A federal judge concluded last week that an immigration judge employed the incorrect procedure when denying bond to a detainee and relied on dubious evidence to find he was a flight risk.

Under federal rules governing immigration cases, the filings and underlying details of Hugo Cervantes Arredondo’s case are restricted from public disclosure. However, on Oct. 31, U.S. District Court Senior Judge R. Brooke Jackson ordered that immigration authorities hold a hearing to determine if Cervantes Arredondo should be released from custody while his immigration proceedings continue.

Jackson, like numerous other judges in Colorado and across the country, concluded that the government had mistakenly detained Cervantes Arredondo under a provision of law that forbids release on bond.

“Mr. Cervantes Arredondo has now been mandatorily detained under the wrong statute for over four months, depriving him of a core liberty interest,” he wrote at the time. “Under these circumstances, the government ought to bear the burden of proving that he poses a danger to the community or a risk of flight such that he should remain in detention.”

Weeks later, Cervantes Arredondo’s attorneys returned to Jackson, alleging an immigration judge had denied bond in early November in a way that did not comport with Jackson’s order.

In a new order issued on Dec. 18, Jackson outlined the events that followed his original directive. An unidentified immigration judge held a bond hearing at which the U.S. Department of Homeland Security submitted Cervantes Arredondo’s immigration arrest report and documents related to his sole misdemeanor conviction and other misdemeanor arrests. Cervantes Arredondo also introduced his own documentation. The department called no witnesses.

The immigration judge, in a written decision, did not find that Cervantes Arredondo posed a danger to the community, but did find that the government had proven him to be a flight risk.

Problematically, Jackson wrote, the immigration judge indicated they could consider “any evidence in the record” that is relevant.

“That analytical approach is appropriate in a bond proceeding where, as is ordinarily the case, the noncitizen bears the burden of proving a negative — that he is not a danger to the community or a flight risk,” wrote Jackson. “But where the government must prove a positive — that the noncitizen is a danger to the community or a flight risk — this mode of analysis risks subtly reassigning the burden to the noncitizen.”

Jackson found the immigration judge had neglected to specify whether the government’s own evidence established a flight risk, as he had originally ordered. The immigration judge instead relied on “perceived deficiencies” in Cervantes Arredondo’s documentation.

Jackson also worried that some of the government’s information “appears to be inaccurate.” Specifically, the immigration report described Cervantes Arredondo as having been arrested for “Flight to Avoid (prosecution, confinement, etc.)”.

“Of concern to this Court is that there does not appear to be a Colorado state crime named ‘Flight to Avoid,'” wrote Jackson, “or any clearly analogous offense.”

Moreover, the immigration judge’s chronology of Cervantes Arredondo’s alleged arrest was inconsistent with the other documentation the government submitted. Because it was unclear that the immigration judge would have found Cervantes Arredondo a flight risk absent the questionable information, Jackson concluded that the decision to deny bond did not comply with his original order placing the burden of proof on the government.

“If release is denied, the Immigration Judge shall state, orally and/or in writing, what evidence submitted by the government satisfied that burden,” Jackson wrote, reiterating how a new bond hearing should proceed. “In conducting that analysis, the Immigration Judge must first determine whether the government’s evidence, standing alone, meets that burden.”

Cervantes Arredondo’s attorneys did not respond to Colorado Politics’ questions about the identity of the immigration judge or for further information.

The case is Cervantes Arredondo v. Baltazar et al.