Perez v. Jones et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GASPAR TOMAS PEREZ, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-2301-G
)
DON JONES, et al., 	)
)
Respondents. 	)
REPORT AND RECOMMENDATION
Petitioner Gaspar Tomas Perez, a citizen of Guatemala proceeding pro se,1 filed a
petition for writ of habeas corpus under 28 U.S.C. § 2241 (“Petition”) challenging his
detention by the U.S. Immigration and Customs Enforcement (“ICE”).2 (Doc. 1).3 United
States District Judge Charles Goodwin referred the matter to the undersigned Magistrate
Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). (Doc. 4). In
accordance with the expedited briefing schedule, (Doc. 5), Respondents timely filed a
Response, (Doc. 7), as well as a Notice to the Court with updated information, (Doc. 8).
1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 	But the court
cannot serve as Petitioner’s advocate, creating arguments on his behalf. 	See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2 Petitioner is housed at Kay County Detention Center in Newkirk, Oklahoma. (Doc. 1, at
1).
3 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
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For the reasons set forth below, the undersigned recommends the Petition be DENIED
because Petitioner is currently subject to mandatory detention.
I. 	Factual Background
The relevant facts in this matter are:
• 	Petitioner is citizen of Guatemala who entered the United States in 2005.
(Doc. 1, at 8; Doc. 7, at Ex. 1, at 2).
• 	Petitioner was detained by ICE on July 29, 2026, after a traffic stop. (Doc.
7, at Ex. 1, at 2).
• 	On July 30, 2026, Petitioner was charged with being removable from the
United States. (Id. at Ex. 3, at 1).
• 	Petitioner alleges, and Respondents do not contest, that he has not received
a bond hearing. 	(Doc. 1, at 2). 	A custody redetermination hearing was
scheduled before the immigration court on September 15, 2026. (Doc. 7, at
Ex. 4). However, Petitioner’s immigration counsel withdrew the request for
a custody redetermination on September 15, 2026. (Id. at Ex. 5).
• 	On October 13, 2026, an immigration judge denied Petitioner’s application
for cancellation of removal and denied his application for post-conclusion
voluntary departure. 	(Doc. 8, at Ex. 1, at 1-2). 	The immigration judge
ordered Petitioner removed to Guatemala. (Id. at 3). Petitioner waived his
right to appeal. (Id. at 4).
II. 	Petitioner’s Claims and Respondents’ Responses
Petitioner makes the following claims in support of his Petition:
1. 	He has not received an individualized review of his continued detention.
(Doc. 1, at 8).
2. 	His continued detention is unlawful and unreasonable. (Id. at 7).
As relief, Petitioner requests his immediate release from custody or, alternatively, an
individualized custody determination and bond hearing. (Id. at 8).
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While Respondents contend in their Response that Petitioner is held under 8 U.S.C.
§ 1225(b)(2)(A) and is not entitled to a bond hearing, they concede that “this matter is
controlled by the Tenth Circuit’s opinion in [Santillan] Quiroz v. Mullin,” 180 F.4th 1226
(10th Cir. 2026). (Doc. 7, at 1). 	Respondents argue, however, that because “Petitioner’s
attorney withdrew the request for Custody Redetermination” at the scheduled hearing,
Petitioner has already been “afforded the only appropriate remedy, an individualized bond
hearing,” and, therefore, “his habeas petition should be denied.” (Id. at 2). Respondents
state in their Notice that Petitioner is scheduled for transfer from this District and removal
to Guatemala. (Doc. 8).
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
habeas.” Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (citing Zadvydas v.
Davis, 533 U.S. 678, 687-88 (2001)).
IV. 	Petitioner Is Currently Detained Within the Removal Period and Subject to
Mandatory Detention.
Prior to the entry of a removal order, 8 U.S.C. § 1225 and § 1226 govern the
detention of aliens. An alien detained under § 1226(a) is entitled to a bond hearing at which
he can argue to an immigration judge that he should be released while he awaits removal
proceedings because he is not a danger to others or at risk for non-appearance. 	See
Jennings v. Rodriguez, 583 U.S. 281, 306 (2018) (“Federal regulations provide that aliens
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detained under § 1226(a) receive bond hearings at the outset of detention.”) (citing 8 C.F.R.
