A Biden-appointed federal judge in Denver is weighing whether to open contempt proceedings after the acting head of ICE's Denver field office testified that he authorized the rearrest of detainees whom judges had ordered released.

U.S. District Judge Charlotte Sweeney interrogated acting Field Office Director Nathan Rasper on Monday, demanding that he explain how ICE can re-detain people after being ordered to release them, according to Colorado Public Radio.

In several hastily scheduled court hearings held over the past week, a handful of federal judges from the U.S. District Court of Colorado have hauled top Colorado immigration supervisors to the stand to question why they aren’t following, or even bothering to read, explicit orders restricting ICE’s conduct.

At least 18 people, and immigration attorneys estimate it’s likely much more given that so many immigrants represent themselves, have been held in detention longer than they should have or even been re-arrested after their release was ordered by federal judges in the past several weeks.

At a hearing on Monday — the latest in a series of similar encounters in the past week — U.S. District Judge Charlotte Sweeney pointedly asked the acting field director for ICE in Colorado for an explanation of how immigrants can be re-detained after being ordered set free by the court while they pursue immigration cases.

“Are you understanding the court’s concern?” she asked Nathan Rasper.

“Yes,” said Rasper, who said he has been in the ICE job for just a few weeks, but otherwise explained only that he had been confused about the rules his agents should follow, even though they have been repeatedly spelled out by federal courts in multiple jurisdictions.

Sweeney then faced a table with two assistant U.S. attorneys, who were sitting next to Rasper. 

“ICE is not in the position to monitor its own conduct in terms of its legality,” Sweeney said. “It is not something the court will tolerate. It’s a due process violation ... it’s truly egregious in terms of a constitutional violation. I will be issuing an order that reflects that.”

Rasper told the court that he instructed officers that people released through habeas corpus could be arrested again beginning October 27. He said he told officers to halt the practice on November 4. The official further stated that he believed some individuals had been detained without properly executed arrest warrants and that those warrants could later be executed to rearrest them.

Rasper testified that he gave the instructions after hearing from colleagues in Minnesota that courts there allowed them to immediately re-arrest suspects. He said he was not aware of an October 8 agreement between the federal court and the U.S. Attorney’s Office providing for automatic release when the government declines to defend a detention.

The ACLU of Colorado and immigration attorney and law professor Elizabeth Jordan identified at least 17 cases in Colorado where ICE held people in detention whom courts had ordered released, and described men being forced out of the gates of the GEO detention facility in Aurora on October 27 and immediately swarmed by ICE officers.

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Sweeney rejected the premise, saying, “Releasing somebody momentarily is not releasing somebody at all.” The judge ordered the government to produce a list of everyone released under habeas orders and subsequently rearrested, and will issue a written order deciding whether to initiate contempt proceedings.