A federal judge has determined the government was unjustified in its fight to keep a woman locked up in an Aurora immigrant detention center while her deportation case proceeded.

U.S. District Court Judge Charlotte N. Sweeney ordered the federal government last September to hold a hearing to determine whether Brenda Viruel Arias should be released from custody. Sweeney found the circumstances of Viruel Arias’ 14-month confinement required a bond hearing to avoid infringing on her constitutional right to due process.

Shortly afterward, an immigration judge permitted Viruel Arias’ release after the government failed to prove she should remain behind bars.

Viruel Arias’ lawyers then requested $22,601 in attorney fees from the government. Under federal law, victorious parties in civil cases against the government may receive attorney fees if, among other things, the government’s position was not “substantially justified.”

On July 12, Sweeny agreed the government was not substantially justified in resisting a release hearing for Viruel Arias. In recent years, she observed, federal judges in Colorado have been sympathetic to non-citizens’ claims of unconstitutional confinement where the detention has exceeded one year. The government, as a party those cases, was aware of the judiciary’s attitude toward prolonged detention.

“(T)hey do not justify why they did not follow a clear legal trend,” Sweeney wrote.

Viruel Arias was born in Mexico and her mother brought her to the United States at age two or three. She reportedly experienced abuse and molestation as a child and suffered from a number of disorders. After Viruel Arias pleaded no contest to criminal sex assault charges in California in 2018, federal immigration authorities arrested her. They brought Viruel Arias to the privately operated immigration detention center in Aurora in June 2021.

An immigration judge initially ordered her deported in January 2022. However, while her case was on appeal, the attorney general issued new instructions allowing immigration judges to account for a non-citizen’s mental health issues when determining if they are dangerous. The appellate body ordered another hearing for Viruel Arias.

On Aug. 30, 2022, attorneys for Viruel Arias filed a petition for habeas corpus in federal court, which is a means of challenging an illegal confinement. At that point, Viruel Arias had been in immigration custody for 433 days and had not received a hearing to determine if she should be released in accordance with the vast majority of immigration cases.

Viruel Arias’ attorneys argued her mental health was in decline and she had attempted suicide multiple times. Although the U.S. Court of Appeals for the 10th Circuit, which covers Colorado, had not weighed in on the subject, they pointed out that other federal circuit courts found the constitutional guarantee of due process imposes some time limit on a non-citizen’s incarceration, unless there is a hearing to determine their suitability for release.

The government acknowledged that existing case law centered around the assumption that immigration detention would be “brief,” but noted Viruel Arias was subject to mandatory detention under federal law because of her criminal conviction. Moreover, days before Viruel Arias filed her habeas corpus petition, Immigration Judge Steven Caley declined to release her, finding she was a danger to the community and a flight risk.

“This is not a case where Petitioner is being held in detention without diligent or meaningful progress being made on her immigration proceeding,” wrote Assistant U.S. Attorney Thomas A. Isler.

Sweeney disputed whether Caley’s refusal to release Viruel Arias was good enough. The documentation contained no explanation for the decision and it was unclear what evidence he considered.

While Sweeney acknowledged federal law required Viruel Arias to be detained, she emphasized the Constitution does not permit unjustified confinement. She ordered a bond hearing for Viruel Arias – with specific consideration for Viruel Arias’ mental health – where the government needed to justify continued detention.

Days later, Caley released Viruel Arias without bond.

Her lawyers then moved to recover $22,000 in fees under the Equal Access to Justice Act. The law’s purpose is to facilitate challenges to unjustified government actions by ensuring attorneys receive compensation for prevailing in civil lawsuits.

The government insisted that Viruel Arias’ habeas corpus petition was not a civil case, and that its opposition to her bond hearing was justified given the lack of direction from the 10th Circuit or the U.S. Supreme Court about when a non-citizen’s detention becomes unconstitutional.

Sweeney disagreed on both fronts. While the 10th Circuit has never answered the question, she believed Viruel Arias’ petition was a civil matter because immigration proceedings are civil. Further, Congress intended the Equal Access to Justice Act to encourage otherwise-unrepresented plaintiffs to sue – a rationale that extends to immigration proceedings where non-citizens are often without lawyers.

Sweeney also pointed to a string of recent decisions in Colorado where federal judges ordered bond hearings when the detention of non-citizens had stretched for a year or more. While there is no set limit on confinement, U.S. Magistrate Judge Kristen L. Mix in 2019 was the first to borrow a set of criteria from other courts to weigh whether a detention is constitutionally unjustified. Since then, more judges have latched onto the factors to intervene at the Aurora facility.

The government knew this, yet opposed Viruel Arias’ request.

“Thus, it is clear that Respondents’ position would not be substantially justified to a reasonable person,” Sweeney wrote, “given Respondents’ awareness of how this same legal issue – lengthy detention without individualized bond hearings – has been consistently resolved in this District.”

The case is Viruel Arias v. Choate et al.