Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

DANILO JUNIOR FERRER CANQUIZ, )

)

Petitioner, )

)

v. ) Case No. CIV-26-461-HE

)

JOSHUA JOHNSON, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Danilo Junior Ferrer Canquiz, 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 Joe Heaton referred the matter to the undersigned

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

R. Civ. P. 72(b). (Doc. 4). In accordance with the expedited briefing schedule, (Doc. 7),

Respondents timely filed a response,3 (Doc. 9), and Petitioner filed a reply, (Doc. 10). As

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

4).

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 Scarlet Grant, Warden of the

Cimarron Correctional Facility because she is not a federal official. (Doc. 9, at 1 n.1). The

undersigned concludes that a separate response from Warden Grant – or her successor

Chris Gantt – is not necessary to resolve this matter.

fully set forth below, the undersigned recommends that the Petition be GRANTED 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 native and citizen of Venezuela. (Doc. 1, at 5; Doc. 9, at 6). On

March 2, 2023, Petitioner arrived at the Hidalgo, Texas, port of entry and expressed his

intent to seek asylum in the United States. (Doc.1, at 2; Doc. 9, at 6). Petitioner was issued

a Notice to Appear (“NTA”) stating that he was an arriving alien and charging him with

not being in possession of entry documents required by statute or regulation. (Doc. 1, at

Ex. 2, at 2; Doc. 9, at Ex. 1, at 4). He was also “issued an I-94, Record of Entry,” (Doc. 1,

at 2; id. at Exs. 1, 2), and granted humanitarian parole into the United States under 8 U.S.C.

§ 1182(d)(5)(A) with an “admit until date” of February 29, 2024. (Doc. 1, at 2; id. at Ex.

1, at 2; Doc. 9, at 6). On March 26, 2024, Petitioner filed an I-589 Application for Asylum

and Withholding of Removal. (Doc. 9, at 6; id. at Ex. 3). And on March 5, 2026, ICE

officials detained Petitioner at a check-in appointment. (Doc. 1, at 3; Doc. 9, at 6).

II. Petitioner’s Claims and Respondents’ Responses

Petitioner argues that his detention violates his constitutional rights, the

Administrative Procedure Act (“APA”), and the Supreme Court’s holding in United States

ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268 (1954) (the “Accardi Doctrine”). (Doc.

1, at 6-12). Petitioner seeks his immediate release, a declaration that his detention and

revocation of parole is unlawful, an order that he shall not be transferred out of this judicial

district during the pendency of this action,4 and attorney’s fees and costs under the Equal

Access to Justice Act (“EAJA”).5 (Id. at 12).

Respondents contend that Petitioner is properly detained under 8 U.S.C. §

1225(b)(1) and is subject to its mandatory detention procedures. (Doc. 9, at 7-9). They

4 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, 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-00058,

2018 WL 11446892, at *4 (D. Colo. Feb. 22, 2018) (finding § 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”). So, the Court cannot grant this requested relief.

5 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.

assert that any challenge to the decision to terminate Petitioner’s parole is jurisdictionally

barred.6 (Id. at 9-10). Further, Respondents argue that Petitioner’s APA claims do not lie

within habeas and should be denied. (Id. at 10). Additionally, Respondents contend that

Petitioner’s due process rights have not been violated. (Id. at 11-14). Finally, Respondents

assert the Court should deny Petitioner’s claim based on the Accardi Doctrine. (Id. at 14-

15).

In reply, Petitioner contests Respondents’ argument that he is detained under §

1225(b), and instead asserts he is detained under § 1226(a). (Doc. 10, at 2-3).

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. Petitioner’s Instant Detention Is Governed by § 1226(a), and He Is

Entitled To a Bond Hearing.

The growing consensus in this Court is that individuals who have been granted

humanitarian parole under 8 U.S.C. § 1182(d)(5)(A) and are later detained by ICE within

the United States are considered detained under 8 U.S.C. § 1226(a). See Arevalo Castillo

6 The undersigned does not address the merits of whether Petitioner’s parole was properly

revoked and thus does not address this jurisdictional argument.

v. Figueroa, No. CIV-26-162-HE, ECF No. 16 (W.D. Okla. July 7, 2026) (finding a

petitioner whose humanitarian parole was terminated is entitled to an individualized bond

hearing); Ochilov v. Grant, No. CIV-26-526-R, 2026 WL 1896139, at *1-2 (W.D. Okla.

