The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
FRANCYS KAYILA AMOURI, )
)
Petitioner, )
)
v. ) Case No. CIV-26-1054-SLP
)
FRED FIGUREROA, et al., )
)
Respondents. )
REPORT AND RECOMMENDATION
Petitioner Francys Kayila Amouri, a citizen of the Democratic Republic of Congo
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 Chief United States District Judge Scott L. Palk 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. 9),
Respondents timely filed a Response.3 (Doc. 11). Petitioner timely filed a Reply. (Doc.
12). As fully set forth below, the undersigned recommends that the Petition be GRANTED
1 Petitioner is housed at Diamondback Correctional Facility in Watonga, Oklahoma. (Doc.
1, at 3).
2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
3 The Response was not filed on behalf of Respondent Fred Figueroa, Warden of the
Diamondback Correctional Facility, because he is not a federal official. (Doc. 11, at 1 n.1).
The undersigned concludes that a separate response from Warden Figueroa is not necessary
to resolve this matter.
in part. Petitioner is not subject to mandatory detention and is entitled to a bond hearing.
That bond hearing should comport with due process. Accordingly, the undersigned further
recommends that the Court should order Respondents to provide Petitioner with a bond
hearing at which the Government shall bear the burden of proving, by clear and convincing
evidence, that Petitioner is a flight risk and/or a danger to the community in order to justify
continued detention.
I. Factual Background
Petitioner is a citizen of the Democratic Republic of the Congo who entered the
United States without inspection on or about March 29, 2022. (Doc. 1, at 11; Doc. 11, at
4). On December 22, 2022, ICE instituted removal proceedings against him through
issuance of a Notice to Appear (“NTA”), alleging he was an alien present in the United
States who had not been admitted or paroled. (Doc. 1, at Ex. 1). Petitioner was
subsequently released from ICE custody on an order of release on recognizance. (Doc. 11,
at Ex. 1). On February 7, 2023, Petitioner filed a Form I-589, Application for Asylum and
for Withholding of Removal. (See id. at Ex. 2, at 3). On January 5, 2026, Petitioner was
re-detained by ICE. (Doc. 11, at 4). On March 19, 2026, an immigration judge ordered
Petitioner removed to Uganda, and his appeal of the removal order is currently pending
with the Board of Immigration Appeals (“BIA”).4 (Id.; Doc. 12, at 1). Throughout his re-
detention, Petitioner has not been provided with a bond hearing. (Doc. 1, at 11).
4 Because Petitioner has appealed his removal order, it is not yet final and therefore it does
not shift Petitioner’s present detention framework. See 8 U.S.C. § 1101(a)(47)(B) (a
removal order “shall become 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
II. Petitioner’s Claims and Respondents’ Responses
Petitioner makes the following claims in support of his Petition:
1. His re-detention is unlawful under the Immigration and Nationality Act
(“INA”) because he “is not properly detained under § 1225(b)(2)” and
“[u]nder § 1226(a) . . . , Petitioner is entitled to a bond hearing.” (Doc. 1, at
11-13).
2. Respondents have violated their own regulations by denying Petitioner a
bond hearing. (Id. at 12).
3. His due process rights under the Fifth Amendment to the Constitution have
been violated by his detention without a bond hearing. (Id. at 13-14).
As relief Petitioner requests immediate release from custody or, in the alternative, a
bond hearing where the government bears the burden of proof. (Id. at 15). Additionally,
Petitioner requests that the Court prohibit his transfer5 during the pendency of this action.
alien is permitted to seek review of such order by the Board of Immigration Appeals.”); 8
U.S.C. § 1231(a)(1)(B) (removal period begins on latest of three events, including “date
the order of removal becomes administratively final”).
5 Under 8 U.S.C. § 1252(a)(2)(B)(ii), “no court shall have jurisdiction to review any other
decision or action of the Attorney General or the Secretary of Homeland Security the
authority for which is specified under this subchapter to be in the discretion of the Attorney
General or the Secretary of Homeland Security.” Id. (citation modified). The decision
regarding where to detain noncitizens awaiting removal proceedings is a discretionary
power of the Secretary of DHS. Under 8 U.S.C. § 1231(g)(1), ICE “shall arrange for
appropriate places of detention for aliens detained pending removal or a decision on
removal.” The Tenth Circuit has confirmed “the Attorney General is mandated to arrange
for appropriate places of detention for [persons] detained pending removal.” Van Dinh v.
Reno, 197 F.3d 427, 433 (10th Cir. 1999) (holding in a civil rights lawsuit “a district court
has no jurisdiction to restrain the Attorney General’s power to transfer [ICE detainees] to
appropriate facilities by granting injunctive relief”). Accordingly, § 1252(a)(2)(B)(ii) also
bars judicial review of any decision by Respondents to transfer Petitioner to another ICE
facility. See, e.g., Lway Mu v. Whitaker, No. 18-cv-06924, 2019 WL 2373883, at *5
(W.D.N.Y. June 4, 2019) (citing § 1231(g)(1) and concluding “it does not have the
authority to dictate to DHS where Petitioner should be housed”); Olola v. U.S. Att’y Gen.,
No. 18-cv-58-GPG, 2018 WL 11446892, at *4 (D. Colo. Feb. 22, 2018) (finding §
(Id.) Petitioner also requests an award of attorney fees and costs under the Equal Access
to Justice Act (“EAJA”).6 (Id.)
Respondents contend Petitioner is properly detained under 8 U.S.C. § 1225(b)(2)(A)
and that the Petition should be denied. (Doc. 11).
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. Analysis
A. Under Santillan Quiroz v. Mullin, Petitioner Is Entitled To a Bond
Hearing.
In order for the Court to determine whether Petitioner’s current detention without a
bond hearing violates the law, the Court must first determine what statute controls his
1252(a)(2)(B)(ii) and § 1231(g) preclude judicial review of respondents’ decision to
transfer a noncitizen and “decisions to transfer an alien from one location to another are
within the discretion of the Attorney General and therefore may not be reviewed or
enjoined by the federal district courts”). Therefore, the undersigned concludes the Court
does not have jurisdiction to prohibit Petitioner’s transfer to another ICE facility.
6 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.
detention. Under the Immigration and Nationality Act (“INA”), detention of aliens who
are “applicants for admission”7 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.8
On June 30, 2026, the Tenth Circuit decided Santillan Quiroz v. Mullin, --- F.4th ---,
2026 WL 1876709. The court held “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).” Id. at *5. 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
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.
7 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).
8 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). 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)).
Id. at *7. This statutory interpretation is binding on this Court and applicable to Petitioner’s
factual circumstances.
That Petitioner made an application for 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.” Santillan Quiroz, 2026 WL 1876709, at *6. 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. (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, 2026
WL 1876709 at *17 n.13.
B. Petitioner’s Detention Without a Bond Hearing Also Violates Procedural
Due Process.
Petitioner alleges that denying him consideration for bond violates not only the INA
but also his due process rights under the Fifth Amendment to the Constitution. (Doc. 1, at
13-14). The Fifth Amendment’s Due Process Clause protects all persons within the United
States from being “deprived of life, liberty, or property, without due process of law.” U.S.
Const. amend. V. It is well established that the Due Process Clause applies to non-citizens
within the United States “whether their presence here is lawful, unlawful, temporary, or
permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
Courts examine procedural due process claims in two steps: (1) is there a protected
liberty interest, and (2) if so, what procedures are necessary to ensure deprivation of that
protected liberty interest accords with due process. Morrissey v. Brewer, 408 U.S. 471,
481 (1972). “Freedom from imprisonment — from government custody, detention, or
other forms of physical restraint — lies at the heart of the liberty that Clause protects.”
Zadvydas, 533 U.S. at 690. Indeed, “due process requires that, whenever the Government
detains somebody, it must have a good reason for doing so.” Santillan Quiroz, 2026 WL
1876709, at *16.
As a non-citizen facing discretionary detention or release while removal
proceedings are pending, (1) Petitioner has a liberty interest in freedom from immigration
detention, and (2) it is necessary to afford him the opportunity to be heard regarding his
release to ensure that any deprivation of that protected liberty interest accords with due
process. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental
requirement of due process is the opportunity to be heard at a meaningful time and in a
meaningful manner.”) (citation modified). The bond hearing process, codified at § 1226(a)
and its related regulations, provides such an opportunity to be heard. Thus, Petitioner’s
procedural due process rights have been violated by Respondents’ decision to detain him
under § 1225 without a bond hearing.
Although finding it unnecessary to determine whether the government’s position
regarding the application of § 1225(b)(2)(A) is unconstitutional, Santillan Quiroz, 2026
WL 1876709, at *17, the Tenth Circuit observed that “[t]he mandatory detention of
potentially millions of noncitizens without the potential for bond raises” “serious
constitutional concerns.” Id. at *16. District courts in this Circuit have had occasion to
directly address the issue, holding:
Because this Court holds that § 1226 governs Petitioner’s detention, the due
process owed to Petitioner is that provided for in § 1226—namely, an
individualized bond hearing before an IJ [immigration judge]. Having
erroneously concluded that Petitioner was mandatorily detained under §
1225, the IJ in Petitioner’s case declined to make an individualized
assessment of whether Petitioner posed any danger to the community,
threatened national security, or was at risk of flight. Thereafter, Petitioner’s
continued detention without the bond hearing that should have been provided
to him pursuant to § 1226 constitutes an ongoing violation of his
constitutional right to due process.
Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025) (internal citation
omitted); see also Requejo Roman v. Castro, 816 F. Supp. 3d 1267, 1282 (D.N.M. 2026)
(“Classifying Petitioner under § 1225 has . . . deprived him of due process by denying him
the opportunity to be heard at [a bond] hearing.”) (citation modified); Facio v. Baltazar,
No. 25-CV-03592-CYC, 2025 WL 3559128, at *3 (D. Colo. Dec. 12, 2025) (“[T]he Court
agrees with other courts that have, against substantially similar factual backgrounds,
concluded that detention without a bond hearing amounts to a due process violation.”)
(citation modified); Lopez-Campos v. Raycraft, 797 F. Supp. 3d 771, 785 (E.D. Mich. Aug.
29, 2025) (“The discretionary bond framework under Section 1226(a) requires a bond
hearing to make an individualized custody determination – a hearing the IJ did not conduct.
Therefore, without first evaluating Lopez-Campos’ risk of flight or dangerousness, his
detention is a violation of his due process rights.”), aff’d, 175 F.4th 713, 734 (6th Cir. 2026)
(“find[ing] no reason to disturb” the district courts’ holdings “that the government’s
detention of Petitioners without bond under § 1226(a) was a deprivation of liberty that
violated Petitioners’ due process rights”).
The undersigned finds that the appropriate remedy for the violation of Petitioner’s
due process rights is the same as the remedy for violation of his statutory rights – the bond
hearing contemplated by § 1226(a).
C. Petitioner Is Entitled To a Bond Hearing that Comports With Due
Process.
It is clear that Petitioner, now properly classified under § 1226(a), has the statutory
and Constitutional right to be heard regarding his release through all the opportunities set
forth in the INA and its regulations. To date, he has not been provided with a bond hearing
before an immigration judge, and this Court’s grant of habeas relief must order such a
hearing to take place. Santillan Quiroz, 2026 WL 1876709, at *17, n.13. Petitioner
requests that if the Court orders a bond hearing, the Court should further order that the
Government should be required to carry the burden of proof to establish flight risk or
danger to the community to justify his continued detention. (Doc. 1, at 15). Indeed, the
undersigned finds that ordering a bond hearing, without more, does not ensure that
Petitioner will receive complete and meaningful habeas relief. If the procedures used in
the hearing are insufficient to protect non-citizens from erroneous deprivations of liberty,
merely ordering a bond hearing will lead to further violations of their due process rights.
The Court must investigate what it means to receive a § 1226(a) bond hearing as
administered by immigration judges under current BIA precedent, specifically as to the
burden and quantum of proof, in order to determine whether those procedures permit a
non-citizen to be heard “in a meaningful manner,” Mathews, 424 U.S. at 333, and thereby
comport with due process.
The Court is not acting beyond its jurisdiction or its authority in making such an
inquiry. First, even though under the INA, “a district court has no jurisdiction to consider
a habeas petitioner’s challenge to the decision to either grant or deny bond,” Kumar v. De
Anda-Ybarra, No. CIV-26-164-R, 2026 WL 753944, at *2 (W.D. Okla. Mar. 17, 2026)
(citing 8 U.S.C. § 1226(e)), the Court retains “habeas jurisdiction over constitutional claims
or questions of law” relating to the bond hearing. Hernandez Casallas v. Jones, No. CIV-
26-53-J, 2026 WL 324646, at *2 (W.D. Okla. Feb. 6, 2026). See Demore v. Kim, 538 U.S.
510, 517 (2003) (The “clear text [of § 1226(e)] does not bar respondent’s constitutional
challenge . . . .”). Second, Congress has granted courts the authority to “summarily hear
and determine the facts” when considering an application for a writ of habeas corpus and
to “dispose of the matter as law and justice require.” 28 U.S.C. § 2241. And the Supreme
Court has advised that “[t]he very nature of the writ demands that it be administered with
the initiative and flexibility essential to insure that miscarriages of justice within its reach
are surfaced and corrected.” Harris v. Nelson, 394 U.S. 286, 291 (1969); see also
Boumediene v. Bush, 553 U.S. 723, 779 (2008) (observing that habeas is “an adaptable
remedy” and “its precise application and scope change[s] depending upon the
circumstances”); Schlup v. Delo, 513 U.S. 298, 319 (1995) (“[H]abeas corpus is, at its core,
an equitable remedy.”); Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (holding that federal
courts have “broad discretion in conditioning a judgment granting habeas relief”).
As set forth fully below, the undersigned finds that bond hearings as they are
currently administered by ICE do not comport with due process and that substitute
procedures should be ordered, namely shifting the burden of proof to the Government to
justify a non-citizen’s detention.9
1. Bond Hearings Under Current BIA Precedent
Section 1226(a) does not specify who bears the burden of proving a non-citizen’s
eligibility for bond or what burden of proof applies. Indeed, the only place in which the
9 But see Singh v. Grant, No. CIV-26-279-J, 2026 WL 1035100, at *2 (W.D. Okla. Apr.
16, 2026) (finding the issue of burden shifting “premature” and “not ripe for adjudication”
because “[a]t this point in time, no immigration judge has conducted a bond hearing in
Petitioner’s case, much less allocated the burden of proof or applied the particular facts of
this case to that evidentiary framework. Accordingly, the Court declines to issue an
advisory opinion instructing the Immigration Judge to apply a particular burden of proof.”);
Singh v. Figueroa, No. CIV-26-600-R, 2026 WL 1181699, at *1 n.2 (“[T]he Court declines
to specify or alter the burden of proof at this stage.”) (citation omitted).
burden is addressed is in the regulation pertaining to the custody determination by the
arresting ICE officer, 8 C.F.R. § 236.1(c)(8). See supra, footnote 8. However,
the BIA . . . adopted that standard for section 1226(a) bond hearings before
an IJ. . . . See Matter of Adeniji, 22 I. & N. Dec. 1102, 1112 (B.I.A. 1999);
Matter of Guerra, 24 I. & N. Dec. [37, 38 (B.I.A. 2006)].
Accordingly, under 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,” Matter of Guerra, 24 I. & N.
Dec. at 40, “even though section [1226(a)] does not explicitly contain such a
requirement.” Matter of Adeniji, 22 I. & N. Dec. at 1113. To do so, the
noncitizen must prove that he or she is neither a danger to the community nor
a flight risk. See, e.g., Matter of R-A-V-P-, 27 I. & N. Dec. 803, 804 (B.I.A.
2020). In contrast, the government “need not show anything to justify
incarceration for the pendency of removal proceedings, no matter the length
of those proceedings.” Velasco Lopez v. Decker, 978 F.3d 842, 849 (2d Cir.
2020).
Hernandez-Lara v. Lyons, 10 F.4th 19, 27 (1st Cir. 2021). Thus, the bond hearings as
currently administered provide non-citizens with some procedural protections against a
deprivation of liberty. But those protections must be assessed against the requirements of
the Constitution.
2. Requiring the Government To Justify Detention at the Bond
Hearing Reduces the Risk of an Ongoing and Erroneous
Deprivation of Petitioner’s Liberty.
