Rodriguez

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF OKLAHOMA

EDUARDO ODANYS PEREZ )

RODRIGUEZ, )

)

Petitioner, )

)

v. ) Case No. CIV-26-1497-G

)

WARDEN DIAMONDBACK )

CORRECTIONAL FACILITY, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

Petitioner Eduardo Odanys Perez Rodriguez, a noncitizen1 and Venezuelan 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. 3. The undersigned set an expedited briefing schedule, Doc. 7, and the Petition

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

grant the Petition, Doc. 1, in part and order Respondents to provide Petitioner a bond

hearing pursuant to 8 U.S.C. § 1226(a) within seven 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.’” Nasrallah v. Barr, 590 U.S. 573, 578 n.2 (2020)

(citing 8 U.S.C. § 1101(a)(3)).

I. Background

Petitioner, a citizen of Venezuela, entered the United States without inspection on

or about August 29, 2023, near Eagle Pass, Texas. Resp. at 1; Doc. 9-1 at 1 (Notice to

Appear). On September 1, 2023, 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. Resp. at 1-2; Doc. 9-1 at 1. At

an unspecified time, Petitioner applied for asylum and withholding of removal.

On March 17, 2025, Petitioner pleaded guilty in the District Court of Tulsa County,

Oklahoma to three misdemeanor offenses: (1) Aggravated Driving Under the Influence of

Alcohol, (2) No Valid Driver’s License, and (3) Transporting an Open Container. Resp. at

2; Doc. 9-4. He received a one-year deferred sentence. Doc. 9-4 at 6.

On February 2, 2026, ICE detained Petitioner after his arrest for misdemeanor traffic

violations in Creek County, Oklahoma. Resp. at 2; Doc. 9-3 (Warrant for Arrest).

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

likely be futile because all Immigration Judges (“IJs”) are subject to the binding precedent

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

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

On June 17, 2026, an IJ ordered Petitioner removed and denied his application for

asylum and withholding of removal. Resp. at 2; Doc. 9-5 at 1; see also EOIR, Automated

Case Information, at https://acis.eoir.justice.gov/en/ (last accessed Sept. 9, 2026). On July

15, 2026, Petitioner appealed the removal order to the Board of Immigration Appeals

(“BIA”). Resp. at 2; EOIR, Automated Case Information, at https://acis.eoir.justice.gov/en/

(last accessed Sept. 9, 2026). Therefore, the removal order is not yet final under 8 C.F.R.

§ 1241.1.

When Petitioner filed his Petition, he was detained at Diamondback Correctional

Facility in Watonga, Oklahoma. Pet. at 1. He remains detained there. See ICE Online

Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited Sept. 9,

2026).

II. Petitioner’s Claims

Petitioner challenges his “continued immigration detention without a meaningful

bond hearing and denial of release despite strong family, community, and humanitarian

factors.” Pet. at 2 (citation modified). As grounds for relief, he claims he “has family

support, a stable residence upon release and strong ties to the community,” and “is not a

danger to the community and does not represent a flight risk.” Id. at 6 (citation modified).

Petitioner alleges he has not filed an administrative appeal “because he remains in

immigration detention and has not been provided a meaningful opportunity to challenge

his continued detention through a bond hearing.” Id. at 2.

The undersigned liberally construes Petitioner’s allegations to challenge his

continued detention without a bond hearing pursuant to 8 U.S.C. § 1226(a).2 He asks the

2 In the untimely Reply, Petitioner clarifies his claim to argue (1) § 1226(a) governs his

current detention and (2) his prior DUI conviction does not “defeat” his right to a bond

hearing under § 1226(a). Reply at 2-3. Because the undersigned liberally construes the

Petion to seek a bond hearing under § 1226(a), the undersigned need not consider these

arguments raised for the first time in the Reply.

Court to “require Respondents to justify [his] continued detention” and to “order an

immediate custody review or bond hearing.” Pet. at 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). “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 sufficiently states a claim for relief.

