Judge Highlights Government Fuckery In Ruling Over Migrant Detainees’ Due Process Rights

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.