Multiple federal judges in Colorado granted petitions from people challenging the lawfulness of their immigration detention this week after the government took the unusual step of declining to submit arguments in opposition.
Colorado’s federal trial court is facing a flood of “habeas corpus” petitions from those in immigration custody. The most common allegation is that the government is improperly denying bond hearings to people who are eligible by law. Although the Denver-based federal appeals court has not yet issued a binding interpretation of the law, Colorado’s judges, like the vast majority of their peers nationwide, have almost uniformly agreed that the government is improperly detaining people without the opportunity for release.
This week, however, the U.S. Attorney’s Office submitted multiple responses to habeas petitions that declined to argue in favor of detention.
“Respondents maintain that Petitioner’s detention is lawful and do not concede that it is unlawful. But for the purposes of this specific case, Respondents are not submitting a brief in opposition to the Petition detailing the facts and circumstances of this case,” read the three-page response from the government.
The nearly identical responses were all submitted by Assistant U.S. Attorney Elliot Wertheim. A spokesperson for the U.S. Attorney’s Office declined to comment on behalf of Wertheim or the office itself in response to questions from Colorado Politics about whether the filings reflected a new policy.
“In light of Respondents’ representation that their response is ‘not submit(ed) … in opposition,’ and having reviewed the petition, the Court concludes that it is proper to grant Petitioner’s request for habeas relief,” U.S. District Court Judge Charlotte N. Sweeney wrote on Tuesday in one of two similarly worded orders reacting to Wertheim’s filings.
Chief U.S. Magistrate Judge Scott T. Varholak quickly followed suit in two more cases in which the government declined to argue in opposition. U.S. Magistrate Judge Cyrus Y. Chung issued two additional orders on Thursday and Friday, noting the government does “not make any legal argument.”
Colorado Politics contacted multiple attorneys who represent habeas petitioners, including those whose petitions the government declined to oppose. None of them understood the abrupt change to the government’s approach.
“I will say I found it odd — our office has litigated many habeas petitions, and this is the first time I have seen the government choose not to file a response brief,” wrote attorney Miriam Miller, who litigated one of the cases opposite Wertheim. “However, the majority of my caseload at this time involves these immigration habeas cases, and the government continues to contest every one of them, regardless of the circumstances. I have not seen any sort of shift away from that.”
After nearly all of Colorado’s federal judges have made clear for several months that they believe the government’s arguments about its mandatory detention authority are incorrect, the U.S. Attorney’s Office typically submits responses to habeas petitions that provide brief arguments in favor of its position, while recognizing that judges would logically grant the petitions by relying on their reasoning from similar cases. Colorado Politics looked at responses submitted by three other government attorneys in late May, which all followed the same template.
Wertheim’s recent responses, however, only stated the government’s non-opposition and its position about the appropriate relief should the habeas petitions be granted.
A former U.S. Department of Justice employee with knowledge of policies and procedures, speaking on condition of anonymity because they were not authorized to speak for the department, did not believe Wertheim shifted the government’s approach in Colorado unilaterally.
“All pleadings going out of the civil division of the U.S. Attorney’s Office are reviewed. There’s a review process. That pleading was reviewed and approved to be filed. Either the civil chief or a supervisor approved it,” the former employee said. “These are not rogue filings. These filings have been reviewed and vetted by the leadership in the U.S. Attorney’s Office.”
Colorado’s federal trial court has processed a high volume of immigration habeas cases ever since the government reinterpreted its detention authority more broadly last summer. Most judges now move the cases along rapidly, with some ruling on the same day that the government files its response.
Last week, at a discussion sponsored by the Colorado Bar Association, U.S. District Court Judge S. Kato Crews confirmed that the volume of habeas cases has not diminished.
“We and districts across the country continue to be inundated on a daily basis with these habeas petitions,” he said. “Nothing on the docket has died down in that respect.”
