An exasperated Colorado federal judge on Wednesday ordered the U.S. Department of Justice to return to court and explain why it has so far not appeared to be following orders on detaining undocumented immigrants in the state without warrants.
“These things shouldn’t be that difficult,” Senior U.S. District Judge R. Brooke Jackson told Trump administration lawyers in a remote hearing on a preliminary injunction they are apparently not complying with.
“The policy of (Immigration and Customs Enforcement) was a good policy and all they have to do is comply with their own policies, and we’re good. But, for whatever reason, they insisted on not agreeing to that … and here we are sitting here today. I don’t get that.”
November order
In November, Jackson ordered immigration agents to stop making warrantless arrests in Colorado, which means, in essence, that they comply with existing federal law that bans detentions of people unless they’ve gone through a flight-risk assessment.
Attorneys from the American Civil Liberties Union of Colorado have argued since last year that federal immigration officers are routinely, even daily, detaining people without warrants signed by judges and without probable cause that the person being arrested is both in violation of immigration laws and likely to run and escape before a warrant can be obtained.
The case started with four immigrants’ stories that the ACLU argues represented a pattern in the way ICE agents have been operating in Colorado during the second Trump administration.
The four people were arrested and placed into detention without a warrant and without public evaluation about whether they were likely to flee before a warrant could be obtained. The four had lived in their communities for years, had long histories of local employment, schooling and presented no likelihood of running away — let alone probable cause that they would commit a crime.
One of the plaintiffs is Caroline Dias Goncalves, a University of Utah student who was detained after being stopped on Interstate 70 in Mesa County. She was brought to the United States from Brazil as a child and was in the U.S. on an expired visa. She had no criminal record and was detained for more than two weeks. She’s since been released.
Samples of arrest forms
Jackson’s preliminary injunction order in November required the federal government to send ACLU lawyers a sampling of arrest forms, called I-213s, so they could ensure the agents were making proper arrests moving forward.
In Tuesday’s hearing, ACLU lawyers argued the federal government is 100 percent out of compliance so far on the judge’s orders. And that the handful of forms they’ve received so far in the last couple of months are proof of that.
Tim Macdonald, the ACLU’s legal director, described a form he received from the federal government from a couple of weeks ago. He characterized the story to Jackson because the I-213s shared with the ACLU in the court records are sealed.
A man was arrested by ICE and detained. He didn’t have any criminal record or any pending criminal charges, he had been in the United States for eight years. ICE agents pulled his car over. There was no assessment of flight risk, no assessment of local family or community ties and he was eventually placed in detention at the GEO facility in Aurora.
Macdonald told the federal judge on Wednesday that the man has since disappeared, and he doesn’t know where he is. He was likely deported to another country, he said.
“They are in fact detaining and arresting people before they call headquarters, the arrests are being effectuated without a warrant,” Macdonald said. “All of the I-213s we submitted show ongoing violations of your order.”
Hearing set in March
Macdonald on Wednesday ultimately got what he went to the judge for, which is an evidentiary hearing that will make the federal government prove that they are indeed training ICE agents to follow the earlier preliminary injunction order and doing all that they can to comply.
Brad Leneis, an assistant U.S. attorney, told Jackson on Wednesday that they told immigration authorities that they had to comply with flight-risk assessments and obtain warrants before detaining people. He acknowledged that the arrest reports they have turned over to the ACLU so far are not fully in compliance.
“Looking at these I-213s, it doesn’t give the description of the arrest that is required by the court’s order,” Leneis said. “We started with zero, we had a lot of things to get in place … We are working through a set of challenges we face to implement the preliminary injunction, and we think the numbers now are better than they were in December. We think they will continue to improve.”
Issues over compliance
Leneis went on to tell Jackson, “the standard there is not absolute compliance, there is repeated material noncompliance.”
The ACLU’s Macdonald clapped back.
“They may not be complying in every instance, they aren’t complying in any of them that we’ve seen,” he said. “We are seeing uniform non-compliance.”
Jackson asked both sides to narrow down the fight before the March 10 evidentiary hearing and work together to see if they could eliminate the need for it.
“I want you to make a good faith effort to narrow this and even eliminate the need for this if possible. And come back to tell me where you are with these issues and disputes you have,” he said. “And so I can better prepare for the hearing myself.”
