IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RAFAEL A. AMEZCUA OLVERA,

 

 Petitioner,

vs.

FIELD OFFICE DIRECTOR DANIEL 

BIBLE, Immigration and Customs 

(ICE) Enforcement and Removal 

Operations; WARDEN RAYMUNDO 

CASTO, South Texas Detention 

Complex, in His Official Capacity; and 

ATTORNEY GENERAL BARR in His 

Official Capacity, UNITED STATES 

ATTORNEY GENERAL,

 Respondents.

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NO. 5:20-CV-124-DAE

ORDER (1) ADOPTING REPORT AND RECOMMENDATION, AND 

(2) GRANTING IN PART, DENYING IN PART, AND DENYING WITHOUT

PREJUDICE IN PART MOTION TO DISMISS

Before the Court is a Report and Recommendation 

(“Recommendation”) filed by Magistrate Judge Henry J. Bemporad on June 24, 

2020. (Dkt. # 24.) Pretrial matters were referred to the Magistrate Judge on 

February 3, 2020. (Dkt. # 1.) Notice of the Recommendation was sent to the 

parties on June 24, 2020. (See Dkt. # 24.) Objections to the Recommendations 

were due within fourteen days after being served with a copy. On July 8, 2020, 

Respondents timely filed objections to the Recommendation. (Dkt. # 25.) 
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After careful consideration, and for the reasons given below, the Court 

ADOPTS the Magistrate Judge’s Recommendation (Dkt. # 24) and GRANTS IN 

PART, DENIES IN PART, AND DENIES WITHOUT PREJUDICE IN 

PART Respondents’ Motion to Dismiss (Dkt. # 10).

The Court must conduct a de novo review of any specific objections 

to the Magistrate Judge’s Recommendation filed within fourteen days of being 

served a copy of such recommendations. See 28 U.S.C. § 636(b)(1)(C). 

Importantly, the objections must identify specific findings in the report, so that 

“frivolous, conclusive or general objections need not be considered by the district 

court.” Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) 

(quoting the Fifth Circuit’s decision in Nettles v. Wainwright, 677 F.2d 404, 410 

n.8 (5th Cir. 1982)). Where no specific objections are made to a finding, the Court 

is not required to conduct a de novo review, rather the standard is whether the 

Report and Recommendation is clearly erroneous. United States v. Wilson, 864 

F.2d 1219, 1221 (5th Cir. 1989). “A judge of the court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made by the 

magistrate judge. 28 U.S.C. § 636(b)(1)(C). 

The Court agrees with the Magistrate Judge’s conclusion that for the 

purposes of the motion to dismiss it is enough that Petitioner raises factual issues

legitimately capable of dispute and, as such, Petitioner can plausibly allege that the
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immigration court’s alleged misallocation of the burden of proof resulted in actual 

prejudice. (Dkt. # 24 at 5.) The Magistrate Judge correctly found that even if it is 

“doubtful in fact” that Petitioner’s counter-arguments would induce the 

immigration court to change its ruling under the correct standard of proof, that 

does not mean that dismissal under Rule 12(b)(6) is appropriate. (Id. at 6 (citing 

Twombly, 550 U.S. at 555).) The only question is whether the alleged 

misallocation of the burden of proof “could have affected the outcome of the 

[bond] hearing,” which the Magistrate Judge correctly found it could. (Id. (citing

Mayic v. Hodgson, No. CV 19-12534-PBS, 2020 WL 360502, at *1 (D. Mass. Jan. 

22, 2020) (emphasis in original)).) Finally, the Court agrees with the Magistrate 

Judge’s determination that Petitioner be required to amend his petition to set out 

his allegations of actual prejudice and Respondents be allowed to submit additional 

briefing on the merits of constitutional burden-misallocation. (Id. at 6–7.)

Respondents object that the Recommendation errs because it denies 

the motion to dismiss based on factual disputes that the immigration court has 

already determined. (Dkt. # 25 at 4.) Respondents goes on to cite Mayic and

argue why the facts that led the court to deny the government’s motion to dismiss 

there pale in comparison to the facts here, where Respondents say the evidence of 

flight risk is overwhelming. (Id. at 6.) Respondents urge that the overwhelming 
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evidence here means Petitioner cannot plausibly allege that the allocation of the 

burden of proof made a difference in his case. (Id.)

The Court has reviewed each of Respondents specific objections to 

the Recommendation findings de novo and found no error in the Magistrate 

Judge’s conclusions. The Court agrees with the Recommendation that dismissal 

under 12(b)(6) is not appropriate as Petitioner has raised sufficient legitimate 

factual issues to show that alleged misallocation of the burden of proof could have 

affected the outcome of the bond hearing. 

Based on the foregoing, the Court ADOPTS the Report and 

Recommendation of the Magistrate Judge (Dkt. # 24), and GRANTS IN PART, 

DENIES IN PART, AND DENIES WITHOUT PREJUDCE IN PART

Respondents’ Motion to Dismiss (Dkt. # 10). 

Respondents’ Motion to Dismiss is GRANTED with respect to the 

request that Petitioner be required to amend his Petition to expressly state his claim 

for actual prejudice resulting from the alleged misallocation of the burden of proof 

but dismissal on this ground in DENIED. Respondents’ Motion to Dismiss is 

DENIED WITHOUT PREJUDICE to Respondents seeking dismissal of 

Petitioner’s claims on other grounds.
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IT IS SO ORDERED.

DATED: San Antonio, Texas, July 29, 2020.