Morales-Fernandez v. Immigr. & Naturalization Serv., 418 F.3d 1116 (10th Cir. 2005). · Go Syfert
Morales-Fernandez v. Immigr. & Naturalization Serv., 418 F.3d 1116 (10th Cir. 2005). Cases Citing This Book View Copy Cite
957 citation events (951 in the last 25 years) across 12 distinct courts.
Strongest negative: Rubesne Resources LLC v. Ace Property and Casualty Insurance Company (cod, 2026-05-07)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Rubesne Resources LLC v. Ace Property and Casualty Insurance Company
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require DATED: May 7, 2026 BY THE COURT: Susan Prose United States Magistrate Judge review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). 23
discussed Cited "but see" Ljubinka Stanisavljevic v. The Standard Fire Insurance Company d/b/a Travelers Insurance Company
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). fourteen (14) days of the date of this Order, to the extent not already produced. 2.
discussed Cited "but see" Kerri Sheehy, Dean Beacom, and Taylor Archuleta, on their own behalf and on behalf of all others similarly situated v. Intermountain Health Care Inc.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). 6.
discussed Cited "but see" Leah Cross, Marco Granger-Rivera, Ryan Schilling, and Cassie Whinnie, individually and on behalf of all others similarly situated v. Amazon.com, Inc., and Amazon Logistics, Inc.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). 14
discussed Cited "but see" Jose Pablo Fernandez v. Tequilas Inc., et al.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" JOSE PABLO FERNANDEZ v. TEQUILAS INC., et al.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Maria J. Prkic v. Sezzle, Inc.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd. 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, such as when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). is the Motion for Jury Trial under the Fifth and Seventh Amendments, filed March 9, 2026, ECF No. 154.
discussed Cited "but see" Lura Huber, individually and on behalf of all others similarly situated v. Intermountain Health Care, Inc., SCL Health Partners, LLC, and Sisters of Charity of Leavenworth Health System, Inc.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Kerri Sheehy, Dean Beacom, and Taylor Archuletta, on their own behalf and on behalf of all others similarly situated v. Intermountain Health Care Inc.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Jose Guadalupe Rocha v. Matt Winden, Warden of Centennial Correction Facility
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Oliver Batista v. Freedom Mortgage Corporation, Consumer Financial Protection Bureau, and Russell Vought, in his official capacity as acting Director of the Consumer Financial Protection Bureau
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Jason Haubenreiser; Daniel K. Miller; Elizabeth D. Wilhour; and Sean M. Wilhour v. City and County of Denver; Denver Police Department; Lieutenant James Costigan; Mary J. Dulacki; Officer Emmet Hurd; Detective Spitzer; Officer Alvarado; Officer Yanez; Officer Lee; Denver Department of Health and Public Environment; Inspector Ochoa; and Supervisor Matsuda
D. Colo. · 2026 · signal: but see · confidence high
Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of Magistrate Judge’s order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal certain portions of Magistrate Judge’s orders by failing to object to those portions); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Daniel K. Miller, Elizabeth D. Wilhour, and Sean M. Wilhour v. Asset Living, LLC, AMFP V Central Park LLC, and Shanna Martinez
D. Colo. · 2026 · signal: but see · confidence high
Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of Magistrate Judge’s order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal certain portions of Magistrate Judge’s orders by failing to object to those portions); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Gloria Wertz v. Clorox Services Company
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Priscilla Ann Thompson, individually and as Proposed Independent Administrator of the Estate of Jamarr Thompson v. United States of America
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver DATED: February 13, 2026 BY THE COURT: Susan Prose United States Magistrate Judge rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Haritharan Mahalingam v. Colorado State University
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Hunter Adam Melnick v. Unknown SSU Manager, Jeremy Tafoya, CPTL, Weston Wallace, CPO, Anne Cabibi, Gayla Sykes, Unknown Therapist, and Pamela Dawn
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Marcus A. Murphy v. Harmony Communities California
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). documentation where reasonably available, such as the rental agreement, rent-payment records, documentation relating to lost earnings and incarceration, and any evidence supporting the req…
discussed Cited "but see" Nonnnie Berg v. United Airlines, Inc.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" K.C., a minor, by and through his mother Mia Clements v. DENVER PUBLIC SCHOOLS
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Roberto Rodriguez v. Unknown Mesa County Sheriff’s Deputies and Unknown S.W.A.T. Agents
D. Colo. · 2026 · signal: but see · confidence high
But see, Morales- Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Meshel T. Sirio v. Moses Andre Stancil, in his official capacity as the Executive Director of the Colorado Department of Corrections; Ryan Long, in his personal capacity; Ryan Flores, in his personal capacity; Cathy Alexander, in his personal capacity; and Gary Little, in his personal capacity
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" HPM, INC. v. M.C. DEAN, INC.
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Brian Holtsclaw, individually and for others similarly situated v. Stake Center Locating, LLC, a Utah limited liability company
D. Colo. · 2026 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Maria J. Prkic v. Sezzle, Inc.
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd. 989 F.3d 747, 782 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, such as when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
cited Cited "but see" Bobby E. Henard v. Gonsalves, DeCarlo, and Carnahan
D. Colo. · 2025 · signal: but see · confidence high
But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Estate of Jesus Lam v. Louis A. Estrada, in his individual capacity, and Mary M. McIver, in her individual capacity
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
cited Cited "but see" David V. Salama and Nancy M. Salama v. City of Pueblo
D. Colo. · 2025 · signal: but see · confidence high
But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Jamie Lee Saunders v. Albertsons/Safeway, LLC, and United Food and Commercial Workers Union, Local #7
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Nonnnie Berg v. United Airlines, Inc.
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Julie Smith v. BloomTV LLC, Monica Manley, and Devon Kerns
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, DATED: December 1, 2025 BY THE COURT: Susan Prose United States Magistrate Judge 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). 25
discussed Cited "but see" Charles K. Ashley v. Robert Kellerman, City of Englewood, and Tamara Niles, in her official capacity
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Justin Rueb v. Moses Andre Stancil, Dean Williams, and Mark Fairbairn
D. Colo. · 2025 · signal: but see · confidence high
But see, Morales- Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Michelle Fegan v. State Farm Mutual Automobile Insurance Company
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Hal Edwards v. City of Leadville
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). 18
discussed Cited "but see" Securian Life Insurance Company v. Martinez
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require deposit into the court’s Registry a check from Securian Life in the amount of $52,000 (the “Interpleader Funds”), plus any applicable interest, representing the Policy Proceeds in Securian Life’s Complaint for Interpleader, to be submitted to the court within thirty (30) business days after entry of this Order, and that such…
discussed Cited "but see" Schacht v. McDonough
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119 , DATED: September 30, 2025 BY THE COURT: Susan Prose United States Magistrate Judge 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). 10
discussed Cited "but see" Godinez v. Puebla
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747 , 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting DATED: September 2, 2025 BY THE COURT: Susan Prose United States Magistrate Judge and the consequences of failing to object”). 12
discussed Cited "but see" Woo v. Delacruz
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”).
discussed Cited "but see" Johnson v. Little
D. Colo. · 2025 · signal: but see · confidence high
But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review). e Defendants’ Motion to Dismiss [ECF 42] be GRANTED as to all other claims, against all Defendants; Plaintiff's TAC should be dismissed with prejudice as to Claim One (Retaliation under Title VII and ADEA) and Claim Two (Hostile Work Environment under Title VID, Plaintiff's TAC should be dismissed with prejudice, sua sponte, as to Claim Five (Race Discrimination under Title VII) against the improper parties: Defendants Jule Littl…
discussed Cited "but see" Harris v. Makris Law Firm, PC
D. Colo. · 2025 · signal: but see · confidence high
Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Harris v. Makris Law Firm, PC
S.D. Tex. · 2025 · signal: but see · confidence high
Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Wilson v. Colorado Department of Corrections
D. Colo. · 2025 · signal: but see · confidence high
But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review). 21 This Court recommends that Plaintiff be given 30 days to file a motion seeking leave to file a Fourth (and final) Amended Complaint in compliance with Fed.
cited Cited "but see" Thin Air Gear, LLC v. Cyberlux Corporation
D. Colo. · 2025 · signal: but see · confidence high
But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Coleman v. Nationwide Insurance Company
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object”). 10
cited Cited "but see" Bentley v. AHC of Colorado Springs
D. Colo. · 2025 · signal: but see · confidence high
But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Zachary v. Courtney
D. Colo. · 2025 · signal: but see · confidence high
But see, Morales- Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).
discussed Cited "but see" Brown (PS) v. 7 Eleven Inc
D. Colo. · 2025 · signal: but see · confidence high
Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review, DATED: July 12, 2025 BY THE COURT: Susan Prose United States Magistrate Judge including when a “pro se litigant has not been informed of the time period for objecting and the consequences of failing to object’).
Retrieving the full opinion text from the archive…
Euclides MORALES-FERNANDEZ, Petitioner-Appellant,
v.
IMMIGRATION & NATURALIZATION SERVICE, Respondent-Appellee
03-1111.
Court of Appeals for the Tenth Circuit.
Aug 9, 2005.
418 F.3d 1116
Submitted on the Briefs: Euclides Morales-Fernandez, pro se., John W. Suthers, United States Attorney, and Mark S. Pestal, Assistant United States Attorney, Denver, CO, for Respondent-Appellee.
Seymour, Murphy, O'Brien.
Cited by 626 opinions  |  Published
Pinpoint authority: bottom 56%
SEYMOUR, Circuit Judge.

Euclides Morales-Fernandez appeals the district court’s dismissal of his pro se 28 U.S.C. § 2241 petition for a writ of habeas corpus. [1] The Supreme Court recently held that 8 U.S.C. § 1231(a)(6) limits an inadmissible alien’s post-removal detention to a reasonable time period and does not permit indefinite detention by the Immigration and Naturalization Service (INS). [2] Clark v. Martinez, — U.S. -, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005). Clark’s holding dictates Mr. Morales-Fernandez is entitled to be released and paroled into the country. As a result, we reverse and remand this case for proceedings consistent with this opinion.

I

Mr. Morales-Fernandez is a native and citizen of Cuba who arrived in this country with 125,000 other Cuban nationals during the 1980 Mariel boatlift. Officials from the INS detained the Mariel Cubans at the border and later made a decision to exclude them from the United States. The United States has been unable to return the Mariel Cubans to Cuba, however, because Cuba has thus far refused to accept them. No other country has expressed a willingness to accept the Mariel Cubans.

Following his initial detention, Mr. Morales-Fernandez was granted immigration parole into the United States under section 212(d)(5) of the Immigration and Nationality Act. See 8 U.S.C. § 1182(d)(5). As an individual ineligible for admission into the United States, Mr. Morales-Fernandez is classified as an “inadmissible alien” under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). [3] See Pub.L. No. 104-208, 110 Stat. 3009, 3009-546 (1996). His status as an inadmissible alien has remained static for the entire twenty-five years he has been present in the United States.

After a felony conviction in 1993 for possession with intent to sell a controlled substance, Mr. Morales-Fernandez was sentenced to one year in prison. In 1995, his immigration parole was revoked due to[*1119] the criminal conviction. He was taken into INS custody and exclusion proceedings were initiated. The INS issued a final order of removal on November 9, 1999. Mr. Morales-Fernandez is currently detained in INS custody at the Federal Correctional Institute in Florence, Colorado.

The Cuban Review Panel considers Mr. Morales-Fernandez’s case annually to determine his suitability for immigration parole. See 8 C.F.R. § 212.12. On February 8, 2002, the Review Panel recommended he be released as soon as possible to a willing family member. The Associate Commissioner adopted the panel’s recommendation and issued a Notice of Releaseability. But the INS was unsuccessful in finding suitable living arrangements for him. Then, on August 23, 2002, Mr. Moralez-Fernandez was convicted by a Bureau of Prisons hearing officer of assault on staff and refusal to obey an order. Due to this prisoner disciplinary conviction, the Associate Commissioner withdrew the Notice of Releaseability.

Mr. Moralez-Fernandez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2241, asserting two claims. First, he argued that the Attorney General does not have statutory authority to detain an inadmissible alien indefinitely. Second, he maintained that his indefinite detention violates his Fifth Amendment substantive due process rights. The INS filed a motion to dismiss. The matter was referred to a magistrate judge who issued a report recommending that the district court dismiss Mr. Morales-Fernandez’s § 2241 petition. Neither party objected to the recommendation. The district court adopted the magistrate’s recommendation and this appeal followed.

II

As a threshold matter, we note that Mr. Morales-Fernandez failed to file written objections to the magistrate judge’s recommendations. This court has adopted a firm waiver rule under which a party who fails to make a timely objection to the magistrate judge’s findings and recommendations waives appellate review of both factual and legal questions. See Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). This rule does not apply, however, when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the “interests of justice” require review. Id.; Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004); Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996); see also Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (“because the rule is a nonjurisdietional waiver provision, the Court of Appeals may excuse the default in the interests of justice”).

The first exception to the firm waiver rule does not apply in this case. The magistrate judge’s report and recommendation stated in clear English that Mr. Morales-Fernandez had ten days in which to serve and file written objections and that a “failure to make timely objections to the magistrate judge’s recommendation may result in a waiver of the right to appeal from a judgment of the district court based on the findings and recommendations of the magistrate judge.” Aplt. Br. Attach, at 20. Thus, the magistrate attempted to apprise Mr. Morales-Fernandez of the consequences of a failure to object. Nonetheless, we are persuaded to exercise our discretion under the interests of justice exception to overlook the waiver rule in the instant matter.

We recently recognized in a pro se prisoner case that “[o]ur decisions have not defined the ‘interests of justice’ exception with much specificity.” Wirsching, 360 F.3d at 1197. Likely this is because “in[*1120] terests of justice” is a rather elusive concept. We have, however, enumerated several factors this court has considered in determining whether to invoke the exception. For instance, a pro se litigant’s effort to comply, the force and plausibility of the explanation for his failure to comply, and the importance of the issues raised are all relevant considerations in this regard. See generally Wirsching, 360 F.3d at 1197-98 (10th Cir.2004); Theede v. United States Dep’t of Labor, 172 F.3d 1262, 1268 (10th Cir.1999).

In many respects, the interests of justice analysis we have developed, which expressly includes review of a litigant’s unob-jected-to substantive claims on the merits, is similar to reviewing for plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir.1996) (en banc) (holding that “plain error review, alone, satisfies Thomas v. Arn’s concern for the ‘interests of justice’ ”). Indeed, we can think of no rational basis for excepting a pro se litigant’s failure to object to a magistrate’s report from our longstanding practice of reviewing for plain error issues raised for the first time on appeal by counseled litigants. Id. (“the failure to object to a magistrate judge’s report and recommendation is really no different from, for example, the failure of counsel in open court to object to the admission of evidence”).

The notion that the plain error and interests of justices analyses are similar is supported by Supreme Court and Tenth Circuit case law. Both the Court and this circuit have frequently described the Fed. R.Crim.P. 52(b) plain error standard as shorthand for or synonymous with an “interests of justice,” “miscarriage of injustice,” or “manifest injustice” exception to a litigant’s failure to object in the trial court. See, e.g., United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (the “discretion conferred by Rule 52(b) should be employed [only] in those circumstances in which a miscarriage of justice would otherwise result.”) (emphasis added); United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (“the plain-error exception to the contemporaneous-objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result”) (emphasis added); United States v. Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir.2005) (en banc) (“we will not notice a non-constitutional error [on plain error review ] unless it is both ‘particularly egregious’ and our failure to notice the error would result in a ‘miscarriage of justice ’ ”) (emphasis added); Allan v. Springville City, 388 F.3d 1331, 1334 n. 2 (10th Cir.2004) (“Satisfying plain error review requires showing that the jury instruction was not only erroneous and prejudicial, but that failure to set aside the jury’s verdict would result in a fundamental injustice.”) (emphasis added); United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir.2003); (“because [defendant] is deemed to have waived this issue, we will not address it on appeal except for a review for plain error resulting in manifest injustice.”) (emphasis added); United States v. Chavez-Marquez, 66 F.3d 259, 261 (10th Cir.1995) (stating that we do not consider issues raised for the first time on appeal except to review for plain error resulting in manifest injustice) (emphasis added); cf. United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996) (recognizing that “the mandate rule ... is a discretion-guiding rule subject to exception in the interests of justice ” and one such exception is for “blatant error” that “would result in serious injustice if uncorrected”) (emphasis added). Indeed, immediately after articulating that the court of appeals may excuse a party’s failure to object to a magistrate’s recommendations in the “in[*1121] terests of justice” in Thomas v. Arn, the Supreme Court dropped a footnote which reads:

Cf. Fed. Rule Ckim. Pkoo. 52(b) (court may correct plain error despite failure of party to object). We need not decide at this time what standards the courts of appeals must apply in considering exceptions to their waiver rules.

Thomas v. Arn, 474 U.S. at 155 n. 15, 106 S.Ct. 466.

It is worth noting that there is a rather dramatic split between the federal courts of appeal as to the consequences of a litigant’s failure to object to a magistrate judge’s report. Three circuits have limited the waiver effect to factual issues, leaving legal issues open for review despite the absence of objections. See, e.g., Burgess v. Moore, 39 F.3d 216, 218 (8th Cir.1994) (objection to magistrate judge’s report not necessary to preserve appeal on question of law); Martinez v. Ylst, 951 F.2d 1153, 1156 & n. 4 (9th Cir.1991) (failure to object on legal issues without more will not ordinarily constitute waiver); United States v. Warren, 687 F.2d 347, 348 (11th Cir.1982) (absence of objections to magistrate judge’s report limits scope of appellate review of factual findings to plain error or manifest injustice but does not limit review of legal conclusions). Pertinent to our analysis, the Eighth and Eleventh Circuits have further held that where a defendant fails to file timely objections to the magistrate judge’s report and recommendation, the factual conclusions underlying that defendant’s appeal are reviewed for plain error. See United States v. Brooks, 285 F.3d 1102, 1105 (8th Cir.2002) (reviewing factual findings for plain error where litigant made no objections to magistrate judge’s report and recommendation); United States v. Hall, 716 F.2d 826, 828-29 (11th Cir.1983) (holding that defendant who failed to file timely objections to report and recommendation denying motion to suppress did not waive right to appeal ruling but may challenge factual findings only under plain error standard). The Fifth Circuit reviews both factual and legal conclusions underlying the defendant’s appeal for plain error where the defendant fails to file timely objections to the magistrate judge’s report and recommendation. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir.1996) (en banc) (failure to object precludes objection on appeal not only to proposed factual findings but also to proposed legal conclusions, except when they suffer from plain error). Sitting en banc, the Fifth Circuit unanimously reasoned that “there is no meaningful difference between the ‘affects substantial rights’ and the ‘fairness, integrity or public reputation of judicial proceedings’ parts of the plain error standard, on the one hand, and manifest injustice on the other ... the latter is simply a shorthand version for these two parts of the plain error standard.” Id. at 1428.

Some circuits maintain that the failure to object to a magistrate judge’s report constitutes a firm waiver. See, e.g., Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994) (failure to object to magistrate judge’s report within ten days waives absolute right to appeal district court order); F.D.I.C. v. Hillcrest Assoc., 66 F.3d 566 (2d Cir.1995) (reiterating general rule and outlining exception for pro se litigants unless “magistrate’s report explicitly states that failure to object to the report within ten (10) days will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure”); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984) (defendant’s failure to file written objections to magistrate’s report within allotted 10-day period waived right to appellate review); United States v. 1184 Drycreek Rd., 174 F.3d 720,[*1122] 725-26 (6th Cir.1999) (claimant’s failure to object to magistrate’s report waived right to appellate review); Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir.1995) (“[fjailure to file objections with the district court to a magistrate’s report and recommendation waives the right to appeal all issues addressed in the recommendation, both factual and legal”). Nonetheless, several of these circuits have applied something akin to plain error review to unobjected-to claims, particularly when the litigant appealing is pro se. For example, the Second Circuit has excused a pro se habeas petitioner’s failure to object to the magistrate judge’s adverse recommendation on a critical claim in the interests of justice, stating

Such discretion is exercised based on, among other factors, whether the defaulted argument has substantial merit or, put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting party.

Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir.2000) (emphasis added). Moreover, the Seventh Circuit has held that if a defendant’s attorney is incompatible, let alone incompetent, “he cannot fairly be held responsible for his attorney’s failure to timely object to the magistrate’s ruling. To bar appellate review under this limited circumstance would defeat the ends of justice.” United States v. Brown, 79 F.3d 1499, 1504-05 (7th Cir.1996) (quotation omitted) (“Equitable considerations come into play when determining whether an unchallenged pretrial ruling may yet be contested on appeal, and under certain circumstances the failure to file objections may be excused.”). The court reviewed the defendant’s Sixth Amendment claim on the merits under the preserved error standard of review rather than forcing the defendant to meet his burden under plain error. Id. at 1505.

Finally, in an interesting display of independence, the Third Circuit has declined to embrace the waiver concept at all. Cont’l Cas. Co. v. Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir.1998) (“a failure to object to a magistrate judge’s report and recommendation does not foreclose appellate review in this Court”).

We find the reasoning of the circuits that apply a plain error standard to the a pro se litigant’s failure to object to a magistrate’s reports persuasive. Moreover, we are convinced that Supreme Court and Tenth Circuit case law support such a result. Indeed, the law of this circuit is that we will enforce a specific waiver of appellate rights contained in a knowing and voluntary plea agreement unless such enforcement constitutes a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1329 (10th Cir.2004). In evaluating whether a miscarriage of justice has occurred, we apply the plain error test of Olano. Id. If enforcing a counseled defendant’s knowing and voluntary waiver pursuant to a plea where that defendant can meet the plain error test constitutes a miscarriage of justice, it certainly must be true that enforcing the firm waiver rule where an uncounseled defendant’s unobjected-to claim satisfies the plain error analysis would also constitute a miscarriage of justice. At a minimum, then, our “interest of justice” standard for determining whether we should excuse a defendant’s failure to object to a magistrate judge’s recommendation includes plain error. As such, and for the other reasons provided above, we review Mr. Morales-Fernandez’s claim on the merits for plain error.

Ill

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects[*1123] substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403 F.3d at 732 (quoting United States v. Burbage, 365 F.3d 1174, 1180 (10th Cir.2004)). Thus, the first question we must answer is whether the district court committed error in dismissing Mr. Morales-Fernandez’s § 2241 petition.

Ordinarily, when an alien is ordered removed from the United States, the Attorney General is obliged to facilitate that individual’s actual removal within 90 days, a period called the “removal period.” 8 U.S.C. § 1231(a)(1). During the removal period, the Attorney General is required to detain an individual who has been ordered removed on certain specified grounds. Id. § 1231(a)(2). Congress recognized that securing actual removal within 90 days will not always be possible and authorized detention beyond the removal period in certain circumstances:

An alien ordered removed who is inadmissible under section 1182 of this title, removable [for violations of nonimmi-grant status or entry conditions, violations of criminal laws, or threatening national security] or who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).

Id. § 1231(a)(6). The question presented here is whether this statute permits the indefinite detention of an individual in the first enumerated category who, like Mr. Morales-Fernandez, has been deemed inadmissible to the United States.

In Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001), the Supreme Court interpreted § 1231(a)(6) and addressed the government’s authority to detain two legal permanent residents beyond the 90-day removal period under § 1231(a)(6). In evaluating § 1231(a)(6), the Supreme Court considered whether indefinite detention of resident aliens beyond the 90-day removal period, as authorized by § 1231(a)(6), would present constitutional concerns. Ultimately, the Court concluded that permitting the indefinite detention of resident aliens would present “serious” constitutional concerns, id. at 696, 121 S.Ct. 2491, but that “[ajliens who have not yet gained initial admission to this country would present a very different question,” id. at 682, 121 S.Ct. 2491.

The Court then saved § 1231(a)(6) from unconstitutionality in the context of resident aliens by reading into the statute a limitation on the period of post-removal detention. Id. at 696-699, 121 S.Ct. 2491. “[0]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized.” Id. at 699, 121 S.Ct. 2491. The presumptive period during which the detention of an alien is reasonably necessary to effectuate his removal is six months. Id. at 701, 121 S.Ct. 2491.

While the present case was pending on appeal, the Supreme Court addressed whether the Zadvydas ruling regarding resident aliens should be applied to inadmissible aliens like Mr. Morales-Fernandez. Clark, 125 S.Ct. at 722. The Court determined that: (1) having read § 1231(a)(6) one way in Zadvydas, it must read it the same way in subsequent cases, id. at 722-23, 121 S.Ct. 2491; (2) its prior holding in Zadvydas interpreting § 1231(a)(6) thus applies to aliens deemed inadmissible to the United States, id.; (3) the reasonable period of post-removal detention is presumptively six months for both admitted and inadmissible aliens, id. at 727; (4) the petitioner’s removal to Cuba was not reasonably foreseeable, id.; [*1124] and (5) the petitioner’s § 2241 petition therefore should be granted, id.

Clark decides Mr. Morales-Fernandez’s appeal on the merits. There is no contention that conditions in Cuba have changed so that Mr. Morales-Fernandez’s removal to Cuba is reasonably foreseeable. Until the United States’ relationship with Cuba changes so that removal becomes feasible, or Congress amends 8 U.S.C. § 1231(a)(6) to distinguish between resident aliens and inadmissible aliens, Clark dictates that Mr. Morales-Fernandez be released and paroled into the United States. See Clark, 125 S.Ct. at 727 (“Both [petitioners] were detained well beyond six months after their removal orders became final. The Government having brought forward nothing to indicate that a substantial likelihood of removal subsists despite the passage of six months (indeed, it concedes that it is no longer even involved in repatriation negotiations with Cuba); and the District Court in each ease having determined that removal to Cuba is not reasonably foreseeable; the petitions for habeas corpus should have been granted.”); id. at 721 n. 3 (noting that petitioner Benitez was subject to the conditions of release and 8 U.S.C. § 1253 authorized his detention if he violated the conditions of release); see also id. at 728 (“[A]ny alien released as a result of today’s holding remains subject to the conditions of supervised release ... And, if he fails to comply with the conditions of release, he will be subject to criminal penalties-including further detention.” (citations omitted)) (O’Connor, J., concurring).

Because the instant case is factually indistinguishable and raises the same legal issues as those addressed by the Supreme Court in Clark, it is controlled by that decision, and the district court committed error by dismissing Mr. Morales-Fernandez’s § 2241 petition. As to the second prong of the plain error test, an error is “plain” if it is clear or obvious at the time of the appeal, Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), and Clark renders the error here both clear and obvious on appeal.

In order to satisfy the third prong of plain error review, that is, establish that the error affects his substantial rights, Mr. Morales-Fernandez bears the burden of showing “a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004) (quotation omitted). There is no doubt, let alone a reasonable probability, that but for the district court’s error in (unknowingly) misconstruing 8 U.S.C. § 1231(a)(6), the results of Mr. Morales-Fernandez’s proceedings would have been different. As stated above, if the district court had not erred, Mr. Morales-Fernandez’s petition would have been granted and he would have been released and paroled into the country. Therefore, Mr. Morales-Fernandez has met his burden of showing that the district court’s error affected his substantial rights.

If a plain error affects the integrity, fairness, or public reputation of judicial proceedings, it is in the discretion of the reviewing court to correct the error. Johnson, 520 U.S. at 467, 117 S.Ct. 1544. Where a defendant suffers non-constitutional error, as here, the standard for satisfying the fourth prong of the plain error test is demanding. Dominguez Benitez, 124 S.Ct. at 2340. Mr. Morales-Fernandez must show that allowing his non-eon-stitutional error to stand would be “particularly egregious” and would constitute a “miscarriage of justice.” United States v. Gilkey, 118 F.3d 702, 704 (10th Cir.1997). We easily conclude that permitting a de[*1125] fendant, such Mr. Morales-Fernandez, to remain indefinitely detained in a federal prison in the face of Supreme Court precedent clearly requiring otherwise most certainly would affect the integrity, fairness, or public reputation of judicial proceedings. We therefore exercise our discretion and correct this error.

For the reasons stated above, we REVERSE the district court’s dismissal of Mr. Morales-Fernandez’s § 2241 petition and REMAND this case for further proceedings consistent with this opinion, Mr. Morales-Fernandez’s motion to proceed in forma pauperis on appeal is GRANTED.

1

. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

2

. The Immigration and Naturalization Service (INS) was abolished on March 1, 2003 pursuant to section 471 of the Homeland Security Act of 2002, Pub.L. 107-296, 116 Stat. 2135 (2002), which created the Department of Homeland Security (DHS). Within DHS, the Bureau of Immigration and Customs Enforcement (BICE) is responsible for the former INS function of detaining and removing aliens within the United States. Nevertheless, for purposes of consistency, we will continue to refer to defendant as INS.

3

.Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. See Pub.L. No. 104-208, 110 Stat. 3009, 3009-546 (1996). The statute made comprehensive changes to the Immigration and Nationality Act (INA), including changes in immigration terminology. Prior to IIRIRA, individuals who were ineligible for admission to the United States were referred to as "excludable,” while those who had gained admission were referred to as "deport-able.” See 8 U.S.C. §§ 1182, 1251 (1994). Excludable aliens are now referred to as "inadmissible” aliens. See 8 U.S.C. § 1182. In addition, the amended INA now uses the term "removal proceedings” to refer to the proceedings applicable to both inadmissable and deportable aliens. See 8 U.S.C. § 1229a.