Rangel

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

JOAO OLAVE RANGEL, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1548-G

)

ROBERT CERNA, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Joao Olave Rangel, a citizen of Venezuela 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”).1 (Doc. 1).2 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. 3). In

accordance with the expedited briefing schedule, (Doc. 8), Respondents timely filed a

Response. (Doc. 10). Petitioner did not file a Reply. As fully set forth below, the

undersigned recommends that the Petition be GRANTED in part because Petitioner’s

detention without a bond hearing violates the Immigration and Nationality Act (“INA”).

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

2).

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

pagination.

The Court should order an individualized bond hearing before a neutral Immigration Judge

within 7 days of the judgment in this matter, or else release him from custody.

I. Factual Background

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

September 7, 2022. (Doc. 1, at 5). At some point after entry, “Petitioner sought protection

in the United States through the asylum process.” (Id.) Petitioner was taken into ICE

custody on May 24, 2026, after he was a passenger in a vehicle stopped for speeding. (Id.)

Petitioner has not received a bond hearing during his detention. (Id.) Petitioner’s removal

proceedings are pending. See EOIR Automated Case Information,

https://acis.eoir.justice.gov/en/caseInformation (last accessed July 31, 2026).

Respondents assert that Petitioner is subject to mandatory detention under §

1225(b)(2)(A). (Doc. 10, at 2 & n.2). But Respondents also recognize that this matter is

controlled by Santillan Quiroz v. Mullin, 180 F.4th 1226 (10th Cir. 2026). (Id. at 1).

II. Petitioner’s Claims and Respondents’ Responses

Petitioner asserts his detention without a bond hearing violates his Fifth Amendment

right to due process. (Doc. 1, at 10-11). As relief Petitioner requests immediate release

from custody or, alternatively, an “immediate individualized bond or custody hearing with

the burden on the Government to justify continued detention.” (Id. at 11). Petitioner also

seeks a declaration that Petitioner’s ongoing detention violates the Fifth Amendment. (Id.)

Additionally, Petitioner requests an award of attorney fees and costs under the Equal

Access to Justice Act (“EAJA”).3 (Id.)

While Respondents acknowledge that Petitioner brought his claim under the Fifth

Amendment, they note that “Petitioner’s case involves the issue of whether he is subject to

mandatory detention of 8 U.S.C. § 1225(b)(2)(A) or the permissive detention of 8 U.S.C.

§ 1226(a).” (Doc. 10, at 1). Though Respondents contend that Petitioner is held under 8

U.S.C. § 1225(b)(2)(A) and is not entitled to a bond hearing, they concede that the Tenth

Circuit’s recent decision in Santillan Quiroz, 180 F.4th 1226, “compels a different

outcome.” (Id. at 2). “Respondents request that any order be limited to ordering a bond

hearing within seven days.” (Id.) They specifically argue that the Court should not reach

the due process claim if it orders a hearing on a statutory basis. (Id.)

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)).

3 To the extent Petitioner may be entitled to EAJA fees and costs as a prevailing party, he

must seek those separately after a final judgment. 28 U.S.C. § 2412(d)(1)(B); see also

Daley v. Ceja, 158 F.4th 1152, 1166 (10th Cir. 2025) (interpreting “EAJA’s broad language

to unambiguously authorize fees in habeas actions challenging immigration detention”).

Accordingly, the Court need not address this request at this juncture.

IV. Analysis

A. Under Santillan Quiroz v. Mullin, Petitioner Is Entitled To a Bond

Hearing.

Although Petitioner frames his claims in due process grounds, the Court must first

determine what statute controls his detention to determine whether Petitioner’s current

detention without a bond hearing violates the law. Under the INA, detention of aliens who

are “applicants for admission”4 and “seeking admission” is mandatory under 8 U.S.C. §

1225(b)(2)(A). By contrast, § 1226(a) provides for the arrest of aliens on a warrant and

grants ICE the discretion to continue detention of the alien or to release the alien on bond.5

On June 30, 2026, the Tenth Circuit decided Santillan Quiroz, holding “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).” 180 F.4th at 1237. The court reasoned based on the statutory text and

context that

once a noncitizen has entered unlawfully, no amount of legal maneuvering

allows him to go back in time and make his initial entry lawful. The only

4 8 U.S.C. § 1225(a)(1) describes an “applicant for admission” as “an alien present in the

United States who has not been admitted or who arrives in the United States.” The statute

defines “admission” and “admitted” as “the lawful entry of the alien into the United States

after inspection and authorization by an immigration officer.” Id. § 1101(a)(13).

