Judge Highlights Government Fuckery In Ruling Over Migrant Detainees’ Due Process Rights
from the flow-my-sewage,-said-the-swamp dept
The ICE surge in Minneapolis, Minnesota was instigated by a far-right click bait artist and encouraged by the president’s portrayal of Somali immigrants as “garbage” people from a “garbage” country. And those were some of the nicer words Trump used to describe the people his agencies would be hunting down first.
Several weeks later, a draw-down has begun, prompted by two murders committed by federal officers, an inability to obtain indictments against protesters, and every narrative about violence perpetrated by federal officers disintegrating the moment the government was asked to provide some evidence of its claims to the court.
Hundreds of judges in hundreds of immigration cases have found that the government has routinely violated the due process rights of the immigrants it has arrested. This dates all the way back to the beginning of Trump’s second term, but months of roving patrols by masked men with guns has created a massive influx of cases courts are still trying to sort out. But one thing is clear: the government will do anything it can to keep the people it arrests from availing themselves of their constitutional rights.
This starts with the arrests themselves, which most often occur without a judicial warrant. The same goes for the invasion of people’s houses and places of business. With the Supreme Court giving its tacit blessing to casual racism (the so-called “Kavanaugh stops”), anyone who looks less than white or whose English has a bit of an accent is considered reasonably suspicious enough to detain.
The government has been on the losing end of hundreds of cases involving due process rights. This decision [PDF], coming to us via Politico’s Kyle Cheney, details the massive amount of constant movement this government engages in to keep people separated from their rights and physical freedom.
It opens with this:
Immigrations and Customs Enforcement (“ICE”) recognizes that noncitizen detainees have a constitutional right to access counsel. But in recent weeks, ICE has isolated thousands of people—most of them detained at the Bishop Henry Whipple Federal Building—from their attorneys. Plaintiffs, who are noncitizen detainees and a nonprofit that represents noncitizens, have presented substantial, specific evidence detailing these alleged violations of the United States Constitution. In response, Defendants offer threadbare declarations generally asserting, without examples or evidence, that ICE provides telephone access to counsel for noncitizens in its custody. The Plaintiffs’ declarations provide specifics of the opposite. The gulf between the parties’ evidence is simply too wide and too deep for Defendants to overcome.
It’s not like ICE can’t provide detainees with access to attorneys or respect their due process rights. It’s that they choose not to, now that Trump is in charge. The access is theoretically possible. It’s just being purposefully denied. And it’s not even just being denied in the sense that phone call requests are being refused. People detained by ICE are placed into a constant state of flux for the sole purpose of making it as difficult as possible for them to avail themselves of their rights.
The devil is in the details. And the court brings plenty of those, all relating to the administration’s “Operation Metro Surge” that targeted Minneapolis, Minnesota:
Detainees are moved frequently, quickly, without notice,and often with no way for attorneys to know where or how long they will be at a given facility. (ECF No. 20 (“Boche Decl.”) ¶¶ 9, 13, 18; ECF No. 24 (“Edin Decl.”) ¶ 6; Heinz Decl. ¶ 5 (explaining that of eleven clients initially detained at Whipple, ten were transferred out of the state within twenty-four hours); Kelley Decl. ¶ 19.) Once a person has been transferred out of Minnesota, “representation becomes substantially more difficult”—attorneys must secure local counsel to sponsor a pro hac vice application and navigate additional barriers.
This is a key part of the administration’s deliberate destruction of constitutional rights. Moving people quickly helps prevent habeas corpus motions from being filed, since they need to be filed in the jurisdiction where they’re being held. If detainees are shifted from place to place quickly enough, their counsel needs to figure out where they’re being held and hope that their challenge lands in court before their clients are moved again. And with the Fifth Circuit basically codifying the denial of due process to migrants, more and more people arrested elsewhere in the nation are being sent to detainment centers in Texas as quickly as possible.
All of this is intentional:
Defendants transfer people so quickly that even Defendants struggle to locate detainees. Often, Defendants do not accurately or timely input information into the Online Detainee Locator System. This prevents Minnesota-based attorneys from locating and speaking with their clients.The locator either produces no search results or instructs attorneys to call for details, referencing a phone number that ICE does not answer. Often, Defendants do not update the locator until after detainees areout of state. Attorneys frequently learn of their client’s location for the first time when the government responds to a habeas petition.
