Bangemu

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

PATRICK BANGEMU, )

)

Petitioner, )

)

v. ) Case No. CIV-815-D

)

CHRIS GANTT, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Patrick Bangemu, a citizen of Burundi proceeding with counsel, filed a

petition for a writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his

detention by the U.S. Immigration and Customs Enforcement (“ICE”).1 (Doc. 1).2 United

States District Judge Timothy D. DeGiusti referred the matter to the undersigned

Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and (C). (Doc. 4). Respondents filed a

timely Response in Opposition. (Doc. 13).3 For the reasons set forth below, the

1 Petitioner is housed at the Cimarron Correctional Facility in Cushing, Oklahoma. (Doc.

1, at 2).

2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF

pagination.

3 Petitioner named only Scarlet Grant, then-Warden of the Cimarron Correctional Facility

as the Respondent in this action. (Doc. 1). The United States responded to the Petition on

behalf of Robert Cerna, the Dallas Field Office Director for ICE, who is added as a

Respondent. (See Doc. 13, at 1 n.1). Chris Gantt has since succeeded Scarlet Grant as

Warden of Cimarron Correctional Facility. Pursuant to Federal Rule of Civil Procedure,

25(d), Mr. Gantt is automatically substituted as a Respondent in this action. The Response

undersigned recommends that the Petition be DENIED and that this action be

DISMISSED WITHOUT PREJUDICE.

I. Factual Background

Petitioner is a native and citizen of Burundi who entered the United States on August

4, 1998. (Doc. 1, at Ex. 2, at 2). Petitioner was admitted as a non-immigrant pursuant to

a B2 tourist visa, which authorized him to remain in the United States until January 31,

1999. (Doc. 13, at Ex. 1). Petitioner overstayed his visa, and he was placed in removal

proceedings on February 12, 1999. (Doc. 1, at Ex. 2, at 3). Petitioner was charged under

8 U.S.C. § 1227(a)(1)(B) for remaining in the United States following the expiration of his

period of authorized stay. (Doc. 1, at Ex. 9, at 5).

An Immigration Judge ordered Petitioner removed on June 10, 1999. (Doc. 1, at

Ex. 6, at 2). Petitioner timely appealed the decision to the Board of Immigration Appeals

(“BIA”). (Doc. 1, at Ex. 9, at 3). The BIA administratively closed Petitioner’s appeal on

October 1, 2002, because Petitioner appeared to be eligible for Temporary Protected Status.

(Id. at 5). Petitioner’s removal order is therefore not administratively final.4

On July 25, 2025, Petitioner was convicted of Driving While Intoxicated, a third-

degree felony, in Dallas County, Texas. (Doc. 13, at Ex. 2, at 1). The court imposed a

was not filed on behalf of Mr. Gantt because he is not a federal official. (See id.) The

undersigned concludes that a separate response from Warden Gantt is not necessary to

resolve this matter.

4 An order of removal is final “at the earlier of two points: (1) a determination by the [BIA]

affirming such order, or (2) the expiration of the period in which the alien is permitted to

petition the BIA for review of the order.” Riley v. Bondi, 606 U.S. 259, 267 (2025).

suspended ten-year sentence of imprisonment along with five years of community

supervision. (Id.) Approximately one month later, on August 23, 2025, the Dallas Police

Department arrested Petitioner for violating his order of supervision by again driving while

intoxicated. (Doc. 1, at Ex. 2, at 3). ICE took Petitioner into custody on August 25, 2025.

(Id.)

On August 27, 2025, Petitioner filed a motion to reopen and re-calendar his

administratively closed appeal with the BIA. (Doc. 13, at Ex. 3). That motion remains

pending.5 Petitioner requested a custody redetermination hearing, which was held on

October 28, 2025. (Doc. 1, at Ex. 3, at 1-2). The Immigration Judge denied bond, finding

that Petitioner failed to establish that he does not pose a danger to others based on his

multiple convictions for driving while intoxicated. (Id.) Petitioner reserved the right to

appeal that determination to the BIA but never filed the appeal. (Id. at 2; Doc. 13, at 2).

Petitioner filed the instant Petition on April 15, 2026. (Doc. 1). Petitioner is

detained at the Cimarron Correctional Facility in Cushing, Oklahoma.6

II. Petitioner’s Claims

Petitioner alleges two grounds for relief:

Ground One asserts that Petitioner’s continued detention under 8 U.S.C. § 1226(a)

violates the Due Process Clause of the Fifth Amendment. (Doc. 1, at 8). In support,

Petitioner states that ICE detained him in August 2025 and that an Immigration Judge

5 See EOIR Automated Case Information System, acis.eoir.justice.gov/en/caseInformation

(last visited July 28, 2026).

