The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
SEYEDAMIN TABATABAEI, )
)
Petitioner, )
)
v. ) Case No. CIV-26-1048-G
)
FRED FIGUEROA,1 et al., )
)
Respondents. )
REPORT AND RECOMMENDATION
Petitioner Seyedamin Tabatabaei, a noncitizen2 and Iranian national proceeding
with counsel,3 filed a Petition for Writ of Habeas Corpus (“Petition”), Doc. 1, challenging
under 28 U.S.C. § 2241 his detention by U.S. Immigration and Customs Enforcement
(“ICE”). United States District Judge Charles B. Goodwin referred this matter to the
undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). Doc. 4.
The undersigned set an expedited briefing schedule, Doc. 5, and the Petition is at issue.
For the reasons set forth below, the undersigned recommends that the Court grant in part
1 David Venturella was announced as Acting Director of U.S. Immigration and Customs
Enforcement on June 1, 2026. He replaces Todd Lyons and is substituted as the proper
respondent pursuant to Federal Rule of Civil Procedure 25(d).
2 Unless quoting, this Report and Recommendation “uses the term ‘noncitizen’ as
equivalent to the statutory term ‘alien.’” Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020)
(citing 8 U.S.C. § 1101(a)(3)).
3 Petitioner filed his Petition pro se, but counsel subsequently entered an appearance on his
behalf, Doc. 11, after Respondents filed their Response.
the Petition, Doc. 1, and order Respondents to provide Petitioner with a bond hearing
within seven days or otherwise release him if there is no hearing within that time.
I. Background
Petitioner, a citizen of Iran, entered the United States on January 9, 2025, without
inspection or admission near San Ysidro, California, and he was taken into custody on the
same day. Pet. at 2; Doc. 7-1 at 2 (Encounter Details Record).4 On February 1, 2025, ICE
placed Petitioner into removal proceedings before the Immigration Court pursuant to 8
U.S.C. § 1229a through the issuance of a Notice to Appear, and charged him with being
inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the United States
without inspection. Doc. 7-2 at 1 (Notice to Appear). On April 4, 2025, Petitioner filed
an application for asylum. Resp. at 5; Doc. 7-3 at 1 (Application for Asylum).
Petitioner alleges he has been in detention since he entered the United States on
January 9, 2025. Pet. at 6. Respondents contend Petitioner is detained pursuant to 8 U.S.C.
§ 1225(b)(2)(A). Resp. at 2. Petitioner did not allege he requested a bond hearing. Such
a request, though, would likely be futile because all Immigration Judges (“IJs”) are subject
to the binding precedent of Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025),
which holds those noncitizens who entered the country without admission or parole are
ineligible for a bond hearing.
On June 18, 2026, an IJ ordered Petitioner removed. See EOIR, Automated Case
Information, at https://acis.eoir.justice.gov/en/ (last accessed August 11, 2026). However,
4 Page citations reference the Court’s electronic case filing pagination.
on July 9, 2026, Petitioner appealed the removal order to the Board of Immigration
Appeals, and the appeal is currently pending. Id. Therefore, the removal order is not yet
final under 8 C.F.R. § 1241.1.
When Petitioner filed his Petition, he was detained at Diamondback Correctional
Facility in Watonga, Oklahoma. Pet. at 1. He remains detained there. See ICE Online
Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited August 11,
2026).
II. Petitioner’s Claims
Petitioner asserts three counts in his Petition.5
• Count I: Violation of Substantive Due Process. Petitioner alleges
his prolonged detention during his pending removal proceedings
violates his substantive due process rights, particularly because
Respondents have rescheduled his court dates. Pet. at 6.
• Count II: Violation of Procedural Due Process. Petitioner alleges
his continued detention without a bond hearing violates his procedural
due process rights. Id.
5 Although Petitioner is now represented by counsel, he filed his Petition pro se, so the
undersigned applies a liberal construction standard. See, e.g., Leslie v. Goldman Sachs
Grp., Inc., No. 22-CV-03211, 2023 WL 6192717, at *1 (N.D. Ga. Mar. 17, 2023) (applying
the liberal construction standard where “the operative complaint is a pro se one,” even
though “counsel subsequently entered a notice of appearance” (citation modified)); Lucero
v. CoreCivic NW N.M. Corr. Facility, No. 19-cv-00363, 2020 WL 94798, at *1 (D.N.M.
Jan. 8, 2020) (same); Jackson v. Roche, Nos. 7:04-CV-0133 & 7:02-CV-0111-R, 2008 WL
2579677, at *4 (N.D. Tex. June 27, 2008) (same). But see Gooding v. Gonzales, No.
3:10CV33, 2011 WL 841261, at *1 n.1 (W.D. Va. Mar. 7, 2011) (declining to apply a
liberal construction standard where a plaintiff filed a pro se complaint, plaintiff’s counsel
later entered an appearance, and counsel “had the opportunity to review the pleadings on
behalf of the Plaintiff and the opportunity to request permission to amend as necessary”).
• Count III: Conditions of Confinement. Petitioner alleges his
detention has caused him mental and emotional distress and
exacerbated his pre-existing health conditions. Id.
He asks the Court to declare his detention without a bond hearing unlawful and “order
Respondents to grant [him] a reasonable bond hearing or release [him] from detention.”
Id. at 7 (citation modified).
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. Section 1225(b)(1) applies to Petitioner’s detention.
The section of the INA that governs noncitizens detained at the border is 8 U.S.C.
§ 1225. Section 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.” Id.
§ 1225(a)(1) (citation modified). Section 1225(b)(1) “governs procedures for the
inspection of aliens arriving in the United States who have not been admitted or paroled.”
M.S.P.C. v. U.S. Customs & Border Prot., 60 F. Supp. 3d 1156, 1161 (D.N.M. 2014) (citing
§ 1225(b)(1)).
Aliens who have not been admitted or paroled into the United States and who
have not satisfactorily demonstrated to an immigration officer that the alien
has been physically present in the United States continuously for the prior
two years are subject to expedited removal without further hearing or review,
unless the alien indicates an intention to apply for asylum or a fear of
persecution, at which point the immigration officer shall refer the alien for
an interview by an asylum officer.
Id. (citing § 1225(b)(1)(A)(i)-(iii)).
Section 1225(b)(1)(B)(ii) further requires that, if an asylum officer determines that
a noncitizen has a credible fear of persecution, the noncitizen shall be detained for further
consideration of the application for asylum. Because an asylum officer determined
Petitioner has a credible fear of persecution, Doc. 7-2 at 1, he is being held pursuant to this
provision.6 Therefore, he is not statutorily entitled to a bond hearing. See Jennings, 583
U.S. at 299 (explaining the “plain meaning” of § 1225(b)(1)(B)(ii) “is that detention must
continue until immigration officers have finished ‘considering’ the application for asylum”
(quoting § 1225(b)(1)(B)(ii)) (citation modified)).
B. Petitioner’s prolonged detention violates substantive due process, and
the proper remedy is a bond hearing.
In Counts I and II, Petitioner asserts due process violations based on the length of
his detention without a hearing before an IJ. Pet. at 6. He seeks “a reasonable bond hearing
or release . . . from detention.” Id. at 7.
6 The parties contest this conclusion, but neither of their positions can be reconciled with
the statutory text. Petitioner maintains he is detained pursuant to § 1225(b)(1)(B)(iii)(IV).
Doc. 12 at 10-11. However, that provision applies where an asylum officer “determines
that an alien does not have a credible fear of persecution,” § 1225(b)(1)(B)(iii)(I), and is
therefore inapposite where, as here, an asylum officer has deemed the noncitizen’s fear of
persecution credible. Respondents contend Petitioner is detained pursuant to
§ 1225(b)(2)(A), which requires that applicants for admission be detained pending removal
proceedings. Resp. at 2. However, as the Supreme Court has explained, § 1225(b)(2)
“serves as a catchall provision that applies to all applicants for admission not covered by
§ 1225(b)(1).” Jennings v. Rodriguez, 583 U.S. 281, 287 (2018). Therefore, the
undersigned concludes Petitioner’s detention is governed by § 1225(b)(1)(B)(ii).
“It is well established that the Fifth Amendment entitles aliens to due process of law
in deportation proceedings. At the same time, however, [the Supreme] Court has
recognized detention during deportation proceedings as a constitutionally valid aspect of
the deportation process.” Demore v. Kim, 538 U.S. 510, 523 (2003) (citation modified).
In Demore, a noncitizen subject to mandatory detention under a similar statute, 8 U.S.C.
§ 1226(c), claimed his detention “violated due process because [ICE] had made no
determination that he posed either a danger to society or a flight risk.” Id. at 514. The
Supreme Court held that detention of noncitizens “during removal proceedings is a
constitutionally permissible part of” the removal process. Id. at 531. Later, in Jennings v.
Rodriguez, the Supreme Court ruled that as a matter of statutory construction,
§ 1225(b)(1)(B)(ii) mandates detention while a noncitizen’s asylum claims are pending.
538 U.S. at 299, 302-03. However, the Supreme Court explicitly reserved ruling on
whether prolonged detention under § 1225(b) could violate due process. 538 U.S. at 312.
Neither the Supreme Court nor the Tenth Circuit has subsequently ruled on the
constitutional issue of prolonged detention without a bond hearing under § 1225(b). “Since
Jennings, courts have ‘sharply disagreed about the reach of the Due Process Clause as
applied to arriving aliens.’” Giraldo Nieto v. Ceja, --- F. Supp. 3d ---, 2025 WL 4087626,
at *6 (D. Colo. 2025) (quoting Gonzalez Aguilar v. Wolf, 448 F. Supp. 3d 1202, 1212
(D.N.M. 2020)). The post-Jennings cases from this circuit considering due process
challenges to prolonged detention under § 1225(b)(1) illustrate this strong disagreement.
Some courts have found prolonged detention under § 1225(b)(1) does not violate due
process because noncitizens are entitled only to the process provided to them by statute
and detention during removal proceedings is non-punitive. See Giraldo Nieto, --- F. Supp.
3d at ---, 2025 WL 4087626, at *7-9 (concluding prolonged detention of a noncitizen held
under § 1225(b)(1) does not violate due process); Doe v. Bondi, No. 25-cv-2712, 2025 WL
3516292, at *6-10 (D. Colo. Nov. 4, 2025) (same).7
Other courts in the circuit have concluded detention under § 1225(b)(1) without a
bond hearing does violate due process when it becomes so prolonged as to be
constitutionally unreasonable. See Ali X v. Bondi, No. 26-cv-1367, 2026 WL 1857825, at
*6 (D. Colo. June 29, 2026) (“[T]he Court concludes that Petitioner’s detention has become
constitutionally unreasonable and continued detention without any individualized custody
determination violates procedural due process.”); Marquez v. Warden, No. 26-cv-1527,
2026 WL 1557180, at *2 (D.N.M. June 2, 2026) (“[U]nder the circumstances of this case,
Petitioner’s indefinite, ongoing detention of more than seven months, with no reasonably
foreseeable end in sight . . . is punitive and a violation of her Fifth Amendment substantive
due process rights.”); Mardanpour v. Warden, No. 26-cv-550, 2026 WL 963164, at *6
(D.N.M. Apr. 9, 2026) (“Petitioner’s indefinite, ongoing detention exceeding fourteen
months is punitive and therefore a violation of Petitioner’s Fifth Amendment substantive
due process rights.”).8
7 Courts considering prolonged detention challenges by noncitizens held under
§ 1225(b)(2)(A) have ruled similarly. E.g., de la Rosa Espinoza v. Guadian, No. 20-3126,
2020 WL 3452967, at *8 (D. Kan. June 24, 2020); Gonzalez Aguilar, 448 F. Supp. 3d at
1212.
8 While district courts in the Tenth Circuit are split on this question, “[t]he majority of
courts who have considered this issue have determined that the due process protections
As a threshold matter, Petitioner’s procedural due process claim should be denied.
It is well established that for a procedural due process analysis, “[w]hatever the procedure
authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950); see also Rolia v.
Mullin, No. CIV-26-423-R, 2026 WL 1833993, at *1 (W.D. Okla. June 25, 2026)
(concluding in the § 1226(a) context that “the process Petitioner is due is the process
provided by that statute”). Because, as discussed above, § 1225(b)(1)(B)(ii) mandates
detention without the opportunity for a bond hearing, Petitioner’s ongoing detention
without a bond hearing does not violate his procedural due process rights.
With respect to substantive due process, however, things are different. While no
Judges in this district have directly addressed whether prolonged detention without a bond
hearing under § 1225(b)(1) violates substantive due process,9 the undersigned finds the
reasoning of Judge Russell and Judge Mitchell in recent cases considering due process
claims based on prolonged detention under § 1226(c) persuasive on this question. Section
1226(c) requires the Secretary of Homeland Security to detain noncitizens who have
committed certain criminal offenses pending the disposition of their removal proceedings.
recognized in Zadvydas prohibit indefinite detention under § 1225(b)(1)(B)(ii).” Leonteva
v. Noem, --- F. Supp. 3d ---, 2026 WL 711766, at *5 (S.D. Ind. Mar. 13, 2026).
9 When recently addressing a petitioner originally arrested as an arriving alien, released on
humanitarian parole, and re-detained, Judge Jones held the petitioner was currently
detained under § 1226(a), not § 1225(b)(1). Zhakhonov v. Grant, 2026 WL 1865418, at
*2 (W.D. Okla. June 29, 2026).
In Jennings, the Supreme Court observed the mandatory detention provisions of §§ 1225(b)
and 1226(c) operate in substantially the same manner. 583 U.S. at 303.
Accordingly, in the absence of cases in this District directly addressing whether
prolonged detention under § 1225(b)(1)(B)(ii) violates due process, cases considering
similar challenges by noncitizens detained under § 1226(c) are instructive. See Rodriguez
v. Frink, 823 F. Supp. 3d 678, 686 (S.D. Tex. 2026) (“In determining the reasonability of
Petitioner’s detention under § 1225(b)(2), it is instructive to consider the tests that other
courts have used to determine the reasonability of detention under § 1226(c).”); Gevorg v.
Warden, No. 25-cv-992, 2025 WL 3496436, at *6 (E.D. Cal. Dec. 5, 2025) (explaining
how “multiple United States district courts have found” due process violations under
§ 1225(b) by using “a myriad of overlapping balancing tests, often initially conceived and
applied in the context of a lawful permanent resident detained under § 1226(c), to
determine whether detention of an arriving alien under § 1225(b) without a bond hearing
has become so prolonged that it violates petitioner’s due process rights under the Fifth
Amendment”).
In Jalloh v. Garland, Judge Russell considered a prolonged detention claim brought
by a noncitizen detained pursuant to § 1226(c). No. CIV-22-908-R, 2023 WL 3021514, at
*1 (W.D. Okla. Mar. 9, 2023). He explained that “[i]n Demore, the Supreme Court
declined to indicate at what point a period of mandatory detention is so prolonged that
detainees are entitled to an individualized determination as to their risk of flight and
dangerousness.” Id. at *2 (citation modified). To answer that question, Judge Russell
explained, it was necessary to consider six factors:
(1) the total length of detention to date; (2) the likely duration
of future detention; (3) the conditions of detention; (4) delays
in the removal proceedings caused by the detainee; (5) delays
in the removal proceedings caused by the government; and (6)
the likelihood that the removal proceedings will result in a final
order of removal.
Id. at *3 (citation modified). Ultimately, Judge Russell concluded those factors weighed
in favor of finding a due process violation and ordered the government to provide the
noncitizen with a bond hearing. Jalloh v. Garland, No. CIV-22-908-R, 2023 WL 3690252,
at *3 (W.D. Okla. May 26, 2023) (adopting Jalloh v. Garland, 2023 WL 3690259 (W.D.
Okla. Apr. 26, 2023) (R&R)).10
Judge Mitchell recently considered a due process claim of prolonged detention
brought by a noncitizen detained under § 1226(c) in Lopez Pizarro v. Gantt. No. CIV-26-
362-SLP, 2026 WL 2029042, at *3 (W.D. Okla. June 12, 2026) (R&R), adopted, Doc. 18
at 1 (W.D. Okla. July 13, 2026). In evaluating whether the petitioner’s detention was so
prolonged as to be constitutionally unreasonable, Judge Mitchell relied on a three-factor
test used by the Eastern District of California in Lopez v. Garland, 631 F. Supp. 3d 870,
10 In a recent decision, Judge Russell also adopted Judge Mitchell’s recommendation that
he evaluate a prolonged detention claim brought by a noncitizen detained under § 1226(c)
using the factors established by Mathews v. Eldridge, 424 U.S. 319 (1976). Hernandez v.
Mullin, No. CIV-26-475-R, 2026 WL 1625669, at *2-3 (W.D. Okla. June 5, 2026)
(adopting in part Hernandez v. Mullin, 2026 WL 1245748, at *4-5 (W.D. Okla. May 6,
2026) (R&R)). Judge Russell explained that while “Mathews generally applies in the
context of procedural rather than substantive due process,” it can be applied to substantive
due process claims brought by noncitizens detained under § 1226(c). Id. at *2-3 (citation
modified). The undersigned, though, is persuaded that Judge Russell’s factors in Jalloh
are more instructive than the Mathews factors for evaluating the constitutionality of a
petitioner’s prolonged detention.
879 (E.D. Cal. 2022). Lopez Pizarro, 2026 WL 2029042, at *3. That test considers “the
total length of detention to date, the likely duration of future detention, and the delays in
the removal proceedings caused by the petitioner and the government.” Id. (quoting Lopez,
631 F. Supp. 3d at 879). Applying those factors, Judge Mitchell concluded the petitioner
had failed to establish his detention was so prolonged as to violate due process. Id. at *4.
The general approach Judges Russell and Mitchell have taken to prolonged
detention due process claims under § 1226(c) aligns with how other courts have assessed
such claims regarding prolonged detention under § 1225(b). See, e.g., Ali X, 2026 WL
1857825, at *5 (considering “(1) the total length of detention to date; (2) the likely duration
of future detention; (3) the conditions of detention; (4) delays in the removal proceedings
caused by the detainee; (5) delays in the removal proceedings caused by the government;
and (6) the likelihood that the removal proceedings will result in a final order of removal”);
Khasanova v. Rokosky, No. CV-26-763, 2026 WL 1815723, at *6 (D. Ariz. June 24, 2026)
(same); Gevorg, 2025 WL 3496436, at *6 (same); Banda v. McAleenan, 385 F. Supp. 3d
1099, 1118 (W.D. Wash. 2019) (same); see also Mbalivoto v. Holt, 527 F. Supp. 3d 838,
850 (E.D. Va. 2020) (noting prolonged detention under § 1225(b) can become
“unreasonable and constitutionally infirm” based on “a variety of factors, which generally
include (1) the length of Petitioner’s detention; (2) the length of any delays attributable to
the Petitioner; and (3) his likelihood of ultimately being ordered removed”).
Consistent with the approach of these courts, the undersigned finds the six-factor
test that Judge Russell applied in Jalloh appropriate for determining whether Petitioner’s
detention under § 1225(b)(1)(B)(ii) is constitutionally unreasonable and considers each
factor in turn.11
1. Total length of detention to date.
Petitioner has been detained since January 9, 2025, which currently amounts to more
than 19 months of continuous detention. Pet. at 2; Doc. 7-1 at 2. In analogous cases where
petitioners were detained for similar periods of time, courts in this Circuit have concluded
the length-of-detention factor weighed in favor of finding a due process violation. Ali X,
2026 WL 1857825, at *5 (finding a detention “period exceeding 21 months . . . .
unreasonably prolonged”); Marquez, 2026 WL 1557180, at *2 (finding an “ongoing
detention of more than seven months . . . constitutionally excessive”); Mardanpour, 2026
WL 963164, at *8 (finding an “ongoing detention . . . exceeding fourteen months”
constitutionally excessive); see also Khasanova, 2026 WL 1815723, at *7 (“[W]here a
petitioner’s current detention exceeds a six-month threshold their detentions become less
and less reasonable.” (quotation omitted)); Banda v. McAleenan, 385 F. Supp. 3d 1099,
1118 (W.D. Wash. 2019) (R&R) (“Petitioner has been in detention for approximately 17
months, which is a very long time.”), adopted, 385 F. Supp. 3d at 1106-07 (W.D. Wash.
2019). Thus, this first factor weighs heavily in Petitioner’s favor.
11 To the extent the Court declines to apply the Jalloh factors and instead applies the three-
factor test Judge Mitchell used in Lopez Pizarro, those factors also weigh in favor of
finding Petitioner’s ongoing detention is constitutionally unreasonable.
2. Likely duration of future detention.
The next factor is the likely duration of Petitioner’s future detention. “Courts
examine the anticipated duration of all removal proceedings—including administrative and
judicial appeals—when estimating how long detention will last.” Jalloh, 2023 WL
3690259, at *5 (citation modified).
While an IJ has ordered Petitioner removed, Petitioner has appealed that decision.
See EOIR, Automated Case Information, at https://acis.eoir.justice.gov/en/ (last accessed
August 11, 2026). “Petitioner’s appeal to the BIA and, if unsuccessful there, to the Tenth
Circuit Court of Appeals, could take years.” Mardanpour, 2026 WL 963164, at *6; see
also Ali X, 2026 WL 1857825, at *5 (“Although DHS’s appeal remains pending before the
Board of Immigration Appeals, no decision has yet been issued. Thus, Petitioner’s
detention may continue for a substantial and presently indeterminate period”); Banda, 385
F. Supp. at 1119 (“Petitioner only recently filed his appeal of the IJ’s removal order with
the BIA. If the BIA affirms, petitioner will have the opportunity to seek review in the
Ninth Circuit. This process may take up to two years or longer.”). And even if
Respondents ultimately prevail and Petitioner’s order of removal becomes final, there is
no guarantee he will be expeditiously removed.
The Petition does not allege Petitioner is unlikely to be removed to his country of
citizenship, Iran. But in his reply, Petitioner asserts “even if [he] were issued a final order
of deportation to Iran, his removal would not be foreseeable . . . due to ongoing war
between Iran and the U.S.” Doc. 12 at 10. That argument was too late and improperly
raised for the first time in his reply. See SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201,
1226 (10th Cir. 2009) (recognizing “general rule” “that a party waives issues and
arguments raised [] for the first time” in a reply brief); Stillwater Designs & Audio Inc. v.
Klein, No. CIV-24-784-SLP, 2025 WL 365651, at *2 n.7 (W.D. Okla. Jan. 31, 2025)
(declining to consider arguments raised for the first time in reply).
Nevertheless, the undersigned takes judicial notice of the ongoing conflict between
the United States and Iran, and concludes Petitioner’s removal to Iran is likely not
reasonably foreseeable even if he is ordered removed there.12 Nor does the record reflect
whether Respondents intend to seek third-country removal.13 Thus, this factor, too, weighs
in Petitioner’s favor.
3. Conditions of detention.
The next factor considers “whether the facility for the civil immigration detention
is meaningfully different from a penal institution for criminal detention.” Jalloh, 2023 WL
3690259, at *5 (citation omitted). “The more that the conditions under which the alien is
being held resemble penal confinement, the stronger his argument that he is entitled to a
bond hearing.” Id. (citation omitted).
12 While an IJ has ordered Petitioner removed from the United States, the parties have not
provided the Court with that order of removal or any information indicating to which
country the IJ ordered Petitioner removed.
13 Respondents have not had an opportunity to establish such a record, as Petitioner raised
this issue for the first time in his reply.
The Petition does not specify the conditions of Petitioner’s detention.14 However,
he is detained at Diamondback Correctional Facility, which ICE’s website describes as a
“jail.” Diamondback Correctional Facility: Sending Items to Detainees, U.S. Immigration
& Customs Enforcement, https://www.ice.gov/detain/detention-facilities/diamondback-
correctional-facility (last accessed August 11, 2026). Where a noncitizen is “confined in a
secure detention facility and is subject to significant restraints on his liberty,” his
confinement “is akin to criminal incarceration.” Ali X, 2026 WL 1857825, at *5. This is
particularly true where, as here, the uncontroverted evidence indicates that “continued
detention has exacerbated various medical issues.” Khasanova, 2026 WL 1815723, at *7.
Thus, this factor also weighs in Petitioner’s favor.
4. Delays in the removal proceedings caused by Petitioner.
The next factor is whether Petitioner has delayed the removal proceedings against
him. “In considering delays in the removal proceedings caused by the detainee, courts
should be sensitive to the possibility that dilatory tactics by the removable alien may serve
not only to put off the final day of deportation, but also to compel a determination that the
alien must be released because of the length of his incarceration.” Jalloh, 2023 WL
3690259, at *5 (citation omitted). However, a noncitizen’s mere exercise of his legal rights
is not sufficient to weigh against him; instead, courts look for evidence of “bad faith or
obstructive conduct.” Mbalivoto, 527 F. Supp. 3d at 851; see also Ali X, 2026 WL
14 Petitioner’s reply asserts he “has been held in prisonlike conditions,” but that argument
was raised too late. CMI Roadbuilding, Inc., 2021 WL 2188241, at *1.