Neither the Supreme Court nor the Tenth Circuit has directly addressed whether
requiring the non-citizen to bear the burden of proving that he is neither a danger to the
community nor a flight risk at a § 1226(a) bond hearing violates due process.10 There is a
10 The Tenth Circuit stated, “[d]ue process requires that, whenever the Government detains
somebody, it must have a good reason for doing so,” Santillan Quiroz, 2026 WL 1876709,
at *16, implicitly indicating that the burden is on the government to justify detention, not
on the non-citizen to justify release.
split among the Circuits that have considered the question. The First Circuit has squarely
held 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. Hernandez-Lara, 10 F.4th at 39-40. The Second
Circuit has similarly held 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. Velasco
Lopez v. Decker, 978 F.3d 842, 855-57 (2d Cir. 2020).
In contrast, the Ninth Circuit has held that due process does not require the
government to bear the burden of proving dangerousness or flight risk when a non-citizen
has been “subject to § 1226(a) and its bond determination processes from the onset of his
detention.” Rodriguez Diaz v. Garland, 53 F.4th 1189, 1211-12 (9th Cir. 2022). The Fourth
Circuit and Third Circuit are substantially in accord. See Miranda v. Garland, 34 F.4th
338, 366 (4th Cir. 2022) (concluding “the current procedures used for detention under §
1226(a) satisfy due process” and thus burden shifting was not required); Borbot v. Warden
Hudson Cnty. Corr. Facility, 906 F.3d 274, 278-79 (3d Cir. 2018) (finding that non-citizen
was “granted meaningful process prior to filing his habeas petition” when he was “afforded
a prompt bond hearing, as required by § 1226(a) and its implementing regulations” at which
he bore the burden of proof, and “perceive[ing] no problem with [the] distinction” between
§ 1226(a) placing the burden on the detainee and § 1226(c) shifting the burden to the
government in certain circumstances).
The undersigned recommends that this Court follow the thorough and well-reasoned
analyses of the First and Second Circuits, both of which evaluated the procedures for §
1226(a) bond hearings under the Supreme Court’s three-factor balancing test in Mathews
v. Eldridge, 424 U.S. 319 (1976). The Mathews factors aid courts in determining whether
procedural protections meet the Constitutional requirements of due process. The
undersigned agrees that all three Mathews factors support affording Petitioner a bond
hearing at which the Government, rather than the non-citizen, bears the burden of proof of
establishing risk of flight and dangerousness.
The first Mathews factor is “the private interest that will be affected.” 424 U.S. at
335. Here, “[f]reedom from imprisonment — from government custody, detention, or
other forms of physical restraint — lies at the heart of the liberty” interest in the Fifth
Amendment’s Due Process Clause. Zadvydas, 533 U.S. at 687-88. “In our society liberty
is the norm, and detention . . . is the carefully limited exception.” United States v. Salerno,
481 U.S. 739, 755 (1987). The Second Circuit has emphasized that for a non-citizen
subject to § 1226(a) (as opposed to § 1226(c)), immigration detention was “not the result
of a criminal adjudication,” but “he was held alongside criminally charged defendants and
those serving criminal sentences. The deprivation he experienced while incarcerated was,
on any calculus, substantial. He was locked up in jail. He could not maintain employment
or see his family or friends or others outside normal visiting hours. The use of a cell phone
was prohibited, and he had no access to the internet or email and limited access to the
telephone.” Velasco Lopez, 978 F.3d at 851-52 (internal citation omitted). See also
Hernandez-Lara, 10 F.4th at 28 (“Hernandez was incarcerated alongside criminal inmates
at the Strafford County Jail for over ten months. During that time, she was separated from
her fiancé and unable to maintain her employment. But for the relief ordered in this action,
she would still be incarcerated more than two years after the jailor first locked the door
behind her. There is no question that Hernandez suffered a substantial deprivation of
liberty.”) (internal citation omitted). Thus, the first factor weighs heavily in favor of
procedures that carefully protect Petitioner’s substantial interest in being free from quasi-
criminal detention.
The second Mathews factor is “the risk of an erroneous deprivation of [the private]
interest through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards.” 424 U.S. at 335. “Procedural due process rules are
shaped by the risk of error inherent in the truth-finding process.” Velasco Lopez, 978 F.3d
at 852 (citing Mathews, 424 U.S. at 344). The First Circuit observed five reasons that “a
detainee often starts out behind the eight ball in a bond proceeding, and the opportunities
for prejudicial error abound” due to the way that § 1226(a) hearings are conducted under
current BIA precedent:
[1] noncitizens have no right to be provided with counsel in immigration
proceedings and very often cannot obtain counsel on their own, particularly
if they are detained;
[2] detained individuals will likely experience difficulty in gathering
evidence on their own behalf;
[3] noncitizens subject to immigration detention often lack full proficiency
in English;
[4] immigration law and procedures and the particular preferences of
individual IJs are likely much better known to government representatives
than to detainees; and
[5] proving a negative (especially a lack of danger) can often be more
difficult than proving a cause for concern.
Hernandez-Lara, 10 F.4th at 30-31 (citation modified); see also Velasco Lopez, 978 F.3d
at 853 (observing that the ability of a detained non-citizen to obtain evidence for the bond
hearing is constrained, especially compared to the “substantial resources” of the
government in the form of “computerized access to numerous databases and to information
collected by DHS, DOJ, and the FBI, as well as information in the hands of state and local
authorities . . . [and] broad regulatory authority to obtain it”). Thus, the second factor
weighs heavily in favor of requiring substitute procedures that would protect Petitioner
from the risk of the erroneous deprivation of his liberty, such as shifting the burden of proof
from the non-citizen to the Government.
The final Mathews factor is “the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” 424 U.S. at 335. “The prompt execution of removal
orders is a legitimate governmental interest, which detention may facilitate.” Hernandez-
Lara, 10 F.4th at 32. However, the government has no legitimate interest “in the prolonged
detention of noncitizens who are neither dangerous nor a risk of flight[,] [and] . . . shifting
the burden of proof to the Government to justify continued detention promotes the
Government’s interest . . . in minimizing the enormous impact of incarceration in cases
where it serves no purpose.” Velasco Lopez, 978 F.3d at 854. Indeed, “limiting the use of
detention to only those noncitizens who are dangerous or a flight risk may save the
government, and therefore the public, from expending substantial resources on needless
detention.” See Hernandez-Lara, 10 F.4th at 33 (also noting the “substantial societal costs”
of unnecessary detention, which “separates families and removes from the community
breadwinners, caregivers, parents, siblings and employees”). “In short, given the risk that
the current procedures lead to many instances of needless detention, entailing substantial
social and financial costs, the public interest in placing the burden of proof on the detainee
is uncertain at best, and may well be negative.” Id. Thus, the third factor also supports
shifting the burden of proof to the government.
“In sum, the balance of the Mathews factors weighs in favor of [Petitioner]: The
private interest affected is commanding; the risk of error from placing the burden of proof
on the noncitizen is substantial; and the countervailing governmental interest is
comparatively slight.” Id. (citation modified).
Multiple district judges in this Circuit have come to the same conclusion. See, e.g.,
Requejo Roman, 816 F. Supp. 3d at 1284 (Judge Urias considering the Mathews factors,
and concluding that “due process requires that [petitioner] be provided a bond hearing at
which the Government bear the burden of proving that Petitioner is not a flight risk or a
danger to the community.”); Mieles-Parraga v. Bondi, No. 2:26-CV-00646-KG-JHR, 2026
WL 776489, at *2 (D.N.M. Mar. 19, 2026) (Chief Judge Gonzales utilizing same analysis);
Lopez-Romero v. Lyons, No. 2:25-CV-01113-MIS-JHR, 2026 WL 92873, at *1 (D.N.M.
Jan. 13, 2026) (Judge Strickland utilizing same analysis); Abanil v. Baltazar, No. 25-CV-
4029-WJM-STV, 2026 WL 100587, at *8 (D. Colo. Jan. 14, 2026) (finding that in the
District of Colorado, “the weight of authority. . . is clear: it is the Government’s burden to
justify a noncitizen’s continued detention at a bond hearing”) (collecting cases); Peña
Becerra v. Sparks, No. 2:26-CV-00212-JNP-DBP, 2026 WL 915439, at *7 (D. Utah Apr.
