There’s
a
moment
in
Judge
Gary
R.
Brown’s
April
27th
order
(available
below)
in
Sanchez
Alfaro
v.
Mullin
that
stopped
me
cold.
After
noting
the
detailed
litany
of
constitutional
violations
committed
by
ICE
agents,
Judge
Brown
reveals
that
in
the
Department
of
Justice’s
motion
to
reconsider
the
“description
of
the
efforts
that
would
be
undertaken
to
ensure
compliance
with
the
law”
was…
nothing.
The
Eastern
District
of
New
York
judge
then
dropped
this
line:
“So,
paradoxically,
it
is
this
Court’s
turn
to
ask
respondents
to
reconsider
their
position.”
And
if
the
government
pulls
a
Bartleby
and
prefers
not
to?
“Should
respondents’
answer
remain
unchanged,
the
Court
will
take
appropriate
action.”
That’s
cold
as
ice
(pun
intended).
But
I
guess
that’s
what
happens
when
you
submit
a
brief
that’s
“legally
spurious.”
Let’s
back
up.
The
underlying
facts
here
are
remarkably
egregious,
even
by
the
degraded
standards
we’ve
all
gotten
used
to.
ICE
arrested
William
Enrique
Sanchez
Alfaro
—
a
man
who
had
been
granted
Special
Immigrant
Juvenile
(SIJ)
status,
deferred
action,
and
work
authorization
—
without
a
warrant.
Officers
later
admitted
they
arrested
the
wrong
man.
The
administrative
warrant
and
paperwork
were
issued
after
the
arrest,
as
post-hoc
cover.
Then,
after
the
petitioner
sought
legal
relief,
his
deferred
action
was
revoked,
with
no
explanation
other
than
the
illegal
arrest
itself.
Judge
Brown
found
four
distinct
constitutional
and
statutory
violations.
He
gave
the
government
21
days
to
tell
the
court
what
it
planned
to
do
about
it,
but
got
“nothing”
in
the
way
of
substance.
And
it
actually
gets
worse
because
that
nothingburger
of
a
response
was
wrapped
in
a
motion
for
reconsideration
so
weak
that
Judge
Brown
methodically
dismantled
it
section
by
section,
calling
out
“frivolous”
arguments,
a
“blatant
misstatement,”
selective
quotation
of
case
law
that
was
“misleading,”
and
jurisdictional
arguments
that
were
“entirely
meritless.”
At
one
point,
the
government
cited
DHS
v.
Thuraissigiam
to
claim
that
habeas
corpus
only
allows
for
simple
release
—
and
therefore
the
court’s
work
was
done,
case
over,
nothing
to
see
here.
Brown
spent
several
pages
demonstrating
that
the
government
was
misreading
a
case
that
said
almost
the
exact
opposite
of
what
they
claimed.
He
noted
the
government
“cannot
plead
ignorance”
because
he
had
cited
the
correct
precedents
to
these
same
respondents
in
previous
cases.
They
knew…
or
at
least,
they
should
have.
The
government
also
tried
to
argue
that
the
court
had
improperly
raised
the
issue
of
Sanchez
Alfaro’s
SIJ
and
deferred
action
status
on
its
own.
Brown’s
response
was
withering:
the
petitioner
had
raised
it
in
his
very
first
filing.
The
government
had
briefed
the
issue
in
their
own
papers.
Calling
it
a
surprise
was
a
“blatant
misstatement.”
So
that’s
the
backdrop
against
which
Judge
Brown
wrote
the
line
that
should
have
every
government
attorney
in
the
Eastern
District
of
New
York
paying
very
close
attention.
Because
what
comes
after
“the
Court
will
take
appropriate
action”
is
not
vague.
Brown
spelled
it
out
in
careful,
patient,
devastating
detail.
If
the
government
won’t
tell
the
court
what
it
plans
to
do
to
prevent
future
illegal
ICE
enforcement
actions
—
warrantless
arrests,
post-hoc
paperwork,
disregard
of
legally
awarded
immigration
status,
retaliation
—
then
the
court
will
consider
whether
injunctive
relief
is
necessary.
And
not
just
narrow
relief.
Brown
noted
that
if
he’s
not
satisfied
that
an
injunction
confined
to
protecting
this
specific
petitioner
would
be
sufficient,
“equitable
relief
at
the
policy
level
might
be
required.”
This
is
not
a
judge
that’s
bluffing.
He
is
laying
out,
step
by
step,
exactly
what
legal
tools
he
has
available
and
exactly
how
he
plans
to
use
them
if
the
government
comes
back
with
another
round
of
“nothing.”
This
is,
of
course,
part
of
a
pattern
that
has
become
a
drumbeat
across
the
federal
judiciary.
A
Bush-appointed
judge
in
Minnesota
had
to
threaten
to
haul
the
ICE
acting
director
into
court
personally
before
ICE
released
a
man
it
had
been
ordered
to
give
a
bond
hearing
—
and
only
backed
down
when
ICE
blinked
first.
A
Trump-appointed
judge
found
ICE
was
systematically
blocking
detainees’
access
to
counsel
in
Minnesota
and
issued
a
TRO.
A
judge
in
Illinois
had
to
explain
that
you
can’t
freeze
grant
funds,
declare
the
grants
closed,
and
call
it
a
day.
In
West
Virginia,
four
judges
across
the
political
spectrum
spent
weeks
issuing
increasingly
volcanic
opinions,
with
one
noting
the
government
had
“offered
no
evidence
that
they
have
seen
or
even
care
about”
the
court’s
rulings.
And
that
doesn’t
even
get
into
the
Kilmar
Abrego
Garcia
saga,
where
the
government
spent
months
trying
to
paper
over
a
wrongful
deportation
to
a
forced
labor
camp.
What
makes
Judge
Brown’s
order
distinct
isn’t
just
the
quality
of
the
benchslap
—
though
it
is
a
good
one,
opening
as
it
does
with
the
federal
officer
oath
of
allegiance,
which,
again,
is
not
subtle.
What
makes
it
notable
is
the
explicit,
almost
tutorial
quality
of
the
warning.
He’s
not
just
ruling
against
the
government.
He
is
explaining
to
them,
in
advance,
in
writing,
exactly
what
is
about
to
happen
to
them
if
they
don’t
change
course.
The
question
is
whether
there’s
anyone
left
at
DOJ
that
cares.
Given
the
track
record,
I
have
my
doubts.
But
Judge
Brown
has
made
the
stakes
about
as
clear
as
a
federal
judge
is
able
to
make
them.
The
next
move
is
theirs.
Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of The
Jabot
podcast,
and
co-host
of Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email her with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter @Kathryn1 or
Bluesky @Kathryn1