6 See ICE Detainee Locator, locator.ice.goc/odls/#/results (last visited July 28, 2026).

denied bond on October 28, 2025. (Id.) Petitioner claims that he did not appeal the

Immigration Judge’s decision “because doing so would have been futile.” (Id.) Petitioner

states that his removal order has been administratively closed since October 2002, and he

argues that due process “does not permit the government to keep him detained without a

new determination that continued detention is necessary.” (Id.)

Ground Two asserts that Petitioner’s “continued detention violates substantive Due

Process because it has become excessive in relation to the government’s civil purposes and

is no longer reasonably justified.” (Id.) In support, Petitioner states that since the

Immigration Judge’s denial of bond on October 28, 2025, he has “remained in custody for

many additional months while his removal case has remained pending before the Board of

Immigration Appeals since 2002.” (Id.) Petitioner argues that, absent a new determination,

his continued detention “has become excessive in relation to its stated purpose and is no

longer justified as ordinary civil immigration detention.” (Id.)

For relief, Petitioner requests his immediate release from custody. (Id. at 9). In the

alternative, Petitioner asks the Court to order a new bond hearing to determine whether

Petitioner’s continued detention remains justified. (Id.)

III. Standards 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).

Because Petitioner is represented by counsel, the rule of liberal construction this

Court extends to pro se filings does not apply. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). Even for pro se litigants, that rule has limitations. See Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court cannot take on

the responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.”). The undersigned accordingly resolves the arguments Petitioner

has presented and does not construct those he has not.

IV. Statutory Framework

The parties agree that Petitioner is detained under 8 U.S.C. § 1226(a). (See Doc.

13, at 1). A non-citizen detained under § 1226(a) is entitled to a bond hearing at which he

can argue to an immigration judge that he should be released while he awaits removal

proceedings because he is not a danger to others or at risk for non-appearance. 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)). An Immigration Judge’s decision to continue detention

may in turn be appealed to the BIA. 8 C.F.R. § 236.1(d)(3). A non-citizen may also seek

a further custody redetermination at any time his circumstances have materially changed.

Id. § 1003.19(e).

In Jennings, the Supreme Court held that § 1226(a) confers no statutory right to

periodic bond hearings, and that the canon of constitutional avoidance furnished no basis

for reading such a right into the statute. See Jennings, 583 U.S. at 297-303. The Court left

the constitutional questions unresolved, remanding them for decision in the first instance.

Id. at 313-14. Petitioner’s as-applied due process claims therefore rest upon the

constitutional questions that Jennings reserved.

V. Analysis

A. Petitioner Is Not Required to Exhaust Administrative Remedies.

Respondents first argue that Petitioner failed to exhaust his available administrative

remedies before seeking habeas relief. (Doc. 13, at 3-4). It is undisputed that Petitioner

reserved but did not exercise his right to appeal the Immigration Judge’s denial of bond, 8

C.F.R. § 1003.19(f), and that Petitioner has not since sought a custody redetermination

hearing based on changed circumstances, id. § 1003.19(e). (Doc. 13, at 2, 4). Respondents

contend that this failure defeats the Petition regardless of whether exhaustion is treated as

jurisdictional or merely prudential, and requests dismissal on that basis alone. (Id. at 3-4).

Respondents further argue that Petitioner’s futility claim is conclusory, resting on an

“accompanying memorandum” that has not been filed. (Id. at 3, at n.2).

While generally “the exhaustion of available administrative remedies is a

prerequisite for § 2241 habeas relief[,] . . . the statute itself does not expressly contain such

a requirement.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (citation modified).

The Tenth Circuit has held that “[c]hallenges to immigration detention are properly brought

through habeas[,] [a]nd the exhaustion deficiencies we have noted in other respects do not

affect habeas jurisdiction over such claims.” Soberanes v. Comfort, 388 F.3d 1305, 1310

(10th Cir. 2004) (citing Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001)).

Moreover, “[e]xhaustion is typically nonjurisdictional,” and courts “treat a rule as

jurisdictional only if Congress clearly states that it is.” Santos-Zacaria v. Garland, 598

U.S. 411, 416-17 (2023) (citation modified). Section 1226(a), the statute governing

Petitioner’s detention, does not contain any express exhaustion requirement. See Salvador

F.-G. v. Noem, No. 25-CV-0243, 2025 WL 1669356, at *6 (N.D. Okla. June 12, 2025)

(“[Section] 1226 contains no clear rule that requires exhaustion of administrative

remedies.”).

“Where Congress has not clearly required exhaustion,” making it nonjurisdictional,

“sound judicial discretion governs.” McCarthy v. Madigan, 503 U.S. 140, 144 (1992).

District courts in this circuit have consistently found exhaustion unnecessary for non-

citizens challenging detention under § 1226(a). See Repela v. ICE Field Off. Dir., No. 26-

CV-00552, 2026 WL 776123, at *2 (D. Colo. Mar. 19, 2026) (“[E]ven though a noncitizen

detained pursuant to § 1226 may request a bond hearing, they are not required to do so

before they can pursue § 2241 habeas relief.”).

Because neither § 2241 nor § 1226(a) requires exhaustion, the undersigned is not

persuaded that Petitioner was obligated to appeal the Immigration Judge’s bond

determination or request a second custody redetermination hearing before seeking habeas

relief. The undersigned recommends that the Court reach the merits of the Petition.

B. Petitioner’s Procedural Due Process Claim Should Be Denied.

Petitioner’s Ground One presents the question of whether detention under § 1226(a)

may become so prolonged that due process requires periodic bond hearings other than those

available under 8 C.F.R. § 1003.19(e). The Fifth Amendment’s Due Process Clause

protects all persons within the United States from being “deprived of life, liberty, or

property, without due process of law.” U.S. Const. amend. V. It is well established that

the Due Process Clause applies to non-citizens within the United States “whether their

presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693.

Courts examine procedural due process claims in two steps: (1) is there a protected liberty

interest, and (2) if so, what procedures are necessary to ensure deprivation of that protected

liberty interest accords with due process. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).

Respondents argue that Petitioner “has not been denied due process, he has chosen

not to avail himself of the due process that is available to him.” (Doc. 13, at 5).

Respondents also argue more broadly that Congress may authorize the Executive to detain

non-citizens during removal proceedings without individualized bond hearings so long as

the non-citizen is properly in removal proceedings and removal is not foreclosed. (Id. at

5-9). Respondents contend that detention pending removal is a “constitutionally valid

aspect of the deportation process” and that “due process does not require [the government]

to employ the least burdensome means to accomplish its goal.” (Id. at 7-8) (quoting

Demore v. Kim, 538 U.S. 510, 523, 528 (2003)).

Courts within the Tenth Circuit and around the country considering habeas petitions

have increasingly applied the framework in Mathews v. Eldridge, 424 U.S. 319 (1976), to

determine the type of constitutional process required in immigration detention cases.

Accordingly, the undersigned analyzes Petitioner’s procedural due process claim under

these factors. See, e.g., Requejo Roman v. Castro, 816 F. Supp. 3d 1267, 1282 (D.N.M.

2026) (“In determining what procedures sufficiently protect due process in the immigration

context, courts have applied the [Mathews] framework.”); Vizguerra-Ramirez v. Baltazar,

No. 25-cv-881-NYW, 2025 WL 3653158, at *13 (D. Colo. Dec. 17, 2025) (“As for the

burden of proof, the Court assesses the type of process required in a given case using the

so-called Mathews balancing test.”) (internal citation omitted); Hernandez-Lara v. Lyons,

10 F.4th 19 (1st Cir. 2021).

1. The Private Interest

The first Mathews factor is “the private interest that will be affected.” Mathews,

424 U.S. at 335. Here, “[f]reedom from imprisonment — from government custody,

detention, or other forms of physical restraint — lies at the heart of the liberty” interest in

the Fifth Amendment’s Due Process Clause. Zadvydas, 533 U.S. at 687-88. “In our society

liberty is the norm, and detention . . . is the carefully limited exception.” United States v.

Salerno, 481 U.S. 739, 755 (1987). Petitioner’s private interest in being free from detention

is at stake. Thus, the first factor weighs heavily in favor of procedures that carefully protect

Petitioner’s liberty interest. See Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1243

(D.N.M. 2025) (“This Court need not wait another six, twelve, or eighteen months to

determine that the first Mathews factor weighs in Petitioner’s favor. Petitioner’s private

interest in being free from detention – and unlawful detention at that – is at stake now.”);

Requejo Roman, 816 F. Supp. 3d at 1283 (finding the first Mathews factor weighed in favor

of the petitioner in ICE detention because “an individual’s interest in being free from

detention is the most elemental of liberty interests”) (internal citations omitted).

2. The Risk of Erroneous Deprivation and the Value of Additional

Safeguards

The second Mathews factor is “the risk of an erroneous deprivation of such interest

through the procedures used, and the probable value, if any, of additional or substitute

procedural safeguards.” Mathews, 424 U.S. at 335. “Procedural due process rules are

shaped by the risk of error inherent in the truth-finding process.” Velasco Lopez v. Decker,

978 F.3d 842, 852 (2nd Cir. 2020) (citing Mathews, 424 U.S. at 344).

The question Petitioner’s claim presents—whether detention under § 1226(a) may

become so prolonged that due process requires the additional procedure of periodic bond

hearings—has divided the courts of appeals. The First and Second Circuits have answered

that question in the affirmative on the records before them. See Hernandez-Lara, 10 F.4th

at 30, 39–41 (holding § 1226(a) procedures invalid as applied to a non-citizen detained for

ten months who had received a bond hearing one month into detention, and requiring a new

hearing at which the government bore the burden, by clear and convincing evidence as to

dangerousness and by a preponderance as to flight risk); Velasco Lopez, 978 F.3d at 853-

56 (holding that once § 1226(a) detention becomes “prolonged,” the detainee is entitled to

a new hearing at which the government bears the burden by clear and convincing

evidence).7

The Third and Ninth Circuits have each rejected the claim that prolonged detention

under § 1226(a) entitled the petitioner to a second bond hearing as a matter of due process,

while expressly preserving the possibility of relief upon a different record. See Borbot v.

Warden Hudson Cnty. Corr. Facility, 906 F.3d 274, 279-80 (3d Cir. 2018) (rejecting the

7 The circumstances in Velasco Lopez warrant note, however, because the petitioner’s

prolonged detention was largely attributable to delays by ICE, who refused to produce the

detainee for his criminal court appearances and the criminal matter could not progress as a

result. Velasco Lopez, 978 F.3d at 852–53. Bond was then denied on the basis of the very

charges that the agency’s own conduct had kept pending. Id. The risk of erroneous

deprivation in that case was not theoretical; it was demonstrated on the record.

claim of a detainee who sought “to compel a second bond hearing despite alleging no

constitutional defect in the one he received,” while recognizing “that, despite an initial

bond hearing, detention under § 1226(a) might become unreasonably prolonged, whether

by virtue of government delay or some other cause,” and declining to “decide when, if ever,

the Due Process Clause might entitle an alien detained under § 1226(a) to a new bond

hearing”); Rodriguez Diaz v. Garland, 53 F.4th 1189, 1203, 1213-14 (9th Cir. 2022)

(holding that the Due Process Clause did not entitle the detainee to “a second bond hearing

at which the government bears the burden of proof by clear and convincing evidence,” but

declining to “foreclose all as-applied challenges to § 1226(a)’s procedures”).

No court, however, has adopted a purely durational rule. See e.g., Borbot 906 F.3d

at 277 (“But Borbot cites no authority, and we can find none, to suggest that duration alone

can sustain a due process challenge by a detainee who has been afforded the process

contemplated by § 1226(a) and its implementing regulations.”); Velasco Lopez, 978 F.3d

at 855 n.13 (declining “to establish a bright-line rule for when due process entitles an

individual detained under § 1226(a) to a new bond hearing with a shifted burden”);

Hernandez-Lara, 10 F.4th at 30 n.4 (declining to determine when detention becomes

sufficiently prolonged to require a further hearing).

Petitioner stands in the position of the petitioner in Borbot. The Petition does not

contend that the Immigration Judge applied an incorrect standard, misallocated the burden

of proof, excluded evidence, or lacked neutrality, nor does it challenge the finding of

dangerousness or the convictions underlying it. Petitioner identifies no defect in the

procedures used, and the record discloses no risk of error arising from them.

Petitioner has likewise failed to demonstrate that additional procedures would carry

probable value. The regulations already afford the relief sought, providing both for an

appeal of an adverse bond determination and providing, upon a showing of materially

changed circumstances, for further custody redetermination. See 8 C.F.R. §§ 236.1(d)(3),

1003.19(e). Petitioner did not appeal the Immigration’s Judge’s adverse bond decision,

nor has Petitioner sought a custody redetermination hearing in the months since. The

Petition does not explain why Petitioner has not sought available administrative remedies,

asserting only that resorting to those procedures would be “futile,” an assertion resting

entirely upon an “accompanying memorandum” that was never filed. (Doc. 1, at 4-5).

