Milanes-Perez v. Mullin et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Alexander Milanes-Perez,
Petitioner,
v.
Markwayne Mullin, et al.,
Respondents.
No. CV-26-02397-PHX-SMB (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT
JUDGE:
Petitioner Alexander Milanes-Perez filed, through counsel, a Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) on April 8, 2026.1 Petitioner is
detained at Eloy Detention Center and seeks release from immigration custody and a
restoration to the same conditions of release previously imposed by the Department of
Homeland Security (“DHS”). (Id. at 11.) For the reasons that follow, undersigned will
recommend the Petition be denied in part and granted in part.
I. PROCEDURAL HISTORY AND BACKGROUND
The facts before this Court appear largely undisputed. (See Docs. 1, 9, 10.)
Petitioner is a citizen of Cuba who entered the United States on or about November 1,
2021, through the Calexico West Port of Entry. (Doc. 1 at 5.) Petitioner was initially
detained at the Imperial Regional Detention Facility and was released from Immigration
1 Citation to the record indicates documents as they are displayed in the District of Arizona’s
official Court electronic document filing system under Case No. CV-26-02397-PHX-SMB (ASB).
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and Customs Enforcement (“ICE”) custody on December 13, 2021. (Doc. 1 at 5.) Petitioner
was released from ICE custody on the condition of “discretionary parole (humanitarian).”
(Doc. 1-1 at 28.) While released, Petitioner filed a Form I-485 (Application to Register
Permanent Residence or Adjust Status) under the Cuban Adjustment Act, which was
received by the United States Citizenship and Immigration Services (“USCIS”) on May 9,
2023. (Docs. 1 at 6; 1-1 at 30.) On January 20, 2026, DHS issued Petitioner a Notice to
Appear. (Doc. 1 at 6.) Upon re-detainment2, Petitioner was categorized as an “arriving
alien” and deemed subject to removal pursuant to § 212(a)(7)(A)(i)(I) of the Immigration
and Nationality Act (“INA”) as an “immigrant who, at the time of application for
admission, is not in possession of a valid . . . entry document[.]” (Doc. 1-1 at 23-26.)
Petitioner pleads that he “has no criminal history” and “at no point when he was re-arrested
did DHS allege that Petitioner engaged in any criminal conduct or that any change in
circumstances occurred between his release on humanitarian parole and his re-arrest that
would justify his re-detention.” (Doc. 1 at 6-7.) Petitioner further alleges that “DHS re-
arrested Petitioner without advance notice, without a warrant, and without identifying any
changed circumstance” and that he was “not served with a revocation notice, afforded no
opportunity to contest the seizure, and provided no individualized justification for re-
detention.” (Id.)
Petitioner filed a Petition in this Court on April 8, 2026, in which he contests his
detention pursuant to 28 U.S.C. § 2241. (Doc. 1.) Petitioner raises two grounds in his
Petition: 1) Violation of Fifth Amendment – Substantive Due Process; and 2) Violation of
Fifth Amendment – Procedural Due Process. (Id. at 9-11.) In his First Claim, Petitioner
argues that DHS exercised its discretion to release Petitioner and imposed conditions of
supervision, thereby necessarily making an affirmative determination that Petitioner was
not a danger to the community nor a flight risk. (Id. at 9.) He argues that when DHS re-
detained him without notice, warrant, or any finding that a violation of the release
2 It is unclear based on the record before this Court when exactly Petitioner re-entered ICE
custody, but there is no suggestion by either party that Petitioner attempted to evade detention.
(See Docs. 1, 9.)
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conditions occurred, the re-detention “constitutes a new seizure and new deprivation of
liberty[.]” (Id. at 10.) In the Second Claim, Petitioner argues that DHS detained Petitioner
without affording him a hearing before a neutral decisionmaker to determine whether
continued detention was necessary. (Id. at 11.) Petitioner asserts that his continued
detention violates Demore in that his detention has not been justified by a risk of danger to
the community or a flight risk. (Id.) (citing Demore v. Kim, 538 U.S. 510, 528 (2003)).
Because these claims essentially raise the same grounds, i.e. that Petitioner’s parole was
revoked without proper procedures depriving him of his liberty and procedural due process
rights, undersigned will address them together.
