The opinion
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF OKLAHOMA
MARLON VASQUEZ-LOPEZ, )
)
Petitioner, )
) Case No. CIV-26-1494-D
v. )
)
WARDEN SCARLET GRANT, et al.,1 )
)
Respondents. )
REPORT AND RECOMMENDATION
Petitioner Marlon Vasquez-Lopez, a noncitizen proceeding pro se,2 seeks
a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.3 United States District
Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate
Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3.
1 Warden Chris Gantt, current Warden of the Cimarron Correctional
Facility, is not a federal official and the Government did not file its response
on his behalf. See Doc. 7, at 1 n.1.
2 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)). This Court construes “[a] pro se
litigant’s pleadings . . . liberally,” holding them “to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
3 Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
Respondents filed a Response, Doc. 7, and Petitioner has replied. Doc. 8. So the
matter is at issue.
For the reasons set forth below, the undersigned recommends the Court
grant Petitioner’s request for habeas corpus relief in part and order
Respondents to provide him with an individualized bond hearing within seven
days or else release Petitioner.
I. Factual background and procedural history.
Petitioner is a native and citizen of Honduras who entered the United
States on or about January 15, 2011. Doc. 8, at 1. He is apparently in removal
proceedings and has been residing in the United States on an order of release
on his own recognizance. Id. at 2, 4. On June 1, 2026, an Immigration Judge
(IJ) ordered his removal. Id. at 2. Petitioner appealed to the Board of
Immigration Appeals and that appeal is pending. Id.; see also
https://acis.eoir.justice.gov/en/caseInformation (noting a case appeal was
received on June 15, 2026) (last visited Aug. 19, 2026). Respondents provide no
information on Petitioner’s case.
Immigration and Customs Enforcement (ICE) detained Petitioner on
January 17, 2026. Doc. 1, at 5; Doc. 8, at 2. He is currently detained at the
Cimarron Correctional Facility in Cushing, Oklahoma. Doc. 1, at 1.
II. Petitioner’s claims.
Petitioner raises three grounds for relief. In ground one, he complains of
his prolonged detention over six months while his removal proceedings are
ongoing. Doc. 1, at 7. In ground two, he complains the Government has
detained him without a custody redetermination hearing in violation of his due
process rights. Id. And, in ground three, he complains ICE illegally arrested
and detained him without a warrant in violation of 8 U.S.C. § 1226. Id. He
seeks his immediate release on an appropriate order of supervision, or, in the
alternative, he requests a prompt bond hearing where Respondents bear the
burden to prove by clear and convincing evidence that he is a risk of flight or
danger to the community. Id. at 8; see Doc. 8, at 14. He also seeks to have
Respondents show cause why the Court should not grant his petition; to
shorten the objection time;4 an order enjoining any future illegal detention; an
order declaring that his detention is unlawful; and an expedited decision. Doc.
1, at 8.
III. Standard of review.
An application for a writ of habeas corpus “is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S.
4 The Court addressed these issues in its Order for Response, Doc. 5.
475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “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. Discussion.
A. Petitioner is not subject to mandatory detention under 8
U.S.C. § 1225(b).
Petitioner asserts in part that the Government’s “prolonged” detention
of him with no opportunity for release violates his due process rights. Doc. 1,
at 7; Doc. 8, at 3-4. He further asserts he “is detained under [8 U.S.C.] § 1226
and not § 1225.” Doc. 8, at 3. Respondents do not explain their detention
authority to the Court. See Doc. 7, at 1. But they “submit that this matter is
controlled by the Tenth Circuit’s opinion” in Santillan Quiroz v. Mullin, 180
F.4th 1226 (10th Cir. 2026). Id. The undersigned agrees.
Respondents released Petitioner into the country on his own
recognizance and permitted him to reside in the interior of the country for
years before ICE detained him. “Under those circumstances, Petitioner’s
detention is more 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).” Zhakhonov v. Grant, No. CIV-26-350-J, 2026 WL 1865418, at *3
(W.D. Okla. June 29, 2026). The Court should thus conclude that Petitioner’s
present detention “is governed by § 1226(a), not § 1225(b)[].” Id.; see also Zhang
v. U.S. Dist. Ct., No. CIV-26-1022-D, 2026 WL 2323190, at *1 (W.D. Okla. Aug.
11, 2026) (finding petitioner who had been “released into the United States”
was “detained pursuant to 8 U.S.C. § 1226, not §1225(b)(2)(A)”); cf. Santillan
Quiroz, 180 F.4th at 1240 (“Based on the statutory text and context, we
conclude that § 1225(b)(2)(A)’s application is limited to the border.”).
B. Petitioner is entitled to a bond hearing under § 1226(a).
Respondents assert that any relief the Court grants should be “limited
to ordering the Respondents to provide a bond hearing within seven days.” Doc.
