Zambrano v. Warden Diamondback Correctional Facility et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ELBER JAVIER AVILA
ZAMBRANO,
Petitioner,
v.
WARDEN, DIAMONDBACK
CORRECTIONAL FACILITY, et
al.,
Respondents.
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Case No. CIV-26-1991-D
REPORT AND RECOMMENDATION
Petitioner Elber Javier Avila Zambrano, a noncitizen proceeding pro se,1
seeks a writ of habeas corpus under 28 U.S.C. § 2241. Doc. 1.2 United States
District Judge Timothy D. DeGiusti referred the matter to the undersigned
Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C).
1 	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)). This Court construes “[a] pro se
litigant’s pleadings . . . liberally,” holding them “to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
2 	Citations to a court document are to its electronic case filing designation
and pagination. Except for capitalization, quotations are verbatim unless
otherwise indicated.
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Doc. 7. Respondents filed a response, Doc. 10,3 and the time for Petitioner to
reply has lapsed. So, the matter is at issue.
For the reasons set forth below, the undersigned recommends the Court
grant the habeas petition in part and order Respondents to provide Petitioner
with an individualized bond hearing within ten days or otherwise release him
from custody.
I. 	Factual background and Petitioner’s claims.
Petitioner is a citizen of Venezuela who entered the United States as a
pedestrian in Eagle Pass, Texas on May 20, 2024. Doc. 10, at 2. He sought
admission and was paroled for one year pending removal proceedings. Id. Ex.
2. His parole expired on May 19, 2025. Id. On July 13, 2026, after completing
his shift as an Amazon delivery driver, Immigration and Customs Enforcement
(ICE) took Petitioner into custody at a gas station. Doc. 1, at 6-7; Doc. 10, Ex.
4. An Immigration Judge denied his asylum application and ordered him
removed. Doc. 10, Ex. 5. Petitioner’s appeal of that decision remains pending.
See https://acis.eoir.justice.gov/en/caseInformation (noting a “case appeal was
received August 31, 2026”) (last visited Oct. 7, 2026).
Petitioner argues his detention violates his Fifth Amendment rights;
3 	The Warden of the Diamondback Correctional Facility, Fred Figueroa, is
not a federal official and the Government did not file its response on his behalf.
Doc. 10, at 1 n.1.
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that he does not pose a risk of flight or a danger to the community; that his
detention has become arbitrary and capricious; and that his detention has
caused irreparable harm to himself and his family. Doc, 1, at 9-12. He seeks
his 	immediate 	release, 	or 	in 	the 	alternative, 	a 	bond 	hearing 	where 	the
Government bears the burden to establish flight and danger by clear and
convincing evidence. Id. at 13.
II. 	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)).
III. 	Discussion.
A. 	Petitioner is not subject to mandatory detention under 8
U.S.C. § 1225(b).
Respondents argue that Petitioner is an arriving alien and is subject to
mandatory detention. Doc. 10, at 3-5. “This Court, and indeed many others in
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this 	district 	and 	nationwide, 	have 	repeatedly 	concluded 	that 	[8 	U.S.C.]
§ 1226(a) controls in this situation.” Marcano v. Johnson, No. CIV-26-1389-J,
2026 WL 2807028, at *1-2 (W.D. Okla. Sept. 18, 2026) (ordering a bond hearing
where petitioner’s parole had expired and petitioner “was detained in the
interior 	of 	the 	United 	States 	years 	after 	his 	initial 	entry 	and 	after 	his
humanitarian parole expired” and collecting cases).
Petitioner was not “seeking admission” at the border when ICE detained
him in Oklahoma. So, he “does not fall into the mandatory detention provision
of § 1225(b)(2)(A).” Perez v. Grant, No. CIV-26-721-D, 2026 WL 2033144, at *2
(W.D. Okla. July 14, 2026). Instead, § 1226(a) controls his detention and
entitles him to a bond hearing. Id. (citing Santillan Quiroz v. Mullin, 180 F.4th
1226, 1251 n.13 (10th Cir. 2026)); see also Zhakhonov v. Grant, No. CIV-26-
350-J, 2026 WL 1865418, at *3 (W.D. Okla. June 29, 2026) (concluding that
detention of a noncitizen who had resided in the interior for years before ICE
detained him “is more naturally characterized as detention ‘pending a decision
on whether the alien is to be removed from the United States’ within the
meaning of § 1226(a)”).
B. 	Petitioner is entitled to a bond hearing under § 1226(a).
Because 	Petitioner 	is 	detained 	under 	§ 1226(a), 	the 	undersigned
concludes a bond hearing is the appropriate remedy. See, e.g., Santillan Quiroz,
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180 F.4th at 1247 (explaining that noncitizens subject to § 1226(a) are “eligible
for bond”).