1857825, at *5 (“Petitioner’s pursuit of asylum and defense against removal do not
constitute unreasonable delay and were exercised as rights afforded to him under the
immigration laws.”); Jalloh, 2023 WL 3690259, at *5 (“This Court will not hold
Petitioner’s efforts to seek relief through the available legal channels against him; in fact,
Petitioner’s appeal to the BIA resulted in a remand.”). Therefore, this factor is neutral. See
Ali X, 2026 WL 1857825, at *5 (finding this factor “neutral” where any delay in the
petitioner’s removal proceedings was not attributable to him).
5. Delays in the removal proceedings caused by the government.
Next, the Court must consider whether any delays in the removal proceedings were
caused by the government. Petitioner alleges his detention has been prolonged by
“Respondents rescheduling [his] court dates.” Pet. at 6. Respondents do not contest this
allegation. The only evidence in the record, therefore, establishes that Respondents have
prolonged Petitioner’s detention to some extent with unexplained delays in his Immigration
Court proceedings. While the undersigned is sensitive to challenges the government faces
in processing a high volume of removal proceedings and recognizes the sheer number of
cases before the Immigration Courts may result in inevitable delays, those delays are
ultimately attributable to the government. Nevertheless, because there is no evidence of
“lack of diligence or bad faith” on the part of Respondents, Mbalivoto, 527 F. Supp. 3d at
851, this factor is neutral.
6. Likelihood that removal proceedings will result in a final order
of removal.
Finally, the Court must consider whether, at the conclusion of his removal
proceedings, Petitioner will actually be removed. “The more likely that the alien will be
removed, the longer the detention that will be deemed reasonable.” Vizguerra-Ramirez v.
Baltazar, No. 25-cv-00881, 2025 WL 3653158, at *12 (D. Colo. Dec. 17, 2025) (citation
modified). In evaluating this factor, courts consider the extent to which either the petitioner
or the government has prevailed in Immigration Court. See Ali X, 2026 WL 1857825, at
*6 (“An Immigration Judge has already determined, following merits proceedings, that
Petitioner qualifies for asylum. Although DHS may ultimately prevail on appeal, Petitioner
presently possesses a favorable ruling from an Immigration Judge, and no final order of
removal exists.”); Mbalivoto, 527 F. Supp. 3d at 851 (“The BIA previously remanded an
adverse determination of his eligibility to stay in the United States; and at this point, after
one round of appeals, Petitioner has prevailed on the merits of his claims before the
Immigration Judge. In sum, Petitioner’s ultimate success on his application appears
increasingly likely; and this factor weighs in favor of granting Petitioner relief.”).
Here, an IJ has issued an order of removal against Petitioner. While he has appealed
that order to the BIA, there is no evidence in the record to suggest that appeal is likely to
succeed. Accordingly, this factor weighs against Petitioner.
7. Conclusion
In weighing these six factors, the undersigned finds Petitioner’s continued detention
of more than 19 months without an individualized bond hearing has become unreasonable
in violation of his due process rights. Notably, in Jalloh, Judge Russell found a violation
of the petitioner’s due process rights after determining the first three factors weighed in
favor of the petitioner, factors four and five were neutral, and the sixth factor weighed
against the petitioner. 2023 WL 3690252, at *2. In similar circumstances to Petitioner’s
case, Judge Russell found it relevant in Jalloh that the petitioner had “been detained for
approximately 19 months in a criminal correctional facility and that it may be several more
months before all appeals are exhausted.” Accord De Zarate v. Choate, No. 23-CV-00571,
2023 WL 2574370, at *5 (D. Colo. Mar. 20, 2023) (finding, for a petitioner detained for
more than 14 months under § 1226(c), that even when “[f]actors one, two, and three weigh
in favor of [petitioner]; factors four and five are neutral; and factor six weighs against
[her],” the factors “when considered together” favor petitioner and a finding that her Due
Process rights had been violated ) (citation modified).
Where a noncitizen has been detained for an unconstitutional length of time in
violation of due process, as Petitioner has, he is entitled to an individualized bond hearing.
See Ali X, 2026 WL 1857825, at *6 (“Petitioner’s detention has become constitutionally
unreasonable and continued detention without any individualized custody determination
violates procedural due process.”); Khasanova, 2026 WL 1815723, at *8 (“Where a
noncitizen’s detention under § 1225(b)(2) has become unreasonable, the proper remedy is
an individualized bond hearing before a neutral IJ.”); see also Jalloh, 2023 WL 3690252,
at *2 (ordering a bond hearing for a noncitizen subject to unconstitutional prolonged
mandatory detention). Accordingly, the Court should order Respondents to provide
Petitioner with an individualized bond hearing before a neutral IJ.15
C. Petitioner’s conditions of confinement claim is not cognizable in habeas.
The Court need not address Petitioner’s claim relating to his medical condition, as
it is outside the scope of this Court’s habeas review. He seeks “a reasonable bond hearing
or release . . . from detention, Pet. at 7, but no relief specifically related to his alleged
medical conditions. A petitioner who challenges “the fact or duration” of his confinement
and seeks release from ICE custody must bring a § 2241 habeas petition, but a detainee’s
challenge to the conditions of his confinement must be brought through a civil rights action
under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012).
As such, Petitioner’s allegations related to his medical conditions are not properly
raised in this Petition. See, e.g., Sanchez v. Warden, No. CIV-26-318-SLP, 2026 WL
1623020, at *4 (W.D. Okla. Mar. 26, 2026) (R&R) (recommending the Court decline to
address allegations that the noncitizen petitioner’s medical condition had been worsened
by her detention), adopted, 2026 WL 1347428, at *2 (W.D. Okla. May 14, 2026); Onuwa
v. Field Off. Dir., No. 26-2403, 2026 WL 772435, at *3 (D.N.J. Mar. 19, 2026)
(“Petitioner’s medical claim is therefore dismissed without prejudice to Petitioner reraising
15 Petitioner asks the Court to “order Respondents to grant [him] a reasonable bond hearing
or release [him] from detention.” Doc. 1 at 7 (citation modified). While some courts have
ordered release as a remedy in immigration habeas matters, see Marquez, 2026 WL
1557180, at *2, the undersigned concludes a bond hearing is the appropriate remedy here.
his claim in an appropriate civil rights proceeding.”); Ndou v. Noem, No. 26-CV-220, 2026
WL 686564, at *4 (D.N.M. Mar. 11, 2026) (finding an immigration petitioner’s “claims
related to conditions of confinement are properly raised under a civil rights action, not a
habeas corpus petition”).16
V. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court GRANT in
part the Petition for habeas relief by ordering Respondents to provide Petitioner with a
bond hearing within seven days or otherwise release Petitioner if he has not received a
lawful bond hearing within that period.17
The parties are advised of their right to object to this Report and Recommendation.
See 28 U.S.C. § 636. Any objection must be filed not later than August 18, 2026. See id.
§ 636(b)(1); Fed. R. Civ. P. 72(b)(2). If a party wishes to respond to the other party’s
objections, such response must be filed not later than August 21, 2026. See Fed. R. Civ.
P. 72(b)(2). Failure to object timely waives the right to appellate review of the factual and
16 Under 8 U.S.C. § 1182(d)(5)(A), the Secretary of Homeland Security can “parole into
the United States . . . for urgent humanitarian reasons” noncitizens subject to mandatory
detention under § 1225(b). This provision allows the humanitarian parole of noncitizens
“who have serious medical conditions in which continued detention would not be
appropriate” and those “whose continued detention is not in the public interest.” 8 C.F.R.
§ 212.5(b)(1), (5).
17 On August 9, 2026, Petitioner filed a Motion for Expedited Processing, asking the Court
to expedite a ruling on his Petition and advising the Court “of the urgent humanitarian need
to grant his” Petition based on his current health conditions. Doc. 13, at 2-3. Adoption of
the undersigned’s recommendation would MOOT Petitioner’s Motion for Expedited
Processing.
legal issues addressed in this Report and Recommendation. 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 in this matter.
ENTERED this 11" day of August, 2026.
Chow. Bbphous-
UNITED STATES MAGISTRATE JUDGE
21