Reported / Citable
Background
Mario Edgar Valverde-Real entered the United States in 2000 at age fourteen. He was eventually placed in removal proceedings, posted bond, and applied for cancellation of removal. After missing a court hearing, he was ordered removed in absentia. On March 30, 2026, immigration authorities arrested and detained him. He appealed the in-absentia order to the Board of Immigration Appeals (BIA), which dismissed his appeal on April 23, 2026, rendering the removal order administratively final.
Two days after filing his federal habeas petition, Valverde-Real timely petitioned the Ninth Circuit for review of the BIA’s decision. The Ninth Circuit granted a temporary stay of removal, and that petition remained pending at the time of this order. Valverde-Real argued his continued detention without a bond hearing was unlawful; respondents moved to dismiss, contending the administratively final removal order subjected him to mandatory detention under 8 U.S.C. § 1231(a)(2) regardless of the Ninth Circuit stay.
The Court’s Holding
The court rejected the government’s argument that Valverde-Real was subject to mandatory detention under § 1231(a)(2). Reading the statute’s plain text, the court explained that § 1231’s mandatory detention applies only “[d]uring the removal period,” and that the removal period does not begin—even after an order becomes administratively final—when a circuit court has stayed removal pending judicial review. Under § 1231(a)(1)(B)(ii), the removal period is tolled until the court of appeals issues its final order. Because the Ninth Circuit’s stay was in effect, the removal period had not commenced, and § 1231(a)(2) mandatory detention was inapplicable. The court distinguished Johnson v. Guzman Chavez, 594 U.S. 523 (2021), and Oyelude v. Chertoff, finding neither supported the government’s reading, and rejected reliance on Stone v. I.N.S. as addressing BIA motions to reconsider rather than circuit-court stays expressly contemplated by the statute.
On the merits, the court denied Valverde-Real’s statutory claim for a bond hearing under binding Fifth Circuit precedent, Buenrostro-Mendez v. Bondi, 166 F.4th 494 (5th Cir. 2026), which held the immigration statute does not entitle detainees in ongoing removal proceedings to a bond hearing. However, the court granted the petition in part on procedural due process grounds, consistent with its long line of prior decisions holding that long-term presence in the country—particularly with the government’s permission—creates a cognizable liberty interest entitling detainees to an individualized custody determination. The court ordered respondents to provide a bond hearing before an immigration judge by June 11, 2026, with the government bearing the burden of justifying continued detention by clear and convincing evidence of dangerousness or flight risk, or to release Valverde-Real.
Key Takeaways
- A Ninth Circuit stay of removal tolls the commencement of § 1231(a)’s removal period, meaning a detainee with an administratively final order but an active circuit-court stay is not subject to § 1231(a)(2) mandatory detention — he remains in § 1226 pre-removal-period custody.
- The Fifth Circuit’s Buenrostro-Mendez decision forecloses a statutory right to a bond hearing for detainees in ongoing removal proceedings, but does not resolve the separate constitutional due process question.
- Under the W.D. Texas court’s established due process framework, long-term presence in the country — especially with government authorization — creates a liberty interest requiring an individualized bond hearing, with the government bearing a clear-and-convincing-evidence burden.
- A bond proceeding in which an IJ denies a hearing for lack of jurisdiction does not satisfy the court’s order; the government must either hold a compliant hearing or release the petitioner.
Why It Matters
This decision reinforces a significant split between the government’s litigation posture and judicial interpretation of the mandatory detention statute. Courts in the Western District of Texas have consistently held that the government cannot avoid individualized bond hearings simply by pointing to an administratively final removal order when a circuit-court stay is in place — a scenario that arises frequently for detainees who timely petition for appellate review. The ruling makes clear that the statutory text of § 1231(a)(1)(B)(ii) was designed precisely to address this situation, and that the mandatory detention provision does not activate until the stay is lifted and the removal period begins.
For immigration practitioners, the case underscores the importance of promptly seeking a stay from the circuit court after a BIA final order, as doing so not only halts removal but also shifts the detention authority away from § 1231’s mandatory framework — preserving the constitutional avenue to challenge prolonged detention without a bond hearing. The court’s consistent application of this due process framework across numerous similar cases signals a durable local precedent that the government has yet to successfully challenge in this district.