Judge weighs contempt after ICE re-arrests man a second time: ‘Not release in any sense’
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Attorneys representing the federal government argued to a federal judge on Monday that immediately re-arresting a Guatemalan man after the judge had ordered his release twice was not a violation of the judge’s orders.
U.S. District Judge John Tunheim told attorneys for both parties they had until 9 a.m. Saturday to file arguments in the man’s second release and re-arrest.
MPR News has confirmed at least eight cases of ICE instantly re-arresting immigrants at the Whipple building after federal judges ordered their release. Judges ruled the men’s original arrests were unlawful.
ICE has interpreted that to mean it gets an instant do-over.
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Two federal judges, Eric Tostrud and Jerry Blackwell, have denied requests to order re-arrested men released again. Two others, Jeffrey Bryan and Tunheim, have ruled the re-arrests violated their release orders.
Monday’s hearing focused on Ivan, who has asked to be referred to by his first name out of fear of retaliation. He was one of two men who first alerted MPR News to ICE’s strategy in October.
Ivan is the first case MPR News has confirmed of ICE instantly re-arresting someone twice.
At the Monday hearing, the government’s lawyers told Tunheim the latest re-arrest did not violate his release orders. Tunheim had ordered the government to show why it shouldn’t be held in civil contempt for failing to release Ivan.
Ivan, 27, came to the United States from Guatemala in 2019 without presenting himself to immigration authorities. He works in construction in Minnesota to support his family. He was arrested by immigration agents on Sept. 11 on his way to work. Tunheim ruled ICE had unlawfully arrested him without a warrant and ordered him released. ICE released and instantly re-arrested him Oct. 1.
Since September, he’s been held in three Minnesota jails paid by ICE to hold immigrants as well as facilities in Louisiana and Texas. His lawyers, John Barham and Steven Appelget, said the constant moving around has made it difficult to speak with and represent him.
On Oct. 30, Tunheim ordered ICE to release Ivan again.
“Allowing an individual to step one foot outside a cell is not release in any sense of the term,” Tunheim wrote.
Tunheim also condemned the federal government’s position that it is entitled to arrest do-overs.
“A court-ordered release for a habeas petitioner is not an opportunity to cure prior wrongs and certainly cannot be an opportunity to further flout legal and constitutional requirements,” Tunheim wrote.
On Friday, Barham was escorting Ivan out of the Bishop Henry Whipple Federal Building to freedom.
“A guy wearing body armor and a face mask jumped from behind a barrier or from the bushes,” Barham said. Agents grabbed Ivan and bundled him into a vehicle.
“They just said they were re-arresting him. I said this is bullshit,” Barham said. “There was a judge's order specifically prohibiting you from doing this, and that's when [the agent] waved the administrative warrant in my face.”
In Monday’s hearing, the federal government’s lawyers, including Derek Ganzhorn, said the government was acting lawfully.
“I prefer to think of it as a new arrest,” said Ganzhorn, an ICE attorney acting as a special assistant U.S. attorney, who is part of a small team of lawyers regularly defending ICE in Minnesota’s federal court.
Ganzhorn had filed a letter with the court on Friday notifying the judge of Ivan’s release, but it left out his instant re-arrest. Ganzhorn told the judge he wasn’t aware of the re-arrest until later.
However, he’d already told the judge in writing that if Ivan didn’t leave the country by Nov. 4, his detention would be mandatory. Court documents and statements from ICE officials show a clear pattern of ICE pre-planning re-arrests.
The federal government’s argument for keeping Ivan in detention and trying to deport him hinges on the fact Ivan told an immigration judge he was agreeing to voluntary departure. Ivan’s lawyers said he was desperate to leave detention and felt pressured to choose voluntary departure before Tunheim had ordered his re-release.
When Tunheim’s order came through, Ivan asked to withdraw his request for voluntary departure.
Trump administration attorneys argued the departure order became a final removal order when Ivan didn’t leave by Nov. 4, though Ivan was in ICE custody at the time and on the way back from Louisiana because Tunheim had ordered his release in Minnesota.
ICE moved Ivan to Louisiana while his case was still playing out in court without notifying his lawyers. Now he’s in Sherburne County Jail, where Tunheim has ordered he must remain until he decides the case.
Ganzhorn told the judge the case was “tricky” and there was “confusion on our part” after Ivan’s first re-arrest.
“We believed we released him,” Ganzhorn said, adding it was a “mistaken belief.”
Ganzhorn has represented the government in at least two other re-arrest cases.
ICE’s tactics have frustrated Steven Appelget, one of Ivan’s attorneys. He filed a habeas corpus petition to challenge Ivan’s detention. A writ of habeas corpus roughly translates to “produce the body” in Latin and it requires the government to justify where and why it is holding someone.
“They have to dance around, have 20 gazillion forms of procedures to avoid producing the body,” Appelget said after the hearing Monday. “We have the great writ, they got shit.”