Respondents Eric Rokosky, Warden of Eloy Detention Center; Markwayne Mullin,
Secretary of the United States DHS; and Sirce E. Owen, Acting Director of Executive
Office for Immigration Review, (collectively, “Respondents”) filed a Response on April
30, 2026. (Doc. 9.) In their Response, Respondents argue that the Petition should be denied
because Petitioner’s detention is statutorily authorized and constitutional. (Id. at 2-7.)
Respondents assert that there is no statutory or regulatory requirement that entitles
Petitioner to a “pre-deprivation” hearing. (Id. at 2.) Respondents argue that “[i]nstead of a
guarantee of pre-detention review by an Immigration Judge, aliens detained under §
1226(a) are provided with multiple avenues to seek review of their detention once they are
in custody – a process which the Ninth Circuit has already held is constitutionally
sufficient.” (Id. at 3) (citing Rodriguez Diaz v. Garland, 53 F.4th 1189, 1196-97 (9th Cir.
2022)). Respondents continue that in addition to not being required to give Petitioner a pre-
deprivation hearing, Petitioner is detained pursuant § 1225(b)(2)(A), rather than § 1226(a).
(Id. at 4.) Thus, Respondents argue, Petitioner has no due process rights to release and
“cannot be said to have effected an entry,” even if he was paroled after entering. (Id. at 5-
6.) Respondents dispute Petitioner’s assertion that he is entitled to substantive due process
rights, arguing that “Ninth Circuit precedent forecloses the idea that Petitioner has a
substantive due process right to continued release from custody on Section 1182(d)(5)
parole, and even if they did, the Court has no jurisdiction to review its revocation.” (Id. at
6.) Finally, Respondents also argue that “only the warden is a proper respondent.” (Id. at
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n.1.)3
Petitioner filed a timely Reply arguing that “[t]he Court should reject Respondent’s
contention that due process requires no pre-detention hearing.” (Doc. 10 at 1.) Petitioner
first argues that Respondents’ assertion that only the warden is a proper respondent “is
procedural” and “does not bear on whether Petitioner’s detention is lawful.” (Id. at 2.)
Petitioner further argues that Respondents mischaracterize the remedy sought as an “extra-
statutory” request for relief rather than a due process claim. (Id. at 2-3.) Petitioner continues
that his re-detention “is not merely a continuation of prior custody; it is a new restraint on
a person who had already regained liberty” and thus due process favors granting Petitioner
a hearing. (Id. at 3-4.) Petitioner disputes Respondents’ arguments that the INA does not
expressly provide a pre-detention bond hearing, instead arguing that “constitutional due
process is not limited to procedures Congress has codified.” (Id. at 4.) Petitioner also argues
that Respondents incorrectly apply the “entry fiction” to Petitioner because “[t]he cases
they invoke arise in contexts involving initial admission or border-seeking noncitizens, not
[a person’s] retention [after they] . . . lived at liberty for years.” (Id. at 5.) Finally, Petitioner
asserts that “a post hoc remedy does not cure the constitutional defect” and post-detention
review, as Respondents suggest, “is not an adequate substitute for pre-deprivation process.”
(Id. at 5-6.)
II. ANALYSIS
A. Governing Statutory Framework
“The writ of habeas corpus remains available to every individual detained within
3 Respondents thus request that the Court dismiss all Respondents other than “the warden.”
(Doc. 9 at n.1.) “[L]ongstanding practice confirms that in habeas challenges to present physical
confinement-‘core challenges’-the default rule is that the proper respondent is the warden of the
facility where the prisoner is being held, not the Attorney General or some other remote
supervisory official.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Ninth Circuit further
clarified this position and “affirm[ed] the application of the immediate custodian and district of
confinement rules to core habeas petitions filed pursuant to 28 U.S.C. § 2241, including those filed
by immigrant detainees.” Doe v. Garland, 109 F.4th 1188, 1199 (9th Cir. 2024). However, other
courts in this Circuit have found that Doe “did not necessarily preclude naming more than one
respondent so long as the immediate custodian is named.” See, e.g., Doe v. Chestnut, 810 F. Supp.
3d 1169, 1169 n.1 (E.D. Cal. 2025); Gonzalez Elias v. Warden of the Golden State Annex Det.
Facility, No. 1:26-CV-01835-JLT-EPG, 2026 WL 901288, at *1 n.1 (E.D. Cal. Apr. 2, 2026).
Because Petitioner names his immediate custodian undersigned declines to recommend dismissal
of the other Respondents.
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the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., Art.
I, § 9, cl. 2). Writ of habeas corpus relief extends to a person in federal custody if the
petitioner can demonstrate he “is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). Accordingly, federal courts have
jurisdiction to grant writs of habeas corpus to non-citizens who are being unlawfully
detained under 28 U.S.C. § 2241. See Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th
Cir. 2012) (“The writ of habeas corpus historically provides a remedy to non-citizens
challenging executive detention.”) (citing INS v. St. Cyr, 533 U.S. 289, 301-303 (2001));
Lopez-Marroquin v. Barr, 955 F.3d 759, 759 (9th Cir. 2020) (“[D]istrict courts retain
jurisdiction under 28 U.S.C. § 2241 to consider habeas challenges to immigration detention
that are sufficiently independent of the merits of the removal order”) (citation omitted).
While Respondents plainly argue that “[t]he Secretary’s decision to revoke parole is not
reviewable by any court[,]” and “the Court has no jurisdiction to review [8 U.S.C. §
1182(d)(5)(A) parole] revocation[,]” Respondents do not explicitly dispute this Court’s
jurisdiction over the Petition. (See Doc. 9 at 4-5.)4
There are two statutory schemes governing the detention of non-citizens: 8 U.S.C.
§§ 1225 and 1226. The apprehension and detention of noncitizens already present in the
United States is governed by 8 U.S.C. § 1226, which creates “a default rule for those aliens
by permitting—but not requiring—the Attorney General to issue warrants for their arrest
and detention pending removal proceedings.” Jennings v. Rodriguez, 583 U.S. 281, 303
(2018). According to 8 U.S.C. § 1226(a), “an alien may be arrested and detained pending
a decision on whether the alien is to be removed from the United States. Except as provided
in subsection (c) and pending such decision, the Attorney General . . . may continue to
4 This argument fails because this Court will not be reviewing the Secretary’s decision to
revoke parole, but rather the due process afforded to Petitioner. See Noori v. LaRose, 807 F. Supp.
3d 1146, 1160 (S.D. Cal. 2025) (finding the court had jurisdiction to review the constitutionality
of terminating petitioner’s parole without an individualized hearing and citing Deng Chol A. v.
Barr, 455 F. Supp. 3d 896, 901 (D. Minn. 2020) (“Although the court may not review discretionary
decisions made by immigration authorities, it may review immigration-related detentions to
determine if they comport with the demands of the Constitution.”)); Y-Z-L-H v. Bostock, 792 F.
Supp. 3d 1123, 1140-1141 (D. Or. 2025) (finding the INA did not preclude the district court’s
jurisdiction to consider whether the decision to terminate Petitioner’s parole was lawful)
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detain the arrested alien; and . . . may release the alien on . . . bond of at least $1,500 with
security approved by, and containing conditions prescribed by, the Attorney General; or .
. . conditional parole.” Governing the detention of “applicants for admission” is 8 U.S.C.
§ 1225. The statute defines “applicants for admission” as “an alien present in the United
States who has not been admitted or who arrives in the United States” following inspection
by immigration authorities. 8 U.S.C. § 1225.
Applicants for admission detained pursuant to 8 U.S.C. § 1225 may be released on
parole “for urgent humanitarian reasons or significant public benefit” pursuant to 8 U.S.C.
§ 1182(d)(5)(A). See Jennings, 583 U.S. at 287. Releasing a noncitizen on humanitarian
parole “requires a case-by-case determination, where the noncitizen must ‘demonstrate to
the satisfaction of the officer that such release would not pose a danger to property or
persons’ and that the noncitizen is ‘likely to appear for any future proceeding.’” Noori, 807
F. Supp. 3d at 1157 (quoting 8 C.F.R. § 1236.1(c)(8)). Parole may terminate “upon the
departure from the United States of the alien or “at the expiration of the time for which
parole was authorized” without written notice. 8 C.F.R. § 212.5(e)(1). In all other
circumstances, parole is terminated by written notice if the purpose of the parole has been
accomplished or if an authorized DHS official determines that neither humanitarian reasons
nor public benefit warrants continued presence in the United States. 8 C.F.R. §
212.5(e)(2)(i); 8 U.S.C. § 1182(d)(5)(A); see also Noori, 807 F. Supp. 3d at 1157.
