A federal judge in Colorado ordered ICE to release a man it re-arrested minutes after a court-ordered release, ruling that the government cannot detain him again without first proving at a Bond hearingA hearing in which an immigration judge decides whether a noncitizen detained by DHS may be released from custody and, if so, under what bond. Eligibility depends on which detention law applies to the person, and immigration judges have no authority over bond for some groups, such as those subject to mandatory detention.See it in the glossary that he is a flight risk or a danger.
U.S. District Judge S. Kato Crews, a Biden appointee, issued the order on Tuesday in the habeas case of Edgardo Garcia Vargas. “Once again, the cruelty appears to be the point,” Crews wrote, Newsweek reported.
Released, then re-arrested at the facility
Garcia Vargas was released under an earlier order in his habeas case, but ICE arrested him again before he left the detention facility grounds. The government then argued that it had complied with the court’s order and that the case should be closed.
Crews rejected that argument. He found that Garcia Vargas never really left custody and that the re-detention was an ongoing violation of his right to due process. “No person would have felt free to leave under these circumstances,” the judge wrote, describing an arrest “mere minutes after his purported release” as “no release at all.” Because the government did not respond to the habeas petition, the court treated the due process claim as conceded.
What the order requires
- Immediate release of Garcia Vargas.
- A status report within three days confirming the release.
- No re-detention unless the government first proves, at a bond hearing where he can have a lawyer, that he is a flight risk or a danger to the community.
- Possible contempt proceedings if he is re-arrested without that hearing.
Newsweek said it had contacted ICE and DHS for comment and had not received a reply.
A pattern of re-arrests after release
Similar re-arrests have been reported elsewhere. In Minnesota, two ICE officials told an attorney in October that the agency had been re-arresting people right after judges ordered their release “since May,” MPR News reported. DHS and ICE did not respond to MPR’s requests for comment.
The ruling arrives as courts disagree over who is entitled to a bond hearing. The Fifth Circuit held in October that there is no constitutional right to bond hearings for certain detainees, and the Supreme Court has agreed to hear a no-bond detention case. Colorado is in the Tenth Circuit, and Crews’s order applies only to this PetitionerThe person or employer who files a petition on behalf of a beneficiary, such as a relative filing an I-130 or an employer filing an I-140.See it in the glossary.