Mutware-Baker

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

MUGWANEZA MUTWARE- )

BAKER, )

)

Petitioner, )

) Case No. CIV-26-1360-R

v. )

)

FRED FIGUEROA, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Mugwaneza Mutware-Baker, a citizen of the Democratic Republic of the

Congo proceeding pro se, filed a petition for 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 David L. Russell referred the matter to

the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §

636(b)(1)(B)-(C). (Doc. 3). The undersigned set an expedited briefing schedule, (Doc. 6),

and the Petition is at issue. For the reasons set forth below, the undersigned recommends

that the Court GRANT in part the Petition, (Doc. 1), and order Respondents to provide

Petitioner with a bond hearing within seven days or otherwise release him if there is no

hearing within that time.

1 Petitioner is housed at the Diamondback Correctional Facility in Watonga, Oklahoma.

(Doc. 1, at 1).

2 Page citations reference the Court’s electronic case filing pagination.

I. Factual Background

Petitioner, a citizen of the Democratic Republic of the Congo, entered the United

States on or about October 30, 2024, without inspection or admission, and he was taken

into custody the same day. (Doc. 1, at 4; Doc. 8, at Ex. 1). That day, ICE issued to

Petitioner a Notice and Order of Expedited Removal pursuant to 8 U.S.C. §

1225(b)(1)(A)(i). (Doc. 8, at Ex. 1). Petitioner expressed fear of returning to the

Democratic Republic of the Congo and was examined for a credible fear determination on

November 19, 2024. (Doc. 8, at 1; id. at Ex. 2). On December 10, 2024, ICE vacated its

Expedited Removal Order and placed Petitioner into removal proceedings through the

issuance of a Notice to Appear. (Doc. 8, at Ex. 2, at 1) (noting “an asylum officer has

found [Petitioner] has demonstrated a credible fear of persecution or torture”). ICE

charged Petitioner with being inadmissible (1) under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as

someone who did not have valid immigration documents when applying for admission and

(2) under 8 U.S.C. § 1182(a)(6)(A)(i) as someone who entered the United States without

admission or parole. (Id.)3

Petitioner applied for asylum and withholding of removal, and on September 30,

2025, an immigration judge denied asylum but granted withholding of removal under the

Immigration and Nationality Act (“INA”). (Doc. 8, at Ex. 4; Doc. 1, at 5).4 Petitioner was

3 DHS updated the factual allegations with minor differences on May 30, 2025. (Doc. 8,

at Ex. 3).

4 Petitioner’s Reply drew the undersigned’s attention to factual misrepresentations by

Respondents. (Doc. 9, at 1-2). Respondents incorrectly state that “[o]n October 10, 2025,

an Immigration Judge denied all relief under Petitioner’s application, and ordered him

ordered removed to the Democratic Republic of the Congo, but the immigration judge did

not name an alternative country. (Doc. 8, at Ex. 4, at 5). Petitioner filed an appeal with

the Board of Immigration Appeals (“BIA”) on October 21, 2025, (Doc. 8, at Ex. 5; Doc. 1,

at 5), and it remains pending. EOIR Automated Case Information,

https://acis.eoir.justice.gov/en/caseInformation (last accessed Sept. 8, 2026). Therefore,

the removal order is not yet final under 8 C.F.R. § 1241.1.

Petitioner has been in continuous ICE detention since he entered the United States

on October 30, 2024 – 22 months as of the date of this Report and Recommendation. When

Petitioner filed his Petition on June 3, 2026, (Doc. 1, at 8), he was detained at Diamondback

Correctional Facility in Watonga, Oklahoma. He remains detained there. See ICE Online

removed to the Democratic Republic of the Congo.” (Doc. 8, at 2). This statement is

contradicted by the Order of the Immigration Judge that Respondents provide as Exhibit 4

to the Response. Respondents also incorrectly state:

On June 15, 2026, Petitioner filed a subsequent Petition for Writ of Habeas

Corpus in the Eastern District of California based on his detention in the

Central Valley Annex. (Exhibit 3 “EDCA Habeas Petition”). In his

California Habeas Petition, Petitioner asserts an identical two counts for

relief to the instant Petition. Namely, (1) violation of procedural due process

under the Fifth Amendment, (Doc. 1 at 14-15; Exhibit 3 at 14), and (2)

violation of substantive due process under the Fifth Amendment, (Doc. 1 at

15-16; Exhibit 3 at 15). As of the date of filing, no final determination has

been made in the California Habeas Petition. Petitioner is currently scheduled

for a Master Hearing on July 15, 2026, before the Adelanto Immigration

Court. (Exhibit 4).