“Unlike § 1225(b)(1), § 1226(a) contemplates individualized custody
determinations and authorizes release on bond or conditional parole pending
completion of removal proceedings.” Zhakhonov, 2026 WL 1865418, at *3.
Here, the Government has not provided Petitioner with an individualized
custody determination since his detention in July 2026. See id. (“[T]he process
afforded 	by 	§ 	1226(a) 	itself 	serves 	as 	the 	mechanism 	through 	which 	a
detainee’s liberty interest is protected.”). Because this is “the very process
Congress prescribed for detainees held pursuant to § 1226(a),” the Court
should order Respondents to provide Petitioner with a bond hearing under
§ 1226(a). Id.; see also Navarrete v. Mullin, No. CIV-26-224-SLP, 2026 WL
2323345, at *2 (W.D. Okla. Aug. 11, 2026) (finding the petitioner had a
“protected liberty interest arising from her release on her own recognizance”
and that the level of process owed to her was “for Respondents to provide [her]
with a bond hearing pursuant to 8 U.S.C. § 1226”); Todyrenchuk v. Warden of
Diamondback Corr. Facility, No. CIV-26-1243-J, 2026 WL 2186977, at *3
(W.D. Okla. July 29, 2026) (“[T]he Court concludes the proper remedy in this
case is not immediate release, but an individualized bond hearing before an
Immigration Judge exercising jurisdiction under § 1226(a).”).
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The Court should thus grant the petition in part and order Respondents
to provide Petitioner with a bond hearing under § 1226(a) within ten days; if
they fail to do so, they must release Petitioner. See, e.g., Santillan Quiroz, 180
F.4th at 1251 n.13 (directing district court to order the government to provide
the petitioner a bond hearing within seven days “[b]ecause [the petitioner] can
properly be subject to detention under § 1226(a).”); see also Colin v. Holt, No.
CIV-25-1189-D, 	2025 	WL 	3645176, 	at 	*6 	(W.D. 	Okla. 	Dec. 	16, 	2025)
(“Petitioner 	has 	not 	received 	a 	bond 	hearing 	and 	Respondents 	raise 	no
objection challenging their obligations to provide bond hearings for noncitizens
that are detained under 8 U.S.C. § 1226(a).”).4
C. 	The Court should decline to address Petitioner’s remaining
claims.
Given the undersigned’s recommendation to grant Petitioner a bond
hearing, the Court should decline to address Petitioner’s remaining claims for
relief. The Court can grant him relief under § 1226(a). See Colin, 2025 WL
4 	Petitioner requests the Court place the burden on the Government at a
bond hearing to prove his “continued detention is justified.” Doc. 1, at 13. But
this Court has previously declined to order burden shifting. See, e.g., Zhang v.
U.S. Dist. Ct., No. CIV-26-1022-D, 2026 WL 2323190, at *1 (W.D. Okla. Aug.
11, 2026) (“[T]he Court declines to place the burden on the Government to
justify Petitioner’s detention pending removal proceedings, at this time.”);
Rangel v. Mullin, No. CIV-26-568-D, 2026 WL 1625653, at *2 n.2 (W.D. Okla.
June 5, 2026) (“At this time, the Court declines to place the burden on the
government to justify Petitioner's detention pending removal proceedings.”).
So the undersigned does not recommend it in this case.
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3645176, at *6 n.3 (“Because the Court grants the relief the Petitioner requests
based on the applicability of 8 U.S.C. § 1226(a), the Court declines to decide
the merits of Petitioner’s due process claim.”); see also Singh v. Cerna, No. CIV-
26-757-R, 2026 WL 1973892, at *1 (W.D. Okla. July 8, 2026) (declining to
address the petitioner’s due process and “other claims” because the court was
granting the petitioner habeas corpus relief on the basis of his statutory claim
and directing the respondents to provide him with a bond hearing under
§ 1226(a)).
IV. 	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 Respondents to
provide 	Petitioner 	with 	an 	individualized 	bond 	hearing 	before 	a
neutral Immigration Judge within ten days; if they fail to do so, they
must release Petitioner.5 The undersigned also recommends that the Court
order Respondents to certify their 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 this order to counsel for the Warden of the Diamondback
Correctional Facility.
5 	Based on this recommendation, the Court should also deny Petitioner’s
emergency motion for immediate release as moot. Doc. 3.
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The undersigned advises the parties of their right to file an objection to
this Report and Recommendation with the Clerk of this Court by October 16,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
72.6 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.
ENTERED this 8th day of October, 2026.
6 	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 & 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”).
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