Nurbek Aitiev v. Chris Gantt, et al.

District Court, W.D. Oklahoma·Decided July 1, 2026·No. 5:26-cv-00997·Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF OKLAHOMA NURBEK AITIEV, ) ) Petitioner, ) ) v. ) Case No. CIV-26-997-R ) CHRIS GANTT,1 et al., ) ) Respondents. ) REPORT AND RECOMMENDATION Petitioner Nurbek Aitiev, a noncitizen2 and Kyrgyzstani 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 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. 8, and the Petition is at issue. For the reasons set forth below, the undersigned recommends that the Court grant the Petition, Doc. 1, for habeas relief by ordering Respondents to release Petitioner subject to the conditions of his prior parole.

1 Chris Gantt was announced as Warden of Cimarron Correctional Facility in May 2026. He replaces Scarlet Grant 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 Kyrgyzstan, entered the United States and presented himself for inspection on May 5, 2023, at the San Ysidro, California Port of Entry. Pet. at 3; Doc.

1-1 at 8 (Notice to Appear). Also on May 5, 2023, Petitioner was granted humanitarian parole pursuant to 8 U.S.C. § 1182(d)(5) and was released from ICE custody. See Pet. at 3, 6; Resp. at 6; Doc. 12-1 (Petitioner’s I-94 admission record). His parole was valid for one year, until May 3, 2024. Pet. at 6; Doc. 12-1. Petitioner alleges he has complied with all conditions of parole and immigration reporting requirements, and he lawfully worked

in the country since his parole. Pet. at 3-4, 6. On August 22, 2023, Petitioner filed an Application for Asylum and for Withholding of Removal, which remains pending. Id. at 7; Doc. 1-1 at 14 (Petitioner’s Asylum Application); Resp. at 6. On May 29, 2025, ICE formally placed Petitioner into removal proceedings before the Immigration Court through the issuance of a Notice to Appear, and charged him with

being inadmissible under 8 U.S.C. § 1182(a)(7)(B)(i) as someone not in possession of a valid passport or other travel document. Pet. at 6; Doc. 1-1 at 8. On April 27, 2026, ICE re-detained Petitioner during a traffic stop while he was working as a commercial truck driver. Pet. at 9; Resp. at 6; Doc. 12-2 (Warrant for Arrest). Petitioner alleges he was given no notice of intent to revoke his parole, no hearing, and no

individualized justification for the revocation of his parole. Pet. at 7. Respondents contend Petitioner is detained pursuant to 8 U.S.C. § 1225(b)(1). Resp. at 7-9. When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility in Cushing, Oklahoma. Pet. at 4; Doc. 1-1 at 6 (ICE Locator at the time of filing). He remains detained there. See ICE Online Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited July 1, 2026).

II. Petitioner’s Claims Petitioner asserts four counts in his Petition. • Count I: Violation of the Immigration and Nationality Act (“INA”). Petitioner alleges his detention under 8 U.S.C. § 1225(b)(2) violates the INA because that provision does not apply to noncitizens who, like him, were paroled into the country and later re-detained. Pet. at 8-9. Petitioner alleges he is properly detained pursuant to 8 U.S.C. § 1226(a). Pet. at 8-9. • Count II: Unlawful Parole Termination. Petitioner alleges Respondents’ termination of his parole was unlawful because his parole was not properly terminated and he had no opportunity to contest the termination. Id. at 9-10. • Count III: Violation of Due Process Clause. Petitioner alleges his re-detention violates his due process rights. Id. at 10-11. • Count IV: Violation of Due Process Clause. Petitioner also alleges his re-detention without an individualized hearing to determine whether his detention serves a legitimate government interest violates his procedural due process rights. Id. at 11-12. He asks the Court to “order Respondents to immediately release [him] from custody on his own recognizance or under appropriate conditions of supervision,” or alternatively “order respondents to provide [him] with a timely individualized bond hearing before a neutral immigration judge . . . at which the government bears the burden of justifying continued detention.” Id. at 12 (citation modified). Petitioner also seeks an award of attorney fees and costs under the Equal Access to Justice Act (“EAJA”). Id. at 13.3

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. The Court has jurisdiction to consider Petitioner’s claims. As an initial matter, Respondents assert Petitioner’s challenge to the decision by the Department of Homeland Security (“DHS”) to terminate his parole is jurisdictionally barred. Resp. at 9-10. Specifically, Respondents allege 8 U.S.C. § 1252(a)(2)(B)(ii) “bars judicial review of certain discretionary decisions of the Attorney General” and

“§ 1182(d)(5) clearly vests discretion in [the] Secretary of Homeland Security, permitting termination of parole when, in the opinion of the Secretary of Homeland Security, the purposes have been served.” Resp. at 9 (citation modified). The Court should find that it has jurisdiction because Petitioner does not challenge any discretionary decision to terminate his parole. Rather, he argues his parole was not

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. properly terminated and he had no opportunity to contest the termination. Thus, Petitioner is not challenging Respondents’ discretionary decision to re-detain him because the

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