At the outset, the undersigned is not persuaded by Respondents’ assertion that

Petitioner fails to sufficiently allege a claim for relief. Resp. at 7-8. Respondents assert he

“fails to state with specificity all the grounds for relief available to him and state the facts

supporting each ground.” Id. at 7. First, Petitioner is proceeding pro se, meaning his filing

must be liberally construed. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). When

reading the Petition as a whole, it is clear Petitioner is challenging Respondents’ decision

to detain him without an individualized bond hearing. See Pet. at 2 (challenging “continued

immigration detention without a meaningful bond hearing and denial or release”); id.

(explaining he has not administratively appealed because “he has not been provided a

meaningful opportunity to challenge his continued detention through a bond hearing”).

Further, Respondents’ assertion is belied by their own pleading. Respondents were

indeed able to respond substantively to the Petition, which does not raise novel issues or

questions of law from those recently considered by this Court. See, e.g., Ping v. U.S. Dist.

Ct., No. CIV-26-646-R, Doc. 12 at 2 (W.D. Okla. Apr. 29, 2026) (dismissing respondents’

motion to dismiss and noting “Respondents’ ability to make a merits-based argument in

opposition to Petitioner’s requested habeas relief belies their contention that they are

unable to identify or respond to the claims”). Accordingly, the undersigned finds it clear

Petitioner challenges his immigration detention without a bond hearing and alleges he is

properly detained under 8 U.S.C. § 1226.

B. Petitioner did not need to exhaust administrative remedies.

Respondents next argue Petitioner “failed to exhaust his administrative remedies by

failing to complete the process of requesting a custody determination before the [IJ].”

Resp. at 9. However, “exhaustion requirements do not always apply to challenges to

immigration detention brought in habeas proceedings,” and an immigration habeas

petitioner “is not required to request a bond redetermination hearing before filing his

Petition.” Miranda v. Mullin, No. CIV-26-1004-D, 2026 WL 2390961, at *1 (W.D. Okla.

Aug. 17, 2026) (citing Soberanes, 388 F.3d at 1310). 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). “Nor does 8 U.S.C. § 1226(a) contain any express

exhaustion requirement.” Miranda, 2026 WL 2390961, at *1; see also 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.”); Repela

v. ICE Field Off. Dir. - Denver Field Off., No. 26-CV-00552, 2026 WL 776123, at *2 (D.

Colo. Mar. 19, 2026) (finding “neither the statutory language of § 1226 nor the habeas

statute” expressly contains an exhaustion requirement).

In an immigration habeas matter, “exhaustion is typically nonjurisdictional, and

courts treat a rule as jurisdictional only if Congress clearly states that it is.” Salvador F.-

G., 2025 WL 1669356, at *6 (citation modified); accord Gonzales v. O'Connell, 355 F.3d

1010, 1016 (7th Cir. 2004) (explaining administrative exhaustion applies to challenges of

final orders of removal but not to challenges to preliminary custody or bond

determinations). “Where Congress has not clearly required exhaustion,” making it

nonjurisdictional, “sound judicial discretion governs.” McCarthy v. Madigan, 503 U.S.

140, 144 (1992), superseded by statute on other grounds as stated in Woodford v. Ngo, 548

U.S. 81 (2006) (citation modified).

As such, “even 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.”

Repela, 2026 WL 776123, at *2. This is also consistent with district courts in the Tenth

Circuit consistently using “sound judicial discretion to find exhaustion unnecessary” for

noncitizens seeking a bond hearing. Molina Ochoa v. Noem, No. CIV 25-0881, 2026 WL

1256556, at *44-45 (D.N.M. May 7, 2026) (concluding a petitioner “does not need to

exhaust administrative remedies” before seeking a bond hearing when respondents argued

petitioner was detained under § 1225(b)(2)). Likewise here, where Respondents contend

Petitioner faces mandatory detention under § 1226(c), they cannot credibly claim he should

exhaust administrative remedies to seek a bond hearing they separately allege is not

available to him.

In sum, the undersigned is “not convinced that Petitioner is required to exhaust his

administrative remedies before the Court can order habeas relief.” Repela, 2026 WL

776123, at *2. When neither § 2241 nor § 1226(a) clearly requires exhaustion, the Court

should exercise its judicial discretion and conclude Petitioner was not required to request

a bond redetermination hearing before filing his Petition.

C. Section 1226(a) applies to Petitioner’s detention.

Next, because the undersigned construes Petitioner to be alleging a violation of the

Immigration and Nationality Act (“INA”) in his Petition, the Court must determine which

provision governs his current detention. The two sections of the INA at issue that govern

detention of noncitizens pending removal proceedings are 8 U.S.C. §§ 1225 and 1226.

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). Under § 1225(b)(2)(A), “in the case of an alien who is an applicant

for admission, if the examining immigration officer determines that an alien seeking

admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be

detained.” If Petitioner is detained under § 1225(b)(2)(A), he 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))). However, for limited circumstances under § 1226(c), ICE

“shall take into custody” noncitizens who are inadmissible or deportable because they have

committed certain criminal offenses. 8 U.S.C. § 1226(c)(1)(A)–(C).

1. Respondents have not shown Petitioner’s prior convictions

trigger mandatory detention under § 1226(c).

Petitioner challenges as unlawful his ICE detention “without a meaningful bond

hearing,” Pet. at 2, which the undersigned liberally construes to allege he is entitled to a

bond hearing under § 1226(a). Pet. at 7. Respondents contend Petitioner is properly

detained under § 1226(c). Resp. at 10-11. “The Attorney General shall take into custody

any alien who is inadmissible by reason of having committed any offense covered in [8

U.S.C.] section 1182(a)(2).” 8 U.S.C. § 1226(c)(1)(A). Specifically, Respondents allege

Petitioner is subject to mandatory detention under § 1226(c)(1)(A) because he “is

inadmissible by reason of having committed an offense” under § 1182(a)(2)(a)(i)(I) for “a

crime involving moral turpitude.” Resp. at 10-11. The Tenth Circuit has characterized

“moral turpitude” as “conduct which is inherently base, vile, or depraved, contrary to the

accepted rules of morality,” and further ruled “corrupt scienter is the touchstone of moral

turpitude.” De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (citation modified);

see also Efagene v. Holder, 642 F.3d 918, 921-22 (10th Cir. 2011) (explaining “as the BIA

has held, for an offense to involve moral turpitude, it must require a reprehensible or

despicable act” and “necessarily involves an evil intent or maliciousness in carrying out

the reprehensible act”) (citation modified).

Respondents contend Petitioner’s convictions in 2025 for Aggravated Driving

While Under the Influence and Driving without a Valid License “should qualify as crimes

involving moral turpitude.” Resp. at 10. Respondents cite only case—a Seventh Circuit

decision—to support their argument. Id. (referencing Portillo-Rendon v. Holder, 662 F.3d

815, 816 (7th Cir. 2011) (“Driving while intoxicated or without a license reflects both

indifference to the welfare of other drivers and pedestrians and defiance of known legal

obligations.”)). Respondents, though, have not established an Oklahoma conviction for

either offense qualifies as an offense for “a crime involving moral turpitude.”

The undersigned is not aware of any Tenth Circuit caselaw directly on point; nor

did Respondents cite any decision of this Court or the Tenth Circuit. Courts outside the

Circuit, though, have uniformly ruled an offense for driving under the influence (“DUI”)—

absent an additional element of the driver’s knowledge of his restricted driving status—

does not qualify as a crime involving moral turpitude. In Marmolejo-Campos v. Holder,

the Ninth Circuit examined the BIA’s consideration of DUI offenses and noted:

The BIA has never held that a simple DUI offense is a crime involving moral

turpitude, a fact it attributes to a long historical acceptance. Although the

dangers of drunk driving are well established, the Board’s unwillingness to

classify it as a crime of moral turpitude is, perhaps, not surprising because

statutes that prohibit driving under the influence typically do not require

intent, but rather “are, or are most nearly comparable to, crimes that impose

strict liability.” Begay v. United States, 553 U.S. 137, 145 (2008); id. (“[T]he

conduct for which the drunk driver is convicted (driving under the influence)

need not be purposeful or deliberate.”); see Leocal v. Ashcroft, 543 U.S. 1,

11 (2004) (stating that a DUI offense involves “accidental or negligent

conduct”)

558 F.3d 903, 913 (9th Cir. 2009) (citation modified);3 see also Murillo-Salmeron v. I.N.S.,

327 F.3d 898, 902 (9th Cir. 2003) (noting “the BIA has unequivocally determined . . .

simple DUI convictions, even if repeated, are not crimes of moral turpitude” requiring

mandatory detention for noncitizens under § 1226(c)(1)(A)) (citation modified).

Other district courts have similarly ruled. See, e.g., Espada Hernandez v. Warden

of Adelanto ICE Processing Ctr., No. 26-CV-2231, 2026 WL 1362396, at *7 (C.D. Cal.

May 11, 2026) (concluding “the crime of driving under the influence does not qualify as

an aggravated felony or crime involving moral turpitude requiring mandatory detention

under the [INA]”); Navarrete v. Noem, No. 26-CV-320, 2026 WL 538365, at *7 (M.D. Pa.

Feb. 26, 2026) (finding a “single driving under the influence charge does not concern moral

turpitude and would not even conditionally bar a finding of good moral character under the

INA”); Perez v. Chestnut, No. 26-CV-900, 2026 WL 381022, at *1 (E.D. Cal. Feb. 11,

2026) (“While 8 U.S.C. § 1226(c) carves out an exception for aliens who have committed

certain criminal offenses, driving under the influence is not one of those criminal

offenses.”). Cf. Marmolejo-Campos, 558 F.3d at 912, 917 (concluding the BIA’s

“determination—DUI offenses committed with the knowledge that one’s driver’s license

has been suspended or otherwise restricted are crimes involving moral turpitude—is a

reasonable interpretation of the INA,” when assessing an Arizona statute for aggravated

3 In Marmolejo-Campos, the Ninth Circuit applied the categorical and modified categorical

approaches set forth in Taylor v. United States, 495 U.S. 575 (1990).

DUI that required “the state to prove that the offender drove with a suspended or otherwise

revoked license, and that he knew or should have known of the suspension or revocation”).

Here, Petitioner’s conviction for Aggravated Driving While Under the Influence

required proof that his blood alcohol concentration was at least 0.15%, much higher than

the standard DUI limit of 0.08%. See Okla. Stat. tit. 47, § 11-902(D)(1); Resp. at 10. While

certainly dangerous conduct, a conviction under the aggravated DUI statute does not

require proof of any purposeful intent or knowledge. See De Leon, 808 F.3d at 1228

(noting “corrupt scienter is the touchstone of moral turpitude”). For the same reason,

Petitioner’s conviction for Driving without a License does not require any purposeful intent

or knowledge; nor have Respondents shown that offense reflects a sufficiently despicable

act. See, e.g., Lopez Lopez v. Warden, No. 26-CV-3556, 2026 WL 1346694, at *1 (E.D.

Cal. May 14, 2026) (“The court has not identified any caselaw which supports the

proposition that [Utah’s offense for driving without a license] is a ‘crime involving moral

turpitude’ nor have respondent.”).

2. The more general provision of § 1226(a) governs Petitioner’s

current detention.

Because Respondents have not shown that § 1226(c) applies, the more general

provision of § 1226(a) governs Petitioner’s current detention. Without a qualifying

conviction for a crime involving moral turpitude, Petitioner is a noncitizen like many others

previously considered by the Court—apprehended by ICE in the interior of the United

States after living in the country for more than two years. The Tenth Circuit recently

applied § 1226(a) to govern detention of noncitizens like Petitioner. Santillan Quiroz v.

Mullin, 180 F.4th 1226, 1235-49 (10th Cir. 2026). In Santillan Quiroz, the Tenth Circuit

concluded “those who entered the United States without admission and who have lived

here since are categorically unable to seek admission while they remain in the country.”

Id. at 1239 (citation modified). Accordingly, “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).” Id. at 1237. Therefore, based on Tenth

Circuit precedent and this Court’s prior reasoning in Munoz v. Holt, No. CIV-25-1190-G,

2026 WL 2200433, at *3 (W.D. Okla. July 30, 2026), the Court should apply § 1226(a) to

govern Petitioner’s current detention. See He v. Blanche, No. CIV-26-1435-G, 2026 WL

2296120, at *2 (W.D. Okla. Aug. 10, 2026) (holding in accordance with Santillan Quiroz

that a similarly situated petitioner is entitled to a bond hearing under § 1226(a)).4

Further, Petitioner’s unsuccessful application for asylum does not change the

analysis or render him “seeking admission” and thereby subject to § 1225(b)(2)(A).

4 This conclusion is also in accord with persuasive authority in the First, Second, Third,

Sixth, Seventh, Ninth, and Eleventh Circuits, which rejected Respondents’ statutory

interpretation of § 1225(b)(2). See Buele Morocho v. Warden Phila. FDC, No. 26-1150, -

-- F.4th ----, 2026 WL 2546223, at *4 (3d Cir. Aug. 28, 2026); Guerrero Orellana v. Moniz,

Nos. 25-2152, 26-1094, --- F.4th ----, 2026 WL 2352042, at *11 (1st Cir. Aug. 13, 2026);

Rodriguez Vazquez v. Bostock, 183 F.4th 1160, 1172 (9th Cir. 2026); Cirrus Rojas v. Olson,

183 F.4th 909, 915 (7th Cir. 2026); Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami,

175 F.4th 1258, 1285 (11th Cir. 2026); Lopez-Campos v. Raycraft, 175 F.4th 713, 722 (6th

Cir. 2026); Barbosa da Cunha v. Freden, 175 F.4th 61, 69 (2d Cir. 2026). In contrast, the

Fifth and Eighth Circuits recently applied § 1225 to similar habeas challenges, agreeing

with Respondents’ position. Avila v. Bondi, 170 F.4th 1128, 1134-38 (8th Cir. 2026);

Buenrostro-Mendez v. Bondi, 166 F.4th 494, 498, 502-08 (5th Cir. 2026). Respondents

have filed a petition for a writ of certiorari to the Supreme Court. See Cert. Pet., Raycraft

v. Lopez-Campos, No. 25-1415 (filed June 22, 2026); Cert. Pet., Cunha v. Freden, No. 26-

104 (filed July 23, 2026).

Santillan Quiroz, 180 F. 4th at 1239 (holding a noncitizen “cannot make a present request

for permission to enter the United States, lawfully or otherwise, once he or she has already

entered” and “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” (citation modified)).

D. The proper remedy is a bond hearing.

Petitioner asks the Court to “require Respondents to justify [his] continued

detention” and to “order an immediate custody review or bond hearing” before an IJ. Pet.

at 7. The undersigned concludes that a bond hearing before an IJ is the proper remedy for

a noncitizen detained under § 1226(a). See Santillan Quiroz, 180 F.4th at 1251 n.13

(“Because Santillan Quiroz can properly be subject to detention under § 1226(a) . . . the

district court shall order the Government to, within seven days of such order, either provide

him with a bond hearing or else release him.”); see also Karimov v. Cerna, No. CIV-26-

304-R, 2026 WL 950130, at *1 (W.D. Okla. Apr. 8, 2026) (“An individualized custody

redetermination hearing would provide Petitioner with the process he is due under the

statute.”).

Further, Judges in this District, including this Court, have consistently declined to

order burden shifting. See, e.g., Sow v. Cerna, No. CIV-26-1376-G, 2026 WL 2302462, at

*2 (W.D. Okla. Aug. 10, 2026) (declining to address a petitioner’s burden-shifting claim);

Guzman Morales v. Mullin, No. CIV-26-587-SLP, 2026 WL 1962374, at *2 (W.D. Okla.

July 7, 2026) (same). Therefore, the Court should grant the Petition in part and order

Respondents to provide Petitioner with a bond hearing under § 1226(a) before a neutral IJ

within seven days or otherwise release him if he does not have a lawful bond hearing within

that period.

V. 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 days or otherwise release Petitioner if

he has not received a lawful bond hearing within that period.

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

See 28 U.S.C. § 636. Any objection must be filed not later than September 16, 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 21, 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 9" day of September, 2026.

UNITED STATES MAGISTRATE JUDGE

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