Denver Judge Rules ICE’s Bail Denial Likely Unlawful for Immigrants

A federal judge in Denver has ruled that the Immigration and Customs Enforcement (ICE) agency’s new policy of denying bail hearings to long-term undocumented immigrants likely violates federal law. The decision, made by U.S. District Court Judge Regina M. Rodriguez, came on November 3, 2023, and specifically ordered the release of Nestor Gutierrez, who had been detained for five months at an ICE facility in Aurora, Colorado.

In her ruling, Judge Rodriguez outlined that the new policy disproportionately affects individuals like Gutierrez, who have lived in the United States for years. Prior to this policy change, many long-term residents were able to request bail while their immigration cases were pending. Rodriguez’s order temporarily halts federal authorities from deporting or transferring Gutierrez and similar detainees until the lawsuit progresses.

The background of this case highlights a significant shift in immigration policy under the previous administration. The Trump administration directed immigration courts to reinterpret existing federal law, leading to a sharp increase in the number of immigrants detained without the option of bail. Advocates argue that this policy serves to pressure immigrants into either seeking voluntary removal or ceasing their legal challenges against deportation orders.

During recent court proceedings, it was observed that several detainees were choosing to request their own removal rather than continue fighting their cases. This decision often stems from the desire to end prolonged detention, despite fears of returning to their home countries.

Gutierrez, originally from El Salvador, has been a resident of the Denver area since 1999 and is a married father of two. He was apprehended by ICE in May 2023, and a judge subsequently denied his bail request due to the new policy. Rodriguez noted that Gutierrez’s status as his family’s main financial provider constitutes significant harm from his continued detention.

In her order, Rodriguez emphasized the unlawful nature of Gutierrez’s detention. She stated, “What is unique to Mr. Gutierrez, and other noncitizens like him, is that he is being unlawfully detained without bond.” She further indicated that had he been afforded a bail hearing, Gutierrez would likely have received conditional release, allowing him and his family time to prepare for his immigration case.

The ruling also prevents ICE from circumventing the lawsuit by deporting detainees or transferring them to facilities where legal challenges to the bail policy might not be possible. Following the court’s order for Gutierrez’s release, his legal team faced initial resistance from ICE. They reported that he was not released immediately but finally emerged from detention on the morning of November 4, 2023, pending his bail hearing.

Legal representatives, including Hans Meyer from the American Civil Liberties Union (ACLU) of Colorado, expressed satisfaction with the ruling. Meyer remarked, “The most important thing is that the court agreed with us that ICE’s interpretation of the law is incorrect.” The ACLU has been pivotal in filing the lawsuit, advocating for the rights of individuals affected by this policy.

This ruling adds to a growing body of judicial decisions across the United States challenging ICE’s efforts to deny bail to immigrants without legal status who have been in the country for extended periods. Judge Rodriguez noted that of the 39 courts that have examined this issue, 36 have rejected the reinterpretation of immigration law by senior immigration courts.

Attorneys in Colorado have initiated multiple legal challenges against the bail policy, and at least one court has already ruled against it. The ACLU plans to return to court in mid-November 2023 to seek class-action certification for the lawsuit, although Rodriguez opted not to certify the class in her recent order, citing the need for further information regarding the number of immigrants similar to Gutierrez.

Meyer and the ACLU are also requesting that Judge Rodriguez declare ICE’s policy illegal and provide a remedy for affected immigrants. With the legal landscape evolving, this case underscores the ongoing debate over immigration policy and its implications for long-term residents in the United States.