Nothing in the Petition identifies a decision of the BIA, a feature of its practice, or a fact

particular to Petitioner’s circumstances that would substantiate the claim of futility. An

unsupported assertion that a procedure would fail shows only that it has gone untested. Cf.

Rodriguez Diaz, 53 F.4th at 1208–09 (weighing the second Mathews factor against the

detainee given the existing procedural mechanism where he could request a new custody

redetermination hearing upon a showing of changed circumstances). The second factor

weighs against Petitioner.

3. The Government’s Interest and the Administrative Burden

The final Mathews factor is “the Government’s interest, including the function

involved and the fiscal and administrative burdens that the additional or substitute

procedural requirement would entail.” Mathews, 424 U.S. at 335. The Government has

no legitimate interest “in the prolonged detention of noncitizens who are neither dangerous

nor a risk of flight.” Velasco Lopez, 978 F.3d at 854.

Here, however, an Immigration Judge found that Petitioner failed to establish that

he does not pose a danger to the community. (Doc. 1, at Ex. 3, at 2). The record supplies

the basis for that determination: a felony conviction for driving while intoxicated entered

on July 25, 2025, followed approximately one month thereafter by an arrest for violating

the terms of supervision by again driving while intoxicated. (Doc. 13, at Ex. 2; Doc. 1, at

Ex. 3, at 2). This is not a case in which the Court must speculate as to the basis of the

Immigration Judge’s decision. Compare L.G. v. Choate, 744 F. Supp. 3d 1172, 1184 (D.

Colo. 2024) (observing that where DHS introduced no records, “it leaves the question as

to what the basis of the IJ’s decision was”).

The administrative burden attending an additional hearing is, standing alone,

“minimal.” Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926, 943 (D. Colo. 2025).

But any burden must be weighed against whether the additional procedure would

meaningfully reduce the risk of error. Petitioner has identified no such risk and has

identified no additional procedure, the benefit of which would justify its burden. The relief

Petitioner requests is a second custody redetermination hearing, unaccompanied by any

explanation of what would distinguish it from the first. The third factor weighs against

Petitioner.

4. Conclusion

The first Mathews factor favors Petitioner. The second and third factors favor the

Government. Petitioner received a timely, individualized bond determination by a neutral

adjudicator, which he does not challenge. Because no court has adopted a rule that due

process requires a second or periodic bond hearing based on length of detention alone, and

because Petitioner identifies no inadequacy in the process he received, Ground One should

be denied.

C. Petitioner’s Substantive Due Process Claim Also Fails.

Where procedural due process asks whether adequate procedures were used,

substantive due process asks whether the Government has a constitutionally sufficient

justification to detain Petitioner at all. See Santillan Quiroz v. Mullin, --- F.4th ----, 2026

WL 1876709, at *16 n.12 (“[Q]uestions about the types of justifications capable of

supporting detention sound in substantive due process, while questions about procedures

used for proving the satisfaction of a given justification sound in procedural due process.”).

Civil detention comports with substantive due process where “in certain special and narrow

nonpunitive circumstances . . . a special justification . . . outweighs the individual’s

constitutionally protected interest in avoiding physical restraint.” Zadvydas, 533 U.S. at

690 (quoting Kansas v. Hendricks, 521 U.S. 346, 356 (1997)). The inquiry is comparative,

requiring the Court “to weigh [the petitioner’s] constitutionally protected interest in

avoiding detention against the Government’s special justification for detaining [him].”

Requejo Roman, 816 F. Supp. 3d at 1284-85. A non-citizen thus retains a “substantive due

process right to be free of arbitrary confinement pending deportation

proceedings.” Doherty v. Thornburgh, 943 F.2d 204, 209 (2d Cir. 1991).

Petitioner’s showing on this ground consists of the assertion that his detention “has

become excessive in relation to its stated purpose.” (Doc. 1, at 8). Respondents argue that

“what matters is not the length of detention but its continued relationship to a legitimate

governmental interest.” (Doc. 13, at 8-9) (citing Zadvydas, 533 U.S. at 690). Respondents

distinguish Petitioner’s case from Zadvydas on the grounds that Petitioner remains in active

removal proceedings with removal neither foreclosed nor unlikely. (Id.) The Petition

identifies no governing standard, cites no case, and does not explain what the purpose of

Petitioner’s detention is, why the relationship between his detention and that purpose has

failed, or what duration would suffice. For the reasons already stated, the undersigned

cannot construct those arguments on Petitioner’s behalf.

Even setting that failure aside, the decisions finding substantive due process

violations in this context share a feature this case lacks: in each, the Government offered

no individualized justification for the detention. See Escobar Salgado v. Mattos, 809 F.

Supp. 3d 1123, 1162 (D. Nev. 2025) (“Respondents have asserted no individualized

justification—let alone a special or compelling justification—to continue to deprive

Petitioners of their physical liberty.”); Becerra Diaz v. Knight, No. 2:26-CV-00247-RFB-

DJA, 2026 WL 412483 (D. Nev. Feb. 12, 2026) (finding a substantive due process violation

where the petitioner had not received a custody redetermination hearing since being

detained by ICE). Here, the Government has provided an individualized justification for

Petitioner’s detention. An Immigration Judge found that Petitioner failed to establish that

he does not pose a danger to the community, a finding resting upon his felony conviction

for driving while intoxicated and his arrest one month later for again driving while

intoxicated. Petitioner does not dispute those facts, challenge the finding, or argue that the

justification is constitutionally insufficient. The comparative inquiry weighs the private

interest against the Government’s justification, and Petitioner has developed neither side

of that comparison.

Instead, as with Ground One, Petitioner’s substantive due process claim is premised

only on the duration of his detention. Again, Petitioner has failed to provide any authority

to support the proposition that the length of his detention, standing alone, amounts to a

violation of his substantive due process rights. Zadvydas is the nearest analogue and does

not carry the weight Petitioner might place on it. The Court there recognized a six-month

period of presumptively reasonable detention in the post-removal-order context, but it did

not hold that detention beyond six months is unlawful. See Zadvydas, 533 U.S. at 701.

Instead, the Court held that after six months, if the non-citizen “provides good reason to

believe that there is no significant likelihood of removal in the reasonably foreseeable

future,” the government must respond with evidence sufficient to rebut that showing. Id.

The six-month figure marks where inquiry begins, not where a violation occurs.

Ground Two should therefore be denied.8

8 Petitioner twice states that his removal proceedings have been administratively closed

since October 2002, and that his motion to reopen and re-calendar, filed two days after ICE

took him into custody, has been pending before the BIA since August 27, 2025. (Doc. 1,

at 8). Petitioner does not connect those facts to any legal standard, and the Court does not

construe his filings to raise an argument he has not made. The undersigned notes only that

the posture is unusual. Section 1226(a) authorizes detention “pending a decision on

whether the alien is to be removed,” and detention during removal proceedings serves the

purpose of securing the non-citizen’s presence for a removal those proceedings are meant

to produce. See Demore, 538 U.S. at 528. Administrative closure “is a temporary

suspension of a case” that removes it from the docket until a party moves to re-calendar. 8

C.F.R. § 1003.1(l), (l)(2). The consequence here is that Petitioner’s 1999 removal order

never became administratively final, and Respondent presently has no removal order to

execute. Given the pending motion to re-calendar, it is unclear when Petitioner’s removal

proceedings will resume. Compare Demore, 538 U.S. at 529 (upholding detention that

“has a definite termination point”), with Zadvydas, 533 U.S. at 690 (detention offends due

process where its “goal is no longer practically attainable”). The undersigned expresses no

view on whether, should this posture continue, Petitioner’s detention would remain

reasonably related to the purpose for which § 1226(a) authorizes it.

VI. Recommendation and Notice of Right to Object

For the reasons discussed above, the undersigned recommends that the Petition

(Doc. 1) be DENIED and that this action be DISMISSED WITHOUT PREJUDICE.

The Court advises the parties of their right to object to this Report and

Recommendation by August 6, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.

72(b)(2).? The Court advises the parties that failure to make timely objection to this report

and recommendation waives their right to appellate review of both factual and legal issues

contained herein. 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 and terminates the referral unless and until the matter is re-referred.

ENTERED this 30th day of July, 2026.

AMANDA L. MAXFIELD i

UNITED STATES MAGISTRATE JUDGE

? Given the expedited nature of these proceedings, the undersigned has reduced the typical

objection time to Report and Recommendations. 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, 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.”).

17