Looks Like A Police State To Me, Says Federal Judge Handling Migrant Detention Cases

Under Trump, DHS, ICE, CBP, and Border Patrol have violated every single right affected by their daily work. When you’re trying to perform 3,000 arrests per day, you can be slowed down by things like the Constitution.

And these agencies certainly haven’t been slowed. In fact, they’ve been encouraged to continue violating rights by being told (by no less than DHS counsel) that judicial warrants aren’t needed to enter people’s homes, they’re free to hang around immigration courts to arrest migrants showing up for their scheduled check-ins, any person without valid citizenship can be detained indefinitely, and officers can pretty much do whatever they want, up to and including jumping out of unmarked cars, fully-masked, to snatch people off public streets.

That list doesn’t even cover the multiple murders and violent assaults committed by federal officers — none of which are in any danger of being investigated by the agencies employing them, much less by independent oversight.

Hundreds of rulings declaring these actions illegal haven’t done much to stop ICE, et al from doing whatever they want. Worse, the Supreme Court’s refusal to fully engage with these issues has given us little more than Justice Kavanaugh saying it’s okay to stop and detain people simply because they look foreign (in other words, not white).

That doesn’t mean these rulings are useless. They aren’t. While they’ve done little to deter these constant rights violations, they have become a sizable body of legal work that migrants can cite and the government can’t easily talk its way out of as migrant arrests/detentions continue to generate dozens of cases a day around the nation.

Here’s another one for the pile, via Kyle Cheney. Judges are becoming far less willing to deploy terms and legalese that gives the government far more deference than it deserves. The rulings (and the wording within them) are becoming far more direct and pointed.

Judge Sanket Bulsara of the Eastern District of New York is handling two habeas corpus cases challenging not only the arrests of the petitioners, but also their stays in federal detention centers. Bulsara doesn’t have anything good to say about what’s been observed in these cases, starting with the apparently unjustified arrest of Erik Parada Cruz while he was driving to work, and continuing through Rene Benitez’s arrest, which was objectively worse. From the ruling [PDF]:

Benitez has lived in New York for 14 years. He was driving his daughter to school when an unmarked vehicle pulled them over, and questioned him. His daughter explained that she needed to get to school. “[T]he officers responded that they did not care about that and that Mr. Benitez would either get out of the car on his own or they would use force. Rather than expose his daughter to such violence, Mr. Benitez exited the vehicle and was promptly detained by the agents. His daughter, however, was forced to remain in the vehicle on her own until a neighbor saw her and took her inside their home.” Benitez has no criminal history, and has two daughters—one a lawful permanent resident and one a U.S. citizen.

These are the people supposedly saving us from the “worst of the worst:” arresting someone with no criminal record and abandoning his child in the street.

Of course, it gets worse. ICE is required by law to file a “notice to appear [NTA].” It’s only if that has been violated that ICE can issue an arrest warrant. In Parada Cruz’s case, a single NTA was issued… in 2005… and it contained no date or time to appear. Facially invalid, as they say. A blank NTA is as good as no NTA at all. Not only that, but an immigration judge vacated his removal order in 2019, which meant there was no legal cause to have him removed.

That his arrest occurred at all demonstrates this administration’s contempt for the law. ICE’s contempt for the law knows no limits.

Yet, despite the fact that there were no open removal proceedings and there was no valid NTA, ICE arrested him “pursuant to” an I-200 arrest warrant [an administrative warrant issued by ICE but not reviewed by a judge – TC]. Such a warrant can only be issued if there are open removal proceedings reflected in a valid NTA. In other words, ICE was trying to use an invalid NTA and a rescinded removal order to arrest, despite plain evidence—from its own systems—that it lacked authority to do so.

There is more. It also appeared that Parada Cruz’s arrest warrant was issued after he was arrested.

Not a fluke! Not just an oversight!

That is the same problem as in Benitez. The paperwork in his case leaves the distinct impression that the NTA and the arrest warrant for him were both issued after he had already been arrested.

The judge pauses for a bit of understatement:

Using an after-the-fact warrant to justify a prior arrest is constitutionally problematic. It also is statutorily prohibited under the INA.

“Problematic,” for sure. Illegal? Definitely, especially when you add in the INA [Immigration and Nationality Act] violations.

And that leads to the judge comparing ICE’s actions to those of a police state:

This practice of after-the-fact arrest warrants can be called many things—illegal, improper, and unconstitutional, among them. But whatever label one wishes to apply, the practice is fundamentally at odds with and offensive to lawful, constitutional behavior in this country. “An arrest is not justified by what the subsequent search discloses[.]” A contrary rule—the one that the USAO here defends by backing detention and opposing release—“would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”

Police and law enforcement cannot operate as roving bands, detaining individuals, figuring out the reasons later, and papering over their failures afterwards. This sadly is the practice in many other parts of the world. But in the United States, the law prohibits such conduct.

The “police-state” quote is cribbed from a 1948 Supreme Court case involving a warrantless search. But the rest of this belongs to Judge Bulsara, who goes after the US Attorney’s Office (USAO) for doing everything it could to prevent any judicial examination of these arrests and detentions from taking place, including refusing to produce the arresting officers to provide testimony to the court.

The USAO seeks to adjourn both evidentiary hearings and have the Petitionsdismissed—asserting three basic arguments: (1) the matters are moot and this Court lacks jurisdiction to have a hearing; (2) the Court is violating the party presentation principle; and (3) Respondents have no obligation to comply with Gopie, in this or any other case, because no injunction has been issued, and the Court lacks the power to force ICE to comply with the decision. The Court finds the USAO’s arguments misguided, troubling, and in some instances, frivolous.

To be sure, the decision in Gopie, rendered by a single judge, in a case involving an individual, applies only to that individual. But that is surely to lose the forest in the shadows of imaginary trees. I have rendered many a decision—double digits at this point—as have other judges in this District, pointing out that ICE agents have been arresting individuals in this District and figuring out the reasons afterwards. In not one of these cases before the undersigned has the USAO cited a case, regulation, or legal principle that would permit this practice.[…]

The USAO says Gopie does not apply to petitioners subject to mandatory detention under § 1225, and in those cases, the Government may be able to arrest individuals without a warrant. The argument is irrelevant. First, in none of these cases have Respondents proceeded on a warrantless basis. Having issued warrants— presumably because they believed they were required to—they cannot justify detention by relying on an alternative procedure they opted not to use, and wave away the warrants as unnecessary. The fact is warrants were used and relied on by the officers for the detention and the USAO in their papers opposing the habeas petitions. Bad facts cannot be ignored to create fictional and alternative realities.

The judge says the government is no longer believable. It no longer can be assumed to be operating in good faith. That’s going to hurt it going forward. Worse — as the judge points out — the damage will last for years, even after a regime change, especially if these same prosecutors making these same points continue to be employed by the DOJ.

That is not just in the credibility of their presentations, but in the belief and understanding that lawyers for the Government are not just like other lawyers. The USAO has already been described by this Court and others of playing whack-a-mole with people’s lives by trying to forum-shop habeas cases out of this District. That loss is accentuated when the USAO seeks to shroud in darkness the conduct of the ICE officers here.

Up next for this court? Evidentiary hearings that will include the testimony of the ICE officers who justified their arrests after the fact. Beyond that are possible sanctions for US Attorneys’ Office for its refusal to honestly engage with these proceedings.

But what can never be undone, even if this administration continues to bury the courts in unlawful arrest/detention cases in hopes that it will somehow slip a few thousands migrants out of the country every day, is the fact that these actions are indistinguishable from police state efforts this nation used to vehemently decry when they occurred in other nations. Now, it’s our own government that wants to be the Stasi it used to see in the world.