Abhishek v. Holt et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
ABHISHEK ABHISHEK, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-221-SLP
)
RUSSELL HOLT, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Abhishek Abhishek, a noncitizen1 and Indian 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 Scott L. Palk 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.
I. 	Background
Petitioner, a citizen of India, entered the United States on June 30, 2019. Pet. at 19;
Doc. 1-1 at 2. On July 1, 2019, ICE placed Petitioner into removal proceedings before the
1 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)).
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Immigration Court pursuant to 8 U.S.C. § 1229a through the issuance of a Notice to Appear
(“NTA”) and charged him with being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) as
someone who entered the United States without inspection. Pet. at 19; Doc. 1-1 at 2 (July
2019 NTA); Resp. at 11. On August 19, 2019, Petitioner was ordered detained pursuant to
8 U.S.C. § 1226, and he requested review of his custody determination by an immigration
judge (“IJ”). Doc. 1-2 at 2; Resp. at 11. The Department of Homeland Security (“DHS”)
issued an “updated” NTA to Petitioner on October 17, 2019, charging him as a noncitizen
present in the United States lacking valid documentation.2 Resp. at 11-12; Doc. 8-1 at 1
(October 2019 NTA). DHS issued an arrest warrant for Petitioner that same day. Resp. at
12, Doc. 8-3 at 1. 	In December 2019, an IJ granted Petitioner’s release on $5,000 bond
after a custody re-determination hearing. Resp. at 12, Doc. 8-5. In June 2020, Petitioner
filed an Application for Asylum and for Withholding of Removal. Pet. at 19; Resp. at 12;
Doc. 8-6.
On January 21, 2026, ICE re-detained Petitioner during a routine commercial truck
inspection. 	Pet. at 	19; Resp. at 12. 	ICE re-detained him pursuant to 8 U.S.C.
§ 1225(b)(2)(A). Resp. at 12. Petitioner was denied release from custody because all IJs
2 Respondents assert the October NTA was issued after officials “discovered that Petitioner
had presented a false date of birth to appear younger when he was first encountered.” Resp.
at 11. However, other than the discrepancy of birth dates between the July 2019 NTA and
October 2019 NTA, no evidence suggests a misrepresentation. 	Moreover, the July 2019
NTA charged Petitioner as removable under 8 U.S.C. § 1182(a)(6)(a)(i) (present without
admission or parole generally), Doc. 1-1 at 2, while the charge on the October 2019 NTA
is under 8 U.S.C. § 1182(a)(7)(A)(i)(1) (document requirements), Doc. 8-1 at 4. Neither
cites 8 U.S.C. § 1182(a)(6)(C) (misrepresentation) as an allegation for inadmissibility. In
any event, the record is clear DHS released Petitioner on bond in December 2019.
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are subject to the binding precedent of Matter of Yajure Hurtado, 29 I & N Dec. 216 (BIA
2025), which holds that those who entered the country without admission or parole are
ineligible for a bond hearing. Pet. at 8.
When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility
in Cushing, Oklahoma. 	Id. at 9. 	He remains detained there. 	See ICE Online Detainee
Locator System, at https://locator.ice.gov/odls/#/results (last visited Mar. 16, 2026).
II. 	Petitioner’s Claims
Petitioner asserts two counts in his Petition.
• 	Count 	I: 	Violation 	of 	the 	Immigration 	and 	Nationality 	Act
(“INA”). 	Petitioner 	alleges 	his 	continued 	detention 	under
§ 1225(b)(2) is unlawful and violates the INA because that provision
does not apply to those, like him, who previously entered the country
and have been residing in the United States before being apprehended
and placed in removal proceedings. Pet. at 20.
• 	Count II: Violation of Due Process. Petitioner alleges his continued
detention without an individualized bond redetermination hearing
violates his right to due process and that Respondents revoked his
previous release in an arbitrary manner, which violates his right to
procedural due process. Id. at 21-22.
He asks the Court to “issue a Writ of Habeas Corpus requiring that Respondents release
Petitioner or, in the alternative, provide Petitioner with a bond hearing pursuant to 8 U.S.C.
