EL PASO — A Mexican reporter and his son who have been detained since last year won a small victory Tuesday when a federal judge set a hearing to determine whether the government has been holding the two in violation of the First Amendment.

Emilio Gutiérrez Soto and his son Oscar have been in an immigration detention center here since they were nearly deported back to Mexico in December. They fled the border state of Chihuahua in 2008 when Emilio Gutiérrez’s reporting on cartel crime and government corruption led to death threats; the two had been living legally in the United States since then, awaiting a final decision from an immigration judge on their asylum claim.

Their claim was denied in 2017, but the Board of Immigration Appeals said in May it will reconsider the case based on new evidence. The Gutiérrezes have been detained since being arrested in December during what Gutiérrez's lawyer said should have been a routine check-in with Immigration and Customs Enforcement.

On Tuesday, U.S. District Judge David Guaderrama set an Aug. 1 hearing to determine if there was merit to the Gutiérrezes' claim that they have been held without cause. The order came after the International Human Rights Clinic at Rutgers University filed a writ of habeus corpus seeking their immediate release. Federal officials asked the judge to dismiss the writ, but the judge instead highlighted several areas of concern in his 26-page order, including whether Emilio Gutiérrez was targeted for speaking out against the federal government.

The Texas Tribune thanks its sponsors. Become one.

“This is a really important First Amendment opinion," Penny Venetis, the Rutgers University law professor who wrote the writ, said in a press release.

It’s unclear whether Gutiérrez and his son will be released pending the appeals process.

In October, Emilio Gutiérrez received the National Press Club’s John Aubuchon Press Freedom Award for his reporting in Mexico and publicly criticized the asylum process in the United States. His attorney and press freedom advocates contend that his criticism of the government played a part in his arrest.

The federal government claims it detained the father and son only after the immigration judge in their case issued a final order of removal in August. But according to emails between Immigration and Customs Enforcement officials that were obtained by the National Press Club, federal agents were “already targeting” Emilio Gutiérrez in February.

“This is significant because it is before the immigration judge issued the removal order in July 2017, which became final in August 2017,” Guaderrama wrote. “Moreover, Mr. Gutiérrez-Soto criticized ICE and the government in a very public manner while accepting a prestigious award from the National Press Club. His arrest occurred only a couple months later.”

The judge also noted that Bill McCarren, the National Press Club's executive director, gave a sworn statement in which he said ICE officials suggested he and others “tone it down” when it came to drawing attention to the reporter’s case.

The Texas Tribune thanks its sponsors. Become one.

When the Tribune wrote about McCarren’s account in December, William P. Joyce, the acting field office director for ICE enforcement and removal operations in El Paso, said there was no such suggestion.

“At no time was it stated, suggested or hinted that media reporting of this case be ‘toned down’” he wrote.

Eduardo Beckett, their attorney, said the judge’s order is a defense of free speech.

“Whether you’re an asylum seeker or a journalist you have right to criticize the government, whether it’s the Mexican government or the U.S. government,” he said.

Read related Tribune coverage: