Alejandro Diaz Vega v. Mary De Anda-Ybarra, et al.

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

ALEJANDRO DIAZ VEGA, ) ) Petitioner, ) ) v. ) Case No. CIV-26-1008-SLP ) MARY DE ANDA-YBARRA, ) et al., ) ) Respondents. )

REPORT AND RECOMMENDATION

Petitioner Alejandro Diaz Vega, a noncitizen,1 seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 Chief United States District Judge Scott L. Palk referred the case to the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 3. The Government responded, Doc. 11, and Petitioner has replied, Doc. 12. So, the matter is at issue. For the reasons below, the undersigned recommends the Court grant Petitioner’s habeas petition and order his immediate release.

1 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)).

2 Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated. I. Factual background and procedural history.

Petitioner is a citizen of Cuba who entered the United States on March 19, 2022, without inspection or admission. Doc. 1, at 18; Doc. 11, at 2. On March 22, 2022, the Department of Homeland Security (DHS) placed him in removal proceedings through the issuance of a Notice to Appear (NTA), charging him as removable under Section 212(a)(6)(A)(i) of the Immigration and Nationality

Act (INA).3 Doc. 1, at 18 & Ex. 1; Doc. 11, at 2 & Ex. 1. DHS released him on an Order of Release on Recognizance, and he “fully complied” with instructions to report to Immigrations & Customs Enforcement (ICE). Doc. 1, at 18 & Ex. 2; Doc. 11, at 2.

On November 6, 2025, Petitioner filed an Application for Asylum and Withholding of Removal, which remains pending. Doc. 11, at 2; Doc. 1, at 19. He also has a pending Application to Register Permanent Residence or Adjust Status. Doc. 1, at 19 & Ex. 3.

3 This section is codified in the United States Code at 8 U.S.C. § 1182(a)(6)(A)(i). Section 1182(a)(6)(A)(i) provides that a noncitizen who is present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General is ineligible to be admitted to the United States. Id. § 1182(a)(6)(A)(i).

2 On March 21, 2026, an Oklahoma police officer stopped Petitioner on his way home from work for a broken headlight, and the officer contacted ICE,

which detained Petitioner. Id. at 18. He sought a custody redetermination hearing, which the Immigration Court denied citing a lack of jurisdiction. Doc. 1, at 19 & Ex. 5; Doc. 11, at 2. Petitioner states that while released, he has committed no criminal

offense, no new immigration violations, and has complied with all reporting requirements. Doc. 1, at 18. He has a wife who is a lawful permanent resident and a child who is a U.S. citizen. Id. He states he has a stable residence, a history of consistent employment, and “demonstrates strong moral character.”

Id. at 18-19. ICE is detaining Petitioner at the Cimarron Correctional Facility. Doc. 11, at 2. II. Petitioner’s claims.

Petitioner raises five grounds for relief: (1) Violation of the INA;

(2) Violation of the Fifth Amendment’s Due Process Clause (procedural due process);

(3) Violation of the Fifth Amendment’s Due Process Clause (substantive due process);

(4) Violation of the bond regulations; and

(5) Violation of the Administrative Procedure Act (APA). 3 Doc. 1, at 19-28. Petitioner seeks an order precluding his transfer while this action is pending; an order to show cause why the Court should not grant the petition

within three days;4 a grant of the writ and an order of release, or in the alternative, an order to provide a bond hearing under 8 U.S.C. § 1226(a) within seven days; a declaration that his detention is unlawful; and an award of attorney’s fees and costs pursuant to the Equal Access to Justice Act (EAJA).

Id. at 28-29. III. Standard of review.

An application for a writ of habeas corpus “is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Habeas corpus relief is warranted only if the petitioner “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)).

4 The Court addressed these requests in its Order for Response, Doc. 9. 4 IV. Discussion.

A. Section 1226 governs Petitioner’s detention.5

Petitioner asserts that Respondents violated the INA by detaining him under the mandatory detention provision in 8 U.S.C. § 1225(b)(2).6 Doc. 1, at 19. Petitioner entered the country over four years ago, so he is not subject to § 1225(b)(2)(A)’s mandatory detention requirement. Quiroz v. Mullin, 180 F.4th 1226, 1237 (10th Cir. 2026) (“We hold that 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).”); see also Barbosa da Cunha v. Freden, 175 F.4th 61, 70 (2d Cir. 2026)

(concluding the petitioner’s detention was “governed by Section 1226(a), not

5 Petitioner also argues the Government should be estopped from maintaining its current position, given the Government’s past treatment of individuals like Petitioner, applying § 1226. Doc. 1, at 27-28. The Court finds that judicial estoppel does not prohibit either party from advancing arguments different than those they pursued previously. “[J]udicial estoppel only applies when the position to be estopped is one of fact, not one of law.” BancInsure, Inc. v. FDIC, 796 F.3d 1226, 1240 (10th Cir. 2015) (collecting cases); Torres v. Bacon, 2026 WL 979569, at *5 (D. Md. Apr. 1, 2026) (finding judicial estoppel did not bar the government from taking inconsistent positions regarding the legal basis for a noncitizen's detention before the immigration and district courts).

6 Section 1225(b)(2) mandates detention for noncitizens who are “applicant[s] for admission, [where] the examining immigration officer determines that [the noncitizen] seeking admission is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A). 5 Section 1225(b)(2)(A),” and explaining that its holding “allows noncitizens . . . who are already present in the United States and are determined not to be a

flight risk or danger to the community to be released on bond under Section 1226(a) while their removal proceedings are pending”). The Court should therefore at the least grant Petitioner’s request for a “prompt bond hearing under [ ] § 1226(a).” Munoz v. Grant, No. CIV-26-544-D,

2026 WL 1078862, at *2 (W.D. Okla. Apr. 20, 2026); see, e.g., Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176, at *6 (W.D. Okla. Dec. 16, 2025) (“Petitioner has not received a bond hearing and Respondents raise no objection challenging their obligations to provide bond hearings for noncitizens

that are detained under 8 U.S.C. § 1226(a).”). But the undersigned also finds that Petitioner’s unlawful re-detention warrants his immediate release. B. Petitioner’s procedural due process claim.

In Ground II, Petitioner asserts that Respondents violated his due process rights by re-detaining him without notice, new facts, or an opportunity to be heard. Doc. 1, at 22. Respondents argue that any due process arguments do not warrant habeas relief. Doc. 11, at 4. “The Fifth Amendment’s Due Process Clause forbids the Government to

deprive any person of liberty without due process of law. Freedom from imprisonment—from government custody, detention, or other forms of physical 6 restraint—lies at the heart of the liberty that Clause protects.” Zadvydas, 533 U.S. at 690 (internal quotation marks and alterations omitted); cf. Trump v.

J.G.G., 604 U.S. 670, 673 (2025) (“It is well established that the Fifth Amendment entitles aliens to due process of law in the context of removal proceedings.” (internal quotation marks omitted)). “The [INA] establishes procedures for removing [and detaining

noncitizens] living unlawfully in the United States.” Johnson v. Guzman Chavez, 594 U.S. 523, 527 (2021); see Johnson v. Arteaga-Martinez, 596 U.S. 573, 578 (2022) (“The INA establishes procedures for the Government to use when removing certain noncitizens from the United States and, in some cases,

detaining them.”). This Court analyzes Petitioner’s procedural due process claim to determine whether he has a protected liberty interest, and what process is necessary to ensure any deprivation of that liberty interest aligns with the Due

Process Clause of the Fifth Amendment. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989). In examining the necessary process, the Court turns to the three factors set forth in Mathews v. Eldridge: (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 7 Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural

requirement would entail.” 424 U.S. 319, 335 (1976). “When the [G]overnment grants [a noncitizen] parole into the country, it creates a liberty interest intimately tied to freedom from imprisonment.” Sanchez v. LaRose, 2025 WL 2770629, at *3 (S.D. Cal. Sept. 26, 2025); see also

Iza v. Arnott, 2026 WL 67152, at *3 (W.D. Mo. Jan. 8, 2026) (“Individuals released on parole or other forms of conditional release have a liberty interest in their ‘continued liberty.’” (quoting Morrissey v. Brewer, 408 U.S. 471, 482 (1972))); Sahil v. De Anda-Ybarra, 2026 WL 560216, at *3 (D.N.M. Feb. 27,

