Magana

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

LAURO AZAHEL CORTES MAGANA, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1514-D

)

WARDEN OF CIMARRON )

CORRECTIONAL FACILITY et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Lauro Azahel Cortes Magana, a noncitizen,1 and citizen of Mexico,

proceeding , filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241

challenging his detention by U.S. Immigration and Customs Enforcement (ICE). (ECF No.

1). United States District Judge Timothy D. DeGiusti referred this matter to the

undersigned magistrate judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C).

Respondents filed a response and Petitioner filed a reply. (ECF Nos. 8 & 9).

For the reasons set forth below, the undersigned recommends that the Court grant

the Petition, in part, and order Respondents to provide Petitioner a bond hearing pursuant

to 8 U.S.C. § 1226(a) within seven business days or otherwise to release him if there is

no hearing within that time.

1 Unless quoting, 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)).

I. BACKGROUND AND PETITIONER’S CLAIMS

On December 29, 2023, Petitioner entered the United States at or near Nogales,

Arizona. (ECF No. 8-1:1). On December 31, 2023, ICE officials 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 having been

admitted or paroled. (ECF No. 8-1:1). Petitioner states that on July 14, 2025, an

Immigration Judge summarily dismissed his case and pending motion for asylum and he

was “subsequently arrested outside the courthouse by ICE. . . [and] [a]s of [July 27,

2026], [he] has now been in ICE detention for over a year[.]” (ECF No. 9:1).

On June 23, 2026, while in ICE custody and detained at the Cimmaron Correctional

Facility, Petitioner filed a habeas Petition challenging his detention. ECF No. 1.

Petitioner alleges that he is detained under 8 U.S.C. § 1226(a) and his prolonged

detention without a bond hearing violates Due Process. (ECF No. 1:6-7).2 Petitioner asks

the Court to immediately release him, or, in the alternative, order Respondents to provide

him with an individualized bond hearing at which the government would bear the burden

of proof. (ECF No. 1:6-7).

2 Although Petitioner does not expressly cite 8 U.S.C. § 1226(a), he does say that his case is

controlled by , 175 F.4th 61 (2d. Cir. 2026), wherein the Court

decided that the petitioner’s detention was governed by Section 1226(a). ECF No. 1:6.

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.

§ 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. SECTION 1226(a) APPLIES TO PETITIONER’S DETENTION

As stated, Petitioner alleges his detention is governed by 8 U.S.C. § 1226(a) and

he is entitled to a bond hearing. ECF No. 1. Petitioner is correct.

Under the INA, detention of aliens who are “applicants for admission”3 and

“seeking admission” is mandatory under 8 U.S.C. § 1225(b)(2)(A). By contrast, § 1226(a)

provides for the arrest of aliens on a warrant and grants ICE the discretion to continue

detention of the alien or to release the alien on bond.4 On June 30, 2026, the Tenth

3 8 U.S.C. § 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.” The statute defines

“admission” and “admitted” as “the lawful entry of the alien into the United States after inspection

and authorization by an immigration officer.” § 1101(a)(13).

4 The regulations accompanying the statute explain the various levels of review for a bond

determination. An ICE officer makes the initial detention or release determination, and the alien

bears the burden of “demonstrat[ing] to the satisfaction of the officer that . . . release would not

pose a danger to property or persons, and that the alien is likely to appear for any future

proceeding.” 8 C.F.R. § 236.1(c)(8). If the officer determines the alien should be detained, the

alien can seek review of that decision at a bond hearing before an immigration judge. Id. §

236.1(d)(1). An immigration judge’s decision to detain may be further appealed to the Board of

Immigration Appeals (BIA). Id. § 236.1(d)(3). , 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)).

Circuit decided , 180 F.4th 1226 (10th Cir 2026). There, the court

held “that 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)(2)(A).” , 180 F.4th at 1237. The court reasoned based

on the statutory text and context that:

once a noncitizen has entered unlawfully, no amount of legal maneuvering

allows him to go back in time and make his initial entry lawful. The only

time a noncitizen can be said to be seeking admission is when he is seeking

to enter the United States at the border. Since § 1225(b)(2)(A) applies only

to those seeking admission, § 1225(b)(2)(A) is likewise limited to the

border.

at 1239. This statutory interpretation is binding on this Court and applicable to

Petitioner’s factual circumstances, as Respondent concedes. ECF No. 8:1

(“Respondents . . . respectfully submit that this matter is controlled by the Tenth Circuit’s

recent opinion in , No. 26-6019, 2026 WL 1876709 (10th Cir. June 30,

2026).”).

Based on the Tenth Circuit’s decision in , and Respondents’

concession as to the same controlling the outcome of this case, the undersigned

concludes that Petitioner, who was detained in the interior of the United States years

after being released into the interior of the country, is subject to detention under §

1226(a). However, he has not been granted the bond hearing provided in that statute.

Thus, Petitioner has shown that he is in custody in violation of the laws of the United

States, and he is entitled to habeas relief. 28 U.S.C. § 2241(c)(3). A bond hearing is the

appropriate remedy. , 180 F.4th 1251, n.13.5 , No.

CIV-26-757-R, 2026 WL 1973892, at *1 (W.D. Okla. July 8, 2026).6

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 seven business days or otherwise

release Petitioner if he has not received a lawful bond hearing within that period. It is

further recommended 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 August

14, 2026. The parties are further advised that failure to make timely objection to this

5 With this recommendation, the Court need not consider Petitioner’s argument that his detention

violates Due Process, as Petitioner concedes. ECF No. 9.

6 As stated, Petitioner requests that if a bond hearing is ordered, that the government should

bear the burden of proof. . Magistrate Judges in this District, including the undersigned,

have previously addressed whether detention of a similarly situated petitioner violates due

process when a petitioner raises such a claim and seeks a different form of relief (such as burden

shifting) with a due process claim. However, Judges in this District, including this Court, have

declined to order burden shifting. , No. CIV-26-600-R, 2026 WL 1181699,

at *1 n.2 (W.D. Okla. Apr. 30, 2026) (denying petitioner’s request for burden shifting, and holding

“although petitioner is entitled to a bond hearing under § 1226(a), the Court declines to specify

or alter the burden of proof at this stage”) (citation modified); , , , No.

CIV-26-712-HE, Order, Doc. 13 at 2-7 (W.D. Okla. June 18, 2026) (same); , No.

CIV-26-568-D, 2026 WL 1625653, at *2 n.2 (W.D. Okla. June 5, 2026) (same); ,

No. CIV-26-279-J, 2026 WL 1035100, at *1- 2 (W.D. Okla. Apr. 16, 2026) (same). Accordingly,

the undersigned does not recommend burden shifting in this case.

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 August 7, 2026.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE