Immigration officials in Aurora are blocking detained immigrants from seeking bail hearings under a new Trump administration policy that violates federal law, according to a lawsuit filed this week in federal court.
The suit, filed Tuesday, seeks to end the policy implemented by U.S. Immigration and Customs Enforcement earlier this summer, which abruptly reversed a longstanding interpretation of federal law generally allowing undocumented immigrants residing in the interior of the country to be released from detention. If ICE declined to set bail, they could seek what is referred to by immigration authorities as a bond hearing.
The case was filed in U.S. District Court in Denver on behalf of Nestor Mendoza Gutierrez, a small business owner who’s been in Colorado since 1999. He was arrested by ICE in late May and was denied bail under the agency’s policy. He has been detained in the Aurora facility ever since.
The American Civil Liberties Union of Colorado and immigration attorney Hans Meyer, who are representing Mendoza Gutierrez, said he should have been eligible for a hearing and to be released under federal law. But the new ICE policy — which comes amid the federal mass-deportation push — attempts to apply a separate statute to Mendoza Gutierrez and other longtime undocumented residents, the suit says. That law, which requires mandatory detention of immigrants who lack proper legal status, typically has applied to people arrested either at ports of entry or shortly after they entered the U.S.
Mendoza Gutierrez’s attorneys argue that the second law doesn’t apply to Mendoza Gutierrez and detained immigrants like him. A representative of the American Immigration Lawyers Association said ICE’s policy amounts to a statutory “bait-and-switch.”
“If the people don’t present a danger and were not a flight risk, they could obtain bond,” said Tim Macdonald, the ACLU of Colorado’s legal director. “And that’s been true for decades under the law. And the Trump administration doesn’t like that because they want to feed the deportation incarceration machine and fill up the new detention facilities — so they have decided that they’re going to violate the law and bar those folks from even trying to persuade an immigration judge that they’re entitled” to seek release.
As defendants, the lawsuit names ICE, the Department of Homeland Security and several officials, including Attorney General Pam Bondi and Homeland Security Secretary Kristi Noem. Spokespeople for ICE and the U.S. Department of Justice did not return messages seeking comment Wednesday.
The case is one of several filed nationally to challenge ICE’s new practice of systematically denying bail. The lawsuit cites more than a dozen court cases in other states that have resulted in rulings in favor of detained immigrants, Macdonald said.
Despite those lower court rulings, the practice has continued nationally, said Gregory Chen, the senior director of government relations for the Immigration Lawyers Association.
Immigration judges are employees of the Justice Department. Some of them have rejected ICE’s new legal effort, he said, but the agency has then appealed those judges’ decisions to a higher court, ensuring the detained immigrant remains detained in the meantime.
Mendoza Gutierrez has a conviction for drunken driving from more than 20 years ago, his lawyers said, but they argued that wasn’t a sufficient reason to deny him a hearing under the law. He’d recently applied for a temporary visa after his son was the victim of a crime, and Mendoza Gutierrez was set to testify as a witness.
That visa is part of a federal program intended to encourage people to cooperate with law enforcement. Mendoza Gutierrez’s visa application is still pending, according to the suit.
The suit comes as ICE seeks to rapidly increase its detention capabilities, including in Colorado. Four days before ICE issued a memo codifying its new hearing policy in July, President Donald Trump signed the massive federal tax bill, which included among new spending $45 billion for immigrant detention.
Internal ICE documents obtained by the Washington Post last month indicated that federal authorities planned to triple Colorado’s detention capacity by expanding the Aurora facility and opening new detention centers in rural parts of the state.
Immigration arrests have also rapidly increased in Colorado and across the country, according to ICE data obtained by University of California, Berkeley researchers.
As a result of ICE’s policy, Meyer and Macdonald said, fewer people are being released from the Aurora facility. The new policy hasn’t applied to people who overstayed their visas, like a University of Utah student granted bail in Aurora earlier this summer.
Other attorneys, both in Colorado and nationally, have noticed the larger trend for several weeks.
“The broad impact here on likely tens of thousands, if not hundreds of thousands, of people is that they’re going to be deprived of the opportunity to seek release before a judge, as is required by statute,” Chen said. “They’re going to face long-term detention in facilities that many independent oversight bodies have found are substandard or even inhumane.”
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