§ 1226(a) within five days.” Pet. at 22. Petitioner also requests an award of attorney fees
and costs under the Equal Access to Justice Act (“EAJA”).3 Id.
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.
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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.4
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). 	Under § 1225(b)(2)(A), “in the case of an alien who is an applicant for
admission, if the examining immigration officer determines that an alien seeking admission
is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a
proceeding under section 1229a.” 	If Petitioner is an “applicant for admission” and
“seeking admission” under § 1225(b)(2)(A), he is not entitled to a bond hearing. 	On the
4 Respondents assert that if the Court determines Petitioner should be treated as detained
under § 1226(a), then under § 1226(e) this Court lacks jurisdiction to review the revocation
of his “erroneously issued” 2019 bond. Resp. at 35 n.3. Section 1226(e) does not, however,
deprive the Court of jurisdiction over constitutional claims or questions of law concerning
the statutory basis for detention. Hernandez Casallas v. Jones, No. CIV-26-53-J, 2026 WL
324646, at *2 (W.D. Okla. Feb. 6, 2026); see also Sin Johal v. Bondi, No. CIV-25-1408-J,
2026 WL 517529, at *2 (W.D. Okla. Feb. 25, 2026) (adopting the Magistrate Judge’s
recommendation that § 1226(e) does not strip the court of jurisdiction to determine whether
a bond hearing is “legally erroneous or unconstitutional”).
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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 argues he is being held in violation of the INA and § 1225(b)(2) does not
apply to him because he had “previously entered and [is] now residing in the United
States.” 	Pet. at 9. 	Petitioner contends § 1226(a) “expressly applies to people who, like
[him] are charged as inadmissible for having entered the United States without inspection.”
Id. According to Petitioner, his detention under § 1225(b)(2) is “contrary to the statutory
framework and contrary to decades of agency practice” and he is entitled to a bond hearing
under § 1226(a). Id. Respondents contend Petitioner is an “applicant for admission” and
therefore properly detained under § 1225(b)(2)(A). 	Resp. at 12. 	Further, Respondents
claim (1) § 1225(b)(2)(A) is not limited only to noncitizens “arriving” in the United States
and applies to those noncitizens who have been in the United States for over two years, and
(2) applicants for admission must be seeking admission. Id. at 15-30.
The undersigned has reviewed the statutory text, Congressional intent, legislative
history, and § 1226(a)’s application for the past three decades, as well as numerous recent
cases addressing this exact issue. For the reasons stated below, and adopting this Court’s
reasoning in Lopez v. Corecivic Cimmaron Corr. Facility, No. CIV-25-1175-SLP, 2026
WL 165490, at *3-7 (W.D. Okla. Jan. 21, 2026), the undersigned recommends the Court
grant the Petition in part to the extent Petitioner seeks a bond hearing under § 1226(a).
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First, the INA limits the scope of the terms “applicant for admission” and, in
particular, “seeking admission” in § 1225(b)(2)(A) so that section does not apply to
noncitizens living in the United States when detained. Section 1225(b)(2)(A) “only applies
when a noncitizen ‘applicant for admission’ is actively ‘seeking admission’ into the United
States.” Valdez v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, at *3 (W.D. Okla. Dec.
22, 	2025). 	If 	all 	“applicants 	for 	admission” 	are 	also 	“seeking 	admission,” 	then
§ 1225(b)(2)(A)’s inclusion of the phrase “seeking admission” would be redundant and
superfluous. Lopez, 2026 WL 165490, at *4. The undersigned best understands mandatory
detention 	under 	§ 	1225(b)(2)(A) 	to 	apply 	to 	arriving 	noncitizens 	actively 	seeking
admission at or near the border or port of entry—not those like Petitioner who have resided
in the United States for years and were not arrested when trying to cross the border.
In addition, the legislative history and recent amendment of § 1226 indicate that
section applies to noncitizens who previously entered without inspection and were residing
in the United States when apprehended. Notably, after passage of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, the Department of Justice explained
that “despite being applicants for admission, aliens who are present without having been
admitted or paroled . . . will be eligible for bond and bond redetermination.” 	Inspection
and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal
Proceedings; Asylum Procedures, 62 Fed. Reg. 10312, 10323 (Mar. 6, 1997) (citation
modified). Further, Congress’ recent amendment to § 1226 mandating detention for certain
criminal noncitizens renders Respondents’ interpretation of § 1225(b)(2)(A) superfluous.
