Jerez-Lopez v. Noem et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MARCO JEREZ-LOPEZ,
Petitioner,
v.
KRISTI NOEM, et al.,
Respondents.
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Case No. CIV-26-41-SLP
O R D E R
Petitioner, Marco Jerez-Lopez, represented by counsel, filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241. 	Before the Court is the Report and
Recommendation [Doc. No. 11] (R&R) of United States Magistrate Judge Shon T. Erwin.
The Magistrate Judge recommends granting, in part, the Petition. Respondent has filed an
Objection [Doc. No. 12] and Petitioner has filed a Partial Objection [Doc. No. 14]. 	The
matter is at issue.1 The Court reviews de novo any portion of the R&R to which the parties
have made specific objection. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). 	Having
conducted that review, and for the reasons that follow, the Court ADOPTS the R&R and
GRANTS IN PART the Petition.
Petitioner, a citizen of Guatemala, has been in the United States since approximately
2008. 	On December 31, 2025, U.S. Immigration and Customs Enforcement (ICE) arrested
Petitioner and detained him pursuant to 8 U.S.C. § 1225(b)(2)(A). 	In the Petition,
1 Neither party filed a response to the other party’s objection and the time for doing so has expired.
See Orders [Doc. Nos. 13, 15] (directing responses to be filed no later than February 20, 2026).
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Petitioner 	alleges 	he 	was 	detained 	at 	Cimmaron 	Correctional 	Facility 	in 	Cushing,
Oklahoma. However, as noted in the R&R, Petitioner was transferred to the Diamondback
Correctional Facility in Watonga, Oklahoma where he remains detained.2 Petitioner has
been continuously detained without a bond since his arrest pursuant to the mandatory
detention provision set forth in § 1225(b)(2)(A).
On January 9, 	2026, 	Petitioner filed this 	action, 	claiming violations of the
Immigration and Nationality Act, a violation of his due process rights under the Fifth
Amendment to the United States Constitution, and a violation of his due process rights
related to a future excessive bond amount. Petitioner claims that § 1225(b)(2)(A) does not
apply to him and that his continued detention without a bond hearing violates his due
process rights. As relief, Petitioner seeks release from custody or, in the alternative, a bond
hearing pursuant to 8 U.S.C. § 1226(a).
The Magistrate Judge issued a thorough and well-reasoned R&R and concluded that
habeas relief should be granted, in part. As an initial matter, the Magistrate Judge found
that 8 U.S.C. § 1252(g) is not a jurisdictional bar to this Court’s review of the claims
asserted by Petitioner. 	The Magistrate Judge then recommended that the Court grant
habeas relief and order Respondents to provide Petitioner with an individualized bond
hearing under § 1226(a) within seven business days or otherwise release Petitioner if he
has not received a lawful bond hearing within that time period. The Magistrate Judge also
recommended that the Court order Respondents to certify compliance by filing a status
2 See ICE Online Detainee Locator System, at https://locator.ice.gov/odls/#/results (last visited
Feb. 23, 2026).
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report within ten business days of the Court’s Order. 	Finally, the Magistrate Judge
recommended that the Court decline to address Petitioner’s due process claims.
Respondents object to the R&R, arguing that the Magistrate Judge erroneously
found that 8 U.S.C. § 1226(a) governs Petitioner’s detention rather than 8 U.S.C.
§ 1225(b)(2)(A). 	The Court concurs with the Magistrate Judge’s findings and, having
thoroughly 	reviewed 	the Objection, 	rejects 	Respondents’ 	statutory interpretation 	of
§§ 1226(a) and 1225(b)(2)(A). The Court further adopts the reasoning set forth in Lopez
v. Corecivic Cimmaron Corr. Facility, No. CIV-25-1175-SLP, 2026 WL 165490 at *3-7
(W.D. Okla. Jan. 21, 2026), where this Court has previously addressed, in a more detailed
Order, these same issues. 	In doing so, the Court joins the decision reached by the vast
majority of district courts in this judicial district,3 in district courts within the Tenth Circuit4
and across the country5 to have addressed the same issues as those raised by Petitioner.6
The Court’s decision is also in accord with the Seventh Circuit, which rejected the statutory
interpretation of §1225(b)(2) as urged by Respondents. See Castañon-Nova v. U.S. Dep’t
3 See, e.g., Ramirez Rojas v. Noem, No. CIV-25-1236-HE, 2026 WL 94641 at *2 (W.D. Okla. Jan.
13, 2026) (collecting cases in this judicial district finding that § 1252(g) does not present a
jurisdictional bar); Lopez, 2026 WL 165490 at *5 (collecting cases in this judicial district
concluding that §1225(b)(2) does not govern the petitioner’s detention).
4 See, e.g., Aguilar Tanchez v. Noem, No. 2:25-cv-1150, 2026 WL 125184 (D. Utah Jan. 16, 2026);
Hernandez v. Baltazar, No. 1:25-CV-03094-CNS, 2025 WL 2996643 (D. Colo. Oct. 24, 2025).
5 See, e.g., Lopez, 2026 WL 165490 at *7 (collecting cases concluding that §1226(a) is the
governing statutory framework).
6 The Court is certainly aware of authority to the contrary, including two decisions entered in this
judicial district. See Gutierrez Sosa v. Holt, No. CIV-25-1257-PRW, 2026 WL 36344 at **3-5
(W.D. Okla. Jan. 6, 2026); Montoya v. Holt, No. CIV-235-1231-JD, 2025 WL 3733302 at **5-12
(W.D. Okla. Dec. 26, 2025).
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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). 	Accordingly, the Court
concludes 	that 	§ 	1226(a) 	governs 	Petitioner’s 	detention, 	and 	he 	is 	entitled 	to 	an
individualized bond hearing.
Petitioner has filed a partial objection and argues that the Magistrate Judge erred in
not considering his due process claims. Because the Court grants habeas relief to Petitioner
on the basis of his statutory claim and directs that Petitioner be provided a bond hearing in
accordance with § 1226(a), the Court declines to address the due process claims.7
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
11] is ADOPTED and the Petition [Doc. No. 1] is GRANTED IN PART as follows:
1. 	Count I of the Petition is GRANTED and Respondents are ORDERED to
provide Petitioner with a bond hearing pursuant to 8 U.S.C. § 1226(a) within seven (7)
business days of this Order, or otherwise release Petitioner if he has not received a lawful
bond hearing within that period.
2. 	Counts II and III are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Respondents shall certify their compliance with
this Order by filing a status report within ten business days of this Order. The status report
shall detail whether Petitioner was provided a bond hearing or has been released, including
the associated dates with either action.
7 To this end, Petitioner raises the due process claims in rather conclusory and unclear terms.
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IT IS FURTHER ORDERED that Petitioner’s Emergency Motion for Temporary
Restraining Order [Doc. No. 6] is DENIED as MOOT.
A separate judgment shall be entered.
IT IS SO ORDERED this 23 rd day of February, 2026.
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