ICE Re-Arresting Immigrants Minutes After Judges Order Their Release, Reports Find

Immigrants who win their release from detention in federal court are increasingly being arrested again by U.S. Immigration and Customs Enforcement, sometimes within minutes of walking free, according to new reporting from The Guardian and MPR News.

The Guardian said Monday it has identified at least 20 cases nationwide over the last year in which people were detained again after being released on a habeas corpus petition, based on court records, attorneys and media reports. In Minnesota, MPR News reported that seven immigrants were re-detained before they even left the Bishop Henry Whipple Federal Building near Minneapolis.

The Department of Homeland Security says the practice is legal. Attorneys and several federal judges have pushed back.

What are post-release immigrant detentions?

A habeas corpus petition asks a federal court to rule on whether the government can keep holding someone in custody while their main immigration case continues. The Guardian, citing an analysis by ProPublica, reported that immigrants have filed more than 91,000 habeas petitions, and that more have been filed since Jan. 25 than during the past three presidential administrations combined.

The new development, attorneys say, is what happens after people win. “We’ve seen a very, very sharp increase in people who are released on habeas petitions, only to be very rapidly re-detained, often in violation of the federal court’s order,” Bridget Pranzatelli, an attorney with the National Immigration Project, told The Guardian.

The Minnesota case: re-arrested minutes after release

MPR News has spent the past month reporting on the tactic in Minnesota. One case it highlighted is Yader Cortez, a 40-year-old Nicaraguan immigrant living in St. Cloud with his U.S.-born wife and family.

According to MPR News, U.S. District Judge Jerry W. Blackwell ordered Cortez’s immediate release from ICE custody on Oct. 1, calling his warrantless arrest in June “illegal.” On Oct. 2, Cortez was taken to the Whipple building to sign papers and be released. As soon as he walked out the rear of the building, he was arrested again.

Cortez told MPR News that an officer said the judge “doesn’t know what he’s doing.” He described the experience as deeply traumatic. He has since been released again after his lawyer and his wife pushed for his freedom, and his wife said they learned he had been approved for U.S. residency, MPR reported.

Daniel Suitor, an attorney for two of the men re-detained at the Whipple building, told The Guardian: “I don’t think being taken out of a building and directly into the arms of four or more officers complies with the court’s order.”

What DHS says

DHS defended the practice in a statement to MPR News. “When an illegal alien is ordered released by a judge, that does not immunize the alien from immigration enforcement for all time,” a spokesperson said. “Instead, if ICE does not appeal the ruling, it may seek to rearrest the alien in a way that complies with the judicial decision.”

How courts are responding

Judges are starting to take notice, The Guardian reported:

• In October, the 10th U.S. Circuit Court of Appeals refused the government’s attempt to dismiss a habeas petition on the grounds that it could re-detain the petitioner, pointing to a “demonstrated pattern of re-detaining” people granted habeas relief.
• In Louisiana, a federal judge held a senior immigration official in contempt for violating orders in the case of Ibrahim Mohammed, who had been re-arrested by ICE three times.
• Federal judges in Pennsylvania and Minnesota have also held immigration authorities in contempt or threatened to do so.

Some judges now add conditions to release orders. Tess Hellgren of the National Immigration Project told The Guardian that a court might require the government to give at least three days’ notice before trying to remove someone again.

The link to third-country deportations

Attorneys told The Guardian that some re-detentions appear tied to the administration’s push to deport people to third countries, meaning countries where they are not citizens and often have no ties. That can apply to people who cannot be sent to their home country because they won protection from removal there.

The Guardian reported that more than 25,000 noncitizens have been deported to countries that are not their own. In September, an appeals court ruled that the government must give sufficient notice of third-country deportations, but the Supreme Court granted an emergency stay of that ruling.

Other people, attorneys said, are re-arrested with no clear deportation plan and can remain in detention while habeas cases take months to resolve, particularly in Louisiana and Texas.

Who has been affected?

Beyond Cortez, The Guardian cited Akram Mahmoud Omar, a 77-year-old Palestinian man who had a heart attack while detained at “Camp 57,” the ICE facility at Louisiana’s state prison in Angola. He was arrested again within 10 days of being released after a habeas petition, as first reported by The Intercept.

What happens next

The cases are being fought one by one in federal court, and some attorneys now prepare second habeas petitions in advance. “We can sort of win the battle, but we’re going to lose the war,” Jonah Eaton, a litigation attorney with UnLocal, told The Guardian, warning that the government may still be able to hold people for long periods. How appeals courts rule on re-detention, and whether more judges impose contempt findings or notice requirements, will shape what release from detention actually means.