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Finally, this Court, Chief Judge DeGiusti, Judge Jones, Judge Russell, Judge
Heaton, and myriad district courts have recently applied § 1226(a) to govern detention of
noncitizens like Petitioner.5 See Norboev v. Lyons, No. CIV-26-107-SLP, 2026 WL
497800, at *2 (W.D. Okla. Feb. 23, 2026) (finding § 1226(a) governs a similarly situated
petitioner’s detention and “join[ing] the decision reached by the vast majority of district
courts in this judicial district, in district courts within the Tenth Circuit and across the
country to have addressed the same issues as those raised by Petitioner”). This Court has
found the plain language, legislative history, and past immigration practices all support a
finding that “Petitioner’s detention is not governed by §1225(b)(2).” 	Lopez, 2026 WL
165490, at *7. The undersigned agrees with this Court’s reasoning, the majority of Judges
in this District, and the great weight of authority to conclude Petitioner falls within the
confines of § 1226(a), and not § 1225(b)(2)(A).6 This conclusion is also in accord with the
5 See, e.g., Lopez, 2026 WL 165490, at *7; Ramirez Rojas v. Noem, No. CIV-25-1236-HE,
2026 WL 94641, at *1 (W.D. Okla. Jan. 13, 2026); Valdez, 2025 WL 3709021, at *3; Colin
v. Holt, CIV-25-1189-D, 2025 WL 3645176, at *5 (W.D. Okla. Dec. 16, 2025); Urbina
Garcia v. Holt, No. CIV-25-1225-J, 2025 WL 3516071, at *4 (W.D. Okla. Dec. 8, 2025).
Two Judges in the District have applied § 1225(b)(2)(A). See Gutierrez Sosa v. Holt, No.
CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D. Okla. Jan. 6, 2026) (finding Ҥ 1225
unambiguously applies to” a similarly situated petitioner); Alvarado Montoya, No. CIV-
25-01231-JD, 2025 WL 3733302, at *12 (W.D. Okla. Dec. 26, 2025) (finding Ҥ 1225
unambiguously 	deems 	[p]etitioner 	an 	‘applicant 	for 	admission’ 	who 	is 	‘seeking
admission’”).
6 This conclusion is further supported by the fact Petitioner was detained and later released
on a $5,000 bond under § 1226 in December 2019. 	Resp. at 12; Doc. 8-5 at 1; see, e.g.,
Bello Chacon v. Hermosillo, No. 25-CV-02299, 2025 WL 3562666, at *2 (W.D. Wash.
Dec. 12, 2025) (finding petitioner’s prior release under § 1226 indicates he “was—and
continues to be—subject to discretionary detention under § 1226”).
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Seventh Circuit, which rejected the statutory interpretation of § 1225(b)(2) as urged by
Respondents. See Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048, 1061
(7th Cir. 2025). 	But see Buenrostro-Mendez v. Bondi, No. 25-20496, 2026 WL 323330
(5th Cir. Feb. 6, 2026) (agreeing with Respondents’ interpretation).
Accordingly, the undersigned recommends the Court apply § 1226(a) to govern
Petitioner’s current detention. 	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 five business days or otherwise release him if he does not have a lawful bond hearing
within that period.
B. 	The Court should decline to address Petitioner’s due process claim.
Petitioner also argues his continued detention without a bond hearing violates his
rights to due process. Pet. at 20-23. If the Court grants Petitioner’s requested relief for a
bond hearing under § 1226(a), the undersigned recommends the Court decline to decide
the merits of the due process claim based on his continued detention. See, e.g., Colin, 2025
WL 3645176, at *6 n.3 (declining to decide the merits of Petitioner’s due process claim
when granting a bond hearing pursuant to § 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 five business days or otherwise release
Petitioner if he has not received a lawful bond hearing within that period. 	The undersigned
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further recommends the Court order Respondents to certify compliance by filing a status
report within seven business days of the Court’s order.
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 March 23, 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 March 26, 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 16 th day of March, 2026.
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