Bernanke v. Noem et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
NODIR BERNANKE, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-103-D
)
KRISTI NOEM, et al., 	)
)
Respondents. 	)
ORDER
Petitioner Nodir Bernanke filed a Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241. [Doc. No. 1]. Petitioner is a citizen of Russia who entered the United States
in or around April 23, 2022. After Petitioner applied for asylum, he was released from
custody. However, Petitioner was re-detained on December 7, 2025, and he has been in the
custody of the U.S. Immigration and Customs Enforcement (ICE) since that time. He is
currently housed at the Cimarron Correctional Facility in Cushing, Oklahoma.
Petitioner’s removal proceedings are ongoing. He is currently detained pursuant to
the mandatory detention provision contained in 8 U.S.C. § 1225(b)(2)(A). Petitioner
contends that § 1225(b)(2)(A) does not apply to him because he had “already entered and
[was] residing in the United States at the time [he was] apprehended.” [Doc. No. 1, at 12].
Because of his assertion that § 1225(b)(2)(A) does not apply to him, Petitioner contends he
is being held in violation of the Immigration and Naturalization Act, 8 U.S.C. § 1101 et
seq. (INA). Petitioner seeks release from custody or, alternatively, a bond hearing pursuant
to § 1226(a).
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Respondents filed a Response in Opposition to the Petition for Writ of Habeas
Corpus [Doc. No. 7], and Petitioner filed a reply [Doc. No. 8]. The matter is fully briefed
and at issue.
As to Respondents’ jurisdictional arguments, the undersigned has previously found
that 8 U.S.C. § 1252(g) does not jurisdictionally bar the Court’s consideration of
Petitioner’s Petition. See Colin v. Holt, No. CIV-25-1189-D, 2025 WL 3645176, at *2
(W.D. Okla. Dec. 16, 2025) (“[B]ecause Petitioner does not challenge Respondents’
decision to commence or adjudicate proceedings or execute removal orders, the Court
concludes that 8 U.S.C. § 1252(g) does not jurisdictionally bar consideration of the
Petition.”); see also Cruz-Hernandez v. Noem, No. CIV-25-1378-D, 2026 WL 18932, at *1
(W.D. Okla. Jan. 2, 2026) (same).
Further, the Court rejects Respondents’ argument that this Court lacks jurisdiction
because 8 U.S.C. § 1252(a)(5) and § 1252(b)(9) channel claims related to removal orders
to the appropriate court of appeals. See 8 U.S.C. § 1252(a)(5) (“[A] petition for review
filed with an appropriate court of appeals in accordance with this section shall be the sole
and exclusive means for judicial review of an order of removal entered or issued under any
provision of this chapter.”); see also 8 U.S.C. § 1252(b)(9) (“Judicial review of all
questions of law and fact, including interpretation and application of constitutional and
statutory provisions, arising from any action taken or proceeding brought to remove an
alien from the United States under this subchapter shall be available only in judicial review
of a final order under this section.”). Here, because Petitioner is challenging his order of
detention, and not an order of removal, these provisions do not deprive the Court of
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jurisdiction. See Jennings v. Rodriguez, 583 U.S. 281, 294 (2018) (“[Section] 1252(b)(9)
does not present a jurisdictional bar” where a group of noncitizens “[were] not asking for
review of an order of removal; they [were] not challenging the decision to detain them in
the first place or to seek removal; and they [were] not even challenging any part of the
process by which their removability will be determined.”); see also Perez v. Grant, No.
CIV-25-1560-R, 2026 WL 315065, at *1 (W.D. Okla. Feb. 5, 2026); Alghananim v.
Figueroa, No. CIV-26-69-HE, Doc. No. 9, at 2 n.1 (W.D. Okla. Mar. 2, 2026).
Next, Respondents assert that § 1225(b)(2)(A) applies to Petitioner’s detention, and
not § 1226(a). Generally, “§ 1225 mandates detention without the opportunity for a bond
hearing for the noncitizens to whom it applies.” Hernandez v. Baltazar, No. 1:25-cv-03094-
CNS, 2025 WL 2996643, at *3 (D. Colo. Oct. 24, 2025) (citation omitted). In comparison,
§ 1226 provides the noncitizen with the opportunity for a bond hearing. Id.; see also Aranda
v. Olson, No. 4:25-cv-156-GNS, 2025 WL 3499061, at *4 (W.D. Ky. Dec. 5, 2025)
(“Overall, 	Section 	1226(a) 	provides 	for 	a 	discretionary 	authority 	requiring 	an
individualized bond determination before a noncitizen may be taken into custody.”)
(quotation and citation omitted).
As Respondents acknowledge, this Court has previously construed § 1225(b)(2)(A)
as unambiguously requiring that an “applicant for admission” also be “seeking admission”
for the section to control.1 See Colin, 2025 WL 3645176, at *4. Further, this Court has
1 On this issue, the Court finds persuasive the analysis provided by the Seventh Circuit in
Castañon-Nava v. U.S. Dep’t of Homeland Sec., 161 F.4th 1048 (7th Cir. 2025). The Court also
acknowledges the contrary 2-1 decisions in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir.
2026) and Avila v. Bondi, --- F.4th ----, 2026 WL 819258 (8th Cir. 2026).
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previously declined to find that refusing to self-deport or submitting an asylum application
constitute “seeking admission” for purposes of § 1225(b)(2)(A). Cruz-Hernandez, 2026
WL 18932, at *1; Malacidze v. Noem, No. CIV-25-1527-D, 2026 WL 227155, at *3 (W.D.
Okla. Jan. 28, 2026); see also Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at *1
(W.D. Okla. Jan. 20, 2026) (“The court additionally agrees with Judge Maxfield that
§ 1225(b)(2)(A) does not apply even though petitioner filed an application for asylum.”);
Toledo Santos v. Grant, No. CIV-25-1433-SLP, 2026 WL 184287, at *1-2 (W.D. Okla. Jan.
23, 2026) (ordering the respondents to provide the petitioner a bond hearing under
§ 1226(a) where the petitioner had been released on his own recognizance and later applied
for asylum).
In this case, because Petitioner has been residing in the United States for years and
was present in the country when he was detained, Petitioner does not fall into the mandatory
detention provision of § 1225(b)(2)(A). See Colin, 2025 WL 3645176, at *5; Malacidze,
2026 WL 227155, at *3. Accordingly, § 1226(a) controls Petitioner’s detention, and
Petitioner is therefore entitled to a bond hearing.2 See Hernandez, 2025 WL 2996643, at
*3 (citing Jennings, 583 U.S. at 306) (“Federal regulations also provide that noncitizens
detained pursuant to § 1226(a) are entitled to individualized bond hearings.”).
IT IS THEREFORE ORDERED that the Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 [Doc. No. 1] is GRANTED in part as set forth herein.
2 Given this determination, the Court declines to address Petitioner’s remaining claims at this time.
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Respondents shall provide Petitioner with a prompt bond hearing under 8 U.S.C. § 1226(a),
or release Petitioner. A separate judgment shall be entered.
IT IS SO ORDERED this 27 th day of March, 2026.
. DeGIUSTI
Chief United States District Judge
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