Izquierdo v. Figueroa

Sep 1, 2026

5:26-cv-01891

REPORT AND RECOMMENDATION

Petitioner Idania Rodriguez Izquierdo, a noncitizen² and Cuban national proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition“), Doc. 1, challenging under 28 U.S.C. § 2241 her detention by U.S. Immigration and Customs Enforcement (“ICE“). United States District Judge David L. Russell 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. 6, 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 ¹8 U.S.C. § 1226(a) within seven days or otherwise to release her if there is no hearing within that time.

I. Background

Petitioner, a citizen of Cuba, entered the United States at an unspecified time, was placed into removal proceedings before the Immigration Court pursuant to 8 U.S.C. § 1229a, and was released on her own recognizance. Pet. at 7.³ Petitioner was taken into immigration custody on May 29, 2026. Pet. at 5. She has an asylum request that remains pending. Id. at 7.

Respondents contend Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(2)(A), while recognizing Santillan Quiroz v. Mullin, 180 F.4th 1226 (10th Cir. 2026), “compels a different outcome.” Resp. at 1. Petitioner does not indicate whether she requested a bond hearing before an Immigration Judge (“IJ“). Such a request, though, would likely be futile because all 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.

When Petitioner filed her Petition, she was detained at Diamondback Correctional Facility in Watonga, Oklahoma. Pet. at 1. She remains detained there. See ICE Online Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited Sept. 1, 2026).

II. Petitioner‘s Claims

Petitioner asserts four counts in her Petition.

Count I: Entitlement to an Individualized Bond Hearing. Petitioner alleges her detention without an “individualized bond hearing” “violates fundamental principles of constitutional rights.” Pet. at 6, 8 (citation modified).
Count II: Violation of Due Process. Petitioner alleges her detention violates the Fifth Amendment to the United States Constitution. Id. at 8.
Count III: No Danger to the Community. Petitioner alleges she should not be detained because she does not pose “a current threat to the public” and has no criminal record beyond an alleged familial dispute. She alleges due process requires that she is a present-day risk before she can be detained. Id.
Count IV: No Flight Risk. Petitioner alleges she should not be detained because she does not pose a risk of flight based on her pending asylum claim. Id. at 7.

The undersigned construes the Petition to assert violations of due process under the Fifth Amendment and the Immigration and Nationality Act (“INA“)—i.e., that continued detention under 8 U.S.C. § 1225(b)(2) is unlawful because that provision does not apply to noncitizens, like Petitioner, who previously entered the country and have been residing in the United States before being apprehended and placed in removal proceedings. Respondents understood her claims similarly and have addressed these issues. Resp. at 1-2. Petitioner asks the Court to order her immediate release, or alternatively, “an individualized bond hearing where the government bears the burden to justify her continued detention.” Pet. at 7-8.

III. Standard of Review

To obtain habeas corpus relief, Petitioner must show that she 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. Section 1226(a) applies to Petitioner‘s 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), she 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))).

Respondents maintain Petitioner is properly detained under 8 U.S.C. § 1225(b)(2)(A). Resp. at 1-2. The Tenth Circuit recently rejected the statutory interpretation of § 1225(b)(2) as urged by Respondents and applied § 1226(a) to govern detention of noncitizens like Petitioner, which Respondents acknowledge. 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 Valdez v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec. 22, 2025), the undersigned recommends the Court apply § 1226(a) to govern Petitioner‘s current detention. See Bohorquez Bravo v. Lyons, No. CIV-26-912-R, 2026 WL 1896141, at *1 (W.D. Okla. July 1, 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 application for asylum does not change the analysis or render her “seeking admission” and thereby subject to § 1225(b)(2)(A). 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)).

B. The proper remedy is a bond hearing.

Petitioner seeks release or an individualized bond hearing with burden shifting. Pet. at 7. The undersigned concludes a bond hearing is the proper remedy for a noncitizen detained under § 1226(a). See Santillan Quiroz, 180 F.4th at 1251 n.13; see also Bohorquez Bravo, 2026 WL 1896141, at *1 (citing Santillan Quiroz and concluding “the appropriate remedy is a bond hearing“); Karimov v. Cerna, No. CIV-26-304-R, 2026 WL 950130, at *1 (W.D. Okla. Apr. 8, 2026) (“As a remedy, Petitioner requests his immediate release, but the Court concludes that a bond or custody redetermination hearing is the appropriate remedy.“). Further, Judges in this District, including this Court, have consistently declined to order burden shifting. See, e.g., Singh v. Figueroa, 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)). 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 her if she does not have a lawful bond hearing within that period.⁵

C. The Court should decline to address Petitioner‘s due process claims.

Petitioner also argues her continued detention without a bond hearing violates her rights to due process. Pet. at 6, 8. If the Court grants Petitioner relief with a bond hearing under § 1226(a), the undersigned recommends the Court decline to decide the merits of Petitioner‘s due process claims based on her continued detention. See, e.g., Valdez, 2025 WL 3709021, at *3 n.2 (declining to decide the merits of a petitioner‘s due process claim when granting a bond hearing pursuant to § 1226(a)).

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 she 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 9, 2026. See id. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). If a party wishes to respond to the other party‘s objections, such response must be filed not later than September 14, 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 1^st day of September, 2026.

CHRIS M. STEPHENS

UNITED STATES MAGISTRATE JUDGE

Notes

After noting the spelling of Petitioner‘s name on immigration records in this case and a closer review of her Petition and mailing envelope, the undersigned corrects the spelling of her first name from “Idonia” to “Idania.”

Unless quoting, this Report and Recommendation “uses the term ‘noncitizen’ as equivalent to the statutory term ‘alien.‘” (citing 8 U.S.C. § 1101(a)(3)).

Petition citations are to the CM/ECF pagination in the header of the document.

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 ; ; ; ; ; ; . In contrast, the Fifth and Eighth Circuits recently applied § 1225 to similar habeas challenges, agreeing with Respondents’ position. ; . Respondents have filed a petition for a writ of certiorari to the Supreme Court. See Cert. Pet., ; Cert. Pet., .

While Judges in this District have ordered release for noncitizens whose earlier release was improperly revoked, Petitioner has not alleged or provided evidence that the circumstances of her detention entitle her to release rather than a bond hearing. See (ordering a bond hearing but not release because petitioner had not provided the Court with sufficient evidence to establish entitlement to release); accord (ordering release where ICE improperly revoked petitioner‘s prior bond ordered by an immigration judge); (same); (ordering petitioner‘s release where no changed circumstances existed from when an immigration judge previously ordered bond).