UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA ALBERTO JOSE ANDRADE-PEREZ, ) ) Petitioner, ) ) v. ) Case No. CIV-26-965-J ) MARKWAYNE MULLIN,1 et al., ) ) Respondents. ) REPORT AND RECOMMENDATION Petitioner Alberto Jose Andrade-Perez, a noncitizen2 and Honduran 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 Bernard M. Jones, II 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 8 U.S.C. § 1226(a) within five business days or otherwise to release him if there is no hearing within that time.
1 David Venturella was announced as Acting Director of U.S. Immigration and Customs Enforcement on June 1, 2026. He replaces Todd Lyons and is substituted as the proper respondent pursuant to Federal Rule of Civil Procedure 25(d). 2 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 Honduras, entered the United States on December 9, 2022, without inspection as an unaccompanied minor. Pet. at 6; Doc. 1-1 at 1 (Warrant).3 On
December 11, 2022, ICE elected to detain him pursuant to 8 U.S.C. § 1226(a) and placed him in a juvenile shelter. Pet. at 6; Doc. 1-2 at 1 (Notice of Custody Determination). On February 4, 2023, the U.S. Department of Health and Human Services Office of Refugee Resettlement released Petitioner into the care of his sister. Pet. at 7; Doc. 1-3 at 1 (Verification of Release). He applied for asylum in November 2023. Pet. at 7.
On December 19, 2025, Petitioner was a passenger in his sister’s car in St. Lucie County, Florida, when she was stopped for speeding. Pet. at 7. Petitioner was arrested and later transferred to ICE custody. Id. at 7-8. He was then transferred between several immigration detention facilities. Id. at 8. Petitioner’s asylum application remains pending before the Immigration Court. Id.
Respondents contend Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(2)(A). Resp. at 1. Petitioner did not allege he requested a bond hearing. See Pet. at 15-17 (arguing that exhaustion is not required but not indicating whether he has 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.
3 Page citations reference the Court’s electronic case filing pagination. 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 July 24, 2026). II. Petitioner’s Claims Petitioner asserts two counts in his Petition. • Count I: Detention in Violation of Due Process. Petitioner alleges his continued detention without an individualized detention redetermination hearing contravenes § 1226(a) and violates his right to due process. Pet. at 12-14. • Count II: Transfer in Violation of Due Process. Petitioner alleges his transfer between multiple immigration detention facilities has impeded his ability to participate meaningfully in his removal proceedings, in violation of his right to due process. Id. at 14-15. He asks the Court to “[i]ssue a Writ of Habeas Corpus . . . directing Respondents to immediately release Petitioner from custody; or, in the alternative, order Respondents to provide Petitioner with a prompt and constitutionally adequate individualized custody determination before a neutral decisionmaker.” Pet. at 17. Alternatively, Petitioner requests a “bond hearing before a neutral adjudicator, at which the Government bears the burden of proving that Petitioner’s continued detention is necessary.” Id. at 17-18. He also requests an award of “reasonable attorney fees and costs, if authorized by law.”4 Id. at 18.
4 To the extent Petitioner is seeking attorneys’ fees and costs pursuant to the Equal Access to Justice Act (“EAJA”) and is entitled to such 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. 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. 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), “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted,” applicants for
admission “shall be detained.” If Petitioner is detained under § 1225(b)(2)(A), he is not entitled to a bond hearing. 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 (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))).
Petitioner alleges § 1226(a) governs the detention of noncitizens, like him, who were “apprehended within the United States.” Pet. at 10; see also id. at 10-11 (arguing § 1225 “does not extend to individuals, like Petitioner, who were apprehended in the interior of the United States after entry and placed in removal proceedings under § 240”).
