Torres-Acuna v. Cerna

Aug 31, 2026

5:26-cv-01695

REPORT AND RECOMMENDATION

Petitioner Frandi Torres-Acuna, a noncitizen¹ and Cuban national proceeding with counsel, 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. 5. 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.

I. Background

Petitioner, a citizen of Cuba, entered the United States on or about April 11, 2024, without inspection near Eagle Pass, Texas, and was taken into ICE custody. Pet. at 5; Resp. at 2. The same day, Petitioner was placed into expedited removal proceedings pursuant to 8 U.S.C. § 1225(b)(1). Doc. 11-1 at 1 (Notice and Order of Expedited Removal). On May 29, 2024, Petitioner was released from ICE custody on interim parole under 8 U.S.C. § 1182(d)(5). Doc. 11-2 at 1 (Interim Notice Authorizing Parole). The parole was authorized for one year. Id.; Resp. at 2. Petitioner alleges he has no criminal history and is authorized to work in the United States. Pet. at 5, 10.

On December 16, 2025, ICE re-detained Petitioner after a vehicle stop. Id. at 5; Resp. at 2; Doc. 11-3 (Warrant for Arrest). Respondents contend Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(1). Resp. at 2-7. 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.

When Petitioner filed his Petition, he was detained at Diamondback Correctional Facility in Watonga, Oklahoma. Pet. at 2. He remains detained there. See ICE Online Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited Aug. 31, 2026).

II. Petitioner‘s Claims

Petitioner asserts one claim in his Petition, alleging his continued detention without a “meaningful individualized custody determination before a neutral decisionmaker” violates his rights to due process under the Fifth Amendment. Pet. at 10-11. He asks the Court to “issue a Writ of Habeas Corpus ordering Respondents to release Petitioner immediately,” or in the alternative, to “provide an immediate individualized bond or custody hearing with the burden on the Government to justify continued detention.” Id. at 11. Petitioner also requests an award of attorney fees and costs under the Equal Access to Justice Act (“EAJA“).² Id.

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. Section 1226(a) applies to Petitioner‘s detention.

While Petitioner does not explicitly allege a violation of the Immigration and Nationality Act (“INA“), to determine what process is due to him, the Court must first analyze what provision governs his detention. The two sections of the INA at issue 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). 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 § 1225(b)(1)(A)(i)-(iii)). Section 1225(b)(1)(B)(ii) further requires that, if an asylum officer determines that a noncitizen has a credible fear of persecution, the noncitizen shall be detained for further consideration of the application for asylum.

Fundamentally, under § 1225(b)(1), a noncitizen who arrives at a port of entry and applies for admission is ordered removed “without further hearing or review” unless the noncitizen “indicates either an intention to apply for asylum” or expresses a fear of persecution. If Petitioner is subject to this “expedited removal” under § 1225(b)(1), he is not entitled to a bond hearing. But noncitizens detained under § 1225(b)(1)(B)(ii) can be paroled under 8 U.S.C. § 1182(d)(5)(A). On the other hand, Section 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 (“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)).

Petitioner alleges his continued detention without “a meaningful individualized custody determination” violates due process, Pet. at 10, which the undersigned understands to be a request for a bond hearing under § 1226(a). Respondents maintain Petitioner is properly detained under § 1225(b)(1). Resp. at 2-7. They do not allege any violations of Petitioner‘s conditions of release.

Petitioner was re-apprehended in the interior of the country in December 2025 and had been living in the United States for nearly 18 months after he was granted parole in May 2024 and over six months after his parole expired. Resp. at 2. The undersigned finds it implausible under these circumstances that Petitioner remains an “arriving alien.” Under § 1225(b)(1), “someone arriving in the United States is someone who has reached the border or a port of entry.” Rafibaev v. Noem, No. 26-CV-00461, 2026 WL 607559, at *3 (D. Colo. Mar. 4, 2026) (citation modified). Thus, “upon his parole into the interior of the country, petitioner had arrived in the United States and was no longer a noncitizen arriving in the United States.” Id. (emphasis added) (citation modified).

