The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DARWIN JOSE CARDOZO )
GONZALEZ, )
)
Petitioner, )
)
v. ) Case No. CIV-26-1569-PRW
)
WARDEN, DIAMONDBACK )
CORRECTIONAL FACILITY, )
et al., )
)
Respondents.1 )
REPORT AND RECOMMENDATION
Petitioner Darwin Jose Cardozo Gonzalez, a noncitizen proceeding pro
se, 2 filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2241.
Doc. 1.3 United States District Judge Patrick R. Wyrick referred the matter to
1 Respondent Fred Figueroa, Warden of Diamondback Correctional
Facility, is not a federal official, and the response is not filed on his behalf. See
Doc. 10, 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.
the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B), (C). Doc. 6. Respondents have filed a response, Doc. 10, and the
time for Petitioner to reply has lapsed. Petitioner has also filed motions to
expedite and for immediate release. Docs 11, 12, 13, 14. For the reasons set
forth below, the undersigned recommends the Court deny the petition.
I. Factual background and Petitioner’s claims.
Petitioner is a citizen of Venezuela who entered the United States in
June 2023. Doc. 1, Ex. 1, at 8. The Department of Homeland Security placed
him in removal proceedings that month, released him on his own recognizance,
and charged him with being an alien present in the United States without
being admitted or paroled, under 8 U.S.C. § 1182(a)(6)(A)(i). Doc. 1, Ex. 1, at
8-10. He applied for Temporary Protected Status, which was granted in April
2025, with an expiration date in October 2026. Id. at 6.
On August 22, 2025, Immigration and Customs Enforcement (ICE) took
Petitioner into custody. Doc. 1, at 2. Petitioner states he has complied with all
terms and conditions of his release. Id. at 6. He appealed his removal order,
which remained pending at the time of his petition. Id. at 2. On August 24,
2026, the BIA dismissed that appeal. See Darwin Jose Cardozo-Gonzalez,
https://acis.eoir.justice.gov/en/caseInformation (last visited August 27, 2026).
Petitioner has now been detained in ICE custody for over a year. As a result of
his detention, he was not present at his U.S.-citizen daughter’s birth. Doc. 1,
at 7.
Petitioner challenges: (1) the length of his detention without a
meaningful opportunity for release; (2) his arrest and detention despite
compliance with the conditions of his release; and (3) the denial of an
individualized custody hearing. Id. at 6.
He seeks immediate release from ICE custody, or, in the alternative, an
individualized bond hearing. Id. at 7.
II. 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.
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)).
III. Petitioner is not eligible for habeas relief.
At the time of filing, 8 U.S.C. § 1226(a) applied to Petitioner’s detention,
entitling him to an individualized custody redetermination hearing. Indeed,
this is the relief Respondents acknowledged applied. Doc. 10. The BIA’s
dismissal rendered the removal order administratively final. 8 C.F.R. § 1241.1
(“An order of removal… shall become final… [u]pon dismissal of an appeal by
the Board of Immigration Appeals[.]”). The removal period begins either when
the order of removal becomes administratively final, or “if the removal order is
judicially reviewed and if a court orders a stay of the removal of the
[noncitizen], the date of the court’s final order,” whichever is latest. 8 U.S.C. §
1231(a)(1)(B). Thus, absent judicial review accompanied by a court-ordered
stay of removal, Petitioner's detention is now governed by 8 U.S.C. § 1231
rather than § 1226. Id.
Section 1231 establishes a 90-day removal period following a final
removal order. During that period, the government “shall detain” the
noncitizen. 8 U.S.C. § 1231(a)(2). Accordingly, Petitioner is not presently
entitled to the § 1226(a) bond hearing he seeks in this action.
After the removal period, § 1231(a)(6) may authorize continued detention
for a period reasonably necessary to accomplish removal. Zadvydas, 533 U.S.
at 699-701 (explaining that the INA does not authorize “indefinite, perhaps
permanent, detention” of noncitizens subject to final orders of removal and
recognizing six months as a presumptively reasonable period to allow the
government to accomplish removal.). The petition does not establish that
Petitioner’s detention presently exceeds the removal period or that there is no
significant likelihood of removal in the reasonably foreseeable future. The
Court therefore should deny the petition without prejudice to any later
challenge that may become available under § 1231 and Zadvydas.
Therefore, Petitioner is now subject to mandatory detention under §
1231(a)(2) for the remainder of the 90-day removal period beginning August
24, 2026.
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
DENY Petitioner’s habeas petition. Adoption of this Report and
Recommendation will moot any pending motions.
The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by September
18, 2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil
Procedure 72. The undersigned further advises the parties that failure to make
timely 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 28th day of August, 2026.
hea Ltr
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE