U.S. District Court Judge Charlotte Sweeney, a Biden appointee, summoned acting ICE director Nathan Rasper to her courtroom after learning that detainees freed on habeas corpus orders were being taken back into custody almost immediately. The hearing followed earlier testimony that ICE agents had transported Ramon Quintero Alvarez of Wyoming and others to the agency's Centennial office and then back to Aurora to re-arrest them after Sweeney had ordered their release.

"It has instilled a new level of fear in that facility that I find completely inappropriate and needs to be addressed," Sweeney said, describing filings from detainees who said "everyone is terrified" that their releases will prove illusory.

Rasper, a 20-year ICE employee who became acting director in mid-October, testified that he gave a verbal instruction to re-arrest people released by judges after hearing from colleagues in Minnesota that courts there had allowed immediate re-arrests. He said he consulted ICE's principal legal advisors and believed the agency had authority to act after correcting "paperwork errors" on arrest forms. He did not personally review Alvarez's case before the re-arrest.

Sweeney asked Rasper whether he was aware of an Oct. 8 memorandum of agreement between the federal trial court and the U.S. Attorney's Office that provides for automatic release of petitioners when the government declines to defend their continued detention. Rasper said he was not.

"Frankly, I am unclear how anyone can argue with a straight face that what you believed was appropriate and could lawfully occur," Sweeney told him. "Releasing somebody momentarily is not releasing somebody at all."

Rasper confirmed he had stopped the re-arrests after Sweeney's initial hearing last week. He also characterized testimony from assistant field office director Nichole Black—who said she received a "direct order" to re-detain habeas releases with "some kind of criminality"—as an "overly compressed" version of his instruction.

The hearing also surfaced tensions between ICE and federal prosecutors. After an unnamed ICE spokesperson suggested to news outlets that prohibiting immediate re-arrests amounted to "sabotage," Kevin Traskos, chief of the civil division at the U.S. Attorney's Office, told Sweeney his office had not known the statement would be submitted and had not been provided with it.

Sweeney ordered the government to produce a list of everyone released under habeas orders and subsequently re-arrested. The ACLU of Colorado intervened, arguing the list was incomplete and that more re-arrests may have occurred.

Other federal judges in Colorado have moved quickly in response to the practice. Judge Gordon P. Gallagher amended a release order on Nov. 5 to clarify that ICE could re-arrest a petitioner only on a final order of removal. The next day, Judge Philip A. Brimmer told ICE it "may not re-detain petitioner without advance notice to this Court."

Sweeney said she had invited Alvarez to attend Monday's hearing, but he was not present. "Who can blame him?" she said, adding that he likely "has no faith that he will not be picked up again, even despite two court orders trying to guarantee that for him."

She will issue a written order deciding whether to initiate contempt proceedings. "I think the only bright spot in all this is that the process was brought to our attention fairly quickly and looks to have been in place for about a week and was then stopped," she said.

Separately, Judge Nina Y. Wang is examining ICE's practice of imposing its own conditions of release on habeas petitioners that do not stem from judges' orders. She has given the government until Tuesday to produce the directives ICE has issued on the topic.

Colorado's federal trial court has faced a flood of habeas corpus petitions from immigration detainees over the past year, pushing filings to unprecedented levels as petitioners challenge bond denials, the adequacy of bond hearings, and conditions ICE has unilaterally imposed on release.