ICE Re-Arrest Contempt: Judges in Two States Push Back

Two federal judges spent Monday on the same question: when a court orders ICE to free someone, can officers arrest that person again at the door?

ICE re-arrest contempt proceedings moved forward in two federal courts on Nov. 9, as judges in Minnesota and Colorado pressed the government over detainees who were released on habeas corpus orders and then taken straight back into custody. In Minneapolis, U.S. District Judge John Tunheim heard arguments on whether the government should be held in civil contempt after ICE re-arrested a 27-year-old Guatemalan man for the second time, MPR News reported. In Denver, U.S. District Judge Charlotte Sweeney questioned ICE’s acting Denver field office director, who testified that he had verbally told staff to re-detain some people the court had freed, according to the Denver Gazette.

The stakes reach past two cases. A habeas petition under 28 U.S.C. 2241 is now the main way detained immigrants challenge custody, and a release that can be undone a few steps outside the jail is little remedy. Both judges said so in nearly the same words. Tunheim wrote that allowing someone “to step one foot outside a cell is not release in any sense of the term.” Sweeney said from the bench that “releasing somebody momentarily is not releasing somebody at all.”

Minnesota: a voluntary departure deal at the center

The detainee, identified by MPR News only as Ivan, was arrested Sept. 11 on his way to work. Tunheim found the warrantless arrest unlawful and ordered him freed; ICE released and re-arrested him Oct. 1. After a second release order on Oct. 30, ICE arrested him again Friday at the Bishop Henry Whipple Federal Building. Tunheim has ordered him held at the Sherburne County Jail until the case is decided.

“I prefer to think of it as a new arrest,” said Derek Ganzhorn, an ICE attorney serving as a special assistant U.S. attorney. According to MPR News, the government argues that Ivan accepted voluntary departure, that ICE had told the court detention would be mandatory if he did not leave by Nov. 4, and that the departure order then became a final removal order. His lawyers say he agreed only under the pressure of detention.

That is the legally serious part. A person who misses a voluntary departure deadline generally becomes subject to the alternate removal order, and detention after a final order falls under 8 U.S.C. 1231, which makes custody mandatory during the 90-day removal period. If Tunheim accepts that the second arrest rested on that new footing, the government may avoid contempt despite the sequence. If he finds the departure deal coerced, or used to get around his order, the re-arrest reads far more like defiance.

The district’s judges are split. MPR News has confirmed at least eight instant re-arrests at the Whipple building; Judges Eric Tostrud and Jerry Blackwell declined to order re-release, while Judges Jeffrey Bryan and Tunheim found re-arrests violated their orders. A divide like that is likely to reach the Eighth Circuit. The pattern drew an earlier warning from a Minnesota judge in October.

Colorado: the instruction came from the field office’s top official

Sweeney’s hearing, in a habeas case brought by Ramon Quintero Alvarez from the privately run Aurora detention center, traced the Colorado practice to its source. Nichole Black, an ICE assistant field office director, testified she received “a direct order” to “re-detain habeas releases that had some kind of criminality.” It came through deputy director George Valdez from acting director Nathan Rasper, who has led the office since mid-October. Rasper said he gave the verbal instruction after hearing from Minnesota colleagues that courts there had allowed immediate re-arrests, and confirmed the re-arrests have stopped.

Sweeney said the practice “has instilled a new level of fear in that facility that I find completely inappropriate and needs to be addressed,” and will decide in a written order whether to open contempt proceedings. The ACLU of Colorado, which intervened, argued the government’s list of re-arrests is incomplete.

That testimony links the two states: a practice some Minnesota judges let stand became the stated basis for a directive in Colorado, showing how a split among trial judges can travel between ICE field offices. Colorado judges are already tightening their orders. According to the Denver Gazette, Judge Gordon Gallagher on Nov. 5 allowed re-arrest only on a final removal order, and Judge Philip Brimmer on Nov. 6 wrote that ICE “may not re-detain petitioner without advance notice to this Court.” Another order barred re-detention without a prior bond hearing, and Judge Nina Wang is examining ICE’s release conditions.

Volume explains why these fights multiply. ICE’s average daily detention population rose from 39,314 on Jan. 20, 2025, to 67,180 on July 30, 2026, according to a September 2026 Government Accountability Office report, and every detention is a potential habeas petition. Re-arrests after habeas wins have surfaced in at least 20 cases nationwide.

Dates and decisions to watch

Tuesday, Nov. 10: the government’s deadline in Judge Wang’s inquiry into ICE release conditions in Colorado.
Saturday, Nov. 14, 9 a.m.: filings due to Judge Tunheim on the second release and re-arrest.
No date set: Judge Sweeney’s written order on whether to begin contempt proceedings.

Civil contempt aims to force compliance rather than punish, and courts seldom turn it on federal agencies, though a Pennsylvania judge last month held three officials in civil contempt. Whatever Tunheim and Sweeney decide, the practical effect is already visible: release orders now spell out limits on re-arrest, and advance-notice terms are likely to become routine requests.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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