These are not the good faith efforts of a government just trying to get a grasp on the immigration situation. These are the bad faith efforts of government hoping to violate rights quickly enough that the people it doesn’t like will be remanded to the nearest war-torn nation/foreign torture prison before the judicial branch has a chance to catch up.
There’s more. There’s the phone that detainees supposedly have access to for their one phone call. It’s the same line used to receive calls for inmates, so that means lawyers calling clients back either run into a busy signal or a ringing phone that detainees aren’t allowed to answer and ICE officers certainly aren’t interested in answering.
Lawyers seeking access to their clients have been refused access. In some cases, they’ve been threatened with arrest by officers simply for showing up. Even if they happen to make it inside the Whipple Detention Center, ICE officers and detention center employees usually refuse them access to their clients.
And when people try to work within the unconstitutional limitations of this deliberately broken system, they’re mocked for even bothering to avail themselves of their rights.
When an attorney told an agent that she sent a copy of a releaseorder to the specified email address, the agent laughed and said “something to the effect of ‘yeah we really need to get someone to check that email.’”
To sum up, the government is exactly what the court thinks it is: a set of deliberate rights violations pretending it’s a legitimate government operation that’s just trying to do the best it can in these troubling times:
It appears that in planning for Operation Metro Surge, the government failed to plan for the constitutional rights of its civil detainees. The government suggests—with minimal explanation and even less evidence—that doing so would result in “chaos.” The Constitution does not permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be too challenging to honor those rights.
The administration has long lost the “presumption of regularity” that courts have utilized for years while handling lawsuits and legal challenges against the government. It no longer is considered to be acting in good faith in much of the country (Fifth Circuit excluded, for the most part). This is the “rule of law” party making it clear that it will only follow the rules and laws it likes. And it will continue to do so because courts can’t actually physically free people or force the government to respect their rights. The Trump administration is fine with losing in court and losing the hearts and minds of most of America as long as those in power keep getting to do what they want.
Filed Under: dhs, doj, due process, ice, immigration, kristi noem, mass deportation, minnesota, rights violations, todd lyons, tom homan, trump administration
Comments on “Judge Highlights Government Fuckery In Ruling Over Migrant Detainees’ Due Process Rights”
Intentional distractions
We still aren’t distracted from the fact that the current administration is fleecing the American people and that Trump is protecting billionaires from prosecution from the Epstein files with all of the redactions.
Just checking in:
ICE is still here, and still taking people. This is not over, please do not look away.
This is still ethnic cleansing. Homan is lying.
Re:
Indeed.
It’s not “their one phone call”. Please Google “one phone call myth”. “One Phone Call” is a media construct.
The reality is dependent on a lot of factors. Roughly, the limit is “what it takes to secure representation.”
Having said that, one of the telling lines coming from ICE was, “If we gave access to YOUR client, we’d have to give access for all of them. Can you imagine the chaos?”
Re: Yes I could.
NEXT, now you go to the back of the line to try again.
AND.
1 size fits all. 1 phone for 1000 people, and $5 per min to the receiver.
Then we get the Location has to have ENOUGH LAWYERS for habius Corpus, as it has to be Done in that SAME area as the FACILITY..
Can some check on the Population of the local area’s AND the Odds of Available Lawyers? Its call SUCK ALL TO HELL.
Circut court de Soleil.
Ahh yes the 5th circuit court of appeals.
Its in New Orleans (happy Mardi Gras) and says in big letters on the building “Justice Minor Wisdom 5th Circuit Court of Appeals”.
I still laugh about how white makes right in Louisiana
I keep having mental arguments with myself that go like this:
Since ICE are flagrantly operating outside the law, people should arrest them for a change.
The ones you don’t arrest will just come back and shoot whoever’s holding the arrested ones.
Then shoot first, no jury will convict you.
ICE won’t care if the court finds you innocent, they’ll kill you in retaliation anyway.
Then disguise yourself.
If they don’t find you anyway, which they probably can, they’ll just execute some scapegoats.
Then organize a group and arrest or kill them all, as many as possible at once.
If all the Trump goons are driven out of the city then they’ll start using drone strikes. There is absolutely no low they won’t sink to, the Venezuelan boat strikes are proof of that.
And then my argument with myself peters out because I don’t really know what the average person can do against a virtually endless horde of human-trafficking murderous psychopaths.
Re:
Not to mention your local cops are not going to arrest ICE. So your going to need to call in the national guard.
Assuming you can then know which hotels ICE are using, you could arrest them by blocking all the hotels and waiting them out. Opening fire is just off the table and clearing room by room will get people killed at some point.
