govinfo:USCOURTS-okwd-5_26-cv-00276-1

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF OKLAHOMA 
 
EDWIN FERNANDO ZELAYA LOSA, 
 
 Petitioner, 
 
-vs- 
 
ROBERT CERNA, et al., 
 
 Respondents. 
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) 
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) NO. CIV-26-276-HE 
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ORDER 
Petitioner Edwin Fernando Zelaya Losa, a native and citizen of El Salvador, has 
filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging the legality 
of his detention by United States Immigration and Customs Enforcement (ICE) [Doc. #1].1 
He seeks immediate release, or an individua lized custody hearing with the burden on the 
government to justify continue d detention. On April 23, 20 26, United States Magistrate 
Judge Suzanne Mitchell issued a Report and Recommendation [Doc. #8], recommending 
the court grant in part petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. 
§ 2241 and order respondents to provide pet itioner with an individualized bond hearing 
before a neutral immigration judge under 8 U.S.C. § 1226(a) within five business days or 
otherwise release petitioner if he has not received a lawful bond hearing within that period. 
 
1 The petition was filed by petitioner appearing pro se. The federal respondents requested the 
court stay these proceedings pending inquiry into whether petitioner properly initiated these 
proceeding, based on the then-ambiguous status of Lorena Villalon, an attorney not then 
admitted to practice in this court but who apparently assisted petitioner in connection with the 
petition. In light of Ms. Villalon entering her appearance and related circumstances, the court 
denied the request and permitted the matter to proceed. [Doc. #17]. 

2 
She also recommended that at the bond hearing, the government should bear the burden of 
justifying petitioner’s detentio n by clear and convincing ev idence. Magistrate Judge 
Mitchell further recommended the court order respondents to certify compliance by filing 
a status report within ten business days of the court’s order. Lastly, Magistrate Judge 
Mitchell recommended the court order that respondents shall not re-detain petitioner 
without a pre-deprivation hearing before a neutral immigration judge under 8 U.S.C. 
§ 1226(a) and counsel for respondents provide a copy of the court’s order to counsel for 
the warden of the Cimarron Correctional Facility without delay. 
With leave, the federal respondents f iled an objection out of time to the 
recommended ruling [Doc. #13], and as encouraged, petitioner filed a reply [Doc. #17]. In 
accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 73(b)(3), the court has 
conducted a de novo review of the matter. 
The court concurs with the recommended ruling that petitioner is entitled to an 
individualized bond hearing under § 1226(a).2 The court declines to reconsider its ruling 
in Ramirez Rojas v. Noem, No. CIV-25-12 36-HE, 2026 WL 94641, **1-2 (W.D. Okla. 
Jan. 13, 2026). The court acknowledges the decisions in Avila v. Bondi, No. 25-3248, 170 
F.4th 1128, 1133-38 (8th Cir. 2026), Buenrostro-Mendez v. Bondi, 166 F.4 th 494, 502-08 
 
2 The Executive Office for Immigration Review’s data portal providing Automated Case 
Information, of which the court takes judicial notice, indicates that on June 12, 2026, the 
immigration judge ordered petitioner’s removal, with any appeal of that decision due by July 13, 
2026. See A 241-114-579, https://acis.eoir.justice.gov/en/caseInformation (Last visited June 15, 
2026). Once a decision to remove an alien becomes “administratively final”, it triggers, per 8 
U.S.C. § 1231, a removal period during which the alien must be detained. See Johnson v. 
Guzman Chavez, 594 U.S. 523, 528 (2021). The removal order involved here is not yet final. 

3 
(5th Cir. 2026), Gutierrez Sosa v. Holt, Case No. CIV-25-1257-PRW, 2026 WL 36344, at 
**3-5 (W.D. Okla. Jan. 6, 2026) and Montoy a v. Holt, Case No. CIV-25-1231-JD, 2025 
WL 3733302, at **5-12 (W.D. Okla. Dec. 26, 2025). The conflicting decisions of the 
judges in this district as well as the 2-1 decisions in Avila and Buenrostro-Mendez make 
clear that strong arguments support both statut ory readings of the parties. However, the 
court remains persuaded that § 1226(a) governs and continues to follow similar rulings by 
the judges in this district 3 and the Courts of Appeals in Lopez-Campos v. Raycraft, 175 
F.4th 713, 719-32 (6th Cir. 2026); Hernandez Alvarez v. Warden, Federal Detention Center 
Miami, 175 F.4th 1258, 1261-85 (11 th Cir. 2026); Barbosa da Cunha v. Freden, 175 F.4 th 
61, 70-96 (2d Cir. 2026), among others. Further, the court declines to reconsider its prior 
ruling in Li v. Grant, No. CIV-25-1426-HE, 2026 WL 147438, at *1 (W.D. Okla. Jan. 20, 
2026), that § 1226(a) applies even though petitioner applied for asylum.4 
The court concludes that 8 U.S.C. § 1226(a) governs petitioner’s detention, and thus, 
he is entitled to an individualized bond hearing. The court will therefore grant the habeas 
 
3 See Lopez v. Corecivic Cimmaron Correctional Facility, Case No. CIV-25-1175-SLP, 2026 WL 
165490, at **3-7 (W.D. Okla. Jan. 21, 2026); Valdez v. Holt, Case No. CIV-25-1250-R, 2025 WL 
3709021, at *1 (W.D. Okla. Dec. 22, 2025); Colin v. Holt, Case No. CIV-25-1189-D, 2025 WL 
3645176, at *2 (W.D. Okla. Dec. 16, 2025), Escarce ga v. Olson, Case No. CIV-25-1129-J, 2025 
WL 3243438, at *1 (W.D. Okla. Nov. 20, 2025). 
 
4 The court also concluded in Kudusov v. Grant, No. CIV-26-132-HE, that petitioner was not 
“seeking admission” for purposes of § 1225(b)(2)(A), despite a pending asylum application, 
relying in part on Iza by Iza v. Larocco, 814 F. Supp. 3d 357 (E.D.N.Y. 2026) (“[W]hile 
[petitioner’s] application for asylum and withholding of removal may indicate that he continues 
to seek something, what is seeks is not admission or lawful entry to the United States, but to 
obtain a lawful means to remain here where he has been continuously residing for more than 
three years.”) (quotation marks and emphasis omitted). [Doc. #13, ECF p. 3]. As the Report 
and Recommendation indicates, petitioner entered the country on June 26, 2016. 
 

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corpus petition to the extent it seeks an individualized bond hearing and order respondents 
to provide petitioner with a bond hearing pursuant to § 1226 (a) within five (5) business 
days or otherwise release him if no hearing is held within th at time. The court will also 
order respondents to certify compliance within ten (10) business days. 
As to the recommended ruling on the burden of proof, the court declines to adopt it. 
The court agrees with the deci sions in Singh v. Figueroa, Case No. CIV-26-600-R, 2026 
WL 1181699, at *1 n. 2 (W.D . Okla. April 30, 2026) and Si ngh v. Grant, Case No. CIV-
26-279-J, 2026 WL 1035100, at *2 (W.D. Okla. April 16, 2026) and declines to specify or 
alter the burden of proof at this juncture. Additionally, neither party has offered any 
meaningful discussion of the burden of proof issue, and despite being specifically requested 
to address it, petitioner didn’t. 
Accordingly, the Report and Recommendation [Doc. #13] is ADOPTED in part 
and DECLINED in part. 
The petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is GRANTED 
in part. Respondents are ORDERED to provide petitioner with an individualized bond 
hearing under 8 U.S.C. § 1226(a) within five (5) business days or otherwise release 
petitioner if he has not received a lawful bond hearing within that period. 
Respondents are further ORDERED to certify compliance by filing a status report 
within ten (10) business days of the court’s order. 
If petitioner Edwin Fernanando Zelaya Losa is released, respondents shall not re-
detain him without a pre-depr ivation hearing before a neut ral immigration judge under 8 
U.S.C. § 1226(a). 

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Counsel for respondents shall provide a copy of the court’s order to counsel for the 
warden of the Cimarron Correctional Facility without delay. 
A separate judgment will be entered. 
IT IS SO ORDERED. 
Dated this 15th day of June, 2026. 
 

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