A federal judge concluded on Monday that the government applied a 9/11-era regulation to a man in immigration detention in violation of his constitutional rights, in seemingly the first decision out of Colorado addressing the increased use of the “automatic stay” to block release on bond.

In a Jan. 12 order, U.S. Magistrate Judge Susan Prose further suggested the U.S. Department of Homeland Security is invoking the automatic stay far more frequently than the regulation envisions, keeping people detained even after they have been granted release.

“Although the court need not reach this issue here, the court is also not convinced that DHS has stayed within the bounds of its intended authority in recent months,” she wrote.

As the government has pushed to apprehend and detain people in immigration custody in record numbers, there has been a wave of litigation over the government’s authority to keep people in custody pending the resolution of their immigration proceedings. To date, trial judges have overwhelmingly concluded that the government is wrong about the scope of its authority to detain people without bond. Accordingly, judges have ordered hearings for immigration judges to decide whether to release detainees who are not a flight risk or a danger to the community.

However, according to data reported by Documented in December, the government has begun blocking immigration judges’ release decisions by invoking the automatic stay. As a regulation enacted soon after Sept. 11, 2001, to “prevent the release of aliens who may pose a threat to national security,” the automatic stay halts the release of a detainee for at least 90 days. If the attorney general intervenes, the stay can extend for the entirety of the custody proceedings, and the immigration judge’s release decision will not be implemented.

The government invoked the automatic stay 877 times over 12 weeks beginning in July, compared to three times total between 2020 and 2024, Documented reported.

In the case before Prose, Deniis Merchan-Pacheo filed a petition for habeas corpus, which is a longstanding legal tool to challenge one’s confinement. Although the federal rules largely shield the filings in Merchan-Pacheo’s case from public view, Prose’s order indicated he came to the United States from Ecuador in 2021 as a child, after which the government approved his U.S.-resident mother as his sponsor.

In 2023, the government initiated deportation proceedings against Merchan-Pacheo. He then filed an asylum application. In August, immigration authorities took him into custody and moved him to the privately run detention center in Aurora.

Immigration Judge Melanie Corrin determined Merchan-Pacheo was not subject to mandatory detention and could be released while his case proceeded. She set a $25,000 bond, which his family paid. The Department of Homeland Security then appealed the decision, invoking the automatic stay.

In her order, Prose reiterated that Merchan-Pacheo was eligible for bond, and she declined to review the immigration judge’s determination. She also rejected the government’s argument that, because detention during deportation proceedings is constitutionally permissible, Merchan-Pacheo’s specific detention was permissible.

Turning to the automatic stay, Prose worried about the Department of Homeland Security’s reliance on the procedural tool beyond its intended purpose.

“For instance, the court notes that despite the Attorney General’s statement that the automatic stay provision exists to enable DHS ‘to invoke the automatic stay with respect to aliens whom it believes are potentially dangerous, or are at risk of absconding prior to the conclusion of removal proceedings, or whose cases DHS believes otherwise present important considerations,'” she wrote, “no such concerns have been cited here, and it is clear that over the last few months, the automatic stay provision has been invoked across a much broader array of cases than this language would support.”

Analyzing the required factors, Prose concluded the government did not have a “strong” interest in continuing Merchan-Pacheo’s detention, given the immigration judge’s finding that he was suitable for release. Moreover, she cautioned that the automatic stay gives “the losing party in the bond hearing” a path to override an immigration judge’s release decision.

She ordered his release on the $25,000 bond.

Laura Lunn, an attorney with the Rocky Mountain Immigrant Advocacy Network who was not involved in the case, said Prose’s order was the first to her knowledge addressing the automatic stay’s legality in Colorado.

“This scheme severely undermines the authority of the immigration courts and serves to try to strip people of the right to discretionary release from custody,” she said. Prose’s observation about the government’s use of the stay “seemingly calls into question whether (U.S. Immigration and Customs Enforcement) is acting in good faith and within the bounds of the regulatory scheme.”

Immigration attorney Hans Meyer said he recently litigated a case involving an automatic stay, but the litigation was resolved on different grounds. He believed challenges to the automatic stay will become more prevalent, similar to the wave of litigation over mandatory detention. Meyer agreed with Prose’s concern that the government is using the automatic stay as a matter of course, regardless of the justification.

“They’re using their arguments against people without the wherewithal or firepower to push back. To us, it pretty clearly seems like a use of the legal system to advance the deportation machine,” he said.

The U.S. Attorney’s Office for Colorado declined to comment on Prose’s characterization of the government’s conduct. ICE’s Denver office did not respond to emailed questions about the automatic stay.

The case is Merchan-Pacheo v. Noem et al.