July 1, 2026) (rejecting “theory that Petitioner retains his status as an ‘arriving’ noncitizen

subject to mandatory detention under § 1225(b)(1) irrespective of the fact that Petitioner

was released and allowed to live in the country for several years” where the petitioner may

have been “paroled under 8 U.S.C. § 1182(d)(5)(A)”); Zhakhonov v. Grant, No. CIV-26-

350-J, 2026 WL 1865418, at *2-3 (W.D. Okla. June 29, 2026) (finding “that Petitioner’s

termination of humanitarian parole did not automatically return him to mandatory detention

under § 1225(b)(1)” and that “Petitioner’s present detention is governed by § 1226(a)”);

Drozdov v. Lyons, No. CIV-26-365-SLP, 2026 WL 1470929, at *2 (W.D. Okla. May 26,

2026) (“[R]evocation of parole under § 1182(d)(5) does not render a noncitizen in

Petitioner’s circumstances subject to detention under § 1225(b)(1).”); Kumar v. Johnson,

No. CIV-26-352-J, 2026 WL 937560, at *2 (W.D. Okla. Apr. 7, 2026) (rejecting theory

that the termination of petitioner’s parole reverted his status to an ordinary applicant for

admission to the United States under 8 U.S.C. § 1182(d)(5)(A)); Kudusov v. Grant, No.

CIV-26-132-HE, ECF No. 13, at *3-4 (finding “‘noncitizens who remain in the United

States after their [humanitarian] parole ended are not arriving aliens’” and “conclud[ing]

that § 1226(a) governs petitioner’s detention, and thus, he is entitled to an individualized

bond hearing”) (quoting Quintero v. Olson, No. 4:26-cv-34-DJH, 2026 WL 596643, at *3

(W.D. Ky. March 3, 2026)).

In light of the persuasive reasoning from Chief Judge Palk, Judge Jones, Judge

Russell, and Judge Heaton, the undersigned recommends finding Petitioner – who was

released on humanitarian parole after arriving at a port of entry and later detained within

the United States after living here for over three years – is detained under 8 U.S.C. §

1226(a). Individuals detained under § 1226(a) are entitled to a bond hearing. §

1226(a)(2).7 See Santillan Quiroz v. Mullin, --- F.4th ---, 2026 WL 1876709, at *5 (10th

Cir. June 30, 2026) (“[N]oncitizens 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).”). Thus, Respondents’ detention of Petitioner without a bond hearing violated his

statutory rights under § 1226(a). 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 his detention violates his rights under the Fifth Amendment

to the Constitution. (Doc. 1, at 11). The Fifth Amendment’s Due Process Clause protects

7 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)).

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.

Interpreting a different subsection of § 1225, the Tenth Circuit observed that “[t]he

mandatory detention of potentially millions of noncitizens without the potential for bond

raises” “serious constitutional concerns.” Santillan Quiroz, 2026 WL 1876709, at *16.

District courts in this Circuit have agreed, 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”).

Although Petitioner asks the Court to immediately release him from custody, the

undersigned finds that the appropriate remedy for the violation of his 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 that statute 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. But 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.8

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

8 But see Singh v. Grant, No. CIV-26-279-J, 2026 WL 1035100, at *2 (W.D. Okla. Apr.

16, 2026) (Judge Jones 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 (W.D.

Okla. Apr. 30, 2026) (Judge Russell “declin[ing] to specify or alter the burden of proof at

this stage.”) (citation omitted); Rangel v. Mullin, No. CIV-26-568-D, 2026 WL 1625653,

at *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.”). See also

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

July 2, 2026) (Judge Palk declining, without comment, to adopt the recommendation for

burden shifting).

Petitioner did not request a bond hearing or that the burden of proof be shifted to the

government. However, he requested that the Court “grant any other and further relief that

[it] deems just and proper.” (Doc. 1, at 12). Basic fairness requires that all non-citizens

who are entitled to a bond hearing should receive the same sort of bond hearing – one that

comports with due process. Granting burden shifting to only those Petitioners who

explicitly or properly request it, while granting a bond hearing under the ordinary

procedures of § 1226(a) to those who do not, would create inconsistent results for similarly

situated non-citizens. But see Singh, 2026 WL 1035100, at *2 (finding that Petitioner

waived the issue of burden shifting when he raised it for the first time in his reply).

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 7. 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.9 There is a

9 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.10

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 15, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.

10 Because the undersigned recommends granting habeas relief for the reasons stated above,

it is unnecessary to address Petitioner’s remaining arguments.

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 8th 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.”).

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