2026) (finding “that noncitizens acquire a liberty interest once released from immigration detention”). Petitioner’s interest in physical freedom “is the most elemental of liberty interests.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004); see also Zadvydas, 533 U.S. at 690 (stating that an individual’s interest in

being free from detention “lies at the heart of the liberty that [the Due Process] Clause protects”). Respondents deprived Petitioner of his liberty when ICE detained him and placed him into custody. Turning to the Mathews factors, the Court finds that Petitioner has a

significant private interest in remaining free from detention after spending four-plus years in the United States before his present detention. By initially 8 releasing Petitioner on his own recognizance, the Government necessarily determined that he did “not pose a danger to property or persons” and he was

“likely to appear for any future proceeding.” 8 C.F.R. § 236.1(c)(8). Respondents have presented no evidence that there was a change in this assessment. By permitting Petitioner to remain at liberty for over four years following the issuance of his NTA, the Government enabled Petitioner to develop a protected

liberty interest in remaining out of custody. To be sure, “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. And it does not erase

Petitioner’s significant interest in remaining free from detention. Respondents do not suggest Petitioner violated any laws while in the United States. During his release, Petitioner’s interest in remaining free from detention grew even stronger as he lawfully worked, raised a family, and

presumably “form[ed] the other enduring attachments of normal life.” Morrissey, 408 U.S. at 482. The first Mathews factor favors Petitioner. Second, the Court considers “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.” Mathews, 424 U.S. at 335. The

9 risk of an erroneous deprivation of Petitioner’s liberty interest is considerable where he was detained without notice or a hearing.

“Constitutionally inadequate notice also often leads to constitutionally inadequate opportunity to be heard, because opportunity to be heard must be meaningful to be constitutionally sufficient.” Saqib v. Andrews, 2026 WL 350830, at *6 (E.D. Cal. Feb. 9, 2026), adopted, 2026 WL 440566 (E.D. Cal.

Feb. 17, 2026). Respondents detained Petitioner with no procedural safeguards to determine whether the revocation of his release was justified. This factor weighs in Petitioner’s favor. See, e.g., E.A. T.-B. v. Wamsley, 795 F. Supp. 3d 1316, 1322 (W.D. Wash. 2025) (“That the Government may believe it has a

valid reason to detain Petitioner does not eliminate its obligation to effectuate the detention in a manner that comports with due process.”). Finally, the Court considers the Government’s interest, including any fiscal or administrative burdens. Mathews, 424 U.S. at 335. “While this Court

recognizes that the [G]overnment has an interest in enforcing immigration laws,” the Government’s interest in re-detaining Petitioner without a determination whether he posed a risk of flight or danger is low. Saqib, 2026 WL 350830, at *6; see, e.g., Diaz v. Kaiser, 2025 WL 1676854, at *3 (N.D. Cal.

June 14, 2025) (“[T[he Court concludes that the [G]overnment’s interest in re- detaining Petitioner . . . is ‘low,’ particularly in light of the fact that Petitioner[] 10 has long complied with his reporting requirements.”). And the Court can discern no significant administrative or fiscal burden associated with placing

the burden on the Government to follow its own laws and regulations. See, e.g., Iza, 2026 WL 67152, at *3 (“An alien’s opportunity to be heard regarding the revocation of his parole is only meaningful if the [G]overnment comports with its own internal standards regarding parole revocation.”). Especially given that

Petitioner’s detention was not deemed necessary for four years. C. Remedy.

Habeas is “a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008). “The typical remedy for such detention is, of course, release.” Id.; see also Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020) (“Habeas has traditionally been a means to secure release from unlawful detention.”). Federal district courts have broad equitable powers to craft habeas relief. Burton v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992).

