U.S District Judge Jeffrey Bryan. Credit: Minnesota State Law Library

Tuesday’s hearing highlights the frustration federal judges in Minnesota have expressed toward U.S. Immigration and Customs Enforcement (ICE) and the government lawyers representing the agency.

Judge Bryan took the case under advisement Tuesday afternoon and said he will issue a ruling in the coming days. 

Rosen took the stand as a witness in the hearing, which Bryan acknowledged as “extraordinary,” and argued that the court should not hold the government in contempt because ICE made good faith efforts to locate missing items. 

“There was no defiance, no disobedience, and that’s what’s required for contempt,” Rosen said. “The government believes contempt is far beyond anything that is considered here today.” 

Federal officials ordered to appear in court

More than 4,000 immigrants have been arrested in Minnesota since ICE began Operation Metro Surge in December. Hundreds filed federal court cases challenging their detention, known as habeas petitions. Those cases have overwhelmed federal district court at a time when more than a dozen attorneys have quit the Minnesota’s U.S. Attorney’s Office. 

Immigrants who win their cases have frequently been released without belongings that were confiscated by the federal government. Judge Bryan, appointed by former President Joe Biden, lumped 28 cases together in a single contempt hearing, and ordered Rosen, Assistant U.S. Attorney David Fuller and ICE St. Paul Field Office Deputy Director Tauria Rich to defend themselves. 

“It’s not often that we have a combined hearing like this,” Bryan said. “It is an extraordinary measure.”

Bryan and Rosen had a contentious exchange early in the hearing, with Bryan frequently telling Rosen not to talk over him. Bryan said his goal was to determine whether to hold Rosen and his colleagues in civil contempt and that he hadn’t ruled out criminal contempt of court. 

 “Your honor has made a remark smearing myself and Mr. Fuller, ” Rosen said. 

Bryan structured the hearing to allow for a recess in which the two dozen immigration lawyers could discuss their clients’ outstanding property issues with ICE and U.S. attorneys. They milled about the courtroom and spoke quietly with Rosen and Fuller during a half-hour break. 

Bryan said he would throw out any cases where all property had been returned to detainees who were released. 

Rosen told Bryan there were two cases he was aware of where property was lost and not returned. At least 12 cases were resolved between U.S. attorneys and assembled immigration reporters during the recess. 

But immigration attorneys said the government’s pattern of not following orders needs to be curtailed. Not tracking detainees’ belongings as they are transferred to facilities across the country is a problem the government caused themselves, said attorney Mackenzie Moy. 

“When this court orders they be released and their property be released, somehow they are unable to comply,” Moy said. 

Sly Onyia, a Minneapolis immigration attorney, said that even two cases where the government is not complying with court orders justifies a contempt finding. 

“There’s no excuses,” Onyia said. 

Bryan said the contempt hearing is happening in the context of a pattern of noncompliance with court orders from the federal government, something Rosen disputed. The two acknowledged they had “testy” exchanges during the hearing.  

Bryan and Rosen had a second tense exchange in the afternoon when they disagreed about the number of cases the court said the federal government was not in compliance with. Bryan accused Rosen of making a face as the judge said it was 42 cases, not 52. 

“Your honor, I truly wasn’t trying to make a face,” Rosen said. 

While Rosen was on the witness stand, he was asked whether his office needs additional verification processes in place to ensure attorneys are getting their clients to comply with orders. No, he said. 

“In all candor, your honor, it is taken so seriously in the office it is difficult for me to imagine an additional layer of verification and control,” he said. 

Graham Ojala-Barbour, a St. Paul immigration attorney, had two clients lumped into the larger hearing. Both received their property he said, but only weeks after their release. One client had cash on them when they were arrested, which ICE returned in the form of a check. One client got their items returned only after Bryan ordered the hearing. 

“We believe the hearing, in fact, was helpful in resolving that,” Ojala-Barbour said. 

Rosen disputed the assertion that being ordered to appear at Tuesday’s hearing was  what prompted the items to be returned.  

Bryan, Rosen and immigration attorneys concluded by Tuesday afternoon that questions about the return of property remained in five of the original 28 cases Bryan had lumped together for the hearing. 

Tracking detainee property

The size of Operation Metro Surge strained ICE’s typical procedures to track detainees’ belongings. Bryan questioned Rich, who oversees custody management for ICE’s St. Paul Field Office, about standard procedures. He asked if ICE agents are allowed to steal belongings from people they arrest.

No, Rich replied. 

Bryan asked how the government ensures that. 

“It is in our code of ethics, and there are multiple people working together when we process each alien,” Rich said. 

“I understand that the statute uses that term, but these are not space aliens, so I’m going to refer to them as people,” Bryan replied. 

ICE creates a record of detainees’ property, Rich said. Each detainee’s items are collected and three receipts are made. One is given to the detainee, one is placed with their belongings and one is placed in the detainee’s file, Rich said.

ICE policy is to ensure that each detainee has their property any time they are transported between facilities, Rich said. Asked about internal systems used to track lost property, she acknowledged that there was strain on the system during the surge in Minnesota, but said efforts were made to locate items. 

“During Operation Metro Surge, because of the volume of detainees, it took longer than necessary — I would say, longer than usual to locate the property,” Rich said. 

Immigration attorneys in the remaining cases detailed missing property. Four said their clients are missing identification documents and work permits. 

“My client is still missing a cell phone, airpods, car keys and a wallet,” attorney Abdinasir Abdulahi said. 

That includes his client’s work permit, which was in his wallet. Abdulahi’s client was ordered released on Jan. 28. Abdulahi said he received a letter Tuesday that says the government considers his client’s property as officially lost. His client’s boots are also missing, Abdulahi said, the man was released wearing ICE issued shoes. 

Lost property can be reimbursed by filing a tort claim in court, Rich said. 

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