Kumar

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

ADITYA KUMAR, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1055-D

)

FRED FIGUEROA et al., )

)

Respondents.1 )

REPORT AND RECOMMENDATION

Petitioner Aditya Kumar, a noncitizen2 and Indian national proceeding with

counsel, filed a Petition for Writ of Habeas Corpus challenging his detention by U.S.

Immigration and Customs Enforcement (ICE) under 28 U.S.C. § 2241. United States

District Judge Timothy D. DeGiusti referred the case to the undersigned magistrate judge

for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Respondents timely filed a

Response. (ECF No. 11).3

For the reasons below, the undersigned recommends the Petition be GRANTED

IN PART, and that Respondents be ordered, within seven days, either to provide

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 This Report and Recommendation “uses the term ‘noncitizen’ as equivalent to the statutory term

‘alien.’” 590 U.S. 573, 578 n.2 (2020) (citing 8 U.S.C. 1101(a)(3)).

3 Respondents note that Warden Fred Figueroa of the Diamondback Correctional facility is not a

federal official and that their response was not filed on his behalf. (ECF 11:1).

Petitioner with a bond hearing before an immigration judge under § 1226(a) or to release

Petitioner.

I. BACKGROUND AND PETITIONER’S CLAIMS

A. Factual Background and Procedural History

Petitioner Aditya Kumar is a native and citizen of India who entered the United

States on or about December 9, 2022, at or near Lukeville, Arizona. (ECF No. 1-1:11, 17).

Following his apprehension shortly after entry, the Department of Homeland Security

(DHS) paroled Petitioner into the United States pursuant to 8 U.S.C. § 1182(d)(5)(A),

releasing him on December 11, 2022. (ECF No. 1-1:11). Petitioner’s parole was authorized

until February 9, 2023. (ECF No. 1-1:11). As a condition of his release, Petitioner was

directed to report to ICE within sixty days to enroll in alternatives to detention. (ECF No.

1-1:7-9).

In June 2023, Petitioner filed an application for asylum and for withholding of

removal with USCIS. (ECF No. 1-1:13). On April 16, 2026, ICE detained Petitioner

following a commercial vehicle inspection. (ECF No. 1:2).4 ICE detained Petitioner

pursuant to a Warrant for Arrest of Alien issued under 8 U.S.C. § 1226. (ECF No. 1-1:5).

4 The record reflects a discrepancy as to the date of the encounter. The petition alleges in places

that ICE detained Petitioner on April 16, 2026, and elsewhere that the commercial vehicle

inspection occurred on May 15, 2026. (ECF No. 1:2, 7). The discrepancy is not material to the

analysis, and the undersigned refers to the April 16, 2026, date reflected in the charging

documents. Moreover, considering the Petition was filed on May 10, 2026, the undersigned

presumes that the inclusion of May 15, 2026, as the date of Petitioner’s detention is attributable

to a scrivener’s error.

The same day, DHS served a Notice to Appear (NTA) charging Petitioner as removable

under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being

admitted or paroled, and placing him in removal proceedings under 8 U.S.C. § 1229a.

(ECF No. 1-1:17). The NTA designates Petitioner an “arriving alien.” ( .). Petitioner’s

removal proceedings are ongoing.5

Petitioner was detained at the Diamondback Correctional Facility in Watonga,

Oklahoma, when he filed the Petition. (ECF 1:1). Petitioner remains detained there.

ICE Online Detainee Locator system, https://locator.ice.gov/odls/#/results (last visited

July16, 2026).

B. Petitioner’s Claims

Petitioner advances three counts in his Petition.

• Count I: Violation of the Due Process. Petitioner asserts that he holds a

protected liberty interest in his continued release after having been released on

parole and permitted to reside in the country for over three years. (ECF No. 1:21-

23). Petitioner argues his re-detention without notice, an individualized

determination, or an opportunity to be heard deprived him of that interest without

due process. ( ).

• Count II: Violation of the Immigration and Nationality Act (INA).

