Garcia v. Kane

Filing 21

ORDER Magistrate Judge Jacqueline Marshall's Report and Recommendation (Dkt. #20) is accepted. Petitioner's petition for writ of habeas corpus (Dkt. #1) is granted. Respondents shall, within 30 days from the date of this order, provide a he aring to Petitioner before an Immigration Judge with the power to grant Petitioner bail unless the Government establishes that Petitioner is a flight risk or a danger to the community. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 4/28/09. (KMG, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Fernando Miguel Garcia, Petitioner, v. Katrina Kane, et al., Respondents.

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No. CV-07-1289-PHX-DGC (JJM) ORDER

Petitioner Fernando Garcia is in federal custody pending resolution of a 2005 order of removal against him. Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. #1. United States Magistrate Judge Jacqueline Marshall has filed a Report and Recommendation ("R&R") recommending that the Court grant the petition and direct Respondents to provide a hearing to Petitioner before an Immigration Judge with the power to grant Petitioner bail unless the Government establishes that Petitioner is a flight risk or a danger to the community. Dkt. #20. Judge Marshall advised the parties that they had ten days to file objections to the R&R and that failure to file timely objections may be considered a waiver of the right to obtain de novo review of the R&R. Id. at 9 (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The parties have not filed objections to the R&R, and the time for doing so has expired. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Fed. R. Civ. P. 6(a), (e)). The lack of timely objections relieves the Court of its obligation to review the R&R. See ReynaTapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)]

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does not . . . require any review at all . . . of any issue that is not the subject of an objection."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The Court accordingly will accept the R&R and grant the petition. See 28 U.S.C. § 636(b)(1) (the district court may accept, reject, or modify the recommendation of the magistrate judge); Fed. R. Civ. P. 72(b)(3) (same). IT IS ORDERED: 1. 2. 3. Magistrate Judge Jacqueline Marshall's R&R (Dkt. #20) is accepted. Petitioner's petition for writ of habeas corpus (Dkt. #1) is granted. Respondents shall, within 30 days from the date of this order, provide a hearing to Petitioner before an Immigration Judge with the power to grant Petitioner bail unless the Government establishes that Petitioner is a flight risk or a danger to the community. 4. The Clerk is directed to terminate this action.

DATED this 28th day of April, 2009.

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