UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

RAFAEL A. AMEZCUA OLVERA,

 Petitioner,

vs.

JOSE CORREA, SR., Field Office 

Director, Immigration and Customs

(ICE), Enforcement and Removal 

Operations (ERO); WARDEN 

RAYMUNDO CASTRO, South Texas 

Detention Complex, in his official 

capacity; and MERRICK GARLAND,1

in his official capacity as Attorney 

General of the United States,

 Respondents.

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No. 5:20–CV–124–DAE

ORDER (1) MODIFYING BUT OTHERWISE ADOPTING THE REPORT

RECOMMENDATION (“R&R”); (2) GRANTING PETITIONER’S MOTION 

FOR SUMMARY JUDGMENT; (3) DENYING RESPONDENTS’ MOTION 

FOR SUMMARY JUDGMENT; AND (4) GRANTING HABEAS RELIEF

Before the Court is a Report and Recommendation (“R&R”) filed by 

Magistrate Judge Henry J. Bemporad (“Judge Bemporad” or the “Magistrate 

1 Pursuant to Fed. R. Civ. P. 25(d), the Court ORDERS Attorney General Merrick 

Garland be substituted as a Defendant for former Attorney General William Barr

on the docket of this case.

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Judge”) on March 29, 2021. (Dkt. # 53.) Pretrial matters were referred to Judge 

Bemporad on February 3, 2020. (Dkt. # 1.) Notice of the R&R was sent to the 

parties on March 30, 2021. Objections to the Recommendations were due within 

fourteen (14) days after being served with a copy. On April 13, 2021, Respondents

timely filed Objections to the Magistrate Judge’s R&R (“Objections”).

2

 (Dkt. 

# 55.) Pursuant to Local Rule CV-7(h), the Court finds this matter suitable for 

disposition without a hearing. 

After careful consideration, and for the reasons given below, the Court 

MODIFIES the Magistrate Judge’s findings in his R&R as described below, and 

ADOPTS the conclusions contained therein. (Dkt. # 53.) Accordingly, as 

recommended in the R&R, the Court GRANTS Petitioner’s Motion for Summary 

Judgment (Dkt. # 35); DENIES Respondents’ Motion for Summary Judgment 

(Dkt. # 55); and GRANTS Petitioner habeas relief in the form of a constitutionally 

adequate bond hearing.

The Court must conduct a de novo review of any of the Magistrate 

Judge’s conclusions to which a party has specifically objected. See 28 U.S.C. 

§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those 

2 Petitioner responded to the Objections on April 27, 2021, arguing that 

Respondents were too late to file the Objections. (Dkt. # 56.) But regardless of the 

date listed on the R&R, Respondents’ Objections were filed within fourteen (14) 

days of the Court providing notice to the parties, and are, therefore, timely.

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portions of the report or specified proposed findings or recommendations to which 

objection is made.”). The objections must specifically identify those findings or 

recommendations that the party wishes to have the district court consider. 

Thomas v. Arn, 474 U.S. 140, 151 (1985). A district court need not consider 

“[f]rivolous, conclusive, or general objections.” Battle v. U.S. Parole Comm’n, 

834 F.2d 419, 421 (5th Cir. 1987). Findings to which no specific objections are 

made do not require de novo review; instead, the Court need only determine 

whether the R&R is clearly erroneous or contrary to law. 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).

Respondents object to three conclusions in Judge Bemporad’s R&R: 

(1) that Petitioner was prejudiced by an allegedly improper application of the 

burden of proof at Petitioner’s immigration bond hearing; (2) that due process 

required Respondents to bear the burden of proof at that hearing; and (3) that such 

a burden needed to be shown by clear and convincing evidence. (Dkt. # 55 at 3–

14.) Regarding prejudice, Respondents contend that Judge Bemporad failed to 

consider the flight risk effect of Petitioner’s INTERPOL Red Notice, that he 

improperly reweighed evidence related to the enforceability of Petitioner’s 

Mexican arrest warrants, and that he ignored Petitioner’s access to significant 

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financial resources. (Id. at 4–8.) In their arguments regarding the allocation of—

and appropriate standard for—the burden of proof in Petitioner’s bond hearing, 

Respondents reiterate unpersuasive arguments from their summary judgment 

motion, as described below. (Id. at 9–14.)

As explained below, after reviewing each of Respondents’ specific 

objections to the R&R findings de novo, the undersigned finds no reason to depart 

from Judge Bemporad’s conclusions. Accordingly, the undersigned MODIFIES 

the reasoning supporting the prejudice determination in Judge Bemporad’s R&R 

but otherwise ADOPTS the R&R in its entirety. (Dkt. # 53.)

1. Proper Allocation of and Applicable Standard for Burden of Proof

Respondents’ prejudice objection is their best argument, which is 

likely why they present it first. However, in order to explain why the undersigned 

ultimately rejects that objection, the undersigned finds it critical to first note the 

magnitude of Immigration Judge Stuart D. Alcorn’s (“the IJ”) error in assigning 

the burden of proof at Petitioner’s bond hearing. The IJ required Petitioner to bear 

the burden of proof at his bond hearing to demonstrate that he is not a flight risk

(by an unspecified standard). (Dkt. # 3 at 388–89.) In the R&R, Judge Bemporad 

thoroughly explained why—given the balance of interests involved—the proper 

allocation of burden should have been placed on Respondents, and why that burden 

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needed to be proven by clear and convincing evidence. (Dkt. # 53 at 7–14.) 

Respondents’ objections to this conclusion are unpersuasive. 

First, Respondents cling to the argument that they could not be forced 

to bear the burden at Petitioner’s bond hearing—let alone by a clear and 

convincing evidence standard—because Congress has authorized categorical 

detention (i.e., detention without any individualized consideration) for some 

unauthorized aliens. See, e.g., 8 U.S.C. § 1226(c)(1) (providing mandatory 

detention of aliens who have committed certain qualifying offenses). But Judge 

Bemporad wisely noted that Petitioner does not belong to one of those categories, 

and therefore, any argument that those separate provisions affect the proceedings 

involving Petitioner thwarts Congress’s intent to define such categories separately. 

Compare id., with § 1226(a). 

And while Respondents correctly note that there are some situations 

where detention that is neither “indefinite [n]or potentially permanent” may 

militate against finding a due process violation, see, e.g., Hernandez-Esquivel v. 

Castro, Case No. 5:17–564–RBF, 2018 WL 3097029, at *7 (W.D. Tex. June 22, 

2018) (case referred from Judge Rodriguez), Judge Bemporad correctly found that 

the Mathews v. Eldridge factors support finding that due process was violated here. 

Judge Bemporad also cited several recent cases in which courts outside the Fifth 

Circuit held that that Respondents must prove their case by clear and convincing 

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evidence in these types of civil detention cases, and Respondents have provided no 

evidence suggesting that the Fifth Circuit would hold otherwise. See, e.g., 

Velasco Lopez v. Decker, 978 F.3d 842, 855–57 (2d Cir. 2020); Santos v. Warden 

Pike Cty. Corr. Facility, 965 F.3d 203, 214 (3d Cir. 2020); Singh v. Holder, 

638 F.3d 1196, 1203–06 (9th Cir. 2011). Accordingly, the undersigned ADOPTS

Judge Bemporad’s burden of proof determination in its entirety. (Id.) The IJ’s 

misallocation of the burden of proof is an error of significant magnitude.

2. Prejudice Determination

Petitioner’s due process claim also requires proof that he was 

prejudiced by the violation. As Respondents note, after the bond denial that led to 

this case, the IJ subsequently denied Petitioner’s request for relief from removal—

a decision that is still pending before the BIA. (Dkt. # 55 at 6–7.) Given that the 

IJ’s flight risk determination involves consideration of Petitioner’s chance of 

receiving relief from removal, Respondents argue that Petitioner’s “position has 

. . . weakened” since the initial determination—which, they contend, makes it less 

likely that the IJ will reach a different result in a new hearing. (Id. at 7.) First, the 

undersigned is not sure this point is even relevant, considering the due process 

prejudice inquiry is retrospective. Cf. Alexander v. McCotter, 775 F.2d 595, 602 

(5th Cir. 1985) (“To demonstrate prejudice, the claimant must show ‘a reasonable 

probability’ that but for [the due process violation], the result of the proceeding 

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would have been different.” (internal citation omitted, emphasis added)). But even 

if the Court were to consider the supposed change in Petitioner’s position, the 

undersigned would still conclude that Judge Bemporad reached the correct 

conclusion because the magnitude of the IJ’s error—assigning the burden to 

Petitioner when it should have been ICE’s burden to prove by clear and convincing 

evidence—still supports a “reasonable probability” of reaching a different 

outcome, even if that outcome may not be more likely than the alternative. Id.

Respondents also contend that Judge Bemporad failed to consider 

Petitioner’s “access to tremendous financial resources” and “misstate[d] the 

relevance of [Petitioner’s Mexican] arrest warrants.” (Dkt. # 55 at 5–8.) The 

undersigned disagrees with Respondents. In an earlier section of the R&R, Judge 

Bemporad stated that Petitioner “owned several businesses and a bank,” and 

specifically noted “his son’s ability to provide for him financially.” (Dkt. # 53 at 

2–3.) His prejudice analysis did not overlook this factor. Additionally, the IJ 

found that Petitioner’s arrest warrants from the Mexican government and 

INTERPOL Red Notice provided a basis for restricting Petitioner to deferral of 

removal relief, which the IJ also noted involves an “extremely high burden of 

proof” that he doubted Petitioner could meet. (Dkt. # 3 at 389.) Accordingly, 

Judge Bemporad did not err in concluding that “[t]he [IJ] found that the arrest 

warrants alone would be insufficient to preclude Petitioner from meeting his 

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burden to show that he was not a flight risk.” (Dkt. # 53 at 15.) To the extent any 

other factors were relevant to that determination from the IJ, Judge Bemporad’s 

analysis is still correct. “It is reasonably probable that [a proper allocation of—and 

standard for—the burden of proof] could have resulted in a different outcome.” 

