Ixpatac

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

JOSE IXPATAC, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1185-G

)

MARKWAYNE MULLIN, et al. )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Jose Ixpatac, a citizen of Guatemala proceeding pro se,1 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”).2 (Doc. 1).3 United States

District Judge Charles B. Goodwin referred the matter to the undersigned Magistrate Judge

for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). In

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

Response, (Doc. 8), as well as a Notice to the Court with updated information, (Doc. 9).

1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard

than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). But the court

cannot serve as Petitioner’s advocate, creating arguments on his behalf. See Yang v.

Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

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

1).

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

pagination.

For the reasons set forth below, the undersigned recommends the Petition be DENIED

because Petitioner is currently subject to mandatory detention.

I. Factual Background

Petitioner is a citizen of Guatemala who was admitted to the United States on or

about April 7, 2007. (Doc. 8, at Ex. 1). He became a lawful permanent resident on April

24, 2007. (Id. at Ex. 2, at 2). On December 16, 2025, ICE issued a warrant for Petitioner’s

arrest, (id. at Ex. 5), and he was detained and placed in removal proceedings through the

issuance of a Notice to Appear. (Id. at Ex. 1). Petitioner was charged as removable due to

his criminal convictions in 2024 and his violation of a protective order in 2025. (Id. at Exs.

1, 6). Petitioner filed the instant Petition on May 13, 2026. (Doc. 1, at 8).

On June 18, 2026, an immigration judge ordered Petitioner’s removal to Guatemala.

(Doc. 9, at Ex. 2, at 3). Petitioner waived his right to appeal. (Id. at 4). See also EOIR

Automated Case Information, https://acis.eoir.justice.gov/en/caseInformation (last

accessed July 31, 2026).

II. Petitioner’s Claims and Respondents’ Responses

Petitioner makes the following claims in support of his Petition:

1. “Excess prolonged detention of six months.” (Doc. 1, at 6).

2. “Immigration and customs enforcement regulation in violation of due

process.” (Id.)

3. “Violation of Regulation under the Administrative Procedure Act.” (Id.)

As the factual basis for each of these claims, Petitioner states that he has been detained and

held by ICE for almost six months even though he “had already proved to them tha[t] [he

is] a legal permanent resident” by sending proof of his green card. (Id.) As relief Petitioner

requests immediate release from custody. (Id. at 7).

In their initial Response, filed June 9, 2026, Respondents asserted that Petitioner

was properly detained pursuant to 8 U.S.C. § 1226(c)(1)(B), which allows for the detention

of non-citizens convicted of certain crimes. (Doc. 8, at 6). In their Notice to the Court,

filed June 24, 2026, Respondents assert that Petitioner’s order of removal is final and he is

now properly detained pursuant to 8 U.S.C. § 1231(a). (Doc. 9).

III. Standard of Review

To obtain habeas corpus relief, Petitioner must show that he is “in custody in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

2241(c)(3). “Challenges to immigration detention are properly brought directly through

habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v.

Davis, 533 U.S. 678, 687-88 (2001)).

IV. Petitioner Is Currently Detained Within the Removal Period and Subject to

Mandatory Detention.

Prior to the entry of a removal order, 8 U.S.C. § 1225 and § 1226 govern the

detention of aliens. An alien 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)).

“After the pre-removal period concludes, the statutory authority to detain an alien

shifts to 8 U.S.C. § 1231.” Carbajal v. Holder, 43 F. Supp. 3d 1184, 1188 (D. Colo. 2014).

Under 8 U.S.C. § 1231(a)(2)(A), a non-citizen is subject to a 90-day removal period, where

detention is mandatory. Id. at 1189 (“[W]hen an alien is ordered removed, the Attorney

General shall remove the alien from the United States within a period of 90 days . . . .

During the removal period, the Attorney General shall detain the alien.”) (quoting 8 U.S.C.

§ 1231(a)). This shift from the “pre-removal” period under § 1225 and § 1226 to the

“removal” period under § 1231(a) is triggered by the latest of three events:

(i) The date the order of removal becomes administratively final.

(ii) If the removal order is judicially reviewed and if a court orders a stay

of the removal of the alien, the date of the court’s final order.

(iii) If the alien is detained or confined (except under an immigration

process), the date the alien is released from detention or confinement.

8 U.S.C. § 1231(a)(1)(B). A removal order typically becomes administratively final “upon

the earlier of”: “a determination by the Board of Immigration Appeals affirming such

order” or “the expiration of the period in which the alien is permitted to seek review of

such order by the Board of Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B). However,

“the decision of the Immigration Judge” may also “become[] final upon waiver of appeal.”

8 C.F.R. § 1003.39; see, e.g., Muradyan v. Warden, Otay Mesa Det. Ctr., No. 3:26-cv-63-

CAB-AHG, 2026 WL 184206, at *2 (S.D. Cal. Jan. 23, 2026) (“Petitioner was ordered

removed on September 30, 2025, and because he waived his right to appeal,

his order of removal became administratively final the same day.”) (citation omitted).

Thus, Petitioner’s pre-removal-order period ended on June 18, 2026, when he was

ordered removed and he waived his right to appeal to the BIA. Petitioner is presently

subject to § 1231(a)(2)(A), which mandates detention without bond for 90 days, or until

September 16, 2026. Accordingly, Petitioner’s claims that his present immigration

detention is unlawful are without merit. Any claims as they relate to his pre-removal-order

detention are now moot. See Carbajal v. Holder, 43 F. Supp. 3d 1184, 1189 (D. Colo.

2014) (collecting cases, and stating “[a]pplicant’s claims challenging his mandatory

detention without an individualized bond hearing during the pre-removal period now are

moot because the Board of Immigration Appeals dismissed his administrative appeal on

December 27, 2013, thereby affirming the order of removal”); Oyelude v. Chertoff, 170 F.

App’x 366, 367 n.4 (5th Cir. 2006) (“Oyelude’s challenge to his § 1226 detention was

mooted on June 23, 2004[,] when his final removal order was entered and the Attorney

General’s authority to detain him shifted to § 1231.”).

V. Recommendation and Notice of Right to Object

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

a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 1) be DENIED.

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

Recommendation by August 7, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.

72(b)(2).4 The Court advises the parties that failure to make timely objection to this report

4 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

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 31st day of July, 2026.

AMANDA L. MAXFIELD i

UNITED STATES MAGISTRATE JUDGE

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.”’).