A federal appellate court judge delivered an epic burn to the Department of Justice during oral arguments this month in a case where the government was attempting to defend ICE’s aggressive posture in making arrests at churches.
“It’s very hard to win a case without evidence or legal argument,” Judge Steven Agee, a George W. Bush appointee to the 4th U.S. Circuit Court of Appeals, told the Justice Department lawyer.
That came just after a federal judge in Massachusetts ordered a department lawyer to face an ethics review for withholding key information from her during a migrant detention case. U.S. District Judge Melissa DuBose made clear she didn’t fault the lawyer himself but his “client,” who ordered him not to reveal the information to the court — and then issued a press release mocking the judge.
That client was U.S. Immigration and Customs Enforcement, the tip of the spear for President Trump’s mass deportation campaign and the source of much of the administration’s legal setbacks and strife.
From detention policy to blocking access to its facilities, from crowd control to botched deportations, ICE has met a wave of judicial restraint from the federal bench.
But it’s not just the losses. It’s how they’ve come about and the criticism judges have aimed at the agency.
Words such as “bad faith” and “secret policing” keep popping up, even as judges have started to tally how many of their orders they say ICE has defied.
“Right now, ICE is the worst client an attorney can imagine because this administration has given the agency free rein to do as they please,” said Lindsay Zimliki, who had worked in the immigration section of the Justice Department through last year and is now with Democracy Defenders Fund.
“DOJ attorneys have been directed not to challenge ICE’s position, proposed legal arguments, or lack thereof. Instead, they are made to appear in court and answer for a rogue client,” Ms. Zimliki told The Washington Times. “When federal judges order ethics reviews, document defied court orders, and openly question whether DOJ can even present credible evidence or arguments on ICE’s behalf, the problem is no longer isolated misconduct. It’s a crisis of integrity and a complete lack of accountability.”
ICE didn’t respond to a request for comment.
The Justice Department, though, said the agency isn’t the problem.
“The only officials putting the government in a difficult position are rogue judges who put personal policy preferences ahead of proper interpretations of the law and issue orders designed to find violations and release criminal aliens back onto the street,” the department told The Times. “If judges followed the law in adjudicating cases, there wouldn’t be an ‘overwhelming’ habeas caseload or any concern over [the Department of Homeland Security] following orders.”
The Justice Department took umbrage at some of the specific adverse rulings that have been tossed its way. They included one case where ICE was dinged for transferring a detainee at the same moment a judge was ordering the migrant to be kept in place. In two other cases, the transfer occurred less than an hour after the judge’s order was issued. In all three cases, the detainee was brought back.
In another case, a detainee was released 9 minutes after the judge’s deadline.
In Minnesota, U.S. District Judge Jeffrey Bryan was angered by the government delivering a brief minutes after his deadline. He struck the brief from the docket, erasing the government’s defense for why the migrant shouldn’t be released.
Judge Bryan, a Biden appointee, then ruled that since there was no government reply in the record, the migrant won by default and had to be released.
In New York, the U.S. Attorney’s Office in Manhattan had to withdraw arguments it had made to a judge, saying it had just been informed — months into the case — that ICE had misled it about the justification for courthouse arrests.
Sometimes, judges are prodding the Justice Department to push back on ICE.
In one case, a judge accused ICE of making an arrest and later backdating a warrant to make it appear that one had existed before the arrest.
U.S. District Judge Sanket Bulsara, a Biden appointee to the court in Long Island, New York, wondered why the Justice Department didn’t push back on its client, instead of defending the action.
“Certainly, if this were a criminal case, if an FBI or other law-enforcement agent had been presenting cases where there were illegal arrests, no matter the underlying crime, the [U.S. Attorney’s Office] would in no uncertain terms tell the agency to clean up its act,” Judge Bulsara scolded.
He wrote that the Justice Department is risking the “loss of confidence in the government lawyers who appear in this District.”
That’s a problem for the government, which is traditionally given the benefit of the doubt in federal courts — what’s known as the presumption of regularity.
That presumption has evaporated for some judges.
“Right now I think DOJ career attorneys are getting the worst of both worlds with the courts treating them with some hostility but also not being brought in by their clients on things either,” said Sarah Wilson, who spent years in the Justice Department’s immigration division and is now a partner at Colombo & Hurd, an immigration law firm.
“Whether that is intentional or staffing-related almost certainly varies by case, but I think we are seeing the consequences of not having enough experienced, credible DOJ lawyers and the clients not coordinating with the ones they have,” Ms. Wilson said.
Part of the problem is indeed workload. Tens of thousands of cases have been filed in the last six months by migrants challenging their detention by ICE. To say that has overwhelmed the Justice Department is an understatement.
One department lawyer begged a judge to throw her behind bars so she could get a rest break from her caseload. Another DOJ lawyer, explaining to a judge why she missed a deadline, said she had counted 440 cases she was working on over the previous 32 days.
But analysts said there’s also a mismatch right now between the usually highly structured Justice Department and ICE, which has been largely dysfunctional since it was forged in the wake of the 2001 terrorist attacks — mixing a deportation division and a criminal investigations division that don’t always get along.
Add to that the lack of a confirmed agency director: There hasn’t been one in nearly a decade, dating back to the Obama administration.
“You have the Department of Justice, which requires and thrives on institutional knowledge. DOJ is the ultimate top-down organization. And their client is an agency that has long suffered from a lack of institutional knowledge and permanent leadership,” said Andrew “Art” Arthur, a former immigration judge who’s now with the Center for Immigration Studies.
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