(Id.)

Finally, Judge Bemporad certainly did not overlook the INTERPOL 

Red Notice—he mentioned it on page 3 of the R&R. (Dkt. # 53 at 3.) 

Respondents cite one unpublished decision from the Northern District of California 

holding that such a notice could provide a basis for an IJ determining that a 

petitioner posed a flight risk. Torres Murillo v. Barr, Case No. 19-cv-5676-SK, 

2019 WL 8723753, at *5 (N.D. Cal. Oct. 23, 2019). But regarding the broader due 

process implications beyond the petitioner in that case, the court reached a 

narrower holding: “It does not violate due process to give a[n INTERPOL Red 

Notice] some weight in determining flight risk[.]” Id. (finding the INTERPOL 

Red Notice sufficient to justify the IJ’s decision in that case). Respondents’ 

objections to Judge Bemporad’s R&R pale in comparison to the magnitude of the 

IJ’s error—which suggests that the result may have been different in a proper 

proceeding. 

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The undersigned concludes that the magnitude of the IJ’s error in 

assigning the burden of proof is critical to the prejudice analysis in this case. 

Judge Bemporad noted this fact while cogently distinguishing this case from 

Maldonado-Velasquez v. Moniz, 274 F. Supp. 3d 11, 15 (D. Mass. 2017) 

(“Maldonado-Velasquez did receive a hearing and under any conceivable 

allocation of the burden of proof that hearing demonstrated his ineligibility for 

release.”) (emphasis added). (Dkt. # 53 at 15.) Except in such lopsided cases, the 

magnitude of the error matters because Petitioner’s ability to show he had a 

“reasonable probability” that the IJ would have made a different determination in a 

constitutionally adequate hearing, see Alexander, 775 F.2d at 602, surely depends 

on how far away from “constitutionally adequate” the first hearing was. 

Nevertheless, for similar reasons the undersigned finds that 

Respondents identified one error in Judge Bemporad’s analysis—that the IJ’s 

“high” flight risk assessment of Petitioner “has little relevance to the issue of 

prejudice, as that finding was made without the [G]overnment having to bear any 

burden on the issue.” (Dkt. # 53 at 14; Dkt. # 55 at 6 n.2.) The IJ’s determination 

that Petitioner was not particularly close to meeting his misallocated burden is also 

a significant factor in considering whether there is a reasonable probability that a 

different outcome would have resulted from a constitutionally adequate 

proceeding. In light of the magnitude of the IJ’s mistake in allocating the 

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burden—which involved more than merely shifting the result when the evidence is 

in equipoise—it is far from clear that the IJ would have concluded that ICE proved 

Petitioner to be a high enough flight risk for civil detention by clear and 

convincing evidence. 

Therefore, to the extent Judge Bemporad did not explicitly consider 

the magnitude of flight risk stated in the IJ’s finding or the magnitude of the IJ’s 

constitutional mistake, the undersigned MODIFIES the R&R to incorporate the 

undersigned’s consideration of both. (Dkt. # 53.) For reasons stated above, the 

undersigned reaches the same conclusion and otherwise ADOPTS the R&R in its 

entirety. (Id.)

3. Conclusion

Therefore, except as MODIFIED in the manner described above, the 

undersigned ADOPTS Judge Bemporad’s Report and Recommendation in its 

entirety, including its conclusions. (Dkt. # 53.) Accordingly, it is hereby 

ORDERED that:

1. Petitioner’s Motion for Summary Judgment (Dkt. # 35) is 

GRANTED;

2. Respondents’ Motion for Summary Judgment (Dkt. # 48) is 

DENIED;

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3. Petitioner’s Petition for Habeas Corpus (Dkt. # 3) is GRANTED IN 

PART AND DENIED IN PART; regarding his request for the Court 

to order Respondents to release him, it is DENIED—subject to the 

conditions described below; regarding his request for a 

constitutionally adequate hearing, it is GRANTED;

4. Within fourteen (14) days of the date of this Order, Respondents

shall take Petitioner before an immigration judge for a new 

individualized bond hearing;

5. At that hearing, Respondents shall bear the burden of demonstrating, 

by clear and convincing evidence, that Petitioner is a danger to the 

community or a flight risk;

6. The Immigration Judge conducting the hearing must explain all 

specific findings and conclusions on the record;

7. In the event Respondents fail to provide Petitioner with such a bond 

hearing within the timeframe set forth above, Respondents must 

immediately release Petitioner. 

This order constitutes final judgment in this case. The Clerk of the Court is 

INSTRUCTED to CLOSE this case.

IT IS SO ORDERED.

DATED: San Antonio, Texas, May 11, 2021.

David Alan Ezra

Senior United States District Judge

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