3, 2026) (finding petitioner met his burden to show a deprivation of his rights by his
unlawful detention, ordering petitioner’s release, and ordering that if respondents “seek to
re-detain him, they must provide him with notice and a pre-deprivation hearing, in which
the government bears the burden of establishing by clear and convincing evidence that [he]
is a flight risk or danger to the community”).
The undersigned recommends this Court join these courts and order that Petitioner
be provided a bond hearing at which the Government bears the burden of proof to justify
detention by showing he is a risk of flight or danger to the community.
3. The Government Should Be Required To Establish Flight and/or
Dangerousness By Clear and Convincing Evidence.
Part and parcel of considering who bears the burden of proof is a determination of
which standard of proof should apply.
The function of a standard of proof, as that concept is embodied in the Due
Process Clause and in the realm of factfinding, is to instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication. The
standard serves to allocate the risk of error between the litigants and to
indicate the relative importance attached to the ultimate decision.
Addington v. Texas, 441 U.S. 418, 423 (1979) (citation modified). “The Supreme Court
has consistently held the Government to a standard of proof higher than a preponderance
of the evidence where liberty is at stake, and has reaffirmed the clear and convincing
standard for various types of civil detention.” Velasco Lopez, 978 F.3d at 856 (citing
Addington, 441 U.S. at 426, 432-33 (upholding the clear and convincing standard for civil
confinement of individuals with severe mental illnesses); Salerno, 481 U.S. at 751 (noting
that pretrial detention is permitted “[w]hen the Government proves by clear and convincing
evidence that an arrestee presents an identifiable and articulable threat to an individual or
the community”); Foucha v. Louisiana, 504 U.S. 71, 75-76 (1992) (requiring the same
standard for involuntary civil commitment); United States v. Comstock, 560 U.S. 126, 130-
31 (2010) (noting the same standard in upholding the constitutionality of a federal statute
which permits continued confinement of a mentally ill, sexually dangerous prisoner beyond
a date that the prisoner would otherwise be released). But see Hernandez-Lara, 10 F.4th
at 41 (holding that “due process requires the government to either (1) prove by clear and
convincing evidence that [the non-citizen] poses a danger to the community or (2) prove
by a preponderance of the evidence that she poses a flight risk”).
District courts in this Circuit have adopted the clear-and-convincing-evidence
standard when shifting the burden to the government for § 1226(a) bond hearings. See e.g.,
Martinez Escobar v. Baltazar, No. 26-cv-296-NYW, 2026 WL 503313, at *5 (D. Colo.
Feb. 24, 2026) (collecting cases in District of Colorado imposing clear and convincing
standard and imposing same); Requejo Roman, 816 F. Supp. 3d at 1284 (“[T]he standard
of proof the Government must meet is one of clear and convincing evidence.”) (citation
modified). The undersigned also finds that requiring this standard is consistent with the
Tenth Circuit’s recent decision which states that the government “must have a good reason”
for detaining anybody and “if the detention is civil and nonpunitive, like the immigration
detention here, that reason must rise to the level of a ‘strong special justification.’”
Santillan Quiroz, 2026 WL 1876709, at *16 (quoting Zadvydas, 533 U.S. at 690).
4. Conclusion
Petitioner’s rights under § 1226(a) and the Due Process Clause have been violated
by his unlawful detention without the opportunity for a bond hearing. This Court can
implement its flexible habeas jurisdiction to protect him from further erroneous deprivation
of his fundamental liberty interest by providing adequate procedural protections. A bond
hearing at which the Government bears the burden of proof to establish flight risk and/or
dangerousness by clear and convincing evidence is an appropriate remedy.
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. It is further recommended that the Court order that at the bond hearing, the
Government shall bear the burden of proving, by clear and convincing evidence, that
Petitioner is a flight risk and/or a danger to the community in order to justify continued
detention.
The Court advises the parties of their right to object to this Report and
Recommendation by July 9, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2).11 The Court advises the parties that failure to make timely objection to this report
11 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 2nd 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.”’).
21