Judge Tunheim Condemns ICE After Re-Arresting Man Twice

Judge weighs contempt after ICE re-arrests man a second time

“Allowing an individual to step one foot outside a cell is not release in any sense of the term,” U.S. District Judge John Tunheim wrote in an October ruling.

As mprnews.org reported, federal government attorneys contended before Judge Tunheim on Monday that immediately taking a Guatemalan man back into custody following two court-mandated releases did not breach the judiciary’s directives.

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The hearing centered on Ivan, a 27-year-old construction worker who asked to be referred to by his first name out of fear of retaliation. Ivan came to the United States from Guatemala in 2019 without presenting himself to immigration authorities and was originally arrested by immigration agents on Sept. 11 on his way to work in Minnesota.

Tunheim previously ruled that Immigration and Customs Enforcement unlawfully arrested Ivan without a warrant and ordered him freed. Instead of letting him go, ICE released and instantly re-arrested him on Oct. 1, marking the first case mprnews.org has confirmed of an immigrant being instantly re-arrested twice.

Content judge john tunheim (courtesy youtube)

In total, mprnews.org has confirmed at least eight cases of ICE instantly re-arresting immigrants at the Bishop Henry Whipple Federal Building after federal judges ordered their release. While judges ruled the original arrests were unlawful, ICE has interpreted those decisions to mean the agency gets an instant do-over.

Requests to mandate freedom for the re-arrested men have been turned down by federal judges Eric Tostrud and Jerry Blackwell. Two others, Jeffrey Bryan and Tunheim, have ruled that the re-arrests violated their release orders.

Ivan has spent time incarcerated across Texas, Louisiana, and three ICE-contracted Minnesota jails since the month of September. His lawyers, John Barham and Steven Appelget, told mprnews.org that the constant moving around has made it difficult to speak with and represent him.

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On Oct. 30, Tunheim ordered ICE to release Ivan for a second time, condemning the 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 in court records.

The latest re-arrest took place on Friday as Barham was escorting Ivan out of the Whipple building to freedom. “A guy wearing body armor and a face mask jumped from behind a barrier or from the bushes,” Barham told mprnews.org.

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.”

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During Monday’s hearing, government lawyers including Derek Ganzhorn told Tunheim that the agency 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.

On Friday, Ganzhorn submitted a court filing to inform the judge of Ivan’s release, though he omitted any mention of the immediate subsequent re-arrest. Ganzhorn told the judge he wasn’t aware of the re-arrest until later.

Ganzhorn told the judge the case was tricky and there was confusion on the agency’s part after the 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 RE-ARRESTED HIM AFTER RELEASE! FEDERAL JUDGE FIRES BACK.

The federal government’s argument for keeping Ivan in detention hinges on the fact that Ivan told an immigration judge he was agreeing to voluntary departure. Legal representation for Ivan explained that he was desperate to escape custody and felt pressured into accepting voluntary departure prior to Tunheim issuing his subsequent release mandate.

When Tunheim’s order came through, Ivan asked to withdraw his request for voluntary departure. Government attorneys argued the departure order became a final removal order when Ivan didn’t leave by Nov. 4, despite the fact that Tunheim’s Minnesota release order had placed Ivan back into ICE custody en route from Louisiana.

Without informing his legal counsel, ICE transferred Ivan to Louisiana while court proceedings were still ongoing. Now he is being held in Sherburne County Jail, where Tunheim has ordered he must remain until he decides the case.

Judge Tunheim told attorneys for both parties they had until 9 a.m. Saturday to file arguments in Ivan’s second release and re-arrest.

Steven Appelget expressed frustration with the government’s tactics after filing a habeas corpus petition to challenge Ivan’s detention. “They have to dance around, have 20 gazillion forms of procedures to avoid producing the body,” Appelget told mprnews.org. “We have the great writ, they got shit.”