Deploying the Guard as cops to peacefully arrest a huge chunk of ICE just gets the military deployed or like you said, Trump does something more insane to prove he’s the one in charge.
It is the Courts who have enabled ICE to get away with its abuses by officially gnoring Due Process rights.
But immigrant organizations are now having major courtroom success by filing Habeas Corpus motions against the FEDs.
In most cases, the FEDs cannot prove an actual criminal act occurred… and they quietly drop charges.
Re:
But then the feds dont release people even after the charges are dropped. Unless the courts haul officials in and hold them in contempt the feds will continue to abuse the citizens
“Moving people quickly helps prevent habeas corpus motions from being filed, since they need to be filed in the jurisdiction where they’re being held.”
Of course (IANAL), it strikes me that the relevant jurisdiction to file in is “The United States of America” because:
These are federal agents
Enforcing federal law(s)
Holding suspects in federal facilities
Administered by federal courts
All paid by a federal budget.
and federal law jurisdiction contains and controls every circuit, district, state, county, city, municipality, and even HOA jurisdiction in the entire USA.
Again: Fascists don’t go away unless killed.
Start now, or kiss your damn republic goodbye.
Re:
But that’s the logic of beasts! We have to exhaust all possible peaceful scenarios, wait for the fascists to gain control of a majority of levers of power and force that will be nigh-impossible to fight against, and then that’s when violence is justified; when we have a snowball’s chance in hell of fighting back against the fascists and winning.
Re: Re:
I can’t tell if you’re serious or deriding the wait-and-see crowd.
Anyways: yes – purging fascists is a beastly business, but it needs doing, post-haste.
Re: Re: Re:
Moving to shooting back is just a line people on the left loath to cross in mass. Honestly this is for good reason.
If one person crosses the line, he’s just a target. If he’s really good, like the DC sniper who took ages to get caught, The Gov will arrest “Someone” simply to close the case.
Even then you need to pick your targets so the left wont be mad at you. So shooting the killer of civilians, problem ok in public opinion. Shooting a random ICE agent with a wife and kids, Your going to get roasted.
So lots of people want this to happen, but they are also clearly afraid of becoming what they hate, and even if they are ok with it they may find the community is not yet ok with it.
Re: Re: Re:2
I realise all of that.
By the time you lot wake up the republic will have died, to rapturous applause, along with the rest of your comparatively limited freedoms.
Re: Re: Re:2
Honestly I wonder if even this is true for ICE anymore…
“In the United States, minimum jail cell sizes typically require at least 70 square feet for single-occupancy, though older or smaller cells may be approximately
feet (40 square feet). Standards often dictate 50–70 square feet per inmate, while multi-occupancy cells (double bunked) generally require 100 square feet. ”
Specs:
Classification: Jails are often classified by size, with “mega” jails (1,000+ beds) holding a disproportionate 37% of the total population.
What are the odds the location are for TEMP HOLDING, which is considered a Waiting room. NOT A JAIL.
SYMANTICS 101.
Many of the Smaller jails are over crowed, Understaffed, and what ever you want to add as most SMALLER Jail systems SHIP OUT to other states..
NOW how many of the locations are CONSIDERED Super jail Size and Built?
With Min 40sqft Per Prisoner? WITHOUT THE BUILDING, Luch rooms, Facilities for the WHITE WORKERS(?). 200×200 area, then add all the rest, AT LEAST 800×800 Facility AT THE BARE MIN. 5400 sqft. And No extra room to Fart.
HOW many of these Belong to 1 company? Being paid to build LINSTANT locations NOT designed to be a prison?
ANd if they are Bunking them up, 2 to a room to get MORE people in there? WHICH SHOULD BE AGAINST THE LAW.
I can see the Weaponized Guards NOW.
What to do with the Excess facilities AFTER THE FACT.
NO suggestions from me.
I know y’all may not believe this coming from me, but I’m a big fan of the Constitution. This includes Due Process.
If these tactics are designed to hide detainees from lawyers, then the tactics are legally and morally wrong. However, I think there are practical matters that should be considered. On my state, some county jails have a capacity of less than two dozen. In fact, I know one county that has a capacity of ten or fewer inmates. So, if ICE arrested more than a handful and put the detainees in a county facility with a small capacity, it’s conceivable that those detainees MUST be moved quickly in order to honor the facility capacity.
More importantly, as someone who practices criminal defense, I can confirm that this practice happens all the time and has been happening throughout the decades of my legal career. It happens to US citizens, and it happens to aliens. It happens to everybody. The government doesn’t like defendants to have representation. It’s nothing new, and it’s nothing specific to the people who shouldn’t be here in the first place. It can (and does) happen to anybody.
I wish that US citizens would show outrage for Constitutional violations against US citizens instead of reserving it for perceived violations against aliens.
Re:
You are assuming that the people were legitimately arrested and not that ice is already violating their due process rights due to skin color.
Re:
Here’s a quote from a famous defense lawyer you may not have heard before:
“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself was to be brought to the bar and condemned, perhaps to die, then the common man would say, ‘Whether I do good or whether I do evil is immaterial, for innocence itself is no protection’, and if such an idea were to take hold in the mind of the common man, that would be the end of security whatsoever.”
-John Adams (Founding Father, 2nd President of the United States), in his defense of the Redcoats after the Boston Massacre
Re:
No, something’s not really a “MUST” when one has voluntarily removed all other choices. Arrest fewer people. Build or acquire bigger facilities before they’re needed (with the current lack of foreign tourists, it shouldn’t be hard to get hotel space). Make damn sure lawyers can find the detainees, so they can get out on bail and free up space for others.
Re:
Definitely. And Trump wants to protect children from human traffickers. And Elon Musk is a free speech absolutist. And Gargamel just wants to be friends with the Smurfs.
Nope. They are wrong regardless of whether they are designed to or not. This is a giant red flag. It is functionally the same result regardless of your perception of the motive. The result is the violation, not just the motive. It is an actus reus.
Yes, we should stop and stroke our beards and furrow our brows while children get the measles and detainees die in custody and people get dropped off in odd places far from home without resources.
Or ICE shouldn’t conduct those arrests if they aren’t capable of providing due process. And if the courts are (and they are) ordering the release of many detainees (and not just the unconstitutionally abducted citizens), then the arrests were unnecessary in the first place. If the detainees are actually the criminals that ICE claims it’s seeking, there shouldn’t be an issue and their paperwork for detainment and deportation should already be in place. Why would you need to arrest someone if you weren’t deporting them? It’s almost as if they’re arresting people who don’t have active deportation statuses…
Oh, well that makes it okay then. Never mind. Carry on with the violations of rights! This random lawyer said it’s fine.
Marvin the Martian doesn’t get caught.
Except it literally doesn’t happen to everybody.
Here’s the clue, right here. When you think you’re being coldly logical, you slip in this “people who shouldn’t be here in the first place,” like it’s just a normal thing. Except these people include refugees from countries our government has directly fucked up. You don’t know all their scenarios, but you’ve decided they shouldn’t be here. You’re operating on your hatred and disgust here.
This is a broad generalization that simply isn’t true. Not everybody gets moved around and certainly not across state lines this much or often. You know this isn’t absolutely true.
That’s a false dilemma. Por que no los dos? And we literally are showing outrage for constitutional violations against US citizens, by ICE and CBP, in these exact same scenarios as they’re happening to immigrants and refugees. Check my responses to you in other comments. Ctrl-F for US citizens. You’ve been defending ICE’s actions as if they haven’t touched, much less murdered, a US citizen. And we’ve been pointing out that your defenses of this conduct has actually been affecting US citizens. How did your definitely sincere and earnest interest in good faith debate miss that?
Yes, big fan of the Constitution indeed, the way Hannibal Lecter is a big fan of dinner guests.
'Can't' impllies an attempt was made
And it will continue to do so because courts can’t actually physically free people or force the government to respect their rights.
Not can’t, won’t. I’ll believe that courts are actually trying to stop the regime’s latest illegal action(s) when they stop whining about the regime openly violating laws and court orders and instead issue contempt of court and/or perjury charges.
Until that happens their complaints are nothing more than empty bluster and both they and the regime knows it, which is why it’s so confident in ignoring both the courts and laws.
Just because they lost that presumption does not mean they are not regular however. For they are, in fact, quite regular. Regularly spewing bullshit that should not be presumed to be true.
Timing
Ir’s truly unfortunate that we didn’t have these draconian immigration policies in place 120 years ago. If we HAD, Trump’s draft-dodging PIMP of a grandfather would undoubtedly have been DEPORTED. Since his arrival here was caused by his deportation from his OWN HOME COUNTRY, it’s hard to say where he and his pregnant wife would have landed. Probably some “shithole country”, where they would have had to actually WORK for their money.