Singh v. Mullin et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
VARINDERJEET SINGH, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-471-SLP
)
MARKWAYNE MULLIN,1 et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Varinderjeet Singh, a noncitizen2 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. 5, 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.
1 Markwayne Mullin was confirmed as Secretary of the Department of Homeland Security
on March 23, 2026. He replaces Kristi Noem 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)).
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I. 	Background
Petitioner, a citizen of India, entered the United States on December 29, 2022,
without inspection or admission. 	Pet. at 6. 	Shortly thereafter, Petitioner alleges he was
released on an Order of Release on Recognizance pursuant to 8 U.S.C. § 1226. Pet. at 6.
Petitioner timely filed an application for asylum, which remains pending. 	Id.; Doc. 8-1
(Notice of Petitioner’s Asylum Hearing).
On February 24, 2026, ICE re-detained Petitioner at his regularly scheduled ICE
check-in pursuant to an arrest warrant. 	Pet. at 6; Resp. at 5; Doc. 8-2 (Arrest Warrant).
ICE re-detained him pursuant to 8 U.S.C. § 1225(b)(2)(A). Resp. at 6. On February 24,
2026, more than three years after Petitioner entered the country and was initially released
from ICE custody, ICE placed Petitioner into removal proceedings before the Immigration
Court pursuant to 8 U.S.C. § 1229a through the issuance of a Notice to Appear (“NTA”)
and charged him with being an arriving alien under 8 U.S.C. § 1182(a)(7)(A)(i)(l). Resp.
at 5; Doc. 8-3 at 1 (NTA).
Following 	his 	re-detention, 	ICE 	issued 	a 	custody 	determination 	to 	continue
Petitioner’s detention without the opportunity to post bond or be released on other
conditions. 	Pet. at 7. 	Petitioner did not apply for a bond hearing with the Immigration
Court because all Immigration Judges (“IJs”) 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 7.
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When Petitioner filed his Petition, he was detained at Cimarron Correctional Facility
in Cushing, Oklahoma. 	Id. at 3. 	He remains detained there. 	See ICE Online Detainee
Locator System, at https://locator.ice.gov/odls/#/results (last visited Mar. 31, 2026).
II. 	Petitioner’s Claims
Petitioner asserts three 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 all noncitizens in the United States who are
inadmissible. 	Petitioner also alleges the statute does not allow the
Department of Homeland Security (“DHS”) to change his detention
authority based on a new interpretation of the statute once removal
proceedings have already been initiated. Pet. at 7-8.
• 	Count II: Violation of Due Process. Petitioner alleges his continued
detention without an individualized bond redetermination hearing
violates his right to due process. Id. at 8-9.
• 	Count 	III: 	Violation 	of 	the 	Administrative 	Procedure 	Act
(“APA”). 	Petitioner alleges his detention exceeds Respondents’
statutory authority and the absence of any individualized custody-
review mechanism is contrary to due process, in violation of the APA.
Id. at 9-11.
He asks the Court to “issue a Writ of Habeas Corpus requiring that Respondents release
Petitioner under the terms of his prior release or, in the alternative, provide Petitioner with
a bond hearing pursuant to 8 U.S.C. § 1226(a) within five days.” Pet. at 11. Petitioner also
requests additional injunctive and declaratory relief as well as an award of attorney fees
and costs under the Equal Access to Justice Act (“EAJA”).3 Id. at 11-12.
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.
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
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))).
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Petitioner argues he is being held in violation of the INA and § 1225(b)(2) does not
apply to all noncitizens residing in the United States who are inadmissible. 	Pet. at 7.
Petitioner contends § 1226(a) is “applicable when an individual is ‘already in the country.’”
Pet. at 7. (citing Jennings, 583 U.S. at 289). 	Finally, Petitioner argues “once DHS
affirmatively exercised discretion to release Petitioner under § 1226, the government
cannot retroactively reclassify him as an ‘arriving alien’ subject to § 1225(b).” Pet. at 8.
Respondents contend Petitioner is an “applicant for admission” and properly detained
under § 1225(b)(2)(A). 	Resp. at 6. 	Further, Respondents claim (1) every “applicant for
admission” is necessarily “seeking admission,” (2) § 1225(b)(2)(A) is not limited to
noncitizens “arriving” in the United States, (3) § 1226(a) is reserved for those who do not
fall within the confines of § 1225(b)(2)(A), and (4) any overlap between the two provisions
does not undermine ICE’s interpretation of the two statutes. Resp. at 6-11.
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).
First, the INA limits the scope of the term “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
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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.
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
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noncitizens like Petitioner.4 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).5 This conclusion is also in accord with the
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 Avila v. Bondi, No. 25-3248, --- F.4th ----, 2026 WL 819258, at
4 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) to a similarly situated petitioner.
See Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344, at *3 (W.D. Okla.
Jan. 6, 2026); Alvarado Montoya, No. CIV-25-01231-JD, 2025 WL 3733302, at *12 (W.D.
Okla. Dec. 26, 2025).
5 This conclusion is further supported by the fact Petitioner was released on his own
recognizance under § 1226 shortly after entering the country in December 2022. Pet. at 6;
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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*3-6 (8th Cir. Mar. 25, 2026) (agreeing with Respondents’ interpretation); Buenrostro-
Mendez v. Bondi, 166 F.4th 494, 501-08 (5th Cir. 2026) (same).
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 and APA
claims.
Petitioner also argues his continued detention without a bond hearing violates his
right to due process and is in violation of the APA. 	Pet. at 8-11. 	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 and APA claims
based on his continued detention. 	See, e.g., Colin v. Holt, CIV-25-1189-D, 2025 WL
3645176, at *6 n.3 (W.D. Okla. Dec. 16, 2025) (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 April 7, 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 April 10, 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 31st day of March, 2026.
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