(Doc. 8, at 2-3). Notably, the actual Petition in this matter is only 8 pages long, not 16 or

more; Respondents’ Exhibit 3 is not an EDCA Habeas Petition; and Exhibit 4 does not

reflect information about a Master Hearing. While the undersigned assumes that these

obvious errors are the result of inadvertent drafting mistakes, Respondents’ counsel is

cautioned that incorrect factual assertions waste the Court’s time and can be particularly

detrimental to pro se petitioners.

Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited Sept. 8,

2026).

Petitioner does not allege he requested a bond hearing. Such a request, though,

would likely be futile because all immigration judges are subject to the binding precedent

of Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA 2025), which holds those non-

citizens who entered the country without admission or parole are ineligible for a bond

hearing.

II. Petitioner’s Claims and Respondents’ Responses

Petitioner asserts two grounds in his Petition:

• Ground One: Violation of the Fifth Amendment. Petitioner alleges

his detention of 19 months (at the time of filing) in conditions meant

for criminal punishment has become unconstitutionally prolonged.

(Doc. 1, at 6).

• Ground Two: Violation of Due Process. Petitioner alleges that

“being incarcerated for 19 months without any additional procedur[al]

protection has inflicted sever[e] mental and emotional distress” and

deprived him of his liberty. (Id.)

Petitioner asks the Court to order his immediate release from detention, “or in the

alternative, order a bond hearing at which the government must prove by clear and

convincing evidence that [his] continued detention is necessary.” (Id. at 7).

Respondents contend Petitioner is subject to mandatory detention pursuant to 8

U.S.C. § 1225(b)(1). (Doc. 8, at 3-4). Respondents further contend that the Mathews

factors for analyzing due process violations do not support habeas relief for Petitioner. (Id.

at 4-7).

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). “[T]he primary federal habeas corpus statute, 28 U.S.C. § 2241, confers

jurisdiction upon the federal courts to hear . . . challenges to the lawfulness of immigration-

related detention.” Zadvydas v. Davis, 533 U.S. 678, 687 (2001); see also Soberanes v.

Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (“Challenges to immigration detention are

properly brought directly through habeas.”).

IV. Analysis

A. Section 1225(b)(1) Applies to Petitioner’s Detention.

The section of the INA that governs non-citizens detained at the border is 8 U.S.C.

§ 1225. Section 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.” Id.

§ 1225(a)(1) (citation modified). Section 1225(b)(1) “governs procedures for the

inspection of aliens arriving in the United States who have not been admitted or paroled.”

M.S.P.C. v. U.S. Customs & Border Prot., 60 F. Supp. 3d 1156, 1161 (D.N.M. 2014) (citing

§ 1225(b)(1)).

Aliens who have not been admitted or paroled into the United States and who

have not satisfactorily demonstrated to an immigration officer that the alien

has been physically present in the United States continuously for the prior

two years are subject to expedited removal without further hearing or review,

unless the alien indicates an intention to apply for asylum or a fear of

persecution, at which point the immigration officer shall refer the alien for

an interview by an asylum officer.

Id. (citing 8 U.S.C. § 1225(b)(1)(A)(i)-(iii)).

Section 1225(b)(1)(B)(ii) further requires that, if an asylum officer determines a

non-citizen has a credible fear of persecution, the non-citizen shall be detained for further

consideration of the application for asylum. The Notice to Appear here reflects an asylum

officer found Petitioner had “demonstrated a credible fear of persecution or torture,” and

ICE vacated his Expedited Removal Order. (Doc. 8, at Ex. 2). As such, Petitioner is being

detained pursuant to § 1225(b)(1)(B)(ii) and is not statutorily entitled to a bond hearing.

See Jennings v. Rodriguez, 583 U.S. 281, 299 (2018) (explaining the “plain meaning” of

§ 1225(b)(1)(B)(ii) “is that detention must continue until immigration officers have

finished ‘considering’ the application for asylum”) (quoting § 1225(b)(1)(B)(ii) (citation

modified)).

B. Petitioner Is Entitled to A Bond Hearing Because His Prolonged

Detention Violates His Substantive Due Process Rights.

Petitioner alleges due process violations based on his prolonged detention in ICE

custody without “procedur[al] protection.” (Doc. 1, at 6). “It is well established that the

Fifth Amendment entitles aliens to due process of law in deportation proceedings.”

Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292, 306

(1993)). Indeed, this protection applies to “all ‘persons’ within the United States, including

aliens, whether their presence here is lawful, unlawful, temporary, or permanent.”

Zadvydas, 533 U.S. at 693. “Freedom from imprisonment—from government custody,

detention, or other forms of physical restraint—lies at the heart of the liberty” that the Due

Process Clause protects. Id. at 690. Under these due process principles, civil immigration

detention is constitutional only in “certain special and narrow nonpunitive circumstances,”

and it must “bear[] [a] reasonable relation to the purpose” for which the non-citizen was

detained. Id. (citation and quotation omitted). The Supreme Court has identified those

purposes as mitigating the risk of danger to the community and preventing flight. Id. at

690-91; see also Demore, 538 U.S. at 527-28.

In Demore, a non-citizen subject to mandatory detention under a similar statute, 8

U.S.C. § 1226(c), claimed his detention “violated due process because [ICE] had made no

determination that he posed either a danger to society or a flight risk.” 538 U.S. at 514.

The Supreme Court held that detention of non-citizens “during removal proceedings is a

constitutionally permissible part of” the removal process. Id. at 531. Later, in Jennings v.

Rodriguez, the Supreme Court ruled that as a matter of statutory construction,

§ 1225(b)(1)(B)(ii) mandates detention while a non-citizen’s asylum claims are pending.

583 U.S. at 299, 302-03. However, the Supreme Court explicitly reserved ruling on

whether prolonged detention under § 1225(b) could violate due process. 583 U.S. at 312.

Neither the Supreme Court nor the Tenth Circuit has subsequently ruled on the

constitutional issue of prolonged detention without a bond hearing under § 1225(b). “Since

Jennings, courts have ‘sharply disagreed about the reach of the Due Process Clause as

applied to arriving aliens.’” Giraldo Nieto v. Ceja, --- F. Supp. 3d ---, 2025 WL 4087626,

at *6 (D. Colo. June 12, 2025) (citation modified) (quoting Gonzalez Aguilar v. Wolf, 448

F. Supp. 3d 1202, 1212 (D.N.M. 2020)). The post-Jennings cases from this Circuit

considering due process challenges to prolonged detention under § 1225(b)(1) illustrate

this strong disagreement. Some courts have found prolonged detention under § 1225(b)(1)

does not violate due process because non-citizens are entitled only to the process provided

to them by statute and because detention during removal proceedings is non-punitive. See

Giraldo Nieto, 2025 WL 4087626, at *7-9; Doe v. Bondi, No. 25-cv-2712, 2025 WL

3516292, at *6-10 (D. Colo. Nov. 4, 2025) (same).

Other courts in the Circuit have concluded detention under § 1225(b)(1) without a

bond hearing does violate due process when it becomes so prolonged as to be

constitutionally unreasonable. See Ali X v. Bondi, No. 26-cv-1367, 2026 WL 1857825, at

*6 (D. Colo. June 29, 2026) (“[T]he Court concludes that Petitioner’s detention has become

constitutionally unreasonable and continued detention without any individualized custody

determination violates procedural due process.”); Marquez v. Warden, No. 26-cv-1527,

2026 WL 1557180, at *2 (D.N.M. June 2, 2026) (“[U]nder the circumstances of this case,

Petitioner’s indefinite, ongoing detention of more than seven months, with no reasonably

foreseeable end in sight . . . is punitive and a violation of her Fifth Amendment substantive

due process rights.”); Mardanpour v. Warden, No. 26-cv-550, 2026 WL 963164, at *6

