Opinion

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

JOEL ALEXANDER SALAZAR )

GUTIERREZ, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1210-G

)

UNITED STATES DISTRICT COURT, )

et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Joel Alexander Salazar Gutierrez, a noncitizen1 and El Salvadorean

national proceeding pro se, 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. 6, and the Petition

is at issue. For the reasons set forth below, the undersigned recommends the Court dismiss

the Petition in part as moot, deny the Petition in part, and dismiss the Petition in part due

to a lack of subject-matter jurisdiction over particular claims.2

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)).

2 Although Respondents filed a “Response in Opposition to the Petition for Writ of Habeas

Corpus,” not a motion, they seek dismissal of the action pursuant to Federal Rule of Civil

I. Background

Petitioner, a citizen of El Salvador, entered the United States on August 19, 2021,

without inspection or admission near Hidalgo, Texas, and was taken into immigration

custody on the same day. Doc. 9-1 at 1-2 (August 2021 ICE Encounter Summary). On

September 17, 2021, Petitioner was released on an Order of Release on Recognizance.

Doc. 9-2 at 3 (March 2024 ICE Encounter Summary); Doc. 9-9 at 2 (Hunt Decl.).3

On March 4, 2024, Petitioner was re-detained by ICE due to his arrest by Tulsa

County law enforcement. Doc. 9-2 at 2; Doc. 9-9 at 2 (Hunt Decl.). The charges against

Petitioner were dismissed, and he was again released by ICE on an Order of Release on

Recognizance on May 15, 2024. Doc. 9-2 at 3; Doc. 9-9 at 2. Petitioner alleges he “filed

a I-485 Application” for Permanent Resident Status, which was approved in September

2025. Doc. 10 at 1.

On November 17, 2025, ICE issued an administrative warrant for Petitioner’s

removal after his arrest by Tulsa County law enforcement on new charges. Doc. 9-4 at 2

(December 2025 ICE Encounter Summary); Doc. 9-9 at 2-3. He pleaded guilty to six

Procedure 12(b)(6). Resp. 3-4. The undersigned treats Respondents’ filing as a response

to the Petition because it was not styled as a motion and, as a result, Petitioner reasonably

may not have understood a need to respond to it. The parties also filed supplemental

information, Docs. 10, 12-13, which the undersigned has reviewed and considered.

3 Mr. Hunt’s Declaration recounting ICE’s records does not indicate Petitioner was placed

into removal proceedings before the Immigration Court in August 2021. Doc. 9-9 at 1-2.

But the ICE Encounter Summary, dated August 20, 2021, states Petitioner “was processed

for Warrant of Arrest/Notice to Appear per section 212(a)(6)(A)(i) of the Immigration and

Nationality Act” at that time. Doc. 9-1 at 2. To the extent a factual discrepancy exists, it

is not dispositive of the undersigned’s analysis.

counts in Tulsa County on December 11, 2025, and received a deferred sentence. See

OSCN Docket, State v. Salazar Gutierrez, No. CF-2025-4323 (Tulsa Cnty.), at

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=CF-2025-

4323&cmid=3834026 (last accessed Aug. 27, 2026).

Petitioner was taken into ICE custody on December 12, 2025, and he has since

remained in ICE detention. Doc. 9-3 (Warrant for Arrest); Doc. 9-4 at 4; Doc. 9-5 at 1

(Notice of Custody Determination); Doc. 9-9 at 2-3. The same day, 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. 9-5 at 1; Doc. 9-9 at 3.

On April 28, 2026, an Immigration Judge (“IJ”) ordered Petitioner removed and

denied his request for asylum. Doc. 9-7 at 1 (Order of IJ); Doc. 9-9 at 3. The IJ also denied

withholding of removal under 8 U.S.C. § 1231(b)(3) and denied withholding and deferral

of removal under the Convention against Torture. Doc. 9-7 at 1. No evidence in the record

indicates Petitioner timely appealed the decision with the Board of Immigration Appeals

(“BIA”) by the deadline of May 28, 2026. Doc. 9-7 at 4 (showing the appeal deadline);

Doc. 9-9 at 3. See EOIR, Automated Case Information, at https://acis.eoir.justice.gov/en/

