Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSE ALFREDO HERNANDEZ-CRUZ,
Petitioner,
v. 	No. 26-0486 JB/LF
MARY DE ANDA-YBARRA, in her official
capacity as Field Office Director of the
Enforcement and Removal Operations, El
Paso Field Office, Immigration and Customs
Enforcement; TODD LYONS, in his official
capacity as Acting Director of the U.S.
Immigration and Customs Enforcement;
KRISTI NOEM, in her official capacity as
Secretary of the U.S. Department of
Homeland Security; PAMELA BONDI, in
her official capacity as Attorney General of
the U.S. Department of Justice; and Warden
of the Otero County Processing Center,
Respondents.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition, filed March 23, 2026 (Doc. 23)(“PFRD”). The PFRD notifies
the parties of their ability to file objections within fourteen days and that failure to do so
waives appellate review. 	See PFRD at 24. 	The federal respondents file a notice of non-
objection on March 24, 2026 (Doc. 25), and Petitioner files a notice of non-objection on March
27, 2026 (Doc. 27). 	The Court concludes that the PFRD that the Honorable Laura Fashing,
United States Magistrate Judge for the United States District Court for the District of New
Mexico, wrote is not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion, and the Court therefore adopts the PFRD. Accordingly, the Court will grant in part
Case 2:26-cv-00486-JB-LF Document 29 Filed 03/31/26 Page 1 of 6

- 2 -
the Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, filed February 19, 2026 (Doc.
1), and the accompanying Temporary Restraining Order, filed February 19, 2026 (Doc. 2).
LAW REGARDING OBJECTIONS TO THE PFRD
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. 	See FED. R. CIV. P. 72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
dispositive 	of 	a 	claim or defense or a prisoner petition challenging the conditions of
confinement.”). 	Rule 72(b)(2) governs objections: “Within 14 days after being served with a
copy of the recommended disposition, a party may serve and file specific written objections to
the proposed findings and recommendations.” 	FED. R. CIV. P. 72(b)(2). 	Finally, when
resolving objections to a Magistrate Judge’s proposal, “[t]he district judge must determine de
novo any part of the Magistrate Judge’s disposition that has been properly objected to. 	The
district judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” 	FED. R. CIV. P.
72(b)(3). 	Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1)(C).
“The filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.” United
States v. One Parcel of Real Prop., with Bldgs., Appurtenances, Improvements, & Contents,
Known as: 2121 E. 30th St., Tulsa Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)
Case 2:26-cv-00486-JB-LF Document 29 Filed 03/31/26 Page 2 of 6

- 3 -
(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). 	As the United States Court of Appeals
for the Tenth Circuit notes, “the filing of objections advances the interests that underlie the
Magistrate’s Act[, 28 U.S.C. §§ 631-639], including judicial efficiency.” 	One Parcel, 73 F.3d
at 1059 (citing Niehaus v. Kan. Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986)).
The Tenth Circuit holds “that a party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” 	One Parcel, 73 F.3d at 1060. 	“To further advance the
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, have
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” 	One Parcel, 73 F.3d at 1059 (quoting Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991)). 	“[O]nly an objection that is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute will advance the policies behind
the Magistrate’s Act.” 	One Parcel, 73 F.3d at 1060. 	In addition to requiring specificity in
objections, the Tenth Circuit states that “[i]ssues raised for the first time in objections to the
magistrate judge’s recommendation are deemed waived.” 	Marshall v. Chater, 75 F.3d 1421, 1426
(10th Cir. 1996). 	See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001)(“In this
circuit, theories raised for the first time in objections to the magistrate judge’s report are deemed
waived.”). In an unpublished opinion, the Tenth Circuit states that “the district court correctly held
that [a plaintiff] had waived argument by failing to raise it before the magistrate.” Pevehouse v.
Scibana, 229 F. App’x 795, 796 (10th Cir. 2007).1
1 Pevehouse v. Scibana is an unpublished Tenth Circuit opinion, but the Court can rely on
a Tenth Circuit unpublished opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited
for their persuasive value.”). The Tenth Circuit states:
Case 2:26-cv-00486-JB-LF Document 29 Filed 03/31/26 Page 3 of 6

- 4 -
The Tenth Circuit also notes, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” 	One Parcel, 73 F.3d at 1060 (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits that have
declined to apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s
order does not apprise the pro se litigant of the consequences of a failure to object to findings
and recommendations.”)). 	In One Parcel, the Tenth Circuit notes that the district judge decides
sua sponte to conduct a de novo review despite the lack of specificity in the objections, but the
Tenth Circuit holds that it deems the issues waived on appeal, because such actions advance the
interests underlying the waiver rule. 	See 73 F.3d at 1060-61 (citing cases from other Courts of
Appeals where district courts elect to address merits despite potential application of waiver rule,
but Courts of Appeals opt to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s PFRD
“on . . . dispositive motions, the statute calls for a de novo determination, not a de novo hearing.”
United States v. Raddatz, 447 U.S. 667, 674 (1980) (“Raddatz”). 	The Tenth Circuit states that
a de novo determination, pursuant to 28 U.S.C. § 636(b), “requires the district court to consider
relevant evidence of record and not merely review the magistrate judge’s recommendation.” 	In
re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). 	The Supreme Court of the United States notes
that, although a district court must make a de novo determination of the objections to
recommendations under 28 U.S.C. § 636(b)(1), the district court may rely on the Magistrate
In this circuit, unpublished orders are not binding precedent, . . . And we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). 	The Court concludes that
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the
Court in its disposition of this Memorandum Opinion and Order.
Case 2:26-cv-00486-JB-LF Document 29 Filed 03/31/26 Page 4 of 6

- 5 -
Judge’s PFRD. 	See Raddatz, 447 U.S. at 676 (“[I]n providing for a ‘de novo determination’
rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in
the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations.”)(quoting 28 U.S.C. § 636(b)(1)). 	See Bratcher v. Bray-Doyle Indep. Sch.
Dist. No. 42 of Stephens Cnty., Okla., 8 F.3d 722, 724-25 (10th Cir. 1993)(holding that the
district court’s adoption of the Magistrate Judge’s “particular reasonable-hour estimates” is
consistent with a de novo determination, because “the district court ‘may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate.’”)
(quoting 28 U.S.C. § 636(b)(1) (emphasis in Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of
Stephens Cnty., Okla., but not in 28 U.S.C. § 636(b)(1)).
Where no party objects to the Magistrate Judge’s PFRD, the Court reviews, as a matter
of course, in the past and in the interests of justice, the Magistrate Judge’s recommendations. This
review, 	which 	is deferential to the Magistrate Judge’s work when there is no objection,
nonetheless provides some review in the interest of justice, and seems more consistent with the
waiver rule’s intent than no review at all or a full-fledged review. 	Accordingly, the Court
considers this standard of review appropriate. 	See Thomas v. Arn, 474 U.S. at 151 (“There is
nothing in those Reports, however, that demonstrates an intent to require the district court to
give any more consideration to the magistrate’s report than the court considers appropriate.”).
The Court is reluctant to have no review at all if its name is going at the bottom of the
order adopting the Magistrate Judge’s PFRD.
ANALYSIS
The Court has reviewed carefully the PFRD. The Court did not review the PFRD de novo,
because the parties have not objected to it, but rather reviewed the Magistrate Judge Fashing’s
PFRD to determine if it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
Case 2:26-cv-00486-JB-LF Document 29 Filed 03/31/26 Page 5 of 6

- 6 -
discretion. 	The Court determines that it is not. 	Accordingly, the Court will adopt the
recommendations.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed March 23, 2026 (Doc. 23), is adopted; (ii) the Petition for a Writ of Habeas
Corpus Under 28 U.S.C. § 2241, filed February 19, 2026 (Doc. 1), and the accompanying
Temporary Restraining Order, filed February 19, 2026 (Doc. 2), are granted to the extent that the
Court orders Petitioner’s immediate release upon posting the $2000 bond that was ordered on
August 8, 2025, and (iii) a Final Judgment is entered concurrently herewith.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Maria Delaluz Hernandez
Law Offices of Maria Hernandez
Coral Springs, Florida
--and--
Victoria Lucero
The Law Office of Victoria Lucero, LLC
Albuquerque, New Mexico
Attorneys for the Petitioner
Paul Mysliwiec
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
--and--
Alexander Robert Hallman
Assistant United States Attorneys
United States Attorney’s Office
Las Cruces, New Mexico
Attorneys for the Respondents Mary De-Anda-Ybarra, Todd Lyons, Kristi Noem, and
Pamela Bondi
Case 2:26-cv-00486-JB-LF Document 29 Filed 03/31/26 Page 6 of 6