Federal Judge Rules ICE’s Bail Denial Likely Violates Federal Law

A federal judge in Denver has ruled that the Immigration and Customs Enforcement (ICE) policy denying bail to longtime undocumented residents likely violates federal law. The decision, issued by U.S. District Court Judge Regina M. Rodriguez on November 3, 2023, mandates the release of Nestor Gutierrez, a man detained for five months at the Aurora detention center in Colorado. The ruling prohibits ICE from deporting or transferring Gutierrez and similar detainees currently held in the state.

Judge Rodriguez’s order is significant as it applies to undocumented immigrants who have resided in the United States for years. For more than two decades, these individuals would typically be eligible for temporary release while their immigration cases proceed. The ruling comes amid reports that ICE has ramped up detention rates, with the federal government having unilaterally directed immigration courts to reinterpret federal law, effectively removing the right to bail hearings for these longtime residents.

During the recent court proceedings, it was evident that many detainees, including Gutierrez, were opting to request their own removal rather than contest their deportation orders. This shift has raised concerns among immigration advocates who argue that the new policy serves to keep immigrants in detention, pressuring them to abandon their legal battles.

Gutierrez, originally from El Salvador, has lived in the Denver area since 1999 and is a married father of two. He was apprehended by ICE in May 2023, and his request for a bail hearing was denied under the new policy. Judge Rodriguez pointed out in her ruling that Gutierrez’s situation constitutes “unlawful detention without bond,” emphasizing his role as the primary financial provider for his family.

“What is unique to Mr. Gutierrez, and other noncitizens like him, is that he is being unlawfully detained without bond,” Rodriguez stated. She further noted that had Gutierrez been granted a bail hearing, it is likely he would have been released, given that he poses no flight risk or danger to the community.

The judge’s ruling effectively prevents ICE from circumventing the lawsuit by deporting detainees or relocating them to facilities where the legal challenges to the bail policy might not apply. Following the order, Gutierrez’s legal team attempted to facilitate his release, but ICE initially refused to comply. He was eventually released on the morning of November 4, 2023, pending a bail hearing.

The decision aligns with a growing trend across the United States, where numerous courts have rejected the federal government’s attempt to deny bail hearings to undocumented immigrants who have lived in the country for substantial periods. According to Rodriguez, out of 39 courts that have evaluated this issue nationwide, 36 have ruled against the senior immigration court’s reinterpretation of immigration law.

In Colorado, legal representatives have initiated various challenges against ICE’s policy, with at least one court already determining the policy to be unlawful. The American Civil Liberties Union (ACLU) of Colorado, which is co-representing Gutierrez, plans to return to court in mid-November 2023 to seek class-action status for the lawsuit, which Rodriguez declined to certify during her recent order. She expressed the need for a clearer understanding of how many immigrants would qualify under the circumstances similar to Gutierrez’s.

As the legal landscape continues to evolve, the ACLU and Gutierrez’s legal team are advocating for a declaration that ICE’s bail policy is illegal and are seeking to establish appropriate remedies for those affected. The implications of this ruling extend beyond Gutierrez, potentially benefiting many undocumented immigrants facing similar circumstances throughout the United States.