Avendano Bonilla v. Decker

Background

Kevin Avendano Bonilla, a noncitizen in removal proceedings, filed a petition challenging his detention by U.S. Immigration and Customs Enforcement. He sought release or a constitutionally adequate bond hearing. On July 27, 2022, the court entered a stipulation and order dismissing the petition. The stipulation required the government to provide an individualized bond hearing before an impartial immigration judge. At that hearing, the government had to prove by clear and convincing evidence that Avendano Bonilla posed a danger to the community or presented a flight risk that could not be addressed through reasonable supervision conditions or a monetary bond. The immigration judge also had to consider alternative conditions of release.

Avendano Bonilla received a second bond hearing on August 2, 2022. The government submitted records describing his criminal history and stating that he was believed to be a member of MS-13. Avendano Bonilla, represented by counsel, presented testimony and letters supporting his release. The immigration judge found by clear and convincing evidence that he posed a danger to the community, relying on his history of driving while intoxicated, evidence of an ongoing alcohol problem, and the reported gang affiliation. The judge denied a change in custody status and later issued a written explanation stating that bond or other alternatives to detention would not address the danger from repeat impaired driving and the reported gang affiliation.

Motion to Enforce

Avendano Bonilla moved to enforce the stipulation. He argued that the second bond hearing did not comply with the agreement because the immigration judge failed to consider alternatives to detention and failed to properly apply the clear-and-convincing-evidence standard.

The respondents argued that the case was moot because Avendano Bonilla was detained under the statute governing detention after a final removal order rather than the statute governing discretionary detention during removal proceedings. The court rejected that argument. Because Avendano Bonilla had appealed the denial of his motion to reopen his removal proceedings and had requested a stay of removal from the U.S. Court of Appeals for the Second Circuit, the court held that his removal was not yet imminent and certain. It therefore concluded that he remained detained under 8 U.S.C. § 1226 and that the petition was not moot.

Court’s Analysis

The court explained that its task was narrow: to determine whether the government complied with the stipulation, not to reconsider the evidence or independently review the immigration judge’s custody decision. The court also stated that it owed a degree of deference to the immigration judge’s determination.

The court held that the immigration judge complied with the stipulation’s requirement to consider alternatives to detention. Although the judge did not expressly discuss alternatives during the hearing or identify each alternative considered and rejected in the later written order, the judge stated that considering bond or alternatives to detention would not address the specific danger identified. The court treated that explanation as sufficient under the stipulation.

The court also held that the clear-and-convincing-evidence requirement was satisfied. It noted that the immigration judge relied on more than bare criminal records or speculation: the record included one felony and one misdemeanor conviction for impaired driving, testimony that Avendano Bonilla had an unresolved alcohol addiction, and information identifying him as a member of MS-13. The court emphasized that it could not conduct a new review of the immigration judge’s discretionary custody decision, even if it might have reached a different result.

Disposition

The court held that the second bond hearing and the immigration judge’s decision complied with the stipulation. It therefore denied Avendano Bonilla’s motion to enforce the stipulation and did not order his release. The clerk was directed to terminate the motion.