(D.N.M. Apr. 9, 2026) (“Petitioner’s indefinite, ongoing detention exceeding fourteen

months is punitive and therefore a violation of Petitioner’s Fifth Amendment substantive

due process rights.”).5

No Judges in this District have directly addressed whether prolonged detention

without a bond hearing of a non-citizen detained at the border under § 1225(b)(1) violates

substantive due process. In the absence of such authority, the undersigned recommends

5 While district courts in the Tenth Circuit are split on this question, “[t]he majority of

courts who have considered this issue have determined that the due process protections

recognized in Zadvydas prohibit indefinite detention under § 1225(b)(1)(B)(ii).” Leonteva

v. Noem, --- F. Supp. 3d ---, 2026 WL 711766, at *5 (S.D. Ind. Mar. 13, 2026).

looking to cases considering similar challenges by non-citizens detained under § 1226(c).

See, e.g., Shansiev v. Warden, Folkston ICE Processing Ctr., No. 25-CV-223, 2026 WL

1738121, at *10 (S.D. Ga. June 16, 2026) (“District courts considering the constitutionality

of prolonged § 1225(b) detention frequently employ a balancing test” that “is sometimes

borrowed from cases related to § 1226(c) detainees.”); Gevorg v. Warden of Golden State

Annex Det. Facility, No. 25-cv-992, 2025 WL 3496436, at *6 (E.D. Cal. Dec. 5, 2025)

(explaining how “multiple United States district courts have found” due process violations

under § 1225(b) by using “a myriad of overlapping balancing tests, often initially

conceived and applied in the context of a lawful permanent resident detained under

§ 1226(c), to determine whether detention of an arriving alien under § 1225(b) without a

bond hearing has become so prolonged that it violates petitioner’s due process rights under

the Fifth Amendment”). Section 1226(c) requires the Secretary of Homeland Security to

detain non-citizens who have committed certain criminal offenses pending the disposition

of their removal proceedings. In Jennings, the Supreme Court observed the mandatory

detention provisions of §§ 1225(b) and 1226(c) operate in substantially the same manner.

583 U.S. at 303.

In Jalloh v. Garland, No. CIV-22-908-R, 2023 WL 3021514 (W.D. Okla. Mar. 9,

2023) (Jalloh I), Judge Russell observed,

District courts throughout the Tenth Circuit have applied a multi-factor test

in assessing whether detention pursuant to § 1226(c) has been

unconstitutionally prolonged:

(1) the total length of detention to date; (2) the likely duration

of future detention; (3) the conditions of detention; (4) delays

in the removal proceedings caused by the detainee; (5) delays

in the removal proceedings caused by the government; and (6)

the likelihood that the removal proceedings will result in a final

order of removal.

Id. at *2-3 (quoting Viruel Arias v. Choate, No. 22-CV-02238, 2022 WL 4467245, at *2

(D. Colo. Sept. 26, 2022) (quoting Singh v. Choate, No. 19-CV-00909, 2019 WL 3943960,

at *5 (D. Colo. Aug. 21, 2019)); see also Juarez v. Choate, No. 1:24-CV-00419-CNS, 2024

WL 1012912, at *6 (D. Colo. Mar. 8, 2024), appeal dismissed (June 24, 2024); Vital v.

Baltasar, No. 26-CV-01625-NYW, 2026 WL 1965075, at *3 (D. Colo. July 7, 2026);

Vizguerra-Ramirez v. Baltazar, No. 25-cv-00881-NYW, 2025 WL 3653158, at *11-13 (D.

Colo. Dec. 17, 2025); Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926, 939-42 (D.

Colo. 2025).6 Ultimately, Judge Russell concluded those factors weighed in favor of

finding a due process violation and ordered the government to provide the non-citizen with

a bond hearing. Jalloh v. Garland, No. CIV-22-908-R, 2023 WL 3690252, at *3 (W.D.

Okla. May 26, 2023) (“Jalloh III”) (adopting Jalloh v. Garland, 2023 WL 3690259 (W.D.

Okla. Apr. 26, 2023) (R&R) (“Jalloh II”)).

Judge Russell’s approach to due process claims for prolonged detention under §

1226(c) aligns with how other courts have assessed such claims regarding prolonged

detention under § 1225(b). See, e.g., Ali X, 2026 WL 1857825, at *5 (applying in a case

of prolonged detention under § 1225(b) the “six-factor test” for prolonged detention under

6 These factors share much in common with the Third Circuit’s multi-factor analysis for

substantive due process challenges to prolonged detention. See German Santos v. Warden

Pike Cnty. Corr. Facility, 956 F.3d 203, 211 (3d Cir. 2020) (analyzing duration of

detention, likelihood of continuing detention, reasons for the delay, and difference from

criminal punishment).

§ 1226(c) in Singh v. Choate, No. 19-cv-909, 2019 WL 3943960, at *5 (D. Colo. Aug. 21,

2019)); Khasanova v. Rokosky, No. CV-26-763, 2026 WL 1815723, at *6 (D. Ariz. June

24, 2026) (applying the same six factors); Gevorg, 2025 WL 3496436, at *6 (same); Banda

v. McAleenan, 385 F. Supp. 3d 1099, 1118 (W.D. Wash. 2019) (same); see also Mbalivoto

v. Holt, 527 F. Supp. 3d 838, 850 (E.D. Va. 2020) (noting prolonged detention under §

1225(b) can become “unreasonable and constitutionally infirm” based on “a variety of

factors, which generally include (1) the length of Petitioner’s detention; (2) the length of

any delays attributable to the Petitioner; and (3) his likelihood of ultimately being ordered

removed”).

Thus, the undersigned finds the six-factor test that Judge Russell applied in Jalloh

appropriate for determining whether Petitioner’s detention under § 1225(b)(1)(B)(ii) is

constitutionally unreasonable. See also Singh v. Warden, No. CIV-26-1613-J, 2026 WL

2572834, at *6 (W.D. Okla. Aug. 31, 2026) (R&R) (recent recommendation by Magistrate

Judge Stephens to apply the same six-factor test in another habeas matter involving

prolonged detention under § 1225(b)(1)(B)(ii)); Tabatabaei v. Figueroa, No. CIV-26-

1048-G, 2026 WL 2323603, at *6-8 (W.D. Okla. Aug. 11, 2026) (R&R) (same). The

undersigned now considers each of the six factors in turn.

1. Total length of detention to date

Petitioner has been detained since October 30, 2024, which currently amounts to

more than 22 months of continuous detention. (Doc. 1, at 4; Doc. 8, at 1). In analogous

cases where petitioners were detained for similar periods of time, courts in this Circuit have

concluded the length-of-detention factor weighed in favor of finding a due process

violation. See, e.g., Ali X, 2026 WL 1857825, at *5 (finding a detention “period exceeding

21 months” to be “unreasonably prolonged”); Marquez, 2026 WL 1557180, at *2 (finding

an “ongoing detention of more than seven months . . . constitutionally excessive”);

Mardanpour, 2026 WL 963164, at *8 (finding an “ongoing detention exceeding fourteen

months” to be constitutionally excessive); see also Banda v. McAleenan, 385 F. Supp. 3d

1099, 1118 (W.D. Wash. 2019) (R&R) (noting “Petitioner has been in detention [under §

1225(b)(1)] for approximately 17 months, which is a very long time,” and recommending

such “length of petitioner’s detention strongly favors granting him a bond hearing”),

adopted, 385 F. Supp. 3d at 1106-07. Thus, this first factor weighs heavily in Petitioner’s

favor.

2. Likely duration of future detention

The next factor is the likely duration of Petitioner’s future detention. “Courts

examine the anticipated duration of all removal proceedings—including administrative and

judicial appeals—when estimating how long detention will last.” Jalloh II, 2023 WL

3690259, at *5 (citation modified). An immigration judge has denied asylum and ordered

Petitioner removed, but has also granted withholding of removal, (Doc. 8, at Ex. 4), and

Petitioner has appealed that decision to further seek asylum. (Id. at Ex. 5; Doc. 1, at 5).

“Petitioner’s appeal to the BIA and, if unsuccessful there, to the Tenth Circuit Court

of Appeals, could take years.” Mardanpour, 2026 WL 963164, at *6; see also Ali X, 2026

WL 1857825, at *5 (“Although DHS’s appeal remains pending before the Board of

Immigration Appeals, no decision has yet been issued. Thus, Petitioner’s detention may

continue for a substantial and presently indeterminate period.”); Banda, 385 F. Supp. 3d at

1119 (“Petitioner only recently filed his appeal of the IJ’s removal order with the BIA. If

the BIA affirms, petitioner will have the opportunity to seek review in the Ninth Circuit.

This process may take up to two years or longer.”). “Where either party may appeal an

immigration court’s decision, this factor weighs in favor of the petitioner.” Jalloh II, 2023

WL 3690259, at *5 (citation modified). Because Petitioner’s appeals process may take

several months or even longer, this factor also favors granting him a bond hearing.

3. Conditions of detention

The next factor considers “whether the facility for the civil immigration detention

is meaningfully different from a penal institution for criminal detention. The more that the

conditions under which the alien is being held resemble penal confinement, the stronger

his argument that he is entitled to a bond hearing.” Id. (citation omitted).

Petitioner alleges he has been detained “in conditions meant for criminal

punishment . . . in three different facilities in a jail setting.” (Doc. 1, at 6). He is currently

detained at Diamondback Correctional Facility, which ICE’s website describes as a “jail.”

Diamondback Correctional Facility: Sending Items to Detainees, U.S. Immigration &

Customs Enforcement, https://www.ice.gov/detain/detention-facilities/diamondback-

correctional-facility (noting “[t]he jail will not accept certain items through the mail”) (last

accessed Sept. 8, 2026). Where a non-citizen is “confined in a secure detention facility

and is subject to significant restraints on his liberty,” his confinement “is akin to criminal

incarceration.” Ali X, 2026 WL 1857825, at *5. Thus, this factor also weighs in

Petitioner’s favor.

4. Delays in the removal proceedings caused by Petitioner

The next factor is whether Petitioner has delayed the removal proceedings against

him. “In considering delays in the removal proceedings caused by the detainee, courts

should be sensitive to the possibility that dilatory tactics by the removable alien may serve

not only to put off the final day of deportation, but also to compel a determination that the

alien must be released because of the length of his incarceration.” Jalloh II, 2023 WL

3690259, at *5 (citation modified). However, a non-citizen’s mere exercise of his legal

rights is not sufficient to weigh against him; instead, courts look for evidence of “bad faith

or obstructive conduct.” Mbalivoto, 527 F. Supp. 3d at 851; see also Ali X, 2026 WL

1857825, at *5 (“Petitioner’s pursuit of asylum and defense against removal do not

constitute unreasonable delay and were exercised as rights afforded to him under the

immigration laws.”). As such, this factor is neutral. See Ali X, 2026 WL 1857825, at *5

(finding factor “neutral” where any delay in a petitioner’s removal proceedings was not

attributable to him).

5. Delays in the removal proceedings caused by the government

Next, the Court must consider whether any delays in the removal proceedings were

caused by the government. Petitioner does not allege any specific action or conduct in bad

faith by Respondents to cause delays in his proceedings. While the undersigned is sensitive

to challenges Respondents face in processing a high volume of removal proceedings and

recognizes the sheer number of cases before the Immigration Courts may result in

inevitable delays, those delays are ultimately attributable to the government. Nevertheless,

because there is no evidence of “lack of diligence or bad faith,” Mbalivoto, 527 F. Supp.

3d at 851, on the part of Respondents, this factor is also neutral.

6. Likelihood that removal proceedings will result in a final order

of removal

Finally, the Court must consider whether, at the conclusion of his removal

proceedings, Petitioner will actually be removed. “The more likely that the alien will be

removed, the longer the detention that will be deemed reasonable.” Vizguerra-Ramirez v.

Baltazar, No. 25-cv-00881, 2025 WL 3653158, at *12 (D. Colo. Dec. 17, 2025) (citation

modified). Petitioner does not allege it is unlikely that he will be removed. In evaluating

this factor, courts consider the extent to which either the petitioner or the government has

prevailed in Immigration Court. Here, an immigration judge has denied asylum and

ordered removal to the Democratic Republic of the Congo but has also granted withholding

of removal under the INA. (Doc. 8, at Ex. 4). Petitioner has appealed because he wishes

to be granted asylum. (Doc. 1, at 5). Petitioner’s likelihood of removal depends on the

success of his appeal to the BIA and beyond. However, the Court should decline to reach

these issues in determining the likelihood of his removal. See Vizguerra-Ramirez, 2025

WL 3653158, at *12 (“The Court . . . respectfully declines to predict the outcome of

[petitioner’s] petition for review.”); Vital, 2026 WL 1965075, at *5 (“[T]his Court makes

no attempt to weigh in on that matter.”). The parties have not provided persuasive

arguments or evidence concerning the likelihood of the appeal’s success and thus this factor

is neutral. See Kasalica v. Choate, No. 24-cv-02664-NYW, 2024 WL 6992210, at *6 (D.