§§ 236.1(d)(1), 1236.1(d)(1)); Santillan Quiroz, 180 F.4th at 1237 (“[N]oncitizens who
entered the United States and were thereafter detained in the interior of the country are
usually subject to [8 U.S.C.] § 1226(a) (and thus eligible for bond).”). Liberally construed,
the Petition asserts that Petitioner is subject to § 1226(a) and is entitled to a bond hearing
and thus potential release.
“After the pre-removal period concludes, the statutory authority to detain an alien
shifts to 8 U.S.C. § 1231.” Carbajal v. Holder, 43 F. Supp. 3d 1184, 1188 (D. Colo. 2014).
Under 8 U.S.C. § 1231(a)(2)(A), a non-citizen is subject to a 90-day removal period, where
detention is mandatory. 	Id. at 1189 (“[W]hen an alien is ordered removed, the Attorney
General shall remove the alien from the United States within a period of 90 days . . . .
During the removal period, the Attorney General shall detain the alien.”) (quoting 8 U.S.C.
§ 1231(a)). 	This shift from the “pre-removal” period under § 1225 and § 1226 to the
“removal” period under § 1231(a) is triggered by the latest of three events:
(i) 	The date the order of removal becomes administratively final.
(ii) 	If the removal order is judicially reviewed and if a court orders a stay
of the removal of the alien, the date of the court’s final order.
(iii) 	If the alien is detained or confined (except under an immigration
process), the date the alien is released from detention or confinement.
8 U.S.C. § 1231(a)(1)(B). A removal order typically becomes administratively final “upon
the earlier of”: “a determination by the Board of Immigration Appeals affirming such
order” or “the expiration of the period in which the alien is permitted to seek review of
such order by the Board of Immigration Appeals.” 8 U.S.C. § 1101(a)(47)(B). However,
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“the decision of the Immigration Judge” may also “become[] final upon waiver of appeal.”
8 C.F.R. § 1003.39; see, e.g., Muradyan v. Warden, Otay Mesa Det. Ctr., No. 3:26-cv-63-
CAB-AHG, 2026 WL 184206, at *2 (S.D. Cal. Jan. 23, 2026) (“Petitioner was ordered
removed 	on 	September 	30, 	2025, 	and 	because 	he 	waived 	his 	right 	to 	appeal,
his order of removal became administratively final the same day.”) (citation omitted).
Thus, Petitioner’s pre-removal-order period ended on October 13, 2026, when he
was ordered removed and he waived his right to appeal to the BIA. Petitioner is presently
subject to § 1231(a)(2)(A), which mandates detention without bond for 90 days, or until
January 11, 2027. Accordingly, Petitioner’s claims that his present immigration detention
is unlawful are without merit. Any claims as they relate to his pre-removal-order detention
are now moot. 	See Carbajal v. Holder, 43 F. Supp. 3d 1184, 1189 (D. Colo. 2014)
(collecting cases, and stating “[a]pplicant’s claims challenging his mandatory detention
without an individualized bond hearing during the pre-removal period now are moot
because the Board of Immigration Appeals dismissed his administrative appeal on
December 27, 2013, thereby affirming the order of removal”); Oyelude v. Chertoff, 170 F.
App’x 366, 367 n.4 (5th Cir. 2006) (“Oyelude’s challenge to his § 1226 detention was
mooted on June 23, 2004[,] when his final removal order was entered and the Attorney
General’s authority to detain him shifted to § 1231.”).
V. 	Recommendation and Notice of Right to Object
For the reasons discussed above, the undersigned recommends that the Petition,
(Doc. 1), be DENIED.
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The Court advises the parties of their right to object to this Report and
Recommendation by October 28, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P.
72(b)(2). The Court advises the parties that failure to make timely objection to this Report
and Recommendation waives their right to appellate review of both factual and legal issues
contained herein. 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 and terminates the referral unless and until the matter is re-referred.
ENTERED this 14th day of October, 2026.
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