Lopez-Zuniga v. Mayorkas et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ROBEIDY LOPEZ-ZUNIGA,
Petitioner,
v.
MARKWAYNE MULLIN, et al.,
Respondents.
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Case No. CIV-26-1205-SLP
O R D E R
Petitioner, Robeidy Lopez-Zuniga, filed an Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. [Doc. No. 5]. Before the Court is the Report and
Recommendation [Doc. No. 15] (R&R) of United States Magistrate Judge Shon T. Erwin.
The Magistrate Judge recommends granting, in part, the Petition. Respondents have filed
an Objection [Doc. No. 16], and the matter is at issue. The Court reviews de novo any
portion of the R&R to which a specific objection has been made. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3). Review of all other issues addressed by the Magistrate Judge are
deemed waived. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); see also
United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Having conducted
that review, and for the reasons that follow, the Court ADOPTS the R&R and GRANTS,
in part, the Petition.
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I. Background
Petitioner, a citizen of Cuba, entered the United States on or around July 12, 2022,
near San Luis, Arizona. On July 13, 2022, Petitioner was placed by United States
Immigration and Customs Enforcement (ICE) into removal proceedings through the
issuance of a Notice to Appear and was charged as inadmissible under 8 U.S.C. §
1182(a)(6)(A)(i). That same day, Petitioner was subsequently released from custody on an
Order of Release on Recognizance under 8 C.F.R. § 236.
On February 24, 2026, Petitioner was re-detained by ICE pursuant to a warrant
during a routine check-in at ICE’s Oklahoma City office. Petitioner has been continuously
detained without bond since his arrest pursuant to the mandatory detention provisions set
forth in § 1225(b)(2)(A). When Petitioner filed his Petition, he was detained at Cimarron
Correctional Facility in Cushing, Oklahoma.
On May 16, 2026, an Immigration Judge ordered Petitioner removed from the
United States. On June 1, 2026, Petitioner filed an appeal of the removal order, which
remains pending before the Board of Immigration Appeals.
On May 26, 2026, Petitioner filed this action, claiming he is being detained without
adequate, individualized process. Petitioner also claims the lack of meaningful notice
prior to detention and lack of an opportunity to challenge his detention violates his due
process rights under the Fifth Amendment of the Constitution. Lastly, Plaintiff claims his
detention has become prolonged and unjustified. As relief, Petitioner seeks a bond hearing
pursuant to 8 U.S.C. § 1226(a) or, in the alternative, release from custody.
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II. Discussion
The Magistrate Judge recommended that the Court grant habeas relief and order
Respondents to provide Petitioner with a bond hearing under § 1226(a) before a neutral
Immigration Judge (IJ) within ten (10) days or, in the alternative, for Respondents to
release Petitioner from custody. Furthermore, the Magistrate Judge recommended that the
Court decline to address Petitioner’s remaining claims.1
The Court concurs with the Magistrate Judge’s findings and rejects Respondents’
statutory interpretation of §§ 1226(a) and 1225(b)(2)(A). The Magistrate Judge’s findings
are consistent with this Court’s previous determinations that § 1226(a) governs the
detention of similarly situated immigration detainees. Lopez v. Corecivic Cimmaron Corr.
Facility, No. CIV-25-1175-SLP, 2026 WL 165490 at *3-7 (W.D. Okla. Jan. 21, 2026); see
also Kudratov v. Siegel, No. CIV-26-83-SLP, 2026 WL 1232387 at *2 (W.D. Okla. May 5,
2026) (rejecting the respondents’ contention that the filing of an application for asylum
equates to seeking admission under § 1225(b)(2)). The Court’s previous determinations
are in accord with the Tenth Circuit, as well as the vast majority of Circuit Courts, that
§ 1226(a) governs such detention. See Santillan Quiroz v. Mullin, 180 F.4th 1226, 1240
(10th Cir. 2026).2 The Court, therefore, finds that § 1226(a) governs Petitioner’s detention,
and he is entitled to an individualized bond hearing.
1 Neither party has objected to the Magistrate Judge’s recommendation that the Court need not
address Petitioner’s remaining claims and the Court concurs with that recommendation.
2 Only two circuits – the Fifth and Eighth – have held that the mandatory detention scheme under
§ 1225(b)(2) governs. See Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026); Herrera
Avila v. Bondi, 170 F.4th 1128 (8th Cir. 2026). On October 1, the U.S. Supreme Court granted
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IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No.
15] is ADOPTED and the Amended Petition [Doc. No. 5] is GRANTED IN PART.
Respondents are ORDERED to provide Petitioner with a proper bond hearing pursuant to
8 U.S.C. § 1226(a) within seven (7) days3 of the date of this Order.
IT IS FURTHER ORDERED that Respondents shall file a Notice of Compliance on
or before 5:00 p.m., on October 23, 2026. If Respondents fail to timely comply, including
a failure to timely file a Notice, Petitioner shall immediately be released from custody. See
28 U.S.C. §§ 2241, 2243.4
IT IS FURTHER ORDERED that Respondents’ counsel is directed to provide a
copy of this Order to the warden of the facility where Petitioner is currently detained.
A separate judgment shall be entered.
IT IS SO ORDERED this 16th day of October, 2026.
certiorari in Barbosa da Cunha v. Freden, 175 F.4th 61 (2d Cir. 2026) to resolve the circuit split.
See id., cert. granted sub nom. Rhoney v. Barbosa da Cunha, No. 26-104, 2026 WL 2942994 (U.S.
Oct. 1, 2026).
3 See Quiroz, 130 F.4th at 1251 n. 13.
4 “In issuing a writ of habeas corpus, a federal court has the power and authority to dispose of
habeas corpus matters as law and justice require.” Burton v. Johnson, 975 F.2d 690, 693 (10th
Cir. 1992) (citing 28 U.S.C. § 2243); Munaf v. Geren, 553 U.S. 674, 693 (2008) (“Habeas is a
remedy for unlawful executive detention. The typical remedy for such detention is, of course,
release.”); see also Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 107 (2020) (“Habeas
has traditionally been a means to secure release from unlawful detention.”).
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