Ortiz

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

LEONARDO GAITAN ORTIZ, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1370-R

)

WARDEN, Diamondback Correctional )

Facility, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Leonardo Gaitan Ortiz, a noncitizen1 and Salvadorean national

proceeding with counsel, 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 David L. Russell referred this matter

to the undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). The

undersigned set an expedited briefing schedule, Doc. 6, and the Petition is at issue. For the

reasons set forth below, the undersigned recommends that the Court grant the Petition,

Doc. 1, in part and order Respondents to provide Petitioner a bond hearing pursuant to 8

U.S.C. § 1226(a) within seven days or otherwise to release him if there is no hearing within

that time.

1 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)).

I. Background

Petitioner, a citizen of El Salvador, entered the United States on November 2, 2024,

without inspection or parole. Pet. at 2; Doc. 1-3 at 2 (Notice to Appear). Shortly thereafter,

ICE encountered Petitioner and processed him for expedited removal. Resp. at 2; Doc. 11-

1 at 3 (ICE Encounter Summary). After he claimed fear of persecution, on November 12,

2024, ICE placed him into removal proceedings before the Immigration Court pursuant to

8 U.S.C. § 1229a through the issuance of a Notice to Appear, charging him with being

inadmissible (1) under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the United

States without inspection, and (2) under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as an immigrant not

in possession of valid documents. Resp. at 2; Doc. 11-1 at 4; Doc. 1-2 at 2. Petitioner was

subsequently released from ICE custody on an Alternatives to Detention (“ATD”) program

with an electronic monitoring device. Resp. at 2.2

On January 21, 2026, ICE re-detained Petitioner pursuant to an arrest warrant. Pet.

at 2; Resp. at 2; Doc. 11-2 (Warrant for Arrest). Respondents contend Petitioner is detained

pursuant to 8 U.S.C. § 1225(b)(2)(A). Resp. at 1. On April 27, 2026, Petitioner filed an

Application for Asylum and for Withholding of Removal. Resp. at 2; Doc. 11-4 at 1

2 Respondents allege Petitioner violated the conditions of his ATD program three times by

tampering with his device or exceeding the GPS boundary. Resp. at 2; Doc. 11-1 at 2

(listing ATD violations). However, Respondents do not allege such violations have any

impact on what provision governs Petitioner’s re-detention. In fact, Respondents

acknowledge this Court has held that similarly-situated petitioners are properly detained

under § 1226(a). Resp. at 3-5. Further, the undersigned agrees with Petitioner that “the

Immigration Judge may consider the ATD allegations alongside all other relevant

evidence” at a bond hearing. Reply at 7.

(Asylum and Withholding of Removal Application). On May 5, 2026, an Immigration

Judge (“IJ”) denied Petitioner’s request for bond due to lack of jurisdiction because all 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. Resp. at 2; Doc. 11-3 at 1 (IJ Bond Order).

On June 24, 2026,3 an IJ ordered Petitioner removed to El Salvador. Resp. at 3;

Doc. 11-5 at 1, 3 (IJ Order of Removal). However, on July 22, 2026, Petitioner appealed

the removal order to the Board of Immigration Appeals (“BIA”), and the appeal is currently

pending. Doc. 14-1 (Notice of Appeal to BIA); see also EOIR, Automated Case

Information, at https://acis.eoir.justice.gov/en/ (last accessed Aug. 13, 2026). Therefore,

the removal order is not yet final under 8 C.F.R. § 1241.1. Resp. at 3.

When Petitioner filed his Petition, he was detained at Diamondback Correctional

Facility in Watonga, Oklahoma. Pet. at 3. Both parties agree he remains detained there.

See Doc. 14-2 at ¶ 6 (stating Petitioner “remains detained at the Diamondback Correctional

Facility” as of August 4, 2026); Doc. 15 at 1 (same).

3 The record is inconsistent whether Petitioner was ordered removed on June 24, 2026, or

June 26, 2026. Compare Doc. 11-5 at 1 (IJ Order dated June 24, 2026) with Doc. 14-1

(Notice of Appeal stating IJ decision was dated June 26, 2026); EOIR, Automated Case

Information, at https://acis.eoir.justice.gov/en/ (last accessed Aug. 13, 2026) (listing order

of removal date as June 26, 2026). The undersigned concludes the exact date Petitioner

was ordered removed does not impact the analysis.

II. Petitioner’s Claims

Petitioner asserts two counts in his Petition.

• Count I: Violation of the Immigration and Nationality Act

(“INA”). Petitioner alleges his continued detention pursuant to 8

U.S.C. § 1225(b)(2)(A) violates the INA. Pet. at 4-5. He further

alleges his detention is properly governed by § 1226(a), which entitles

him to an individualized custody review. Pet. at 5.

• Count II: Violation of Due Process. Petitioner alleges his prolonged

mandatory detention under § 1225(b)(2) without an individualized

determination that he is not a flight risk or danger to the community

violates his substantive due process right. Pet. at 5-8. He also alleges

his deprivation of a hearing violates his procedural due process rights

under Mathews v. Eldridge, 424 U.S. 319 (1976). Pet. at 8-9.

He asks the Court to “issue a Writ of Habeas Corpus ordering [his] immediate release from

custody, subject to reasonable conditions of supervision,” or alternatively, to “order

Respondents to provide [him] with an individualized bond hearing before a neutral

decision-maker within seven (7) days.” Id. at 10 (citation modified). Petitioner also seeks

an order staying his removal proceedings pending the resolution of this Petition. Id. at 11.4

4 To the extent Petitioner seeks a stay of his removal proceedings, the Court does not have

jurisdiction to do so. See, e.g., Valdovinos-Blanco v. Holder, 557 F. App’x 793, 794 (10th

Cir. 2014) (unpublished) (noting the court is “unaware of any statutory or common-law

authority permitting a federal court to intervene in an alien’s ongoing deportation

proceedings to order withholding of removal” (citation modified)); Olola v. U.S. Att’y

Gen., No. 18-CV-00058, 2018 WL 11446892, at *3 (D. Colo. Feb. 22, 2018) (“Federal law

unambiguously strips federal district courts of jurisdiction to stay or enjoin an alien’s

removal.” (citation modified)). Accordingly, this request should be denied.

Petitioner also requests an award of attorney fees and costs under the Equal Access to

Justice Act (“EAJA”). Id. 5

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 1226(a) applies to Petitioner’s detention.

The two sections of the INA at issue that govern detention of noncitizens pending

removal proceedings are 8 U.S.C. §§ 1225 and 1226. 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). Under

§ 1225(b)(2)(A), “in the case of an alien who is an applicant for admission, if the examining

immigration officer determines that an alien seeking admission is not clearly and beyond a

doubt entitled to be admitted, the alien shall be detained.” If Petitioner is detained under

§ 1225(b)(2)(A), he is not entitled to a bond hearing. On the other hand, § 1226(a) more

generally authorizes detention of a noncitizen pending removal proceedings and entitles

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). Thus, the

Court need not address this request at this juncture.

the noncitizen to a bond hearing. 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))).

Petitioner alleges his continued detention under § 1225(b)(2) is unlawful and

violates the INA because he is properly detained under § 1226(a) and entitled to an

individualized bond hearing. Pet. at 4-5. Respondents maintain Petitioner is properly

detained under § 1225(b)(2)(A). Resp. at 1.

The Tenth Circuit recently rejected the statutory interpretation of § 1225(b)(2) as

urged by Respondents and applied § 1226(a) to govern detention of noncitizens like

Petitioner. Santillan Quiroz v. Mullin, 180 F.4th 1226, 1235-49 (10th Cir. 2026). In

Santillan Quiroz, the Tenth Circuit concluded “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.” Id. at 1239 (citation modified). Accordingly, “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

1237. Therefore, based on Tenth Circuit precedent and this Court’s prior reasoning in

Valdez v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025),

the undersigned recommends the Court apply § 1226(a) to govern Petitioner’s current

detention. See Bohorquez Bravo v. Lyons, No. CIV-26-912-R, 2026 WL 1896141, at *1

(W.D. Okla. July 1, 2026) (holding in accordance with Santillan Quiroz that a similarly

situated petitioner is entitled to a bond hearing under § 1226(a)).6

Further, Petitioner’s application for asylum does not change the analysis or render

him “seeking admission” and thereby subject to § 1225(b)(2)(A). Santillan Quiroz, 180 F.

4th at 1239 (holding a noncitizen “cannot make a present request for permission to enter

the United States, lawfully or otherwise, once he or she has already entered” and “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” (citation modified)).

B. The proper remedy is a bond hearing.

Petitioner seeks “immediate release from custody, subject to reasonable conditions

of supervision,” or alternatively, “an individualized bond hearing before a neutral decision-

maker within seven (7) days.” Pet. at 10. The undersigned concludes a bond hearing is

the proper remedy for a noncitizen detained under § 1226(a). See Santillan Quiroz, 180

F.4th at 1251 n.13; see also Bohorquez Bravo, 2026 WL 1896141, at *1 (citing Santillan

6 This conclusion is also in accord with persuasive authority in the Second, Sixth, Seventh,

Ninth, and Eleventh Circuits, which rejected Respondents’ statutory interpretation of

§ 1225(b)(2). See Rodriguez Vazquez v. Bostock, No. 25-6842, --- F.4th ----, 2026

WL 2196424, at *26 (9th Cir. July 30, 2026); Cirrus Rojas v. Olson, No. 25-3127, --- F.4th

----, 2026 WL 2198315, at *2 (7th Cir. July 30, 2026); Hernandez Alvarez v. Warden, Fed.

Det. Ctr. Miami, 175 F.4th 1258, 1285 (11th Cir. 2026); Lopez-Campos v. Raycraft, 175

F.4th 713, 722 (6th Cir. 2026); Cunha v. Freden, 175 F.4th 61, 69 (2d Cir. 2026). In

contrast, the Fifth and Eighth Circuits recently applied § 1225 to similar habeas challenges,

agreeing with Respondents’ position. Avila v. Bondi, 170 F.4th 1128, 1134-38 (8th Cir.

2026); Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498, 502-08 (5th Cir. 2026).

Respondents have filed a petition for a writ of certiorari to the Supreme Court. See Cert.

Pet., Raycraft v. Lopez-Campos, No. 25-1415 (filed June 22, 2026); Cert. Pet., Cunha v.

Freden, No. 26-104 (filed July 23, 2026).

Quiroz and concluding “the appropriate remedy is a bond hearing”); Karimov v. Cerna,

No. CIV-26-304-R, 2026 WL 950130, at *1 (W.D. Okla. Apr. 8, 2026) (“As a remedy,

Petitioner requests his immediate release, but the Court concludes that a bond or custody

redetermination hearing is the appropriate remedy.”). Further, Judges in this District,

including this Court, have consistently declined to order burden shifting. See, e.g., Singh

v. Figueroa, No. CIV-26-600-R, 2026 WL 1181699, at *1 n.2 (W.D. Okla. Apr. 30, 2026)

(denying petitioner’s request for burden shifting, and holding “although petitioner is

entitled to a bond hearing under § 1226(a), the Court declines to specify or alter the burden

of proof at this stage”) (citation modified). Therefore, the Court should grant the Petition

in part and order Respondents to provide Petitioner with a bond hearing under § 1226(a)

before a neutral IJ within seven days or otherwise release him if he does not have a lawful

bond hearing within that period.7

C. The Court should decline to address Petitioner’s due process claims.

Petitioner also argues his continued detention without a bond hearing violates his

right to procedural and substantive due process. Pet. at 5-10. If the Court grants Petitioner

7 While Judges in this District have ordered release for noncitizens whose earlier release

was improperly revoked, Petitioner has not alleged or provided evidence that the

circumstances of his detention entitle him to release rather than a bond hearing. See Singh

v. Mullin, No. CIV-26-471-SLP, 2026 WL 1255801, at *2 (W.D. Okla. May 7, 2026)

(ordering a bond hearing but not release because petitioner had not provided the Court with

sufficient evidence to establish entitlement to release); accord Singh v. Grant, No. CIV-

26-289-R, 2026 WL 1483557, at *1 (W.D. Okla. May 27, 2026) (ordering release where

ICE improperly revoked petitioner’s prior bond ordered by an immigration judge); Skutar

v. Mullin, CIV-26-0036-HE, Doc. 15, at 2-3 (W.D. Okla. Apr. 24, 2026) (ordering

petitioner’s release where no changed circumstances existed from when an immigration

judge previously ordered bond).

relief with a bond hearing under § 1226(a), the undersigned recommends the Court decline

to decide the merits of Petitioner’s due process claims based on his continued detention.

See, e.g., Valdez, 2025 WL 3709021, at *3 n.2 (declining to decide the merits of a

petitioner’s due process claim when granting a bond hearing pursuant to § 1226(a)).

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 under 8 U.S.C. § 1226(a) within seven days or otherwise release Petitioner if

he has not received a lawful bond hearing within that period.

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 20, 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 25, 2026. See Fed. R. Civ.

P. 72(b)(2). Failure to object timely waives the right to appellate review of the factual and

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 13" day of August, 2026.

UNITED STATES MAGISTRATE JUDGE