Judges in this District have concluded a noncitizen re-detained after revocation of § 1182(d)(5) parole is held pursuant to § 1226(a), and “because Respondents have not shown that § 1225(b) applies, the more general provisions of § 1226 govern Petitioner‘s detention.” Aitiev v. Gantt, No. CIV-26-997-R, 2026 WL 2125893, at *2 (W.D. Okla. July 23, 2026) (citation omitted); see also, e.g., Zhakhonov v. Grant, No. CIV-26-350-J, 2026 WL 1865418, at *3 (W.D. Okla. June 29, 2026) (finding where a “Petitioner was paroled into the United States, permitted to reside in the interior of the country for several years, pursued his asylum application, and complied with the conditions of his release before being re-detained during a routine check-in with immigration authorities,” his “detention is mo[st] naturally characterized as detention ‘pending a decision on whether the alien is to be removed from the United States’ within the meaning of § 1226(a)“); Ochilov v. Grant, No. CIV-26-526-R, 2026 WL 1896139, at *2 (W.D. Okla. July 1, 2026) (applying § 1226(a) to govern re-detention of petitioner previously designated as an arriving alien and released on parole); Drozdov v. Lyons, No. CIV-26-365-SLP, 2026 WL 1470929, at *2 (W.D. Okla. May 26, 2026) (same); Kumar v. Johnson, No. CIV-26-352-J, 2026 WL 937560, at *2 (W.D. Okla. Apr. 7, 2026) (same). Therefore, consistent with prior decisions in this District, the undersigned recommends that the Court apply § 1226(a) to govern Petitioner‘s current detention.

B. The proper remedy is a bond hearing.

Petitioner requests immediate release or, in the alternative, a bond hearing “with the burden on the Government to justify continued detention.” Pet. at 11. The undersigned concludes a bond hearing is the proper remedy for a noncitizen detained under § 1226(a). See Santillan Quiroz v. Mullin, 180 F.4th 1226, 1248, 1251 n.13 (10th Cir. 2026) (“Because Santillan Quiroz can properly be subject to detention under § 1226(a), though, 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 Aitiev, 2026 WL 2125893, at *2 (citing Santillan Quiroz and finding “that a bond hearing is the proper remedy” where “the more general provisions of § 1226 govern” rather than § 1225(b)(1)); 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 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). 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.³

C. The Court should decline to address any remaining due process claim.

To the extent Petitioner argues his continued detention without a bond hearing otherwise violates his rights to due process, Pet. at 10-11, if the Court grants the requested habeas relief to Petitioner with a bond hearing under § 1226(a), the undersigned recommends the Court decline to decide the merits of any remaining due process claim based on continued detention. See, e.g., He v. Blanche, No. CIV-26-1435-G, 2026 WL 2296120, at *2 (W.D. Okla. Aug. 10, 2026) (declining to decide a petitioner‘s additional due process claim when adopting the recommended relief of a bond hearing under § 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 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 8, 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 11, 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 31^st day of August, 2026.

CHRIS M. STEPHENS

UNITED STATES MAGISTRATE JUDGE

Notes

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)).

To the extent Petitioner may be entitled to EAJA fees and costs as a prevailing party, he must seek those separately after a final judgment. 28 U.S.C. § 2412(d)(1)(B). Thus, the Court need not address this request at this juncture.

While Judges in this District, including the undersigned, have considered release for noncitizens whose earlier humanitarian parole under § 1182(d)(5) was improperly revoked, the undersigned concludes here Petitioner has not sufficiently raised a claim alleging the circumstances of his parole revocation and re-detention entitle him to release rather than a bond hearing. Accord (ordering release where ICE improperly revoked petitioner‘s prior humanitarian parole). Further, Judges in this District have recently declined to find termination of parole under § 1182(d)(5)(A) entitles a noncitizen to release. See, e.g., (finding a similarly situated petitioner “has a protected liberty interest in remaining out of custody” but declining to hold re-detention in violation of § 1182(d)(2) entitles him to additional relief); accord (finding in analogous circumstances that termination of humanitarian parole under § 1182(d)(5)(A) provides “no avenue for relief“). Accordingly, the undersigned does not address such a claim or recommend Petitioner‘s release on that basis.