A federal judge has deemed “constitutionally unreasonable” a man’s 30-month confinement at the privately-run Aurora immigration detention facility without the chance to seek release from custody.
“Continued detention,” wrote U.S. District Judge Christine M. Arguello in a Jan. 27 order, “requires an individualized bond hearing before an Immigration Judge to comport with due process.”
Oscar Villaescusa-Rios, 51, is a citizen of Mexico whom U.S. Customs and Immigration Enforcement took into custody in July 2018. That same month, ICE placed him in the Aurora detention center run by GEO Group, and he has remained there for approximately 925 days.
During that time, an immigration judge ordered his deportation, finding Villaescusa-Rios was convicted of a serious crime. However, the Board of Immigration Appeals reversed that finding and sent the case back for further consideration in February 2020. Currently, there is an appeal pending from the federal government over a subsequent decision to halt his deportation.
"We made multiple appeals to ICE for release through a system called humanitarian parole (where ICE has the discretion to release detainees), but those requests were denied repeatedly and almost without consideration," Tiago J. Guevara, Villaescusa-Rios's attorney, wrote to Colorado Politics.
The parties, according to Arguello, agree that Villaescusa-Rios is subject to mandatory detention because of his criminal record. Under the law, he has no right to a hearing over his continued detention.
However, the judge explained, the question was whether the Fifth Amendment’s guarantee of due process applied to Villaescusa-Rios’s prolonged detention with no hearing about whether he could get out on bond. According to the American Immigration Council, 100,000 people were serving an alternative to detention as of August 2019.
A 2003 decision of the U.S. Supreme Court found it permissible to detain immigrants during their deportation, or removal, proceedings — but briefly. At that time, the court noted, 85% of removal proceedings were completed within an average of 47 days.
“Almost 20 years after the Supreme Court’s decision,” Arguello observed, “periods of mandatory detention have grown significantly.”
While the Supreme Court did not indicate how long a detention had to last to become unreasonable, a previous ruling in Colorado’s federal court listed as factors to consider: the length of detention to date, its continuation into the future, the conditions of detention and delays to removal proceedings.
Applying those criteria, Arguello found other cases in which courts deemed periods of detention unreasonable that were shorter than Villaescusa-Rios’s. She also explained that the spread of COVID-19 posed a danger to Villaescusa-Rios, given his health.
“As of January 20, 2021, ICE reported 45 confirmed cases of COVID-19 under isolation or monitoring, as well as 174 total confirmed cases of COVID-19, at the GEO Aurora Detention Facility,” she wrote. “Respondents do not dispute that Mr. Villaescusa-Rios suffers from a lung condition that puts him at increased risk of developing complications from COVID-19. Mr. Villaescusa-Rios has already contracted COVID-19 while in ICE custody, for which he was hospitalized on October 11, 2020.”
Arguello ordered a bond hearing for Villaescusa-Rios, but denied his request for immediate release from detention.
A representative of GEO Group said that as a contractor for ICE, “our company plays absolutely no role in decisions related to the assignment, transfer or release of individuals at ICE Processing Centers.” A spokesperson for ICE referred questions to the U.S. Department of Justice, which did not immediately respond to a request for comment.
Guevara said he hopes the Biden Administration will issue clearer guidance for giving meaningful review to detainees' requests for release.
"The immigration system is supposed to be non-punitive. Still, a person can 'do their time' only to get incarcerated indefinitely by the immigration system without the opportunity to even request a bond," he said.
The case is Villaescusa-Rios v. Choate et al.
This story has been updated with comments from Villaescusa-Rios's lawyer.