Diana Camila Nino Navarro v. Warden, Diamondback Correctional Facility, et al.

Opinion

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

DIANA CAMILA NINO ) NAVARRO, ) ) Petitioner, ) ) v. ) Case No. CIV-26-1026-R ) WARDEN, DIAMONDBACK ) CORRECTIONAL FACILITY,1 ) et al., ) ) Respondents. )

REPORT AND RECOMMENDATION

Petitioner Diana Camila Nino Navarro, a noncitizen proceeding pro se,2 seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.3 United States District Judge David L. Russell referred the case to the undersigned

1 Respondent Fred Figueroa, Warden of the Diamondback Correctional Facility, is not a federal official and this response is not filed on his behalf. Doc. 11, at 1 n.1; https://www.corecivic.com/facilities/diamondback-correctional- facility (last visited July 10, 2026).

2 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)). Because Petitioner is proceeding pro se, the Court liberally construes her arguments. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.

3 Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated. Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 5. The Government responded, Doc. 11, and Petitioner replied, Doc. 13.

So the matter is at issue. For the reasons below, the undersigned recommends the Court grant Petitioner’s habeas petition and order her immediate release. I. Factual background and procedural history.

Petitioner is a citizen of Colombia who entered the United States on February 7, 2023, without inspection or admission. Doc. 11, at 4 (citing Ex. 1). On March 5, 2023, the Department of Homeland Security (DHS) placed her in removal proceedings through the issuance of a Notice to Appear (NTA),

charging her as removable under Sections 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA).4 Id. DHS released her on March 11, 2023. Doc. 1, at 2. On April 9, 2024, Petitioner filed an Application for

4 These sections are codified in the United States Code at 8 U.S.C. §§ 1182(a)(6)(A)(i) & 1182(a)(7)(A)(i)(I). Section 1182(a)(6)(A)(i) provides that a noncitizen 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). Section 1182(a)(7)(A)(i)(I) section provides that any noncitizen, who at the time of application for admission, was not in possession of (1) a valid unexpired entry document as required by the INA, and (2) a valid travel document/document of identity and nationality as required by regulations is inadmissible. Id. § 1182(a)(7)(A)(i)(I).

2 Asylum and Withholding of Removal, which remains pending. Doc. 11, at 4 (citing Ex. 2).

The Immigration Court (IC) granted DHS’s motion to pretermit Petitioner’s asylum application on May 19, 2026. Doc. 11, at 5 (citing Ex. 4). On May 29, 2026, the IC granted Petitioner voluntary departure, and she filed an appeal, which remains pending.5 On April 2, 2026, Immigration & Customs

Enforcement (ICE) took Petitioner into custody. Doc. 1, at 1. II. Petitioner’s claims.

Petitioner raises two grounds for relief: (1) Violation of the Fifth Amendment’s Due Process Clause (procedural due process); and

(2) Failure to receive information justifying her detention.

Id. at 2. Petitioner seeks a show cause order as to “why the writ should not issue”; an order requiring Respondents to “promptly produce the written custody determination (Form I-286) and identify the statutory authority for [her] detention”; and an order directing Respondents to provide a prompt custody

5 See https://acis.eoir.justice.gov/en/caseInformation (last visited July 10, 2026). 3 hearing that provides due process protections, or, in the alternative, immediately release her under reasonable conditions. Id. at 2-3.

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)). IV. Discussion.

A. Petitioner’s procedural due process claim.

In Ground I, Petitioner asserts that Respondents violated her due process rights by re-detaining her without notice, without statutory authority, or opportunity to be heard. Doc. 1, at 2. Respondents argue Petitioner’s due process argument is premature and to address it would be a “drastic step.” Doc. 11, at 6. They maintain that §

4 1225(b) applies and that Petitioner is an applicant for admission. Id. at 4.6 But Respondents are incorrect. Petitioner effected entry into the country over three

years ago, so she is not subject to § 1225(b)(2)(A)’s mandatory detention requirement. Quiroz v. Mullin, No. 26-6019, --- F.4th ----, 2026 WL 1876709, at *5 (10th Cir. June 30, 2026) (holding “that noncitizens who entered the United States and . . . 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 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”).7

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).

7 Petitioner’s asylum request does not change this outcome. This Court has “declined to find” that either refusing to voluntarily depart or seeking asylum “‘constitutes ‘seeking admission’ for purposes of this subsection.’” Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL 227155, at *3 (W.D. Okla. Jan. 28, 2026) (quoting Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla. Jan. 2, 2026)); see also Hernandez Alvarez v. Warden, Fed. Det. Ctr. Miami, 175 F.4th 1258, 1284 (11th Cir. 2026) (“This argument 5 “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 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 she has a protected liberty interest, and what process is

fails at the gate. Section 1225(b)(2)(A) makes it clear that an applicant for admission’s status as one ‘seeking admission’ becomes relevant upon examination by an immigration officer, which occurs before a § 1229a proceeding even commences.” (quoting 8 U.SC § 1225(b)(2)(A))).

6 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 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); 7 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 her liberty interest when ICE detained her and placed her into custody. Turning to the Mathews factors, the Court finds Petitioner has a significant private interest in remaining free from detention after spending

three years in the United States before her present detention. By initially releasing Petitioner on parole, the Government necessarily determined she was “neither a security risk nor a risk of absconding.” 8 C.F.R. § 212.5(b). Respondents have presented no evidence that there was a change in this

assessment. By permitting Petitioner to remain at liberty for three years following the issuance of her 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 her release, Petitioner’s interest in release grew even 8 stronger as she 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

risk of an erroneous deprivation of Petitioner’s liberty interest is considerable where she 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 her 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 9 recognizes that the [G]overnment has an interest in enforcing immigration laws,” the Government’s interest in arresting Petitioner without a

determination whether she 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[]

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.”). This is especially true given that Petitioner’s detention was not deemed necessary for three years.

B. 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 Thuraissigiam, 591 U.S. at 107 (“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, 10 975 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))).

The undersigned finds Petitioner’s unlawful detention and the ongoing violation of Petitioner’s due process rights require her immediate release subject to the same conditions of her earlier release.8 This view is shared by numerous courts across the country.9

8 “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).

9 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.”); 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 11 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 her immediate release.10 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 Diamondback Correctional Facility. The Court should 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

petitioner’s immediate release where petitioner had previously been released on parole).

10 Should the Court determine a bond hearing is the appropriate remedy, the undersigned recommends that, given Petitioner’s prolonged detention, 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 ought to 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 she 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))).

12 proving by clear and convincing evidence that Petitioner is a flight risk and a danger to the community.11

The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of this Court by July 13, 2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72.12 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.

11 The undersigned finds it is not necessary to reach Petitioner’s remaining argument regarding Respondents’ alleged failure to provide her with a Form I-286 or written custody record.

12 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”).

13 ENTERED this 10th day of July, 2026.

hea “ered _ SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE