A federal judge in Denver has opened an inquiry into how Immigration and Customs Enforcement (ICE) is handling people a court has already ordered released, after an ICE assistant field office director testified under oath on Wednesday, November 4, that she had received “a direct order” to re-arrest people freed on habeas petitions if they “had some kind of criminality,” according to Colorado Politics. U.S. District Judge Charlotte N. Sweeney ordered the government to list every person in Colorado who was re-detained right after a court-ordered release, and she summoned the head of ICE's Denver field office, Nathan Rasper, to explain the agency's conduct at a hearing set for Monday morning, November 9.

Source: Colorado Politics, via Immigration Analytics

This is a new and major development in a fight Awaaz Punjab has been following. On November 3, another judge of the same court, Judge S. Kato Crews, barred ICE from re-arresting one man, Edgardo Garcia Vargas, without a bond hearing first — a remedy written for a single case. Judge Sweeney's inquiry goes further: it targets the practice itself and the chain of command behind it, after sworn testimony indicated the re-arrests followed an instruction passed down by supervisors, not an individual officer's judgment in one case.

The case before Judge Sweeney involves Ramon Quintero Alvarez, a Wyoming man held at the privately run detention centre in Aurora, Colorado — the Aurora ICE Processing Center pictured above. Colorado Politics reported that the court gave the government seven days to respond to his habeas petition, with release due within 24 hours if it did not, and that ICE was told on October 26 to free him by October 28. Alvarez testified that he was released on October 27 and taken back into custody almost at once.

Assistant Field Office Director Nichole Black testified that the instruction came from Deputy Field Office Director George Valdez, who in turn got it from Rasper, Colorado Politics reported. She said she had understood at the time that Alvarez had a domestic battery conviction and a domestic violence arrest — but when pressed, she said, “I was told that charges were not filed.” Asked whether she still believed ICE was empowered to re-detain someone in those circumstances, she said she did, the outlet reported. Those are her sworn statements as reported from the hearing; ICE and the Department of Homeland Security had issued no public response in the reporting.

“Releasing somebody momentarily is not releasing somebody at all”

In a November 3 filing, Assistant U.S. Attorney Andrew Soler said the government “will not be submitting a brief that argues that the current detention is lawful,” because “habeas relief has been effectuated,” and asked the court to close the case. Judge Sweeney rejected that reading. “Releasing somebody momentarily is not releasing somebody at all,” she said, adding that the court's orders were “being made a mockery of.” She ordered Alvarez freed by 2 p.m. that day. The judge said ICE had released and immediately re-arrested 10 people in a week — a count Soler acknowledged by describing Alvarez's case as at least the tenth, according to the reporting.

Background: what a habeas order is, and why judges are writing them differently

A habeas corpus petition asks a federal court to decide whether the government has the lawful right to keep a person in custody. The government's position, reflected in Soler's filing and Black's testimony, is that once a person walks out, the release order has been satisfied and a fresh arrest can rest on a new basis. Judges in several districts have rejected that view when the new arrest happens at the facility exit. In the November 3 Garcia Vargas order, Judge Crews required ICE to release the man again, to certify that release in a status report within three days, and not to re-arrest him unless the government first shows, “by clear and convincing evidence at a pre-deprivation bond hearing before a neutral decisionmaker,” that he is a flight risk or a danger to the community, with his counsel allowed to attend. Crews wrote that re-detention “mere minutes after his purported release was no release at all,” and added: “Once again, the cruelty appears to be the point.”

Source: U.S. District Court for the District of Colorado, Garcia Vargas v. Baltazar, via Immigration Analytics

Colorado is not alone. Re-arrests after habeas wins have surfaced in at least 20 cases nationwide, a Pennsylvania judge has held three officials in civil contempt, and an Oregon judge found that ICE kept making warrantless arrests in defiance of his order, according to the reporting. On November 2, Awaaz Punjab reported the nationwide pattern documented by The Guardian: more than 91,000 detention challenges filed, and lawyers describing release on paper followed quickly by a second arrest. “We are handling thousands of these cases,” Judge Sweeney said at the hearing. “And I assure you, we are not going to handle them twice.” Judge Nina Y. Wang of the same court has also scheduled her own hearing for Thursday afternoon on similar conduct by ICE and the U.S. Attorney's Office, Colorado Politics reported.

What happens next

Three markers come in quick succession. First, Judge Wang's hearing on Thursday afternoon takes up similar conduct. Second, the government must produce the list Judge Sweeney ordered of every person in Colorado re-detained right after a court-ordered release — a list that, if it shows a pattern across many cases and judges, gives the court a factual basis to consider sanctions against officials rather than only case-by-case relief. Third, on Monday morning, November 9, Denver field office chief Nathan Rasper must appear and explain the agency's conduct. Whether the government may hold many of these detainees without bond at all is separately headed to the U.S. Supreme Court in a mandatory-detention case from the Seventh Circuit, according to the reporting. No contempt finding has been made in the Colorado cases; that question now turns on the list and on Rasper's answers.