(last accessed Aug. 27, 2026) (showing no appeal received by the BIA). Therefore, his

removal order is final under 8 U.S.C. § 1101(a)(47)(B)(ii) and 8 C.F.R. § 1241.1.4

When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility

in Cushing, Oklahoma. Pet. at 1. The undersigned presumes he remains detained there,

though his location is no longer indicated by the ICE Online Detainee Locator System. See

Doc. 12 at 1; Doc. 13-2 (filing by Petitioner on August 19, 2026, indicating his detention

at Cimarron Correctional Facility); ICE Online Detainee Locator System, at

https://locator.ice.gov/odls/#/results (last accessed Aug. 27, 2026).5

II. Petitioner’s Claims

Petitioner asserts four counts in his Petition.

• Count I: Violation of Due Process. Petitioner alleges he was

approved for a visa in September 2025 but not allowed to use that

approval in his removal proceeding before an IJ. Pet. at 6.

• Count II: Violation of the Immigration and Nationality Act

(“INA”). Petitioner alleges his continued detention without an

individualized bond hearing violates the INA. Id.

4 Petitioner provided evidence that he transmitted to the BIA a Motion to Accept Late

Appeal on June 8, 2026. Doc. 10-1 at 3. It is unclear whether the BIA has addressed his

motion. Id. (showing receipt on June 15, 2026, of Petitioner’s motion by the Clerk of the

BIA). This Court lacks jurisdiction to intercede in BIA procedures regarding timeliness of

appellate filings. Negrete-Ramirez v. Noem, No. 25-cv-1227, 2026 WL 375961, at *2-3

(D.N.M. Feb. 10, 2026) (holding, under 8 U.S.C. § 1252(b)(9), that subject-matter

jurisdiction did not exist to review the BIA’s decision to accept a late appellate filing from

an order by an IJ).

5 The undersigned also ordered Respondents to “file written notice at least forty-eight hours

before removing, transferring, relocating, or otherwise moving Petitioner,” and no notice

of removal has been filed. Doc. 7 at 2.

• Count III: Violation of the INA. Petitioner alleges ICE’s failure to

provide him with the warrant on the day he was taken into custody in

December 2025 violates the INA. Id.

• Count IV: Lack of bond hearing. Petitioner alleges he is eligible

for, but was not provided with, a bond hearing. Id. at 7.

Petitioner asks the Court to order his “immediate release” through an order of supervision,

a bond, or another alternative. Id. In a supplemental filing, Doc. 10, Petitioner asks the

Court to prevent his deportation.

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 is not entitled to a bond hearing.

The two sections of the INA that govern detention of noncitizens pending removal

proceedings are 8 U.S.C. §§ 1225 and 1226. If a noncitizen is detained under

§ 1225(b)(2)(A), he or she 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 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))). Both

§ 1225 and § 1226 apply during the period before a removal order from an IJ becomes final

under 8 U.S.C. § 1101(a)(47)(B)(ii) and 8 C.F.R. § 1241.1.

Once an IJ’s order of removal becomes final, a different statute controls: 8 U.S.C.

§ 1231. Carbajal v. Holder, 43 F. Supp. 3d 1184, 1188 (D. Colo. 2014) (“After the pre-

removal period concludes, the statutory authority to detain an alien shifts to 8 U.S.C.

§ 1231.”). This shift from the pre-removal period of § 1225 and § 1226 to the “removal

period” under § 1231 is triggered by the latest of three events:

(i) The date the order of removal becomes administratively final;

(ii) If the removal order is judicially reviewed and if a court orders a stay

of the removal of the alien, the date of the court’s final order;

(iii) If the alien is detained or confined (except under an immigration

process), the date the alien is released from detention or confinement.

8 U.S.C. § 1231(a)(1)(B)(i)-(iii). During the 90-day removal period to remove a noncitizen

from the United States, the noncitizen is subject to mandatory detention. Id.

§ 1231(a)(1)(A), (a)(2)(A).

