A federal judge in Colorado ruled last week that it is not mandatory for a person to seek a bond hearing with an immigration judge before they challenge the lawfulness of their detention in federal court.

For the past year, Colorado’s U.S. District Court has faced a flood of “habeas corpus” petitions from those in immigration detention. The most common allegation is that the government is improperly denying bond hearings to people who are eligible by law to be released while their immigration proceedings unfold. Colorado’s judges have largely agreed with that argument, and the Denver-based federal appeals court recently handed down a binding interpretation of the law confirming that view.

But is a request for a bond hearing required in order to file a habeas case?

Luis Vásquez Noguera, representing himself from Aurora’s privately operated detention center, is a Costa Rican citizen who an immigration judge released on bond in September 2024. Nearly one year later, U.S. Immigration and Customs Enforcement arrested him and an immigration judge ordered him deported in October. He appealed the decision and the case remains pending.

On April 27, Vásquez Noguera filed a habeas petition seeking release or a bond hearing at which the government must justify his continued detention based on safety or flight risk.

The government argued that a federal judge should not entertain Vásquez Noguera’s petition because he never requested a bond hearing with an immigration judge prior to his habeas challenge.

“The Court should not permit Petitioner to circumvent the clear statutory requirements,” wrote Assistant U.S. Attorney Andrew M. Soler. “Petitioner should not be permitted to use the Petition to circumvent IJ review, or as a substitute for direct appeal to the (Board of Immigration Appeals).”

In an Aug. 6 order, Judge Gordon P. Gallagher disagreed that the law required someone in Vásquez Noguera’s position to go through an immigration judge and the Board of Immigration Appeals before challenging the lawfulness of their detention.

“Petitioner claims that his continued detention violates the Fifth Amendment’s due process guarantee,” wrote Gallagher, a Joe Biden appointee. “The IJ/BIA cannot adjudicate constitutional due process challenges to the legality of prolonged detention itself, rendering the suggested request for a bond hearing before an immigration court an inadequate forum.”

He added that the government’s envisioned process would be lengthy, as evidenced by Vásquez Noguera’s underlying immigration appeal remaining undecided after nine months.

“Each step takes time, and every day is another day of the confinement Petitioner contends is already unconstitutional,” Gallagher wrote. “Where the harm alleged is the detention itself, an additional administrative step requiring months of further detention before a court may hear the claim defeats the purpose it purports to serve.”

He ordered the government to give Vásquez Noguera a bond hearing or otherwise release him.

Previously, Judge Philip A. Brimmer reached the same conclusion in a 2023 habeas case, but did not analyze the issue at length because the government did not pursue the argument. Although Gallagher cited a 2024 order from Judge Regina M. Rodriguez, who found that a petitioner did not need to appeal an immigration judge’s denial of bond before filing a habeas case, Gallagher’s decision appeared to be the first in Colorado to address in detail the need to seek a bond hearing in immigration court.

Such a requirement “would be futile and irrelevant because those courts can’t address the core issues that are at play in these cases,” said immigration attorney Hans Meyer.

The case is Vásquez Noguera v. Baltazar et al.