A federal judge in Denver found Tuesday that federal immigration authorities have routinely carried out illegal arrests in Colorado and ordered them to better document detentions so their legality can be monitored.
The 66-page decision from U.S. District Court Judge R. Brooke Jackson came three weeks after four immigrants testified that U.S. Immigration and Customs Enforcement agents had arrested them without warrants and without first checking to see whether they were likely to flee court proceedings — a check that’s required by law.
Jackson ordered Tuesday that ICE remove the ankle monitors on three of those people, one of whom is a Univerity of Utah student arrested in Mesa County in June. He also ordered the agency to refund the bail that each paid to leave detention earlier this year, and he prohibited ICE from rearresting them without first obtaining warrants. (The fourth immigrant has received legal status and was not being monitored.)
Jackson ordered ICE agents to follow the law and check — as well as document — that each person they arrest without a warrant poses a flight risk. He also ordered the agency to regularly turn over a random selection of arrest forms to the attorneys who filed the suit, including some with the American Civil Liberties Union of Colorado.
During the late-October hearing, the four immigrants’ attorneys pointed to JS’s reporting about the surge in recent immigration arrests in Colorado, as well as to statements from senior federal officials indicating that they planned to arrest any person they encountered who lacked proper legal status.
In his order, Jackson noted that, without a court’s intervention, ICE’s pattern of illegal arrests was likely to increase.
“ICE has almost doubled its headcount in Colorado this year alone, is actively recruiting and hiring many more officers, and plans to open three additional detention centers in Colorado, nearly tripling its current capacity,” Jackson wrote. “On this record, plaintiffs have shown that, without the requested injunction, there is likely to be a substantial increase in the number of warrantless arrests made without probable cause of flight risk.”
Representatives for ICE and the U.S. Department of Homeland Security, which oversees the agency, did not immediately respond to a request for comment on the ruling.
In a brief initial statement, one of the attorneys who filed the suit hailed the decision.
“ICE’s hubris and lawlessness have been on national display for months,” Hans Meyer wrote in a text message to The Post. “But as Judge Jackson’s decision makes clear, no one — including ICE — is above the law.”
The ruling, an initial finding while the broader lawsuit plays out, does not prohibit ICE from making warrantless arrest of immigrants without legal status. But it requires ICE agents to take more steps to ensure an arrest is actually necessary. Jackson also declined to require that ICE agents undergo additional training, as the plaintiffs’ attorneys had requested, though he suggested he could revisit the question, “should compliance with the order prove elusive.”
In practice, the order will likely most impact so-called “collateral” arrests, or detentions that occur when ICE arrests someone who wasn’t the target of an operation or was caught up in a larger arrest sweep. All four of the named plaintiffs in the lawsuit were not direct targets of ICE: Two were arrested in broader sweeps, a third was pulled over because ICE thought he was someone else, and the fourth — the college student — was pulled over only after a Mesa County deputy alerted agents that she was driving on I-70.
If ICE determines that an immigrant is in the country illegally but doesn’t pose a flight risk, the immigrant can be released for the time being. They may be arrested later — this time with a warrant — but the lapse in time would still prove beneficial, Jackson wrote, while complying with federal law.
Jackson noted the recent arrests of a Durango father and his two children as evidence. ICE arrested the father after initially mistaking him for someone else, but still kept him and his adolescent children detained. The family agreed to voluntarily return to Colombia earlier this month, though they remain in ICE detention, according to an agency database.
The man’s wife and children’s mother remains in Durango.
ICE attorneys had previously argued that they were following the law and that all four arrests identified in the lawsuit were lawful. They said that the four named immigrants were unlikely to face rearrest and that they didn’t have any standing to file the lawsuit.
But Jackson disagreed. He noted that all four arrestees had suffered ongoing harm from their arrests. Caroline Dias Goncalves, the University of Utah student, spent nearly three weeks in detention; she’s now moved in with her parents and dropped most of her classes. Another immigrant, identified only by his initials, has also moved in with a family member after losing his apartment. The family of a third arrestee, Refugio Ramirez Ovando, had to sell his truck and take on $20,000 of debt to pay for his legal defense.
“All the plaintiffs fear rearrest, and they and their families are suffering from emotional distress,” Jackson wrote.
The ruling is similar to court orders previously filed in Illinois. In response to a 2018 lawsuit, ICE had previously agreed to follow the law when it arrested people without warrants. But it declared that settlement over earlier this year and restart its warrantless arrest practices. That prompted a federal judge to reimpose the settlement.
After the settlement was reissued, ICE’s top lawyer sent a notice to every field office in the country, describing the proper way to conduct warrantless arrests. In October, the agency’s lawyers told Jackson that the new guidance should assuage concerns about future illegal arrests. But the agency refused to a court ordering requiring that they follow that policy.
In his order, Jackson wrote that a senior Denver ICE official who testified on behalf of the agency, Gregory Davies, did not seem to understand the arrest policy he was supposed to oversee — namely, that ICE can’t warrantlessly arrest someone if that person doesn’t indicate they’re likely to flee.
“His testimony does not imbue the Court with great confidence that ICE rigorously applies the individualized-flight-risk-assessment requirement,” he wrote, “and instead supports plaintiffs’ contention that ICE has a pattern or practice of failing to make such determinations.”
This is a developing story and will be updated.
