Oscar v. Mullin

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
HERNANDEZ LOPEZ OSCAR,
Petitioner,
v.
MARKWAYNE MULLIN, et al.,
Respondents.
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Case No. CIV-26-2045-G
REPORT AND RECOMMENDATION
Petitioner Hernandez Lopez Oscar, 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 Charles B. Goodwin referred the case to the undersigned
Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and (C). Doc. 3. Respondents
filed a response to the petition, Doc. 7, and the time for Petitioner to reply has
lapsed. So the matter is at issue.
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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For the reasons below, the undersigned recommends the Court grant
Petitioner’s 	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 states he entered the United States in 2007, has been working
and paying taxes, and has a daughter who is a U.S. citizen. Doc. 1, at 6. He
states he is 	presently in Immigration and Customs Enforcement’s (ICE)
custody. Id. He argues his warrantless arrest violated his substantive and
procedural due process rights. Id. He also argues he has been held without a
custody 	redetermination 	hearing 	in 	violation 	of 	the 	Immigration 	and
Nationality Act. Id.
He seeks an order granting his petition or, in the alternative, a custody
redetermination hearing, along with any other relief this Court deems just and
proper. Id. at 7.
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
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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. 	Petitioner is entitled to a bond hearing under § 1226(a).
Respondents acknowledge that Santillan Quiroz v. Mullin, 180 F.4th
1226 (10th Cir. 2026), controls. Doc. 7, at 1. The undersigned agrees and
concludes that a bond hearing is the appropriate remedy. See, e.g., Santillan
Quiroz, 180 F.4th at 1247 (explaining that noncitizens subject to §1226(a) are
“eligible for bond”).
Section “1226(a) contemplates individualized custody determinations
and authorizes release on bond or conditional parole pending completion of
removal 	proceedings.” 	Zhakhonov 	v. 	Grant, 	No. 	CIV-26-350-J, 	2026 	WL
1865418, at *3 (W.D. Okla. June 29, 2026). Here, Respondents have not
provided Petitioner with an individualized custody determination since his
detention in July 2026. Doc. 1, at 6; see, e.g., Zhakhonov, 2026 WL 1865418, at
*3 (“[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),” he is
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entitled to a bond hearing under § 1226(a). Zhakhonov, 2026 WL 1865418, at
*3; 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).”).
Therefore, 	the 	Court 	should 	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).”).
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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.3 The undersigned also recommends that the Court
order Respondents to certify their compliance 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 Cimarron Correctional Facility.
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 20,
2026, in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure
3 	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
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)).
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72.4 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 13th day of October, 2026.
4 	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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