Respondents maintain Petitioner is properly detained under § 1225(b)(2)(A). Resp. at 1. 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. Santillan Quiroz v. Mullin, --- F.4th ----, No. 26-6019, 2026 WL 1876709, at *4-17 (10th Cir. June 30, 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 *7 (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 *5. Therefore, based on Tenth Circuit precedent and this Court’s prior reasoning in Coreas v. Noem, No. CIV-26-151-J, 2026 WL 541151, at
*2 (W.D. Okla. Feb. 26, 2026), the undersigned recommends the Court apply § 1226(a) to govern Petitioner’s current detention. See Imami v. Lyons, No. CIV-26-566-J, 2026 WL 1896142, at *1-2 (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)).5
5 This conclusion is also in accord with persuasive authority in the Second, Sixth, and Eleventh Circuits, which rejected Respondents’ statutory interpretation of § 1225(b)(2). See Lopez-Campos v. Raycraft, 175 F.4th 713, 722 (6th Cir. 2026); Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami, 175 F.4th 1258, 1285 (11th Cir. 2026); 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, Further, Petitioner’s application for asylum does not change the analysis or render him “seeking admission” and thereby subject to § 1225(b)(2)(A). Santillan Quiroz, 2026
WL 1876709, at *6 (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.6 Petitioner alleges that his continued detention without a custody determination
hearing violates his due process rights and seeks “immediate release or, at a minimum, a prompt and constitutionally adequate individualized custody determination before a neutral decisionmaker.” Pet. at 12-14. The undersigned concludes that because § 1226(a) applies to Petitioner’s detention, he is owed the due process provided to him under the statute. When “§ 1226 governs Petitioner’s detention, the due process owed to Petitioner is that
502-08 (5th Cir. 2026). Respondents have filed a cert petition to the Supreme Court. See Cert. Pet., Raycraft v. Lopez-Campos, No. 25-1415 (filed June 22, 2026). 6 Respondents urge the Court not to reach Petitioner’s constitutional claims, arguing that if the Court “order[s] a hearing based on [Petitioner’s] statutory arguments,” then his “constitutional claims would be no longer ripe or appropriate for adjudication.” Resp. at 2. Respondents misapprehend Petitioner’s claims. While Petitioner alleges his detention without a bond hearing violates § 1226(a), he does not seek relief on that basis. See Pet. at 12-14. Rather, he argues that, because of Respondents’ violation of § 1226(a), “his continued detention violates the Due Process Clause of the Fifth Amendment.” Id. at 14. Therefore, the Court must reach Petitioner’s constitutional claim, because he does not raise a statutory one. provided for in § 1226—namely, an individualized bond hearing before an IJ.” Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1241 (D.N.M. 2025).7
The Fifth Amendment’s Due Process Clause protects all persons within the United States from being “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. It applies to noncitizens within the United States “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. In the civil immigration detention context, courts consistently apply the balancing test set out in
Mathews v. Eldridge, 424 U.S. 319 (1976), to evaluate the process owed a noncitizen. See, e.g., Hernandez-Lara v. Lyons, 10 F.4th 19, 27-39 (1st Cir. 2021) (applying Mathews to due process challenges to prolonged detention under § 1226(a)); Velasco Lopez v. Decker, 978 F.3d 842, 851-55 (2d Cir. 2020) (same); see also Merchan-Pacheo v. Noem, No. 25- CV-03860, 2026 WL 88526, at *4-6 (D. Colo. Jan. 12, 2026) (concluding the Supreme
Court “created a framework that permits Petitioner’s release” and “in no way suggests that the court should decline to consider the Mathews factors”).
7 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 his detention entitle him to release rather than a bond hearing. See Singh v. Mullin, No. CIV-26-471-SLP, 2026 WL 1255801, at *2 (W.D. Okla. May 7, 2026) (ordering a bond hearing but not release because petitioner had not provided the Court with sufficient evidence to establish entitlement to release); accord Singh v. Grant, No. CIV- 26-289-R, 2026 WL 1483557, at *1 (W.D. Okla. May 27, 2026) (ordering release where ICE improperly revoked petitioner’s prior bond ordered by an immigration judge); Ewere v. Cerna, No. CIV-26-320-SLP, 2026 WL 1207088, at *2 (W.D. Okla. May 4, 2026) (ordering release where ICE improperly revoked petitioner’s prior humanitarian parole); Skutar v. Mullin, CIV-26-0036-HE, Doc. 15, at 2-3 (W.D. Okla. Apr. 24, 2026) (ordering petitioner’s release where no changed circumstances existed from when an immigration judge previously ordered bond). The Mathews test includes three factors: (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. All three factors weigh in Petitioner’s favor. First, Petitioner has a strong liberty interest in being free from physical detention. This is “the most significant liberty interest there is—the interest in being free from
imprisonment.” Velasco Lopez, 978 F.3d at 851 (citing Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004)); see also Ochilov v. Grant, No. CIV-26-526-R, 2026 WL 1896139, at *2 (W.D. Okla. July 1, 2026) (“Petitioner has a protected liberty interest in remaining out of custody.” (citation modified)). Because freedom from restraint is “at the core of the liberty interest protected by the Due Process Clause, commitment for any purpose constitutes a
significant deprivation of liberty that requires due process protection.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (citation modified). “Congress may make rules as to aliens that would be unacceptable if applied to citizens,” Demore v. Kim, 538 U.S. 510, 522 (2003), but that power remains subject to “important constitutional limitations,” Zadvydas, 533 U.S. at 695. It does not eliminate Petitioner’s significant interest in being
free from detention. See, e.g., Diaz v. Noem, No. 26-CV-00782, 2026 WL 733587, at *3 (D. Colo. Mar. 16, 2026) (concluding the first Mathews factors supports finding a due process violation where petitioner “is being held in a detention facility that strongly resembles penal confinement, is away from his family, and is unable to maintain his employment” (citation modified)).
Second, the risk of erroneous deprivation is high here, considering Respondents’ current position to afford him no bond hearing. See, e.g., Montero Cordova v. Noem, No. 26-CV-00526, 2026 WL 867689, at *9 (D.N.M. Mar. 30, 2026) (finding the second Mathews factor favors petitioner because “the risk of erroneous deprivation will remain high” “without the opportunity to have the hearing to which Petitioner is entitled” under § 1226(a) and noting “a bond hearing before a neutral immigration judge will provide
immense value as an additional safeguard” (citation modified)). Finally, the Court must consider the government’s interest, including any fiscal or administrative burdens. Mathews, 424 U.S. at 335. While “control over matters of immigration is a sovereign prerogative” and the “government’s interest in efficient administration of immigration laws at the border is weighty,” Landon v. Plasencia, 459
U.S. 21, 34 (1982) (citation modified), such interests in detaining Petitioner without procedural safeguards do not outweigh his liberty interest or risk of erroneous deprivation. See Montero Cordova, 2026 WL 867689, at *10 (finding though “the Government’s interest in enforcing its immigration policies must be afforded considerable weight,” the third factor favors petitioner because “the fiscal and administrative burdens of providing a
bond hearing under § 1226(a) are minimal and do not provide adequate justification for foregoing the hearing entirely”); Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926, 943 (D. Colo. 2025) (comparing the “quite limited” harm to government, “because the administrative burden of a bond hearing is minimal,” to the “sizeable harm posed to [petitioner] by continued—and potentially unnecessary—detention” (citation modified)). Further, the fact Petitioner had been living in the United States for more than three years
when he was re-detained also weighs in his favor. Bond hearings “are a significant procedural safeguard to balance the Government’s interest in immigration enforcement against individual liberties.” Singh v. Bondi, No. 26- CV-0125, 2026 WL 690013, at *6 (W.D. Tex. Mar. 6, 2026). Petitioner’s continued detention without a bond hearing violates his due process liberty interests, and he is entitled to a prompt bond hearing under § 1226(a) before an IJ.8
C. The Court should deny as moot Petitioner’s due process claim related to transfers. Petitioner also argues his repeated transfer between immigration detention facilities compromised his access to counsel and ability to participate meaningfully in his Immigration Court case, in violation of his Fifth Amendment due process rights. Pet. at 14-15. He seeks “release, or, at a minimum, an order ensuring constitutionally adequate access to counsel and a meaningful opportunity to be heard.” Id. at 15. On May 5, 2026,
8 Petitioner requests that, if the Court orders Respondents to provide him with a bond hearing, it direct that “the Government bears the burden of proving that Petitioner’s continued detention is necessary to prevent flight or danger to the community.” Pet. at 18. District Judges in this District, including this Court, have declined to order burden shifting. See Singh v. Grant, No. CIV-26-279-J, 2026 WL 1035100, at *1-2 (W.D. Okla. Apr. 16, 2026) (concluding burden shifting to the government in a § 1226(a) bond hearing is premature and not ripe for adjudication before a bond hearing has been conducted); see also, e.g., Singh v. Mullin, No. CIV-26-712-HE, Order, Doc. 13 at 2-7 (W.D. Okla. June 18, 2026) (declining to order burden shifting); Rangel v. Mullin, No. CIV-26-568-D, 2026 WL 1625653, at *2 n.2 (W.D. Okla. June 5, 2026) (same); Singh v. Figueroa, No. CIV-26- 600-R, 2026 WL 1181699, at *1 n.2 (W.D. Okla. Apr. 30, 2026) (same). Accordingly, the undersigned does not recommend burden shifting in this case. the undersigned issued an order directing Respondents, as relevant, to “file written notice at least forty-eight hours before removing, transferring, relocating, or otherwise moving
Petitioner, regardless of whether the new location is within the territorial jurisdiction of the Western District of Oklahoma.” Doc. 6 at 2. Respondents argue the undersigned’s prior order adequately protects Petitioner’s access to counsel and to the courts. Resp. at 2 n.2. Petitioner does not contest this assertion in his reply. See generally Doc. 12. Further, no evidence in the record indicates Petitioner is presently unable to access counsel and the courts. Accordingly, Petitioner’s claim that his transfers between immigration detention
facilities violated his due process rights should be denied as moot.9 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 five business days or otherwise release
Petitioner if he has not received a lawful bond hearing within that period.
9 Even if Petitioner’s transfer claim was not moot, it is still outside the scope of this Court’s habeas review. A petitioner who challenges “the fact or duration” of his confinement and seeks release from ICE custody must bring a § 2241 habeas petition, but a challenge to the conditions of his confinement must be brought through a civil rights action under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). As such, Petitioner’s allegations related to his access to counsel and the courts are not properly raised in this Petition. See, e.g., Ndou v. Noem, No. 26-CV-220, 2026 WL 686564, at *4 (D.N.M. Mar. 11, 2026) (finding an immigration habeas petitioner’s “claims related to conditions of confinement are properly raised under a civil rights action, not a habeas corpus petition”); Sanchez v. Warden, No. CIV-26-318-SLP, 2026 WL 1623020, at *4 (W.D. Okla. Mar. 26, 2026) (R&R) (same), adopted on other grounds, 2026 WL 1347428, at *2 (W.D. Okla. May 14, 2026). 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 July 31, 2026. See id. § 636(b)(1); 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 24" day of July, 2026.
UNITED STATES MAGISTRATE JUDGE