5 The regulations accompanying the statute explain the various levels of review for a bond

determination. An ICE officer makes the initial detention or release determination, and the

alien bears the burden of “demonstrat[ing] to the satisfaction of the officer that . . . release

would not pose a danger to property or persons, and that the alien is likely to appear for

any future proceeding.” 8 C.F.R. § 236.1(c)(8). If the officer determines the alien should

be detained, the alien can seek review of that decision at a bond hearing before an

immigration judge. Id. § 236.1(d)(1). An immigration judge’s decision to detain may be

further appealed to the Board of Immigration Appeals (“BIA”). Id. § 236.1(d)(3).

time a noncitizen can be said to be seeking admission is when he is seeking

to enter the United States at the border. Since § 1225(b)(2)(A) applies only

to those seeking admission, § 1225(b)(2)(A) is likewise limited to the border.

Id. at 1239. This statutory interpretation is binding on this Court and applicable to

Petitioner’s factual circumstances.

That Petitioner has sought asylum does not render him “seeking admission” and

thereby subject to § 1225(b)(2)(A). This is because “a noncitizen is ‘seeking admission’

when he takes some kind of ongoing action to request lawful entry into the United States.”

Id. at 1238. But “those who entered the United States without admission and who have

lived here since are categorically unable to seek admission while they remain in the

country” because “a person cannot make a present request for permission to enter the

United States, lawfully or otherwise, once he or she has already entered.” Id. at 1239

(citation modified). And while “a noncitizen can request legal status even after he has

entered the United States unlawfully,” “he cannot request admission after the fact.” Id.

Thus, Petitioner’s post-entry attempt to seek legal status does not make detention proper

under § 1225(b)(2)(A).

Based on the Tenth Circuit’s decision in Santillan Quiroz, the undersigned

concludes that Petitioner, who was detained in the interior of the United States after

entering without admission, is subject to detention under § 1226(a). However, he has not

been granted the bond hearing provided in that statute. Thus, Petitioner has shown that he

is in custody in violation of the laws of the United States, and he is entitled to habeas relief.

28 U.S.C. § 2241(c)(3). A bond hearing is the appropriate remedy. Santillan Quiroz, 180

F.4th at 1251 n.13.

B. The Court Should Decline to Reach Due Process or Burden Shifting.

Petitioner asserts that his detention without a bond hearing violates due process and

that the government should be required to bear the burden of proof at a bond hearing. (Doc.

1, at 10-11). “[U]nder current BIA precedent, a noncitizen detained under section 1226(a)

must demonstrate to the satisfaction of the Immigration Judge that he or she merits release

on bond, even though section 1226(a) does not explicitly contain such a requirement. To

do so, the noncitizen must prove that he or she 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 majority of Judges in this District have either (a) declined to reach the issue of whether

due process requires the government, rather than the non-citizen, to carry the burden of

proving dangerousness or flight risk at a § 1226(a) bond hearing6 and/or (b) determined

that due process does not require the burden to shift to the government.7 Acknowledging

6 See e.g., Velazquez v. Johnson, No. CIV-26-1111-J, 2026 WL 1999247, at *1 (W.D. Okla.

July 10, 2026) (Judge Jones declining to address petitioner’s due process claim and finding

that the burden-shifting issue “is premature and not fit for adjudication at this stage”);

Karimov v. Grant, No. CIV-26-639-J, 2026 WL 1493969, at *1 (W.D. Okla. May 28, 2026)

(same where no party objected to the recommendation for burden shifting); Tabares

Martinez v. Grant, No. CIV-26-545-SLP, 2026 WL 1908094, at *2 (W.D. Okla. July 2,

2026) (Chief Judge Palk declining, without comment, to adopt the recommendation for

burden shifting); Rangel v. Mullin, No. CIV-26-568-D, 2026 WL 1625653, at *2 n.2 (W.D.

Okla. June 5, 2026) (Judge DeGiusti “declin[ing] to place the burden on the government

to justify Petitioner’s detention pending removal proceedings.”); Singh v. Figueroa, No.

CIV-26-600-R, 2026 WL 1181699, at *1 n.2 (W.D. Okla. Apr. 30, 2026) (Judge Russell

“declin[ing] to specify or alter the burden of proof at this stage.”) (citation omitted).

7 See e.g., Adediran v. Figueroa, No. CIV-26-801-J, Doc. 15, at 5 (W.D. Okla. July 24,

2026) (“Absent 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.”); Pupo Socarras v. Figueroa, No.

CIV-26-0571-HE, 2026 WL 2100499, at *1 (W.D. Okla. July 21, 2026) (“[T]he Fifth

these decisions and in the interests of judicial economy, the undersigned recommends that

the Court decline to address the issue.8

V. Recommendation and Notice of Right to Object

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

(Doc. 1) be GRANTED in part. The undersigned recommends that the Court order

Respondents to provide Petitioner an individualized bond hearing before a neutral

Immigration Judge within 7 days of the judgment in this matter, or else release him from

custody.

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.

Amendment Due Process clause is not offended by leaving the burden of proof on the non-

citizen in a § 1226(a) bond hearing.”); 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.”).

8 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 members 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).

72(b)(2).’ 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).

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

? 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.”).