District courts have the power and authority to dispose of habeas corpus matters “as law and justice require.” 28 U.S.C. § 2243; see also United States v. Allen, 139 F.3d 913 (10th Cir. 1998) (“If the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is

entitled to his immediate release.” (quoting Johnson v. Rogers, 917 F.2d 1283, 1284 (10th Cir. 1990))). 11 The undersigned finds that the misapplication of the INA, his unlawful detention, and the ongoing violation of Petitioner’s due process rights require

his immediate release, subject to the same conditions of his earlier release.7 This view is shared by numerous courts across the country.8 V. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the Court grant Petitioner’s habeas petition in part and order his immediate

7 “Many orders in similar cases require that a bond hearing be set in a short period of time with an automatic release if the hearing does not occur. Those cases do not examine the effect of a pending asylum petition or a clear conditional release order under § 1226.” Velasquez Montillo v. Brooksby, 2026 WL 592355, at *10 (D. Utah Mar. 3, 2026).

8 See Ewere v. Cerna, No. CIV-26-320-SLP, 2026 WL 1207088, at *1-2 (W.D. Okla. May 4, 2026) (ordering Petitioner’s “immediate release” for due process violation and denial of a bond hearing); Singh v. Noem, 2026 WL 766228, at *10 (D.N.M. Mar. 18, 2026) (“Petitioner’s . . . release is required to remedy the ongoing due process violation caused by Petitioner being detained while his conditional parole has not yet been terminated.”); Velasquez Montillo, 2026 WL 592355, at *10 (concluding immediate release was the appropriate remedy where “there has been no notice of a change in circumstances requiring modification of the November 2021 [order of release on recognizance]”); Vielma Uzcategui v. Brooksby, 2026 WL 622751, at *13 (D. Utah Mar. 5, 2026) (same as to petitioner ordered released on her own recognizance in September 2023); Murzi v. Noem, 2026 WL 395111, at *2 (D. Colo. Feb. 12, 2026) (ordering petitioner’s immediate release where petitioner had previously been released on parole).

12 release.9 The undersigned also recommends the Court order the Government to certify compliance with the Court’s order by filing a

status report within ten business days of the Court’s order, and to promptly provide a copy of the Court’s order to counsel for the Warden of the Cimarron Correctional Facility. The Court should also order that Respondents may not re-detain Petitioner without notice and a pre-deprivation hearing

before a neutral decision-maker where the Government bears the burden of proving by clear and convincing evidence that Petitioner is a flight risk and a danger to the community.10

9 Should the Court determine a bond hearing is the appropriate remedy, the undersigned recommends that, given Petitioner’s prolonged detention under the incorrect statute, the Court should find that it is more appropriate for the Government to bear the burden of proof in this context. See, e.g., Garcia Cortes v. Noem, 2025 WL 2652880, at *5 (D. Colo. Sept. 16, 2025) (placing the burden of proof on the Government to justify the petitioner’s continued detention (citing L.G. v. Choate, 744 F. Supp. 3d 1172, 1185 (D. Colo. 2024)). Having released Petitioner in 2022, the Government should now bear the burden of proving by clear and convincing evidence that Petitioner poses a danger to the community or a risk of flight such that he should remain in detention. See L.G., 744 F. Supp. 3d at 1186 (“In general, the Supreme Court has held that the clear and convincing standard applies to civil detention where liberty is at stake.” (first citing United States v. Salerno, 481 U.S. 739, 751 (1987), and then citing Addington v. Texas, 441 U.S. 418, 433 (1979))).

10 The undersigned finds that it is not necessary to reach Petitioner’s remaining arguments, but notes that Petitioner’s APA claim is improperly raised in a habeas action. See J.G.G., 604 U.S. at 674 (“[G]iven 5 U.S.C. § 704, which states that claims under the APA are not available when there is another ‘adequate remedy in a court,’ I agree with the Court that habeas 13 The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of this Court by August 10,

2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.11 The undersigned further advises the parties that failure to make timely objections to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation disposes of the issues referred to the undersigned Magistrate Judge in the captioned matter.

corpus, not the APA, is the proper vehicle here.”) (Kavanaugh, J. concurring)). As to Petitioner’s request for EAJA fees, Petitioner must seek those separately after a final judgment. See 28 U.S.C. § 2412(d)(1)(B).

11 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 “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) (“The 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”).

14 ENTERED this 5th day of August, 2026.

ga Ler SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE