Tichaawa v. Mullin et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
WEIDENFIELD AGWE FOMBII
TICHAAWA,
Petitioner,
v.
MARKWAYNE MULLIN, et al.,
Respondents.
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Case No. CIV-26-1732-PRW
REPORT AND RECOMMENDATION
Petitioner Weidenfield Agwe Fombii Tichaawa, a noncitizen1 and Cameroonian
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 Patrick R. Wyrick referred this matter
to the undersigned Magistrate Judge in accordance with 28 U.S.C. § 636(b)(1)(B)-(C). The
undersigned set a briefing schedule, Doc. 5, and the Petition is at issue. 	For the reasons
below, the undersigned recommends that the Court deny the Petition.
I. 	Background
Petitioner, a citizen of Cameroon, entered the United States on or about October 4,
2011, as a nonimmigrant with authorization to remain in the United States for a temporary
period not to exceed April 12, 2012. 	Doc. 1-1 at 1. 	On April 2, 2024, he was granted
1 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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Temporary Protected Status (“TPS”). Pet. at 5. On August 4, 2025, Petitioner’s TPS status
was terminated. 	Id.; see also Notice of Termination of the Designation of Cameroon for
Temporary Protected Status, USCIS, 90 Fed. Reg. 23697 (June 4, 2025) (U.S. Citizenship
and Immigration Service’s Notice terminating TPS for Cameroon effective August 4,
2025). On September 11, 2024, he was charged with driving while intoxicated.2 Pet. at 6.
On September 16, 2025, Petitioner was granted a deferred adjudication on the driving
charge; he was issued a $300 fine and required to complete an “educational course” and
drug testing. Id.
On October 1, 2025, ICE arrested Petitioner in Frisco, Texas. Pet. at 6; Doc. 9-4 at
2 (Form I-213). On October 23, 2025, the Department of Homeland Security initiated
removal proceedings against him by filing a Notice to Appear with the Immigration Court,
charging him as removable under 8 U.S.C. § 1227(a)(1)(B) in that, after admission as a
nonimmigrant, he remained in the United States longer than permitted. 	Doc. 1-1 at 1.
Petitioner filed a motion for a bond hearing. 	Pet. at 6. 	On November 4, 2025, an
Immigration Judge (“IJ”) held a bond hearing and denied bond due to Petitioner’s “[d]anger
to the community and flight risk based on minimal 42B hardship and weak 589 claim.”
Id.; Doc. 1-2 at 16 (IJ Bond Denial Order). He did not appeal the IJ’s order to the Board
of Immigration Appeals (“BIA”). 	Resp. at 5; Reply at 2.
2 The record includes no evidence of Petitioner’s arrest, charge, and sentence.
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On January 23, 2026, an IJ denied Petitioner’s claims for relief and ordered him
removed from the United States. 	Doc. 9-5 (IJ Removal Order). 	He timely appealed the
IJ’s removal order to the BIA. 	Doc. 9-6. His appeal remains pending. 	See EOIR,
Automated 	Case 	Information, 	at 	https://acis.eoir.justice.gov/en/caseInformation 	(last
visited Oct. 13, 2026).
On July 9, 2026, Petitioner filed his Petition before the Court. Pet. at 1. When he
filed his Petition, he was detained at Diamondback Correctional Facility in Watonga,
Oklahoma. Id. at 2. Petitioner remains detained there. See ICE Online Detainee Locator,
at https://locator.ice.gov/odls/#/results (last visited Oct. 13, 2026).
II. 	Petitioner’s Claim
Petitioner asserts one claim in his Petition. He alleges that, because more than eight
months have passed since the IJ’s original bond denial and he remains in ICE detention, a
new bonding hearing that places the burden on the government is warranted. Pet. at 7. He
cites Mathews v. Eldrige, 424 U.S. 319-334-35 (1976), to argue due process mandates
another bond hearing. Pet. at 7-8. Petitioner seeks release from ICE custody or a second
bond hearing before a neutral decisionmaker at which the government bears the burden to
justify continued detention. Id. at 8-9.
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
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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. Petitioner is detained under 8 U.S.C. § 1226(a).
A noncitizen detained under 8 U.S.C. § 1226(a) is entitled to a bond hearing in
which he may argue before an IJ that he should be released during removal proceedings.
See Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (“Federal regulations provide that
aliens detained under § 1226(a) receive bond hearings at the outside of detention.”) (citing
8 C.F.R. §§ 236.(d)(1), 1236.1(d)(1)); see also Santillan Quiroz v. Mullin, 180 F.4th 1226,
1235-49 (10th Cir. 2026) (“[N]oncitizens who entered the United States and were thereafter
detained in the interior of the country are usually subject to § 1226(a)[.]”). A noncitizen
may appeal to the BIA an IJ’s decision from a bond hearing. 	8 C.F.R. § 236.1(d)(3). 	A
noncitizen may also seek a custody redetermination any time if they can demonstrate their
circumstances materially changed. Id. § 1003.19(e). It is undisputed Petitioner is detained
under § 1226(a). Resp. at 2; Reply at 1.
B. Petitioner does not have to exhaust all administrative remedies.
Petitioner did not appeal the IJ’s order denying bond, and Respondents argue this
failure bars him from filing the present Petition. Resp. at 4-6.3 The record also does not
3 To support their argument, Respondents rely exclusively on decisions outside this District
and the Tenth Circuit. Doc. 9 at 4-6. Such authority is not binding on the Court.
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show Petitioner sought a subsequent custody redetermination hearing based on changed
circumstances, namely the prolonged period of his continued detention before filing his
Petition. 	See 8 C.F.R. § 1003.19(e) (“After an initial bond redetermination, an alien’s
request for a subsequent bond redetermination shall be made in writing and shall be
considered only upon a showing that the alien’s circumstances have changed materially
since the prior bond redetermination.”). 	Based on prior decisions in this District and the
text 	of 	§ 1226(a) 	and 	§ 2241, 	however, 	Petitioner 	need 	not 	exhaust 	all 	available
administrative remedies before filing a habeas petition before the Court.
While 	generally 	“the 	exhaustion 	of 	available 	administrative 	remedies 	is 	a
prerequisite for § 2241 habeas relief[,] . . . the statute itself does not expressly contain such
a requirement.” Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010) (citation modified).
“Challenges to immigration detention are properly brought through habeas. 	And the
exhaustion deficiencies [the Tenth Circuit has] noted in other respects do not affect habeas
jurisdiction over such claims.” Soberanes, 388 F.3d at 1310 (citing Zadvydas, 533 U.S. at
687-88). 	“Exhaustion 	is 	typically 	nonjurisdictional,” 	and 	courts 	“treat 	a 	rule 	as
jurisdictional only if Congress clearly states that it is.” 	Santos-Zacaria v. Garland, 598
U.S. 411, 416-17 (2023) (citation modified). 	“When Congress has not clearly required
exhaustion,” making it nonjurisdictional, “sound judicial discretion governs.” 	McCarthy
v. Madigan, 503 U.S. 140, 144 (1992). Further, the statutory language of § 1226(a) does
not expressly contain an exhaustion requirement.
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Judge DeGiusti concluded in two recent habeas cases that immigration detainees do
not have to exhaust administrative remedies before filing a habeas petition. See Bangemu
v. Gantt, No. CIV-815-D, 2026 WL 2323601, at *3 (W.D. Okla. July 30, 2026) (R&R)
(recommending that a petitioner not be required to exhaust administrative remedies by first
appealing an IJ’s order denying bond, when raising a due-process challenge to prolonged
detention under § 1226(a)), adopted, 2026 WL 2329865 (W.D. Okla. Aug. 11, 2026);
Miranda v. Mullin, No. CIV-26-1004-D, 2026 WL 2390961, at *1 (W.D. Okla. Aug. 17,
2026) (ruling an immigration detainee “is not required to request a bond redetermination
hearing before filing his Petition”). Other judges in the circuit have also found exhaustion
unnecessary for noncitizens challenging detention under § 1226(a). 	See Repela v. ICE
Field Off. Dir., No. 26-CV-00552, 2026 WL 776123, at *2 (D. Colo. Mar. 19, 2026)
(“[E]ven though a noncitizen detained pursuant to § 1226 may request a bond hearing, they
are not required to do so before they can pursue § 2241 habeas relief.”); Salvador F.-G. v.
Noem, No. 25-CV-0243, 2025 WL 1669356, at *6 (N.D. Okla. June 12, 2025) (“[Section]
1226 contains no clear rule that requires exhaustion of administrative remedies.”).
Here, 	Petitioner’s 	failure 	to 	exhaust 	his 	available 	administrative 	remedies—
specifically, his failure to appeal the IJ’s bond order to the BIA or to seek a subsequent
custody redetermination based on changed circumstances—does not bar him from seeking
habeas relief. The Court should consider the merits of the Petition.
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C. Petitioner’s due process claim should be denied.
“The Fifth Amendment entitles aliens to due process of law in deportation
proceedings.” 	Demore v. Kim, 538 U.S. 510, 523 (2003) (quotation modified). 	Such
protections apply to all noncitizens in the United States, whether their presence is “lawful,
unlawful, temporary, or permanent.” 	Zadvydas, 533 U.S. at 693. 	“Freedom from
imprisonment—from government custody, detention, or other forms of physical restraint—
lies at the heart of the liberty that the Due Process Clause protects.” 	Id. at 690. 	Under
these principles, civil immigration detention satisfies due process only in “certain special
and narrow nonpunitive circumstances,” and must “bear[] [a] reasonable relation to the
purpose” for which the noncitizen is detained. 	Id. (citation modified). 	For example, the
Supreme Court has identified such purposes to mitigate the risk of danger to the community
and to prevent the noncitizen’s flight. Id. at 690-91; see also Demore, 538 U.S. at 527-28.
A noncitizen’s detention motivated by these purposes may still violate the Due Process
Clause when the detention becomes unreasonably prolonged.4
Here, Petitioner does not directly challenge his initial bond hearing.5 	Pet. at 2-3
(“Petitioner does not seek review of the merits of the removal proceedings or ask this Court
4 A noncitizen may claim their detention violates either their substantive or procedural due
process, though Petitioner does not specify a basis here.
5 Petitioner nonetheless alleges the IJ should have weighed certain factors more strongly
toward release at the initial bond hearing. Pet. at 7-8. Respondents argue the Court lacks
jurisdiction to consider an IJ’s discretionary findings. 	Resp. at 6-7. 	This Court “has no
jurisdiction to consider a habeas petitioner’s challenge to the decision to either grant or
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to reweigh the [IJ’s] discretionary bond determination. Rather, he challenges the legal and
constitutional adequacy of the procedures governing his continued detention.”); Reply at
3-4. Petitioner alleges though he has received a bond hearing, he has now been detained
for such a period that Respondents’ failure to provide an additional bond hearing—where
the government bears the burden to justify his continuing detention—violates his due
process rights under Mathews. Pet. at 7-8.
Courts considering habeas petitions have often applied the Mathews framework to
determine what constitutional process is required in immigration detention cases. 	This
framework requires a court to analyze an individual’s due process claim “in two steps: the
first asks whether there exists a liberty or property interest which has been interfered with
by the State,” and “the second examines whether the procedures attendant upon that
deprivation were constitutionally sufficient.” 	Ky. Dep’t of Corr. v. Thompson, 490 U.S.
454, 460 (1989). 	See also, e.g., Requejo Roman v. Castro, 816 F. Supp. 3d 1267, 1282
(D.N.M. 2026) (“In determining what procedures sufficiently protect due process in the
immigration context, courts have applied the framework established in [Mathews].”);
Hernandez-Lara v. Lyons, 10 F.4th 19, 28-39 (1st Cir. 2021) (applying Mathews to
determine whether a noncitizen detained under § 1226(a) is entitled to a bond hearing
where the government bears the burden of proof).
deny bond.” 	Kumar v. De Anda-Ybarra, No. CIV-26-164-R, 2026 WL 753944, at *2
(W.D. Okla. Mar. 17, 2026); see also 8 U.S.C. § 1226(e).
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The undersigned adopts the thoughtful reasoning of Judge Maxfield’s Report and
Recommendation in Bangemu and similarly analyzes Petitioner’s due process claim under
the three Mathews factors. 	See Bangemu, 2026 WL 2323601, at *4-*7 (R&R) (applying
Mathews to analyze a due-process challenge to prolonged detention under § 1226(a) after
an initial bond hearing), adopted, 2026 WL 2329865 (W.D. Okla. Aug. 11, 2026). 	In
Bangemu, Judge DeGiusti adopted Judge Maxfield’s recommendation to deny a petition
for a similarly situated petitioner who (1) had a prior bond hearing under § 1226(a) at the
which the IJ denied bond and (2) filed a habeas petition, six months after the bond hearing,
alleging due process entitled him to another bond hearing based on his prolonged detention.
2026 WL 2329865, at *1. 	After applying the Mathews factors in a similar way to
Petitioner’s claim, the undersigned recommends denial of the Petition.