7, at 1. Petitioner requests a bond hearing but does not believe he will receive
a fair hearing. Doc. 8, at 14-15. But, because Petitioner is detained under
§ 1226(a), the undersigned concludes a bond hearing is the appropriate
remedy. See e.g., Santillan Quiroz, 180 F.4th at 1247 (explaining that
noncitizens subject to § 1226(a) are “eligible for bond”).
“Unlike § 1225(b)(1), § 1226(a) contemplates individualized custody
determinations and authorizes release on bond or conditional parole pending
completion of removal proceedings.” Zhakhonov, 2026 WL 1865418, at *3.
Here, the Government has not provided Petitioner with an individualized
custody determination since his re-detention in January 2026. Doc. 1, at 7; see,
e.g., Zhakhonov, 2026 WL 1865418, at *3 (“[T]he process afforded by § 1226(a)
itself serves as the mechanism through which a detainee’s liberty interest is
protected.”). Because this is “the very process Congress prescribed for
detainees held pursuant to § 1226(a),” the Court should order Respondents to
provide Petitioner with a bond hearing under § 1226(a). Zhakhonov, 2026 WL
1865418, at *3; see also Navarrete v. Mullin, No. CIV-26-224-SLP, 2026 WL
2323345, at *2 (W.D. Okla. Aug. 11, 2026) (finding the petitioner had a
“protected liberty interest arising from her release on her own recognizance”
and that the level of process owed to her was “for Respondents to provide [her]
with a bond hearing pursuant to 8 U.S.C. § 1226”); Todyrenchuk v. Warden of
Diamondback Corr. Facility, No. CIV-26-1243-J, 2026 WL 2186977, at *3
(W.D. Okla. July 29, 2026) (“[T]he Court concludes the proper remedy in this
case is not immediate release, but an individualized bond hearing before an
Immigration Judge exercising jurisdiction under § 1226(a).”).
The Court should thus grant the petition in part and order Respondents
to provide Petitioner with a bond hearing under § 1226(a) within seven days or
else release Petitioner. See, e.g., Santillan Quiroz, 180 F.4th at 1251 n.13
(directing district court to order the government to provide the petitioner a
bond hearing within seven days “[b]ecause [the petitioner] can properly be
subject to detention under § 1226(a).”); see also Colin v. Holt, No. CIV-25-1189-
D, 2025 WL 3645176, at *6 (W.D. Okla. Dec. 16, 2025) (“Petitioner has not
received a bond hearing and Respondents raise no objection challenging their
obligations to provide bond hearings for noncitizens that are detained under 8
U.S.C. § 1226(a).”).5
C. The Court should decline to address Petitioner’s remaining
claims.
Given the undersigned’s recommendation to grant Petitioner a bond
hearing, the Court should decline to address the merits of Petitioner’s
remaining claims for relief. The Court can grant him relief under § 1226(a).
See Colin, 2025 WL 3645176, at *6 n.3 (“Because the Court grants the relief
the Petitioner requests based on the applicability of 8 U.S.C. § 1226(a), the
Court declines to decide the merits of Petitioner’s due process claim.”); see also
Zhang, 2026 WL 2323190, at *2 n.1 (“Given this determination, the Court
declines to address Petitioner’s remaining claims at this time.”).
5 Petitioner requests the Court place the burden on the Government at a
bond hearing to prove he is not a danger to the community or flight risk by
clear and convincing evidence. Doc. 1, at 8. But the Court has previously
declined to order burden shifting. See, e.g., Zhang, 2026 WL 2323190, at *1
(“[T]he Court declines to place the burden on the Government to justify
Petitioner’s detention pending removal proceedings, at this time.”); Rangel v.
Mullin, No. CIV-26-568-D, 2026 WL 1625653, at *2 n.2 (W.D. Okla. June 5,
2026) (“At this time, the Court declines to place the burden on the government
to justify Petitioner’s detention pending removal proceedings.”). So the
undersigned does not recommend it in this case.
V. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
grant Petitioner’s habeas corpus request in part and order
Respondents to provide Petitioner with an individualized bond
hearing in front of a neutral IJ within seven days or else release
Petitioner. The undersigned also recommends that the Court order
Respondents to certify their compliance with the Court’s order by filing a status
report within ten business days of the Court’s order, and to promptly provide
a copy of this order to counsel for the Warden of the Cimarron Correctional
Facility.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by August 26,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.6 The undersigned further advises the parties that failure to make timely
6 Given the expedited nature of these proceedings, the undersigned has
reduced the typical objection time to this Report and Recommendation. 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 & 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”).
objections to this Report and Recommendation waives the right to appellate
review of both factual and legal questions contained herein. Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation
disposes of the issues referred to the undersigned Magistrate Judge in the
captioned matter.
ENTERED this 19th day of August, 2026.
ga > _
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE