A federal judge concluded the government was likely wrong to detain a noncitizen without the chance for a release hearing, and ordered him to be let out of immigration custody on Friday.

At the same time, U.S. District Court Judge Regina M. Rodriguez declined to green-light Nestor Esai Mendoza Gutierrez’s request to turn his lawsuit into a class action. Gutierrez intended for his case to cover all noncitizens with immigration proceedings in Colorado who the government is improperly keeping in custody pursuant to a 2025 re-interpretation of the law.

In an Oct. 17 order, Rodriguez indicated she “requires a better understanding of the scope and definition of the proposed class” before she can agree to expand the case. She will hold a hearing on Nov. 21 to have her “pending questions answered.”

Because of the federal rules governing immigration cases, many of the filings in Gutierrez’s proceedings are shielded from public view. However, the underlying legal issue has been litigated extensively around the country, including recently in Colorado.

Gutierrez, a native of El Salvador with a 26-year residency in the Denver area, has been in immigration detention since May. Represented by the ACLU of Colorado, Gutierrez argued he was allowed to be released under a provision of law applying to noncitizens “arrested and detained pending a decision” on their immigration case. The government countered Gutierrez — and others like him across the board — was subject to mandatory detention under a different provision that applies to noncitizens “seeking admission” to the country.

Last month, U.S. District Court Judge Charlotte N. Sweeney became the first to address the issue in Colorado in a different case. The government’s current view of the law is “wrong,” and mandatory detention without a bond hearing amounts to a due process violation, she concluded.

Rodriguez, who, like Sweeney, is a Joe Biden appointee, cited that decision in siding with Gutierrez. However, she noted that trial judges have also rejected the government’s interpretation in 92% of challenges.

“And the Court agrees with the reasoning of the courts that have done the hard work in analyzing the statutes,” she wrote. Consequently, “this Court joins other courts throughout the nation and finds that DHS (the U.S. Department of Homeland Security) has adopted a policy that likely violates federal law.”

In an unusual move, Rodriguez ordered Gutierrez to be released immediately, after finding the record of his proceedings “shows that if he had been provided with a bond hearing, he would have been granted a conditional release because he is unlikely to abscond or be a danger to the community.”

At the same time, she allowed the government to conduct a bond hearing, during which it will be the government’s burden to prove Gutierrez should remain in custody because he is dangerous or a flight risk.

The case is Gutierrez v. Baltasar et al.