1. 	Petitioner’s private liberty interest weighs in his favor.
The first Mathews factor is “the private interest that will be affected.” 424 U.S. at
335. “Freedom from imprisonment—from government custody, detention, or other forms
of physical restraint—lies at the heart of the liberty that [the Due Process] Clause protects.”
Zadvydas, 533 U.S. at 690; see id. (“A statute permitting indefinite detention of an alien
would raise a serious constitutional problem.”). Indeed, “in our society liberty is the norm,
and detention . . . is the carefully limited exception.” 	United States v. Salerno, 481 U.S.
739, 755 (1987) (citation modified). This liberty interest also applies to noncitizens, as “a
statute permitting indefinite detention of an alien would raise a serious constitutional
problem.” Zadvydas, 533 U.S. at 690 (citation modified).
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Respondents deprived Petitioner here of his freedom when they detained him under
§ 1226(a) after the bond hearing. Put differently, while he remains in detention, his private
interest in being free from imprisonment is at stake. 	The undersigned finds the first
Mathews factor favors procedures that carefully protect Petitioner’s liberty interest. 	See
Velasquez Salazar v. Dedos, 806 F. Supp. 3d 1231, 1243 (D.N.M. 2025) (“This Court need
not wait another six, twelve, or eighteen months to determine that the first Mathews factor
weighs in Petitioner’s favor. Petitioner’s private interest in being free from detention – and
unlawful detention at that – is at stake now.”); Requejo Roman, 816 F. Supp. 3d at 1283
(finding the first Mathews factor favored a petitioner in ICE custody because his interest
in being free from detention is ‘the most elemental of liberty interests’”) (quoting Hamdi
v. Rumsfeld, 542 U.S. 507, 529 (2004)).
2. 	There is little or no risk of an erroneous deprivation of Petitioner’s
due process rights due to constitutionally sufficient procedures.
The second Mathews factor is “the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or substitute
procedural safeguards.” 424 U.S. at 335. In Jennings, the Supreme Court held § 1226(a)
does not confer a statutory right to periodic bond hearings, and the canon of constitutional
avoidance did not provide a basis for reading such a right into the statute. 583 U.S. at 297-
303. 	The Court, though, ultimately left unresolved the constitutional question whether
periodic bond hearings may be warranted under due process. Id. at 312-13.
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Here, Petitioner’s central claim—that detention under § 1226(a) has become so
prolonged that due process requires an additional bond hearing—has divided courts of
appeals. 	The First and Second Circuits answered that question in the affirmative on the
records before them. 	See Hernandez-Lara, 10 F.4th at 30, 39-41 (holding § 1226(a)
procedures invalid as applied to a noncitizen detained for ten months who had received a
bond hearing one month into detention, and ordering a new hearing at which the
government bore the burden to justify continued detention); Velasco Lopez v. Decker, 978
F.3d 842, 853-56 (2d Cir. 2020) (holding once § 1226(a) detention becomes “prolonged,”
a detainee is entitled to a new hearing at which the government bears the burden to justify
continued detention). 6
The Third and Ninth Circuits have rejected claims that prolonged detention under
§ 1226(a) entitles a petitioner to a second bond hearing as a matter of due process, while
expressly reserving the possibility of relief upon a different record. See Borbot v. Warden
Hudson Cnty. Corr. Facility, 906 F.3d 274, 279-80 (3d Cir. 2018) (rejecting a detainee’s
claim “to compel a second bond hearing despite alleging no constitutional defect in the one
he received,” while recognizing “despite an initial bond hearing, detention under § 1226(a)
might become unreasonably prolonged, whether by virtue of government delay or some
6 Additional circumstances in Velasco Lopez warrant acknowledgment. The noncitizen’s
prolonged detention there was largely attributable to ICE delays to produce the detainee
for his criminal proceedings. 978 F.3d at 852–53. Bond was then denied based on the very
charges that ICE’s own conduct had kept pending. Id. The risk of erroneous deprivation
in that case was not theoretical; it was demonstrated on the record.
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other cause,” and declining to “decide when, if ever, the Due Process Clause might entitle
an alien detained under § 1226(a) to a new bond hearing”); Rodriguez Diaz v. Garland, 53
F.4th 1189, 1203, 1213-14 (9th Cir. 2022) (holding the Due Process Clause does not entitle
a detainee to “a second bond hearing at which the government bears the burden of proof,”
but declining to “foreclose all as-applied challenges to § 1226(a)’s procedures”).
No court, though, has ruled that prolonged detention alone entitles a detainee to
another bond hearing. See, e.g., Borbot, 906 F.3d at 277 (“But Borbot cites no authority,
and we can find none, to suggest that duration alone can sustain a due process challenge
by a detainee who has been afforded the process contemplated by § 1226(a) and its
implementing regulations.”); Velasco Lopez, 978 F.3d at 855 n.13 (declining “to establish
a bright-line rule for when due process entitles an individual detained under § 1226(a) to a
new bond hearing with a shifted burden”); Hernandez-Lara, 10 F.4th at 30 n.4 (declining
to determine when detention becomes sufficiently prolonged to require another hearing).
Petitioner stands in a position akin to the noncitizen in Borbot. He does not contend
the IJ applied an incorrect standard or the initial bond hearing had any constitutional
defects. He identifies no defect in the procedures used during the hearing, and the record
evidence does not establish a risk of erroneous deprivation when the IJ denied Petitioner
bond. 	Petitioner also fails to show additional procedures would diminish the risk of an
erroneous deprivation of his due process rights. He emphasizes only an additional hearing
where the government holds the burden of proof conforms with procedural due process.
Reply at 6. 	But regulations already provide additional procedures, as they allow a
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noncitizen to appeal an adverse bond decision and to request a custody redetermination
upon showing materially changed circumstances. 	8 C.F.R. §§ 236.1(d)(3), 1003.19(e).
Petitioner has received a constitutionally sufficient bond hearing, he has additional
procedures available to appeal and to seek a second hearing, and he fails to cite any legal
authority to support his position. The second Mathews factor weighs against him.7
3. 	The 	government’s 	interest 	and 	administrative 	burden 	are
substantial.
The final Mathews factor is “the Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” 424 U.S. at 335. Respondents have no legitimate
interest “in the prolonged detention of noncitizens who are neither dangerous nor a risk of
flight.” 	Velasco Lopez, 978 F.3d at 854; see also Demore, 538 U.S. at 515 (noting the
government has an interest in “protecting the public from dangerous criminal aliens.”).
Indeed, through detention, the government seeks to increase the chance that, if ordered
removed, the noncitizens will be successfully removed. Rodriguez Diaz, 53 F.4th at 1208
(citing Demore, 538 U.S. at 528). Also, while the administrative burden of an additional
hearing is “minimal,” Arostegui-Maldonado v. Baltazar, 794 F. Supp. 3d 926, 943 (D.
7 In Velasco Lopez, the Second Circuit was concerned that the noncitizen proceeding pro
so could not easily access information the government had. 	978 F.3d at 852–53. 	As a
result, there would be an erroneous deprivation of the noncitizen’s rights such that the
second Mathews factor weighed in his favor. Id. Here, Petitioner is represented by counsel,
and this consideration does not apply.
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Colo. 	2025), 	the 	Court 	must 	still 	consider 	whether 	additional 	procedure 	would
meaningfully reduce the risk of an erroneous deprivation.
The undersigned concludes the government’s interest in detaining Petitioner until
removal is substantial. 	An IJ found Petitioner failed to show he was not a danger to the
community and a flight risk. Doc. 1-2 at 3. The IJ provided a basis for this determination
after a “full consideration of the evidence,” finding Petitioner had minimal hardship and a
weak claim for relief. 	Id. 	Further, he has not adequately explained how additional
procedures would meaningfully reduce the risk of error when an IJ has already reviewed
the record evidence to determine whether he is a flight risk or danger to the community
and determined he is. Instead, Petitioner’s requested relief is a second bond hearing with
the burden on the government. 	However, for reasons discussed above, the procedures
guaranteed by the regulations already seek to prevent any erroneous deprivation. Further,
though not administratively final, Petitioner was ordered removed, Doc. 9-5, and the
government has a substantial interest in ensuring noncitizens who are ordered removed are
actually removed. The third factor weights in Respondents’ favor.
4. 	Conclusion
In sum, the first Mathews factor favors Petitioner, and the second and third factors
favor Respondents. 	Petitioner received a timely and constitutionally sufficient bond
hearing that he does not challenge. 	Because no court has adopted an explicit rule that
requires a second or periodic bond hearing based solely on the length of detention, and
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Petitioner does not identify any meaningful inadequacies in his earlier bond hearing or
relevant regulations, the Court should reject Petitioner’s claim on the merits.
V. 	Recommendation and Notice of Right to Object
For these reasons, the undersigned recommends that the Court DENY the Petition, Doc.
1, for habeas relief. 	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
October 27, 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
November 3, 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 13 th day of October, 2026.
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