Escobar

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

CARLOS JOSE MUNOZ )

ESCOBAR, )

)

Petitioner, )

)

Case No. CIV-26-1291-D

v. )

)

MARKWAYNE MULLIN, et al., )

)

Respondents.1

REPORT AND RECOMMENDATION

Petitioner Carlos Jose Munoz Escobar, a noncitizen,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. 6. The Government responded, Doc.

10, and Petitioner replied, Doc. 11. So the matter is at issue.

1 Fred Figueroa is the current Warden of the Diamondback Correctional

Facility, and the Government did not file its response on his behalf. Doc. 10, 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)).

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

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

For the reasons below, the undersigned recommends the Court deny

Petitioner’s habeas petition, Doc. 1.

I. Factual background and Petitioner’s claims.

Petitioner is a citizen of Venezuela who entered the United States on

September 13, 2024, but lacked sufficient documentation for entry. Doc. 10, Ex.

1, at 1; Doc. 1, at 5. The Department of Homeland Security (DHS) issued a

Notice to Appear (NTA) and placed him in removal proceedings. Doc. 10, Ex.

1, at 1. He was enrolled in the Compliance Assistance Reporting Terminal

(CART) program, requiring check-ins with Immigration and Customs

Enforcement (ICE) every eleven months. Id. Petitioner did not appear for his

December 15, 2025 CART ICE check-in, and ICE deactivated him from the

program. Id.

On April 15, 2026, ICE Enforcement and Removal Operations (ERO)

surveilled Petitioner’s home and took him into custody. Doc. 1, at 2. Petitioner

maintains he traveled to ICE on December 15, 2025, and because of a family

emergency, he decided not to appear and telephoned the office. Doc. 11, at 3-4.

Petitioner reports he was told that he could either report to the ICE office or

wait for another scheduled date that he would receive in the mail, which he

never received. Id. at 3.

2

Petitioner raises six claims for relief: (1) violation of the Immigration and

Nationality Act (INA) and its implementing regulations; (2) violation of the

Fifth Amendment’s Due Process Clause because he was denied a bond hearing;

(3) violation of the Administrative Procedure Act (APA) through arbitrary and

capricious agency action; (4) violation of the Fifth Amendment’s Equal

Protection Clause; (5) violation of the Suspension Clause; and (6) violation of 8

C.F.R. § 287.8(c) and the Accardi doctrine,4 because of his warrantless arrest.

Doc. 1, at 15-27.

He seeks: (1) an order to show cause directing Respondents to file a

return within three days, and set the matter for a prompt hearing; (2) an order

enjoining Respondents from transferring Petitioner during the pendency of the

instant action;5 (3) a declaration that Petitioner’s continued detention violates

the INA, the APA, and/or the Due Process Clause of the Fifth Amendment; (4)

a grant of the writ of habeas corpus, ordering his immediate release from ICE

custody or, in the alternative, a constitutionally adequate bond hearing at

which DHS bears the burden of proving that he is a danger to the community

or a flight risk that cannot be mitigated by reasonable conditions of

4 United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

5 The Court addressed these requests in its Order for Response, Doc. 8.

3

supervision; and (5) award Petitioner his costs and reasonable attorneys’ fees

pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Id. at

28.

After the Court received the parties’ briefing, Petitioner received a July

20, 2026 custody redetermination hearing. See Doc. 12, at 2. There, an

Immigration Judge (IJ) denied bond to Petitioner, first finding the immigration

court did not have jurisdiction to redetermine custody. Doc. 12, Ex. 1, at 4.

Notwithstanding that finding, the IJ conducted a custody redetermination

hearing and concluded that Petitioner posed a flight risk. Id. at 4-5. He found

that “given the magnitude of [Petitioner’s] circumstances, specifically, the

possibility of leaving his family and friends and returning to a country where

little awaits, the Court has significant doubts that [he] will appear at future

hearings.” Id. at 5.6

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

6 The IJ misidentified Petitioner’s country of removal as Colombia, rather

than Venezuela.

4

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)).

