govinfo:USCOURTS-okwd-5_26-cv-00654-0

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA 
 
MARVIN CRUZ, 
 
Petitioner, 
 
v. 
 
MARKWAYNE MULLIN, et al., 
 
Respondents. 
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Case No. CIV-26-654-D 
ORDER 
 Petitioner Marvin Cruz filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. 
§ 2241 [Doc. No. 1]. Petitioner is a citizen of El Salvador. 1 Although it is unclear when 
Petitioner entered the United States, Petitioner al leges that he was detained by the U.S. 
Immigration and Customs Enforcement (ICE) during a traffic stop on November 17, 2025, 
and he has been in ICE custod y since that time. Petitioner is currently detained at the 
Cimarron Correctional Facility in Cushing, Oklahoma. Petiti oner’s removal proceedings 
are ongoing. 
Petitioner is currently detained pursuan t to the mandatory detention provision 
contained in 8 U.S.C. § 1225(b)(2)(A). Petitioner has not received a bond hearing during 
his detention. Petitioner asserts that he is being unlawfully detained without a bond hearing, 
and he requests immediate release or an individualized bond hearing. 
The matter was referred to United States Magistrate Judge Shon T. Erwin for initial 
proceedings in accordance with 28 U.S. C. § 636(b)(1)(B) and (C) [Doc. No. 4]. 
 
1 See https://acis.eoir.justice.gov/en/caseInformation/ (accessed June 5, 2026). 

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Respondents filed a Response in Opposition to the Petition for Writ of Habeas Corpus 
[Doc. No. 9]. 
 On May 26, 2026, Judge Erwin issued a Report and Recommendation [Doc. No. 
10], recommending that the Co urt grant in part the Petiti on and order Re spondents to 
provide Petitioner a bond hearing pursuant to 8 U.S.C. § 1226(a). Respondents filed a 
timely Objection to the Report and Recommendation [Doc. No. 11]. Thus, the Court must 
“make a de novo determination of those portions of the report or specified proposed 
findings or recommendations to which objec tion is made” and “may accept, reject or 
modify, in whole or in part, the findings or recommendations made by the magistrate 
judge.” See 28 U.S.C. § 636(b)(1); see also FED. R. CIV. P. 72(b)(3). 
 Respondents object to Judge Erwin’s conclusion that § 1226(a) applies to 
Petitioner’s detention, and not § 1225(b)(2)(A ), as suggested by Resp ondents. Generally, 
Ҥ 1225 mandates detention without the opportunity for a bond hearing for the noncitizens 
to whom it applies.” Hernandez v. Baltazar, No. 1:25-cv-03094-CNS, 2025 WL 2996643, 
at *3 (D. Colo. Oct. 24, 2025) (citation om itted). In comparison, § 1226 provides the 
noncitizen with the opportunity for a bond hearing. Id.; see also Aranda v. Olson, No. 4:25-
cv-156-GNS, 2025 WL 3499061, at *4 (W.D. Ky. Dec. 5, 2025) (“Overall, Section 1226(a) 
provides for a discretionary authority re quiring an individualized bond determination 
before a noncitizen may be taken into custody.”) (quotation and citation omitted). 
Respondents contend that Petitioner is properly detained pursuant to 
§ 1225(b)(2)(A), which provides: 

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Subject to subparagraphs (B) and (C), in the case of an alien 
who is an applicant for ad mission, if the examining 
immigration officer determines that an alien seeking admission 
is not clearly and beyond a dou bt entitled to be admitted, the 
alien shall be detained for a proceeding under section 1229a of 
this title. 
 
8 U.S.C. § 1225(b)(2)(A). Re spondents assert that Petiti oner is an “applicant for 
admission” because he is present in the Unite d States and has not b een admitted, citing 
§ 1225(a)(1). See 8 U.S.C. § 1225(a)(1) (“An alien pr esent in the United States who has 
not been admitted … shall be deemed for pur poses of this chapte r an applicant for 
admission.”). 
 In previously construing § 1225(b)(2)(A ), the undersigned has repeatedly concluded 
that the subsection “unambiguously requires that an ‘applicant for admission’ also be 
‘seeking admission’ for the section to control.”
2 See Colin v. Holt , No. CIV-25-1189-D, 
2025 WL 3645176, at *4 (W.D. Okla. Dec. 16, 2025). In their Obje ction, Respondents 
contest this conclusion but “acknowledge this Court’s prior rulings and understand that the 
same holding will likely be applied in this case.” [Doc. No. 11, at 1]. 
 Upon consideration, the Court conti nues to conclude that § 1225(b)(2)(A) 
unambiguously requires that an “applicant for admission” also be “seeking admission” for 
the subsection to control. Further, this Court has previously declined to find that “refusing 
 
2 On this issue, the Court finds persuasive the analysis provided by the Second Circuit in Barbosa 
da Cunha v. Freden, 175 F.4th 61 (2d. Cir. 2026). The Court also acknowledges the contrary 2-1 
decisions in Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026) and Avila v. Bondi, 170 
F.4th 1128 (8th Cir. 2026). 

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to self-deport constitutes ‘seeking admissi on’ for purposes of this subsection.” Cruz-
Hernandez, No. CIV-25-1378-D, 2026 WL 18932, at *1 (W.D. Okla. Jan. 2, 2026). 
In this case, the Court agrees with J udge Erwin that becaus e Petitioner has been 
residing in the United States and was presen t in the country when he was detained, 
Petitioner does not fall into the mandatory de tention provision of § 1225(b)(2)(A). See 
Colin, 2025 WL 3645176, at *5; Valdez v. Holt, No. CIV-25-1250-R, 2025 WL 3709021, 
at *3 (W.D. Okla. Dec. 22, 2025) (“Because Petitioner has been unlawfully living in the 
United States for many years without seeking admission, this provision does not apply to 
him.”); Martinez Diaz v. Holt, No. CIV-25-1179-J, 2025 WL 3296310, at *3 (W.D. Okla. 
Nov. 26, 2025) (“Here, Petitioner has resided in the United States for approximately twenty 
years … and, therefore, is not ‘seeking admission’ into the United States. Accordingly, the 
Court finds § 1225(b)(2)(A) inapplicable to Petitioner.”). Accordingly, § 1226(a) controls 
Petitioner’s detention. 
 Having found that § 1226(a) controls Petitioner’s detention, and noting no objection 
by Respondents as to their obligation to provide bond hearings for noncitizens under 
§ 1226(a), the Court concludes that Petitioner is entitled to a bond hearing. See Hernandez, 
2025 WL 2996643, at *3 (citing Jennings v. Rodriguez , 583 U.S. 281, 306 (2018)) 
(“Federal regulations also provide that nonc itizens detained pursua nt to § 1226(a) are 
entitled to individualized bond hearings.”). 
 IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. 
No. 10] is ADOPTED, and the Petition for a Writ of Habeas Corpus Under 28 U.S.C. 
§ 2241 [Doc. No. 1] is GRANTED in part. 

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IT IS THEREFORE ORDERED that Respondents shall provide Petitioner with a 
prompt bond hearing under 8 U.S.C. § 1226(a), or release Pe titioner. A separate judgment 
shall be entered. 
 IT IS SO ORDERED this 15th day of June, 2026. 
 
 
 
 
TIMO~b E~I~~~ 
UNITED STATES DISTRICT JUDGE 

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