This story was first published at CPR News.
DENVER | In several hastily scheduled court hearings held over the past week, a handful of federal judges from the U.S. District Court of Colorado have hauled top Colorado immigration supervisors to the stand to question why they aren’t following, or even bothering to read, explicit orders restricting ICE’s conduct.
At least 18 people, and immigration attorneys estimate it’s likely much more given that so many immigrants represent themselves, have been held in detention longer than they should have or even been re-arrested after their release was ordered by federal judges in the past several weeks.
At a hearing on Monday — the latest in a series of similar encounters in the past week — U.S. District Judge Charlotte Sweeney pointedly asked the acting field director for ICE in Colorado for an explanation of how immigrants can be re-detained after being ordered set free by the court while they pursue immigration cases.
“Are you understanding the court’s concern?” she asked Nathan Rasper.
“Yes,” said Rasper, who said he has been in the ICE job for just a few weeks, but otherwise explained only that he had been confused about the rules his agents should follow, even though they have been repeatedly spelled out by federal courts in multiple jurisdictions.
Sweeney then faced a table with two assistant U.S. attorneys, who were sitting next to Rasper.
“ICE is not in the position to monitor its own conduct in terms of its legality,” Sweeney said. “It is not something the court will tolerate. It’s a due process violation … it’s truly egregious in terms of a constitutional violation. I will be issuing an order that reflects that.”
And she is just the latest federal judge to declare her frustration.
The controversy has been simmering as lawyers for detainees have increasingly turned to federal court for help in getting immigrants released from detention so they can be with their families while pursuing legal status in the U.S.
The Trump administration’s immigration crackdown, accompanied by an unprecedented surge in enforcement dollars and the rapid hiring and deployment of new agents with limited training, has led to a surge in petitions to the federal court for detainee releases.
That, in turn, has tied up judges and prosecutors with far more cases than they typically get from the immigration system.
Advocacy lawyers blame ICE for not paying attention to the nuanced opinions and rulings from the federal judiciary.
“These cases are an appalling new take on existing … strategies by ICE to terrify people and defy court orders,” wrote ACLU of Colorado lawyers in a court document filed over the weekend. “Without swift intervention, ICE will likely continue these brutal, unlawful tactics in defiance of the court, causing profound harm to this court’s authority.”
Those violations in Colorado range from ICE requiring people to wear ankle monitors when they were ordered to be released without any conditions to fully re-arresting immigrants just moments after they were released following a judicial decision.
ICE’s response has been mostly confusion.
One assistant field office director last week employed something like a “the dog ate my homework” defense when she confessed she didn’t see an order for several days even though it was sitting in an ICE email inbox. The acting field office director in Denver told Judge Sweeney on Monday that he verbally told his Colorado agents in October that it was OK to re-arrest someone “based on public safety concerns.”
He said he was unaware of any agreements made between federal prosecutors, his lawyers, and the federal judges and that he thought they were legal.
One man who was subject to a re-arrest a couple of weeks ago said ICE was gleeful about grabbing him right after a judge ordered him released.
“They handcuffed me and handcuffed me to my waist, and they put us in a van, me and four other people. And we drove from Aurora ICE Detention Center all the way to the Centennial office,” said Carlos Garcia, an undocumented immigrant who was in detention and ordered to be released but was re-arrested after being “free” just long enough to take one step on Oct. 27.
“I was telling one of the ICE agents, ‘Hey, I’m still in the process of fighting my case. I don’t know if you guys are rearresting us, but it feels like it,” Garcia said in an interview with CPR News. “And the ICE agent, he said, ‘You guys found a way to get out. You guys found a loophole to get out legally. So we found a way,’ and he said it sarcastically; he said it with a smirk on his face. He said, so we found a way to rearrest you guys. And then he said, ‘legally.’”
During Monday’s hearing, Sweeney said it was “completely inappropriate” that people who are released from custody are terrified that they will be rearrested.
“It needs to be addressed,” she added.
Rasper told her they had stopped the re-arrests for now.
Two big problems are at issue for federal government lawyers defending Immigration and Customs Enforcement.
The first is volume.
Because immigration lawyers don’t view the federal immigration courts, run by the U.S. Department of Justice and staffed with administration appointees, as viable or fair options to get their clients due process while in detention, they are turning to the federal bench and a process called “writ of habeas corpus” to try and get their clients out of detention to fight their immigration claims.
Habeas is basically a request for a judicial order requiring a custodian — in this case, the Department of Homeland Security — to bring a detainee before a court and prove the legal authority for their confinement.
While this has been a constitutional tool for hundreds of years, immigration lawyers are applying for writs at a hugely increasing clip given their initial failures in immigration courts.
In a hearing last week in front of a visibly frustrated U.S. District Court Judge Nina Wang, assistant U.S. Attorney Jane Bobet Rejko apologized for missing multiple deadlines on filing responses to the hundreds of writ of habeas corpus petitions.
“You can imagine that it’s hard to adjudicate cases in a manner that seems fair to all litigants without responses,” Wang told her.
“Our office takes responding to court orders extremely seriously,” Reyko responded. “We are receiving 100 civil immigration cases a week. This has been an enormous burden on the court and in our office, and we have employed a significant amount of resources … It is not an excuse. We take your honor’s concerns extremely seriously.”
Reyko said that, given the sheer volume, cases “fell through the cracks.”
Wang ordered a status report every 48 hours from the U.S. Attorney’s Office until the issue was resolved.
“I’m significantly concerned that these petitioners (immigrants) are being released contrary to the orders of the release, and it’s taking days for the court to understand it,” Wang told Rejko. “I am finding that the actual practice right now is creating even more work on this judicial officer. We have thousands of cases that are not immigration cases, and my staff is working around the clock.”
The other problem facing federal prosecutors, who also act as defenders of the federal government’s agencies, is that ICE doesn’t seem to be really listening to them, or reading judicial orders.
In testimony last week, assistant ICE field officer Nicole Black told Wang that it was ICE’s position that anytime someone is released, that ICE can modify the court’s position.
“The executive agency has the authority to modify a court order?” Wang asked her.
“I’m not sure of that,” Black said.
“Ms. Black, were you ever given copies of court orders or decisions from this district that have ruled that additional conditions after a grant of habeas is a violation of the individuals’ constitutional rights?”
“No,” she replied.
Assistant U.S. Attorney Andrew Soler hopped to his feet.
“I don’t think we are making that argument at all,” he said. “I’m not suggesting to the court that … they can modify the court’s order in any capacity, and that is not our argument, and I want to make that very clear … I think we’re all kind of in this at the same time, going through this together.”
Wang also left the possibility open for sanctions against the U.S. government.
Soler’s boss, Trump appointee U.S. Attorney Peter McNeilly, had no comment on Monday about the judges’ ire, even though he sat on a bench in Sweeney’s courtroom to hear the arguments.
ICE said Monday it had no agency comment on the ongoing court proceedings.