B. Entitlement to Due Process
The extent to which due process applies to noncitizens, in which factual
circumstances, and to what degree is an ever-developing body of case law; district courts
around the country continue to grapple with these issues. Undersigned will briefly address
the two apparent approaches to noncitizens’ due process challenges that have emerged,
recognizing that the split in approaches occurs even within this District.
First, fundamentally, the Due Process Clause of the Fifth Amendment to the United
States Constitution provides that “No person shall be . . . deprived of life, liberty, or
property, without due process of law.” U.S. Const. Amend. V. “It is well established that
the Fifth Amendment entitles aliens to due process of law in deportation proceedings.”
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Reno v. Flores, 507 U.S. 292, 306 (1993). Additionally, once a non-citizen has entered the
United States, “the legal circumstance changes, for the Due Process Clause applies to all
‘persons’ within the United States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause
of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976).
Respondents argue that Petitioner has no due process rights to release and “cannot
be said to have effected an entry,” even if he was paroled after entering. (Doc. 9 at 5-6.)
Accordingly, Respondents essentially conclude that Petitioner’s parole is entirely
discretionary and he has no due process rights to continued parole. (See id.) Additionally,
Respondents argue Petitioner is subject to the “entry fiction” such that although he was
paroled in the United States for over four years, he “cannot be said to have effected an
entry.” (See id. at 5-6.)
Some district courts have agreed with Respondents’ position and denied or
dismissed habeas petitions outright for noncitizens challenging detention on due process
grounds. See, e.g., S.M.H., Petitioner, v. Christopher McGregor, et al., Respondents., No.
CV-26-00620-PHX-MTL (JZB), 2026 WL 1004572, at *1 (D. Ariz. Apr. 14, 2026)
(finding that petitioner, who was granted temporary parole for two years, “lacks any
interest in maintaining his parole that is protected by the Due Process Clause and that would
require the government to provide him with a hearing before terminating parole.”);
Vardanyan, v. Warden, Adelanto ICE Processing Center, No. CV-25-03272-SVW-SK,
2026 WL 851431, at *1-2 (C.D. Cal. Mar. 25, 2026) (denying petitioner’s writ after parole
revocation finding that petitioner was “entitled only to those due process rights that
Congress afforded by statute.”).
The majority of district courts in the Ninth Circuit have held that once a petitioner
has been released on parole they have developed a liberty interest, and procedures must
exist to adequately protect that interest. Noori, 807 F. Supp. 3d at 1157; see also
Osmonaliev v. Cantu, No. CV-25-03531-PHX-JJT, 2025 WL 3637397, at *1 (D. Ariz. Dec.
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16, 2025) (finding petitioner had a due process interest in his humanitarian parole release
and that “when the government has exercised its initial discretion to release an individual
from custody, its decision creates ‘an implicit promise’ that his release will be revoked
only if he fails to meet the conditions of release.”) (quoting Morrissey v. Brewer, 408 U.S.
471, 482 (1972)); Pinchi v. Noem, 792 F. Supp. 3d 1025, 1032 (N.D. Cal. 2025) (“[E]ven
when ICE has the initial discretion to detain or release a noncitizen pending removal
proceedings, after that individual is released from custody she has a protected liberty
interest in remaining out of custody.”); Singh v. Party, No. CV-26-00483-PHX-JCH
(CDB), 2026 WL 809849, at *3 (D. Ariz. Mar. 24, 2026) (collecting cases and concluding
for petitioner released on order of release on recognizance that “upon release, [p]etitioner
gained a liberty interest in his release and certain analogous procedural rights.”); Omer G.
G. v. Kaiser, 815 F. Supp. 3d 1098, 1110 (E.D. Cal. 2025) (finding petitioner had a
“protected liberty interest” in his humanitarian parole release); R.A.N.O. v. Wofford, No.