Here, Petitioner’s order of removal became administratively final on May 28, 2026,

when the 30-day period to appeal the IJ’s determination ended without an appeal being

filed with the BIA. See id. § 1101(a)(47)(B)(ii). Petitioner has not provided evidence that

the order of removal is being judicially reviewed to trigger § 1231(a)(1)(B)(ii). See also

EOIR, Automated Case Information, at https://acis.eoir.justice.gov/en/ (last accessed Aug.

27, 2026) (showing no appeal received by the BIA). Nor has he provided evidence that he

is otherwise detained via a non-immigration process to trigger § 1231(a)(1)(B)(iii).

Accordingly, on May 28, 2026, Petitioner’s potential entitlement to a pre-removal bond

hearing ended, as he moved to the “removal period” under § 1231. As a result, Petitioner’s

request for a bond hearing should be dismissed as moot.

“Article III of the Constitution limits federal-court jurisdiction to ‘cases’ and

‘controversies.’” Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 160 (2016) (quoting U.S.

Const. art. III, § 2). This means “an actual controversy must be extant at all stages of

review, not merely at time the [petition] is filed.” Arizonans for Off. Eng. v. Arizona, 520

U.S. 43, 67 (1997). “If an intervening circumstance deprives the [petitioner] of a personal

stake in the outcome of the lawsuit, at any point during litigation, the action can no longer

proceed and must be dismissed as moot.” Genesis Healthcare Corp. v. Symczyk, 569 U.S.

66, 72 (2013) (citation modified). “A case becomes moot only when it is impossible for a

court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps.

Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012) (citation modified).

Here, a bond hearing is no longer available to Petitioner because he has moved from

the pre-removal period to the statutory scheme of § 1231.6 As a result, that portion of his

habeas challenge requesting a bond hearing is moot. See Carbajal, 43 F. Supp. 3d at 1189

(finding a bond hearing request moot under similar circumstances). The relief Petitioner

requests is no longer available and cannot be redressed by a favorable judicial decision.

Accordingly, the undersigned recommends the Court dismiss as moot Petitioner’s request

for a bond hearing under the INA. Cf. Quintanilla v. Figueroa, No. CIV-26-797-G, 2026

6 None of the mootness exceptions apply to Petitioner’s request for a bond hearing. Ind v.

Colo. Dep’t of Corr. 801 F.3d 1209, 1213 (10th Cir. 2015) (listing four exceptions to

mootness).

WL 2302459, at *1 (W.D. Okla. Aug. 10, 2026) (dismissing a habeas petitioner’s claims

as moot because the petitioner was subject to mandatory detention under § 1231).

B. Petitioner is not otherwise entitled to release based on the Petition.

Petitioner also seeks “immediate release.” Pet. 7. In some circumstances, a Court

can order release once a noncitizen’s 90-day removal period has ended, if the noncitizen

has not been removed. Zadvydas v. Davis, 533 U.S. 678, 682, 687-88 (2001).

There is no express limitation on the length of an alien’s post-removal-period

[of] detention under § 1231(a)(6). But in Zadvydas, the Supreme Court

interpreted § 1231(a)(6) narrowly and imposed an implicit reasonable time

limitation on such detention to avoid any Fifth Amendment due process

issues that could arise from indefinite detention. After Zadvydas, an alien

can be detained only until it has been determined that there is no significant

likelihood of removal in the reasonably foreseeable future.

Babakhani v. Gantt, No. CIV-26-705-SLP, 2026 WL 1822995, at *3 (W.D. Okla. June 24,

2026) (citation modified). If Petitioner’s order of removal became final on May 28, 2026,

his 90-day removal period under § 1231(a) ended on August 26, 2026.

Here, Petitioner made no allegations in the Petition utilizing the Zadvydas analytical

framework. Nor has there been a request to submit an amended petition. Instead,

Petitioner’s allegations and requests for relief are specific to the pre-removal period that

has ended. See Pet. at 2 (relying on 8 U.S.C. § 1182(a)(6)(A)(i)); id. at 3, 6-7 (asserting

eligibility for a bond hearing, which is only available to a noncitizen during the pre-removal

period). The undersigned recommends the Court decline to construe the Petition as

requesting release under Zadvydas, though Petitioner may request such relief in a future

action if circumstances entitle him to such relief at that time.

To the extent the undersigned liberally construes the Petition to raise a claim under

Zadvydas, Petitioner’s detention has not extended beyond the presumptively reasonable

six-month period set in Zadvydas. He has also failed to meet the Zadvydas requirement to

establish “good reason to believe that there is no significant likelihood of removal in the

reasonably foreseeable future.” 533 U.S. at 701. Petitioner has not alleged any institutional

barriers to his removal; nor has he shown any obstacles particular to his circumstances that

would prevent or delay his removal. See, e.g., Abiodun v. Mukasey, 264 F. App’x 726, 729

(10th Cir. 2008) (finding a petitioner was not entitled to relief because there had been “no

showing” he would “not be accepted by his homeland of Nigeria”). Accordingly, to the

extent the Petition could be construed to seek release under Zadvydas, Petitioner has failed

to show there is no significant likelihood of his removal in the reasonably foreseeable

future.

C. No relief is available for Petitioner’s warrantless arrest claim.

Petitioner also asserts the INA was violated because he was not “given a copy of the

issued warrant from the attorney general” when his current detention began.7 Pet. 6. Under

§ 1226(a), a noncitizen may only be arrested and detained “on a warrant issued by the

Attorney General.” 8 U.S.C. § 1226(a) (citation modified). However, Respondents

submitted a copy of the warrant dated December 12, 2025, which is the date Petitioner’s

7 Respondents did not substantively respond to either (a) Petitioner’s claim that he was

arrested without a warrant or (b) his claim that the process afforded to him in his removal

hearing by the IJ was insufficient. Still, because Petitioner failed to adequately support

these claims, the undersigned recommends the Court deny both claims.

detention began. Doc. 9-3 at 1. He has not demonstrated any deficiency in the warrant.

As such, the Court should deny Petitioner’s claim for relief based on a warrantless arrest.

D. The Court should dismiss Petitioner’s due process claim.

Finally, Petitioner appears to assert he was prevented from using his September

2025 visa approval in his removal proceedings. Pet. at 6. The undersigned liberally

construes this as an allegation that Petitioner’s rights to procedural due process were

violated because he did not have sufficient opportunities before an IJ to argue against

removal. However, a challenge to evidentiary determinations made in a removal hearing

must be brought via direct appeal, not in habeas.

Section 1252(b)(9) channels “judicial review of all questions of law and fact” from

IJ removal proceedings to “judicial review of a final order” for removal. 8 U.S.C.

§ 1252(b)(9). Issues of law—including evidentiary rulings—are to be considered via

appeal of the IJ’s order to the BIA and later to the appropriate Court of Appeals. See

Aguilar v. U.S. Immigration & Customs Enf’t, 510 F.3d 1, 18 (1st Cir. 2007) (channeling

“procedural due process claims” regarding “difficulties in calling witnesses and in

presenting evidence” during “removal proceedings” to the direct, administrative appeal

process under § 1252(b)(9)); Onuwa v. Field Off. Dir., Civ. No. 26-2403, 2026 WL

772435, at *3 (D.N.J. Mar. 19, 2026) (indicating, under § 1252(b)(9), the IJ is the

“determiner of appropriate evidence” in a removal proceeding). As a result of § 1252(b)(9),

this Court lacks subject-matter jurisdiction to review an IJ’s determinations about what

materials a noncitizen may submit in a removal proceeding. Because the Court lacks

subject-matter jurisdiction to consider this issue, the undersigned recommends that it be

dismissed.

V. Recommendation and Notice of Right to Object

For the foregoing reasons, the undersigned recommends that the Court (1) DISMISS

as moot the Petition to the extent Petitioner seeks a bond hearing, (11) DENY the Petition

to the extent he seeks release via means other than a bond hearing, and (iii) DISMISS for

lack of subject-matter jurisdiction his claim regarding the IJ’s_ evidentiary

determinations in his removal hearing.

The parties are advised of their nght to object to this Report and Recommendation.

See 28 U.S.C. § 636. Any objection must be filed not later than September 10, 2026. See

id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Ifa party wishes to respond to the other party’s

objections, such response must be filed not later than September 17, 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 27* day of August, 2026.

UNITED STATES MAGISTRATE JUDGE

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