Petitioner argues his detention is under 8 U.S.C. § 1226(a) and that he is entitled

to a custody redetermination hearing before an immigration judge. (ECF No. 1:23-

24). Petitioner argues his continued detention without a bond hearing violates the

INA. ( ).6

5 Petitioner is scheduled for a master calendar hearing before the Immigration Court on July 27,

2026. Executive Office for Immigration Review Automated Case Information System,

https://acis.eoir.justice.gov/en/caseInformation (last visited July 16, 2026).

6 Petitioner has not requested a bond hearing before the Immigration Court. Petitioner contends

that administrative exhaustion is futile because immigration judges have uniformly adopted the

Board of Immigration Appeals’ decision in , 29 I. & N. Dec. 216 (BIA

• Count III: Petitioner asserts a violation of the Administrative Procedure

Act, 5 U.S.C. §§ 701–706. Petitioner contends that his arrest and detention

constitute final agency action that is arbitrary, capricious, and contrary to law.

(ECF No. 1:25-26).

Petitioner requests that the Court assume jurisdiction over this matter and order

his immediate release from custody subject to the conditions that governed his earlier

parole. (ECF No. 1:26). In the alternative, Petitioner requests that the Court issue a writ

of habeas corpus requiring Respondents to provide him with a bond hearing before a

neutral decision-maker at which the Government bears the burden of proof. (Id.).

Petitioner further requests an order clarifying that the statutory basis for his detention is

8 U.S.C. § 1226(a) and that 8 U.S.C. § 1225(b)(2)(A) does not apply to him, an order

barring his transfer outside the District during the pendency of the petition, the return of

his seized property, and attorney’s fees and costs under the Equal Access to Justice Act.7

(Id.).

II. 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.

2025), which treats noncitizens who entered without admission as subject to mandatory detention

under § 1225(b). (ECF 1:11-12). Respondents do not dispute Petitioner’s assertion. The

undersigned agrees that Petitioner was not required to exhaust before filing the Petition.

, 388 F.3d at 1310 (holding exhaustion requirements do not apply to challenges to

immigration detention brought in habeas proceedings).

7 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.

§ 2241(c)(3). “Challenges to immigration detention are properly brought directly through

habeas.” , 388 F.3d 1305, 1310 (10th Cir. 2004) (citing

, 533 U.S. 678, 687-88 (2001)).

III. ANALYSIS

A. Section 1226(a) Governs Petitioner’s Detention

In Count II, Petitioner alleges that his detention is governed by § 1226(a) and that

he is entitled to a bond hearing. (ECF No. 1:24-25). Respondents maintain that Petitioner

is properly detained under § 1225(b)(1) as an arriving alien, notwithstanding his parole

and his years of residence in the interior. (ECF No. 11:3–7). The Court must first

determine which statutory provision governs Petitioner's detention. For the reasons

explained below, § 1226(a), rather than § 1225(b)(1), governs Petitioner’s re-detention.

The two sections of the INA at issue that govern the 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." § 1225(a)(1) (citation modified).

Section 1225(b)(1) supplies the expedited-removal process and "governs procedures for

the inspection of aliens arriving in the United States who have not been admitted or

paroled." A noncitizen who is inadmissible under 8 U.S.C. § 1182(a)(6)(C) or (a)(7) and

who is arriving in the United States may be ordered removed "without further hearing or

review unless the alien indicates either an intention to apply for asylum . . . or a fear of

persecution." § 1225(b)(1)(A)(i). If a noncitizen is subject to expedited removal under §

1225(b)(1), he is not entitled to a bond hearing. , 583 U.S.

281, 297 (2018).

Section 1226(a), by contrast, more generally authorizes the detention of a

noncitizen pending removal proceedings and entitles the noncitizen to a bond hearing.

at 306 ("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))).

The Tenth Circuit recently rejected a closely related statutory interpretation of §

1225 urged by Respondents. , --- F.4th ---, No. 26-6019,

2026 WL 1876709, at *4-17 (10th Cir. June 30, 2026). Construing § 1225(b)(2)(A), the

court concluded that "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." at *7 (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)." at *5. While

concerned a dispute over the proper interpretation of § 1225(b)(2)(A), not §

1225(b)(1), the Tenth Circuit observed that "§ 1225(b)(1) . . . is also limited to the

border." at *13.

That reasoning controls here. Petitioner entered the United States near Lukeville,

Arizona, was paroled into the country, lived in the interior for more than three years, and

was then detained during a commercial vehicle inspection far from any port of entry. (ECF

No. 1-1:5, 11, 17). Petitioner’s removal proceedings under section 240 were initiated on

the same date he was detained. (ECF No. 1-1:17). Judges in this District have routinely

found that where a "Petitioner was paroled into the United States, permitted to reside in

the interior of the country for several years, pursued his asylum application, and complied

with the conditions of his release before being re-detained," his "detention is mo[st]

naturally characterized as detention 'pending a decision on whether the alien is to be

removed from the United States' within the meaning of § 1226(a)." ,

No. CIV-26-350-J, 2026 WL 1865418, at *3 (W.D. Okla. June 29, 2026);

, No. CIV-26-365-SLP, 2026 WL 1470929, at *2-3 (W.D. Okla. May 26, 2026)

(finding a noncitizen detained after revocation of § 1182(d)(5) humanitarian parole is

held pursuant to § 1226(a)); , 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); , No. CIV-26-

132-HE, ECF No. 13, at *3-4 (concluding that "noncitizens who remain in the United

States after their [humanitarian] parole ended are not arriving aliens" and that "§ 1226(a)

governs petitioner's detention, and thus, he is entitled to an individualized bond hearing")

(quoting , No. 4:26-cv-34-DJH, 2026 WL 596643, at *3 (W.D. Ky. Mar.

3, 2026)). Based on Tenth Circuit precedent and consistent with the approach of the

majority of Judges in this District, the undersigned recommends that the Court apply §

1226(a) to govern Petitioner's current detention.

Respondents' own conduct reflects their understanding that Petitioner’s detention

is governed by § 1226. When ICE arrested Petitioner, it did so pursuant to a Form I-200

Warrant for Arrest of Alien issued under section 236 of the INA, that is, the § 1226

authority, rather than under § 1225. (ECF No. 1-1:5). Section 1225(b) "contains no

warrant requirement," so the decision to secure and serve a § 1226 warrant "suggests

that [ICE] understood [Petitioner] to be subject to discretionary rather than mandatory

detention, since securing such a warrant was unnecessary if Respondents were actually

detaining [him] under Section 1225(b)." , 811 F. Supp. 3d

274, 311 (E.D.N.Y. 2025) (citation modified).

B. Petitioner is not an Arriving Alien Subject to § 1225(b)(1)

Respondents' position turns on the contention that Petitioner remains an arriving

alien subject to mandatory detention under § 1225(b)(1), notwithstanding his parole and

its later expiration. (ECF No. 11:3–7). Section 1225(b)(1)(A)(i) reaches a noncitizen "who

is arriving in the United States." The verb "is arriving" describes a present, ongoing act,

not a status that attaches once and endures indefinitely. A noncitizen arrives upon

reaching the border or a port of entry; once admitted, paroled, or otherwise released into

the interior, that noncitizen is no longer arriving. , No. 26-CV-00461,

2026 WL 607559, at *3 (D. Colo. Mar. 4, 2026) ("someone arriving in the United States

is someone who has reached the border or a port of entry," and "upon his parole into the

interior of the country, petitioner had arrived in the United States and was no longer a

noncitizen arriving in the United States") (citation modified). To describe a noncitizen who

entered in December 2022, was paroled, and lived and worked in the community for more

than three years as "arriving in the United States" is to detach the statutory term from

its ordinary meaning.

Courts in this District and elsewhere have accordingly rejected the theory that

parole under § 1182(d)(5)(A), or its later expiration, leaves a long-resident noncitizen an

arriving alien subject to mandatory detention. , No. CIV-26-

526-R, 2026 WL 1896139, at *1-2 (W.D. Okla. July 1, 2026) (rejecting the "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"); , 2026 WL 1865418, at *2-3 (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)"); , 2026 WL 1470929, at *2-3 ("[R]evocation of parole

under § 1182(d)(5) does not render a noncitizen in Petitioner's circumstances subject to

detention under § 1225(b)(1)."); , No. 25-CV-6524 (VEC), 2026 WL

915304, at *4-6 (S.D.N.Y. Apr. 3, 2026); , No. 26-CV-00538-PAB,

2026 WL 1026810, at *3 (D. Colo. Apr. 16, 2026) ("[R]egardless of whether petitioner

was detained pursuant to § 1225(b)(1) or § 1225(b)(2) upon his initial entry into the

United States, petitioner's detention did not revert back to § 1225 when his parole was

terminated."); , 175 F.4th 61, 85 (2d Cir. 2026) (rejecting broad

reliance on the entry-fiction doctrine in the detention context).

Respondents argue that, because Petitioner's parole was temporary and has

expired, § 1182(d)(5)(A) requires that he be "returned to the custody from which he was

paroled," so that he must now be treated as though he had never been paroled. (ECF

No. 11:7). Section 1182(d)(5)(A) states that upon the expiration or revocation of parole

"[a non-citizen’s] case shall continue to be dealt with in the same manner as that of any

other applicant for admission." § 1182(d)(5)(A). The provision is not a detention authority

at all, for it "does not 'affirmatively authoriz[e] detention.'" , No. 25-cv-

10029, 2025 WL 3654098, at *10 (S.D.N.Y. Dec. 17, 2025) (quoting ,

543 U.S. 371, 385 (2005)). Courts have accordingly held that "the expiration of . . . parole

does not require treating the noncitizen as if they had never been paroled in the first

place." , No. CV 26-02586, 2026 WL 1684433, at *6 (D. Ariz. May

21, 2026) (citation modified). The expiration of Petitioner's parole restored him to the

status he held before it was granted, a noncitizen present without admission and subject

to removal proceedings under section 240. It did not convert him into an arriving alien

subject to the expedited-removal provision.

C. Petitioner’s Remaining Claims

Respondents assert that Petitioner's due process claims fail because, as a

noncitizen present without admission, he is entitled only to the process the INA provides,

and that his claim under the Administrative Procedure Act, 5 U.S.C. §§ 701–706, does

not lie in habeas. (ECF No. 11:8–12). Because Petitioner is entitled to relief on the

statutory ground that his detention is governed by § 1226(a), the undersigned does not

reach his separate constitutional claim or his APA claim. , No. CIV-26-

997-R, 2026 WL 1894795, at *6 (W.D. Okla. July 1, 2026) (declining to reach remaining

claims where the petitioner was entitled to relief on another ground).

D. The Proper Remedy is a Bond Hearing

Consistent with a common approach in this District, the undersigned recommends

that Petitioner be afforded a constitutionally sufficient bond hearing before an

Immigration Judge. A bond hearing is the proper remedy for a noncitizen detained under

§ 1226(a). , 2026 WL 1876709, at *17 n.13;

, 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." (citing

, 553 U.S. 723, 779 (2008))).

The undersigned recommends that the Court decline to specify or alter the burden

of proof at this stage and leave the conduct of the hearing to the immigration judge.

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

2026); , No. CIV-26-568-D, 2026 WL 1625653, at *2 n.2 (W.D. Okla. June

5, 2026).

IV. 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 five business days or otherwise release

Petitioner if he has not received a lawful bond hearing within that period. The undersigned

further recommends that the Court order Respondents to certify compliance by filing a

status report within seven business days of the Court’s order.

The parties may object to this Report and Recommendation under 28 U.S.C. §

636(b)(1) and Fed. R. Civ. P. 72(b)(2). Any objection must be filed not later than July

23, 2026. If a party wishes to respond to the other party’s objections, such response

must be filed not later than July 27, 2026. See id. The parties are further advised that

failure to make timely objection to this Report and Recommendation waives the right to

appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri,

595 F.3d 1120, 1123 (10th Cir. 2010).

V. STATUS OF REFERRAL

This Report and Recommendation disposes of all issues and terminates the referral

to the undersigned Magistrate Judge in the captioned matter.

ENTERED on July 16, 2026.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE