. (Doc. 14, at Ex. 4; Id.,

at Ex. 5, at 2). Nor is Petitioner’s detention arbitrary. Petitioner received an individualized

custody determination within one week of requesting one, retained the right to appeal that

determination to the BIA, and may seek a further custody redetermination at any time his

circumstances materially change. 8 C.F.R. §§ 236.1(d)(3), 1003.19(e). The undersigned

accordingly recommends that the Court find Petitioner’s continued detention under §

1226(a) consistent with substantive due process.

V. Recommendation and Notice of Right to Object

For the reasons discussed above, the undersigned recommends that the Petition

(Doc. 1) be DENIED and that this action be DISMISSED WITHOUT PREJUDICE.

The undersigned further recommends that Petitioner’s Motion to Expedite (Doc. 16) be

DENIED as moot.

The Court advises the parties of their right to object to this Report and

Recommendation by August 6, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.

72(b)(2).8 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).

8 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.”).

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 30th day of July, 2026.

AMANDA L. MAXFIELD ,

UNITED STATES MAGISTRATE JUDGE

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