III. Discussion.

A. The Court should deny Petitioner’s claims.

In determining whether a noncitizen is a flight risk, the IJ may consider

the following factors:

(1) whether the alien has a fixed address in the United States; (2)

the alien’s length of residence in the United States; (3) the alien’s

family ties in the United States, and whether they may entitle the

alien to reside permanently in the United States in the future; (4)

the alien’s employment history; (5) the alien’s record of appearance

in court; (6) the alien’s criminal record, including the extensiveness

of criminal activity, the recency of such activity, and the

seriousness of the offenses; (7) the alien’s history of immigration

violations; (8) any attempts by the alien to flee prosecution or

otherwise escape from authorities; and (9) the alien’s manner of

entry to the United States.

In re Guerra, 24 I. & N. Dec. 37, 40 (B.I.A. 2006).

When a noncitizen like Petitioner is detained under § 1226(a) “the

Attorney General may exercise his discretion to either detain or release an

alien on bond or conditional parole.” Mwangi v. Terry, 465 F. App’x 784, 786

(10th Cir. 2012). “But the Attorney General’s exercise of discretion is not

5

subject to judicial review.” Id. (citing 8 U.S.C. § 1226(e) (“The Attorney

General’s discretionary judgment regarding the application of this section

shall not be subject to review.”)). “In the context of an immigration bond

hearing, district courts have jurisdiction to review [an IJ’s] discretionary bond

denial only ‘where that bond denial is challenged as legally erroneous or

unconstitutional.’” Diaz-Calderon v. Barr, 535 F. Supp. 3d 669, 676 (E.D. Mich.

2020) (quoting Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762 (N.D. Cal. 2019)).

“To be sure, ‘[d]ue process is not satisfied by rubberstamp denials [of bond].’”

Kumar v. De Anda-Ybarra, No. CIV-26-164-R, 2026 WL 753944, at *2 (W.D.

Okla. Mar. 17, 2026) (quoting Chi Thon Ngo v. I.N.S., 192 F.3d 390, 398 (3d

Cir. 1999)). But “a district court sitting in habeas . . . review[ing] due process

challenges to immigration bond hearings must proceed carefully, as it ‘has no

authority to encroach upon an IJ’s discretionary weighing of the evidence.’”

Diaz-Calderon, 535 F. Supp. 3d at 676 (quoting Arellano v. Sessions, 2019 WL

3387210, at *7 (W.D.N.Y. 2019)).

Petitioner received a bond hearing, where he was represented by counsel.

The IJ noted a Petitioner’s “transient” employment history and that he “has no

family in the United States, aside from his spouse and young children.” Doc.

12, Ex. 1, at 2. Although these findings may appear rote, the undersigned

concludes the hearing comported with due process. Petitioner reserved his

6

right to appeal that decision to the Board of Immigration Appeals (BIA). See 8

C.F.R. § 1003.19(f) (authorizing appeals to the BIA from IJ bond decisions); 8

C.F.R. § 1236.1(d)(3) (discussing circumstances when a noncitizen may appeal

a bond order to the BIA). Given the IJ’s finding that Petitioner was a flight

risk, the undersigned recommends the Court deny Petitioner habeas relief as

he has not been deprived of an individualized custody determination.

Petitioner also argues that the IJ’s alternative findings “oncerning flight

risk and bond eligibility were ultra vires and exceeded” the IJ’s authority. Doc.

12, at 2. The undersigned disagrees. As Petitioner notes in his reply brief, on

June 30, 2026, the Tenth Circuit decided Santillan Quiroz v. Mullin, 180 F.4th

1226 (10th Cir. 2026), holding that “noncitizens who entered the United States

and were thereafter detained in the interior of the country are subject to 8

U.S.C. § 1226(a), and are therefore eligible for a bond hearing.” Doc. 11, at 2.

Less than three weeks later, Petitioner received a custody redetermination

hearing. Because Petitioner has already received a constitutionally adequate

bond hearing, the Court should deny his petition for habeas corpus relief. See

Perez v. Holt, No. CIV-25-1151-SLP, 2026 WL 597126, at *6 (W.D. Okla. Mar.

3, 2026) (“Thus, the Court finds that the IJ relied on evidence in the record to

make a discretionary decision to deny Petitioner bond; therefore, this Court

lacks subject matter jurisdiction to review that decision.”).

7

IV. Recommendation and notice of right to object.

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

deny Petitioner’s habeas petition, Doc. 1.7

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

this Report and Recommendation with the Clerk of this Court by August 24,

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 8rd day of August, 2026.

hea “tere > |

SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE

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

claims, as they all revolve around the lack of a custody redetermination

hearing. Doc. 1, at 22-27.