1:25-CV-01535-KES-EPG (HC), 2026 WL 40507, at *4-5 (E.D. Cal. Jan. 6, 2026) (finding
that petitioner’s humanitarian parole had allowed him to develop a liberty interest in part
because “[f]or three years, it allowed him to establish ties in the community, work pursuant
to a valid work authorization, and pursue relief in his removal proceedings.”)
Furthermore, courts have rejected Respondents’ argument that the entry fiction
precludes consideration of Petitioner’s due process rights. (See Doc. 9 at 5-6) (quoting
Department of Homeland Security v. Thuraissigiam, 591 U.S. 103, 139 (2020)). In
Thuraissigiam, the Supreme Court rejected an arriving noncitizen’s due process rights,
finding that “an alien in respondent’s position has only those rights regarding admission
that Congress has provided by statute.” Id. at 140. However, Thuraissigiam was applied to
petitioners challenging admission, rather than detention. Id. (A noncitizen has “only those
rights regarding admission that Congress has provided by statute.”) (emphasis added); see
also Padilla v. U.S. Immigr. & Customs Enf’t, 704 F. Supp. 3d 1163, 1170-1172 (W.D.
Wash. 2023) (discussing how Thuraissigiam does not foreclose the court’s consideration
of plaintiff’s due process claims regarding detention rather than admission).
Accordingly, undersigned recommends that the Court join the majority of courts in
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this Circuit in holding that the revocation of humanitarian parole pursuant to 8 U.S.C. §
1182(d)(5)(A), where a petitioner’s parole time did not expire nor was he removed from
the country, requires certain procedural protections. See Osmonaliev v. Cantu, No. CV-25-
03531-PHX-JJT-DMF, slip op. at 9 (D. Ariz. Nov. 13, 2025) (collecting cases), report and
recommendation adopted 2025 WL 3637397, at *1 (D. Ariz. Dec. 16, 2025). However,
undersigned recognizes that there is the above-referenced split within the District and
ultimately undersigned defers to the assigned District Judge on the issue.
C. Mathews Test (Whether Petitioner’s Detention Has Become Unreasonable)
Having concluded that Petitioner has a protected liberty interest arising from his
humanitarian parole pursuant to 8 U.S.C. § 1182(d)(5)(A), undersigned must now turn to
what procedural protections must be applied before Petitioner can be deprived of such an
interest. See Mathews, 424 U.S. at 333. Courts considering humanitarian parole revocation
apply the Mathews v. Eldridge factors to assess what process is due. See Osmonaliev, slip
op. at 9; R.A.N.O., 2026 WL 40507, at *6; Pinchi, 792 F. Supp. 3d at 1032. Under Mathews,
courts balance three factors: (1) “the private interest that will be affected by the official
action”; (2) “the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards”; and
(3) “the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.” Mathews, 424 U.S. at 335.
Regarding the first factor, private interest, Petitioner has a significant private interest
in his freedom and remaining out of detention. Broadly, “[f]reedom from imprisonment—
from government custody, detention, or other forms of physical restraint—lies at the heart
of the liberty that [the Due Process Clause] protects.” Zadvydas, 533 U.S. at 690. And a
“parolee has relied on at least an implicit promise that parole will be revoked only if he
fails to live up to the parole conditions”; as such, the parolee’s liberty interest “is valuable
and must be seen as within the protection of the [Due Process Clause].” Morrissey, 408
U.S. at 482. This principle has been extended to apply to immigration parolees. See
Osmonaliev, 2025 WL 3637397, at *1 (applying Morrissey in the immigration parole
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context). Petitioner, having been paroled for four years prior to his detention, has a private
interest in his freedom from detention and accordingly this factor favors Petitioner.
The second factor, risk of erroneous deprivation, also favors Petitioner. “Where an
individual has not received a bond or redetermination hearing, the risk of an erroneous
deprivation of liberty is high.” Singh, 2026 WL 809849, at *4 (cleaned up) (quoting
Salcedo Aceros v. Kaiser, No. 25-CV-06924-EMC (EMC), 2025 WL 2637503, at *12
(N.D. Cal. Sept. 12, 2025)). Here, Petitioner received no individualized reason for
revocation or written notice of the revocation, as required pursuant to statutory authority.
See 8 C.F.R. § 212.5(e)(2)(i); 8 U.S.C. § 1182(d)(5)(A). Petitioner was detained by DHS
without a hearing before a neutral decisionmaker, and no immigration judge reviewed
Petitioner’s custody determination. (See Doc. 1 at 11.) Furthermore, implicit in Petitioner’s
original parole was the determination that Petitioner did not pose a danger to persons or
property, nor a risk of absconding. See Noori, 807 F. Supp. 3d at 1157. Accordingly, the
second factor favors Petitioner.
Finally, the third Mathews factor considers the government’s interest. Prior courts
have found that the government’s interest in detaining Petitioner without notice, reasoning,
and a hearing is “low.” See Omer G. G., 815 F. Supp. 3d at 1111; Ortega v. Bonnar, 415
F. Supp. 3d 963, 970 (N.D. Cal. 2019) (“If the government wishes to re-arrest [petitioner]
at any point, it has the power to take steps toward doing so; but its interest in doing so
without a hearing is low.”) Additionally, “Respondents’ interest is even lower because
Petitioner was previously released on his own recognizance after immigration officials
necessarily determined he was not a flight risk or danger to the community and the
government does not allege Petitioner violated any condition of his release.” Singh, 2026
WL 809849, at *4. There is no indication in the record that Petitioner violated any terms
of his parole, committed any crimes, or otherwise presented a public safety or flight risk
during parole. (See Docs. 1, 9.) Thus, the third factor weighs towards Petitioner as
Respondents have failed to show any countervailing interest against providing a pre-
detention hearing.
//
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III. CONCLUSION AND REMEDY
With all three Mathews factors favoring Petitioner, undersigned recommends that
the District Judge find that Petitioner’s detention without a hearing prior to his parole
revocation was violative of Petitioner’s due process rights. Courts that have made similar
determinations have found that immediate release, rather than requiring another bond
hearing, is the appropriate remedy. See Osmonaliev, 2025 WL 3637397, at *2; Singh, 2026
WL 809849, at *4-5; R.A.N.O., 2026 WL 40507, at *8. Undersigned will thus recommend
immediate release to restore Petitioner to the same conditions of release previously
imposed or, alternatively, recommend that the District Judge order Respondents to provide
Petitioner a bond hearing.
Petitioner also requests that the Court order Respondents not to transfer Petitioner
out of this District and for the Court to award Petitioner costs and reasonable attorneys’
fees provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412. (See Doc. 1 at 11.)
However, Petitioner does not provide relevant support for these requests.5 (See id.)
Accordingly, undersigned recommends the Petition (Doc. 1) be granted in part
(insofar as a Petitioner is released or a bond hearing is ordered) and denied in part (denying
other requested relief without prejudice).
RECOMMENDATION
Based on the foregoing,
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1) be granted in part and denied in part as
follows:
1. Undersigned recommends that the Court grant Petitioner’s request for release
and order Petitioner to be released within seven (7) days of the Court’s order to
the same conditions of release previously imposed, or for a bond hearing to be
5 For example, the briefing contains no two-part analysis of the propriety of fees under the
EAJA. See Nadarajah v. Holder, 569 F.3d 906, 909-910, 914 (9th Cir. 2009). Because the record
before the Court contains no discussion of the availability of attorney’s fees under the EAJA aside
from a bare citation, undersigned recommends the Court deny the request without prejudice. In so
recommending, undersigned makes no suggestion whether leave to file should be granted, whether
attorney’s fees should or should not be available, or who the “prevailing party” may be.
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held within thirty (30) days of the date of the Court’s Order, where Petitioner
would be afforded a bond hearing before a neutral adjudicator at which hearing
the government must bear the burden of showing that Petitioner should not be
released on bond because he is a flight risk or a danger to the community;
2. It is recommended that the Court order Respondents to provide a notice of
compliance to this Court within seven (7) days of releasing Petitioner or
providing him with a bond hearing;
3. It is recommended all other forms of relief in the Petition be denied without
prejudice.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the district court’s judgment. The
parties shall have 14 days from the date of service of a copy of this recommendation within
which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a
response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
Dated this 15th day of May, 2026.
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