ICE detention cases are surging in Colorado. The DOJ keeps losing the legal fight.

By Shaina Cole | Contributing Writer, Rocky Mountain Voice

Five people filed habeas corpus petitions challenging their Immigration and Customs Enforcement detention in all of Colorado federal court in 2024. One hundred five filed in 2025. Through June 15th of this year, 722 have filed, and the pace has held at more than 150 a month since March.

Every one of those cases carries attorney fee exposure when the government loses. Of the cases resolved on the core detention question so far — spanning late 2025 and 2026 — Colorado judges granted the petition 248 times. Only one judge, Chief Judge Daniel Domenico, has ruled for the government on the merits — and he has done so repeatedly. And the same Justice Department that keeps losing keeps defending the legal theory behind the cases.

Colorado taxpayers are helping fund the legal infrastructure around Aurora’s detained immigrants. Federal taxpayers are writing the checks when courts award fees against the government. The Board of Immigration Appeals (BIA) recently extended the same rejected legal theory into another category of cases. 

How it started

On September 5, 2025, the Justice Department’s Board of Immigration Appeals issued a precedential ruling in Matter of Yajure Hurtado. It eliminated bond hearings for people in the country without formal admission, holding that immigration judges lack authority to grant bond to anyone present in the United States “without inspection,” regardless of how long they had been living there.

The practical effect was immediate. People who previously could have sought bond from an immigration judge were redirected toward a different kind of legal challenge — habeas corpus petitions filed directly in federal district court, arguing the detention itself was unlawful.

In December 2025, 39 such petitions landed in the District of Colorado. By March, filings hit 157. They have not dropped since.

The filing surge reflects two converging pressures. The Aurora detention facility saw its population climb from roughly 1,200 in mid-2025 to a peak of approximately 1,400 by early 2026, according to data from the Vera Institute of Justice. More people detained meant more potential petitioners, but the legal theory behind many of the petitions remained the same.

The fee ruling that changed the economics

Two months after Yajure Hurtado, the Tenth Circuit issued its own ruling that changed everything downstream.

A three-judge panel on the Tenth Circuit unanimously affirmed an $18,553.92 fee award in Daley v. Ceja on November 3, 2025. In doing so, they rewrote the financial calculus of immigration detention litigation across six states. 

Eva Daley had spent 450 days at the Aurora Contract Detention Facility without a bond hearing before a district judge ordered one. When her attorneys sought fees under the Equal Access to Justice Act, the government argued habeas petitions fall outside the law’s reach. The Tenth Circuit said otherwise. 

Every attorney who prevails on an immigration habeas petition in Colorado, Wyoming, Utah, Kansas, Oklahoma or New Mexico can now seek fees from the federal government under the Equal Access to Justice Act.

The machine that followed

Five months after Daley v. Ceja, the litigation surge had acquired a support structure.

The Rocky Mountain Immigrant Advocacy Network (RMIAN), a Westminster-based nonprofit whose attorneys co-counseled Daley v. Ceja, posted two simultaneous job listings on April 1, 2026. 

One position, offering up to $111,780 annually, described the attorney’s primary work as challenging unlawful detention “through filing petitions for writ of habeas corpus in federal district court and subsequent appeals.” The other would staff RMIAN’s detention program at Aurora.

On April 28, RMIAN and the Colorado Bar Association co-hosted a half-day training on habeas petitions in Colorado federal court. The training was free and offered four continuing legal education credits. The agenda included a panel discussion on tracking time for possible EAJA fee recovery.

The training session on claim identification featured a former Associate Deputy Attorney General and Senior Litigation Counsel from the Justice Department, who presented alongside an Of Counsel lawyer representing Gibson Dunn & Crutcher.

The University of Denver’s Immigration Law and Policy Clinic sent its director to lead the second claims session.

What began as emergency legal aid had become an organized litigation pipeline, with training, staffing and a potential federal fee-recovery mechanism attached.

One legal theory, 722 filings

The core legal fight in Colorado’s habeas surge comes down to the same statutory question.

The federal government maintains that §1225(b)(2)(A) of the Immigration and Nationality Act treats any noncitizen present in the U.S. without formal admission as an applicant for admission. That reading subjects them to mandatory detention without the possibility of a bond hearing, regardless of their length of residency in the country.

In oral argument for Quiroz v. Mullin, Deputy Assistant Attorney General Drew Ensign told the Tenth Circuit that the policy is contrary to decades of prior practice but argued those prior bond hearings were not legally required. “Bizarrely, the executive practice went completely the opposite way,” he told the panel. “Seemingly, it was on autopilot for a good quarter-century.” The government contends the statute always authorized mandatory detention and prior administrations simply failed to apply it.

Yajure Hurtado classified interior aliens who entered without inspection as “applicants for admission” subject to mandatory detention under §1225(b)(2) — no bond, no hearing. 

Colorado’s federal judges have repeatedly rejected that classification, holding that people previously released by the government are subject instead to §1226(a), which requires a bond hearing where the government bears the burden of proving continued detention is justified. Federal appeals courts elsewhere have split on the same question. The Fifth and Eighth Circuits sided with the government, while the Second, Sixth and Eleventh rejected it.

In Martinez Escobar v. Baltazar, Judge Nina Y. Wang ordered the government to prove continued detention is justified by clear and convincing evidence — a standard the statute itself does not specify but that judges across the district have consistently imposed.

Courts have rejected the government’s reading of §1225 on two grounds. First, they hold that §1226 — not §1225 — governs people who have already entered and been living in the United States, with §1225 applying primarily to noncitizens seeking entry. 

Second, they have rejected the government’s separate argument that the district courts lack jurisdiction to hear these challenges at all, a position one federal court called an “extreme minority” view. 

A District of Colorado order from April 17, 2026 in Maldonado Ochoa v. Baltazar confirmed the district’s uniform position, tracing a string of decisions to October 31, 2025.

The appeal for Quiroz v. Mullin will determine whether Yajure Hurtado is valid law across six states.

Federal law already authorizes mandatory detention without a bond hearing for noncitizens with qualifying criminal convictions — a rule the Supreme Court upheld in Demore v. Kim. Through Yajure Hurtado, the BIA extended that same no-bond treatment to people without criminal convictions, a population the existing law does not reach.

Colorado’s role

Colorado did not design any of this. But its legislature built one of the pieces.

In 2021, the General Assembly passed HB21-1194, creating the Immigrant Legal Defense Fund. The fund awards grants to nonprofits for legal representation in immigration court proceedings. By fiscal year 2024-25 it had grown to $700,000 under HB24-1430. Seventy percent of grants must go to organizations serving detained clients.

RMIAN is one of the central organizations doing that work in Colorado.

The state fund cannot pay for federal habeas litigation. HB21-1194 explicitly excludes district and circuit court representation. But it does help fund the detained-immigrant legal infrastructure around Aurora — including staff, screening and representation work that sits upstream of habeas litigation.

The habeas litigation runs on EAJA fee awards and private sources.

Waiting on the Tenth Circuit

The Tenth Circuit heard arguments on May 12. It has not yet ruled. 

If the court upholds Yajure Hurtado, Colorado’s judges lose the statutory basis they have used to grant these petitions, and the current surge could sharply narrow. If it rejects Yajure Hurtado, the government’s detention policy in six states is blocked by circuit precedent, and the litigation pipeline becomes much harder to shut down.

The BIA is not waiting. 

On June 2, the BIA extended Yajure Hurtado in the context of former unaccompanied minors, holding, in Matter of N-A-G-C-, that neither a prior designation as an unaccompanied alien child nor an approved Special Immigrant Juvenile petition restores an immigration judge’s authority to redetermine custody.

It is building on a theory that District of Colorado judges have rejected case after case, even as the Tenth Circuit has yet to weigh in. 

Colorado did not create the federal policy. But Colorado taxpayers are helping fund the legal infrastructure challenging it, while federal taxpayers pay when the Justice Department loses and courts award fees.