Catch, release, catch: Inside ICE's new 'farce' tactic
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On Thursday morning, Ivan, 27, signed papers to be freed from immigration detention at the Bishop Henry Whipple Federal Building. A judge had granted his habeas petition and ordered his release. He walked toward the doors, planning to visit a church, thank God for his release and see his wife.
“I didn’t even make it to see the sun,” Ivan said in Spanish in a call from Freeborn County Jail on Saturday. “Five federal agents were waiting for me.”
The agents handcuffed Ivan and took him to the Albert Lea jail, which contracts with Immigration and Customs Enforcement to hold immigration detainees. Ivan requested to only go by his first name out of fear of retribution.
John Barham, one of Ivan’s attorneys, was baffled. At worst, he thought agents would try to arrest Ivan later that day after he arrived home. “But we certainly didn't expect that they would have this kind of farce thing of sending him to Whipple, giving him his possessions back and then walking him right into the hands of some other ICE agents before he could even leave the building,” Barham said.
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Operation Metro Surge officially ended in Minnesota, but attorneys say federal agents have simply adapted and shifted tactics since last winter. They worry pushing the boundaries of the legal definition of “release” is just the latest strategy federal agents are using in Minnesota to fulfill arrest and deportation quotas.
Steven Appelget, the attorney who filed Ivan’s habeas petition challenging his detention, called the move “more nonsense” from the federal government.
In Ivan’s petition, Appelget argued the government didn’t have probable cause or a warrant to arrest Ivan in the first place.
Ivan is originally from Guatemala and has lived in the U.S. since 2019. Besides minor traffic violations, he has no criminal record in Minnesota.
Ivan works in construction to support his family. In the early morning of Sept. 11 in Columbia Heights, ICE agents spotted Ivan in his work vehicle at a gas station. The agents said in court filings they ran Ivan’s plates, discovering he didn’t have lawful immigration status.
They followed him to a Menards parking lot and arrested him. Then, they took him to Crow Wing County Jail, which contracts with ICE.
Appelget normally works in consumer protection. But last winter he joined hundreds of Minnesota lawyers who volunteered to file a flurry of habeas petitions on behalf of ICE detainees who weren’t getting bond hearings.
“Every one of these habeas petitions, something strange has happened,” Appelget said.
“ICE and DHS continue to find new and improved ways to violate orders from the bench of the District of Minnesota,” he added.
ICE and DHS did not respond to a request for comment on the practice of immediately re-arresting immigrants whose habeas petitions have been granted.
A petition for a writ of habeas corpus, often translated from Latin as “you should have the body,” requires government officials to produce a person they are holding and justify to a judge why the person is imprisoned. The number of habeas petitions filed on behalf of immigration detainees skyrocketed in the past year as the federal government changed its interpretation of immigration law.
Previously, immigrants without status or with pending cases might not be arrested at all and instead would regularly check in with immigration court. If they were arrested, they could be out on bond.
Now, the federal government argues it can automatically detain immigrants — even those without criminal records — without a bond hearing until they are deported.
During Operation Metro Surge, most federal judges in Minnesota disagreed with the federal government’s reinterpretation of immigration law and quickly approved habeas petitions if the detainee wasn’t given a bond hearing. But after the Court of Appeals for the Eighth Circuit sided with Republican President Donald Trump’s administration, arguing habeas cases has gotten harder in Minnesota.
The Supreme Court has agreed to take up the issue.
Ivan isn’t the only person this has happened to. MPR News spoke with four attorneys who said multiple people have recently fallen victim to this bait-and-switch.
“I've heard of a handful, but it's one of those things where it's like if you see a cockroach, you don't have one cockroach,” said Daniel Suitor, a tenants’ rights attorney who has become a prolific habeas filer.
Suitor said he’s had two clients experience this so far. One was ultimately deported. The other is being detained in Freeborn County Jail with Ivan.
Alejandro, 33, is from Mexico and works in Minnesota to support his family back home. Alejandro also requested to only go by his first name out of fear of retribution. His case is more complicated than Ivan’s.
Alejandro has been arrested for a DUI and is in pending removal proceedings, but he does not have a final removal order. Alejandro also applied for asylum. His claim was denied, but he has appealed.
However, Suitor said Alejandro’s habeas petition was simple.
“The warrant wasn't legally valid, and there was no reason to think that Alejandro couldn't be apprehended once a legally valid warrant was obtained,” Suitor said.
Alejandro has been held in custody since May, first by local law enforcement before being transferred to ICE. On Sept. 22, a judge agreed Alejandro was unlawfully arrested and his detention wasn’t justified. The judge ordered he be released “immediately.”
On the morning of Sept. 25, Alejandro was brought to the Whipple building, given his belongings and told he was being released.
Alejandro got a few steps farther than Ivan would. He made it outside the building’s front doors.
That’s where plain clothes immigration agents were waiting to handcuff him.
“One of the agents translated for me, saying just like they could release me, they could arrest me again,” Alejandro said in Spanish.
“It's bullshit,” Suitor said. “We won the case.”
Suitor said he plans to argue that what happened to Alejandro doesn’t meet the legal definition of “release” that was ordered by a judge.
“I think we have a line of attack to say, letting somebody walk out the door and getting perhaps three feet from the front door does not contemplate them being free from custody,” Suitor said.
The lawyers said what has happened to their clients fits into a larger pattern of ICE shifting strategies to ultimately arrest and deport even more people without public confrontations like those seen during Operation Metro Surge.
“ICE never left. Things became less public, became less of a spectacle, but immigrants are still being targeted and persecuted,” Barham said.
“And from rumors I'm hearing, things I've seen, I suspect that they're about to amp up again.”