Colo. Nov. 14, 2024) (finding the sixth factor neutral when the parties did not show the

likely result of petitioner’s asylum claim).

7. Conclusion

In weighing these six factors, the undersigned finds that Petitioner’s continued

detention of more than 22 months without an individualized bond hearing has become

unreasonable and in violation of his due process rights. Notably, in Jalloh III, Judge

Russell found a violation of the petitioner’s due process rights after concluding the first

three factors weighed in favor of the petitioner, factors four and five were neutral, and the

sixth factor weighed against the petitioner. 2023 WL 3690252, at *2. Like Petitioner’s

case, Judge Russell found it relevant in Jalloh that the petitioner there had “been detained

for approximately 19 months in a criminal correctional facility and that it may be several

more months before all appeals are exhausted.” Id. Accord De Zarate v. Choate, No. 23-

CV-571, 2023 WL 2574370, at *5 (D. Colo. Mar. 20, 2023) (finding, for a petitioner

detained for more than 14 months under § 1226(c), that even when “factors one, two, and

three weigh in favor of [petitioner]; factors four and five are neutral; and factor six weighs

against [her],” the factors “when considered together” favor petitioner and a finding that

her due process rights had been violated) (citation modified).

Where a non-citizen has been detained for an unconstitutional length of time in

violation of due process, as Petitioner has, he is entitled to an individualized bond hearing.

“Continued detention requires an individualized bond hearing before an Immigration Judge

to comport with due process.” Jalloh III, 2023 WL 3690252, at *2 (citation modified); see

also Ali X, 2026 WL 1857825, at *6 (“Petitioner’s detention has become constitutionally

unreasonable and continued detention without any individualized custody determination

violates procedural due process.”); Khasanova, 2026 WL 1815723, at *8 (“Where a

noncitizen’s detention under § 1225(b)(2) has become unreasonable, the proper remedy is

an individualized bond hearing before a neutral IJ.”). Accordingly, the Court should order

Respondents to provide Petitioner with an individualized bond hearing before a neutral

immigration judge.7

V. Recommended Ruling and Notice of Right to Object

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

a Writ of Habeas Corpus Under 28 U.S.C. § 2241, (Doc. 1), be GRANTED in PART.

The undersigned recommends that the Court order Respondents to provide Petitioner an

individualized bond hearing within seven days or else to release him. The undersigned

further recommends that the Court order Respondents to certify compliance by filing a

status report within three business days of the Court’s order.

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

Recommendation by September 16, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ.

P. 72(b)(2).8 The undersigned further advises the parties that failure to make timely

7 The majority of Judges in this District have either (a) declined to reach the issue of

whether due process requires the government, rather than the non-citizen, to carry the

burden of proving dangerousness or flight risk at a § 1226(a) bond hearing, see e.g., Singh

v. Figueroa, No. CIV-26-600-R, 2026 WL 1181699, at *1 n.2 (W.D. Okla. Apr. 30, 2026)

(Judge Russell “declin[ing] to specify or alter the burden of proof at this stage.”) (citation

omitted); or (b) determined that due process does not require the burden to shift to the

government, see, e.g., Pupo Socarras v. Figueroa, No. CIV-26-0571-HE, 2026 WL

2100499, at *1 (W.D. Okla. July 21, 2026) (“[T]he Fifth Amendment Due Process clause

is not offended by leaving the burden of proof on the non-citizen in a § 1226(a) bond

hearing.”).

8 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

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 and terminates the referral

to the undersigned Magistrate Judge in the captioned matter.

ENTERED this 9" day of September, 2026.

AMANDA L. MAXFIELD 3

UNITED STATES MAGISTRATE JUDGE

“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) (noting that “[t]he 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’).

18