Lawfare Daily: Challenging Immigration Detentions in Minnesota

[Intro]

John Albanese: They're trying to get the message to the government that you need to be better prepared, and you're holding hundreds of people without any lawful basis, we're gonna release them and we expect them to be released and their property returned. And we want them to be released in Minnesota so they're not just left on the side of the road in Texas and told to find their way back.

Natalie Orpett: It's the Lawfare Podcast. I'm Natalie Orpett, executive editor of Lawfare, with John Albanese, an attorney at the law firm Berger Montague in Minneapolis.

John Albanese: So we would definitely have enough information that we thought was relevant to make the argument that they had no detention authority in the way the government was behaving.

The assertions of authority were so sweeping that it wasn't individualized assessments about whether this person presents a flight risk or whether this person is a danger.

Natalie Orpett: The influx of immigration enforcement actions in Minnesota have landed an enormous number of people in detention, which has resulted in an unprecedented number of petitions for habeas corpus—that is, people arguing that their detention is unlawful and that they should be released.

Today, we're talking about what that looks like on the ground and hearing from a lawyer who has actually been representing these clients and litigating these questions in court. We talked about what authorities the government is claiming, how the legal community is coming together to address the needs of people in detention, how government lawyers are fairing, and how the judiciary is dealing with it all.

[Main Episode]

So let's start with explaining what is habeas in the immigration context, because I think most people, to the extent they're familiar with it, it is in the criminal context, where things are a little bit different. So what is habeas, in an immigration context?

John Albanese: Sure. So habeas in an immigration context is really the, if somebody is being held in detainment for immigration related reasons or for purported immigration related reasons, really, habeas is the only tool available to argue that their continued detainment is unlawful and that they should be released.

So it's, what I learned in law school is habeas means like present the body, habeas corpus, present the body, and that's what we're doing saying, release this person, 'cause you don't have authority to hold them.

Natalie Orpett: And is there any tension in that respect with the fact that immigration proceedings happen in immigration courts, which are, you know, entirely separate court systems than where one files habeas petitions?

John Albanese: Certainly.

I'm not an immigration lawyer. I've never been an immigration court, but certainly in the context in which this has arisen, which is just essentially rounding people up. You know, some of them have active immigration court proceedings. Others do not. Some of them, you know, they were going to immigration court when they got arrested and detained, and then immigration courts are very busy and it's can be hard to get in front of them.

And I honestly don't even know if they have the authority to release someone who's being unlawfully detained. So where advocates have gone is the federal court system.

Natalie Orpett: Yeah. We're gonna come back to the fact that you are not an immigration lawyer, and so are so, so many people who are stepping up to represent petitioners.

But can you talk a little bit about, as you were saying, people are ending up in detention for all sorts of reasons, and that's sort of the basis on which they're bringing these cases, but, tell me how it's looking on the ground. What sorts of stories are you hearing about how people came to be detained?

John Albanese: Sometimes they're explicitly targeted. Like one of the first ways I got involved was my 3-year-old—a cook at my 3-year-old daughter's Spanish immersion daycare was arrested right outside the daycare as parents were bringing their children to school and the parents organized around that to try to make sure that the cook had representation.

What ICE has been doing here has been, at least back in November, they would bring people to the Whipple Federal Building, which is by the airport, and they'd hold people in Whipple, but then Whipple got too full, and they just started immediately shipping people down to detention facilities in Texas, a lot are in El Paso, so—

You know, people would get picked up. Either they'd be targeted or they'd just get pulled off the street and couldn't prove that they were a citizen and have documents on them, they'd get shipped down to Texas while that got sorted out.

And then one group of people we represent is statutory refugees, people who have been admitted into this country as a refugee. And when you're a refugee, you have a year waiting period before you can apply for a green card. It's called an adjustment of status.

And Operation Paris, which is a bit different than the general immigration surge here in Minneapolis, was designed to—essentially under Operation Paris, they are arresting and detaining all unadjusted refugees, people who don't have their green card for the purpose of conducting adjustment interviews or looking for a reason that they can no longer remain in this country.

So those people would get sent a notice to attend an adjustment interview, and then at the interview be arrested and detained and shipped down to Texas, if we weren't able to get a habeas petition on file within 30 minutes of them being detained.

So all, all sorts of stories U.S. citizens getting detained, that was, certainly a lot of lawyers have been representing folks in entertainment who are U.S. citizens who just get, you know, rounded up by ICE. So lot of different stories.

Natalie Orpett: Okay, so am I correct that people who are detained in a non-criminal context like this do not have a right to an attorney to be represented in habeas cases in the way that people are, for example, entitled legally to an attorney in a criminal proceeding?

John Albanese: I think that's correct. Right? I'm not aware of any, like you have to appoint me a lawyer because I'm being held in immigration. I'm not aware of any authority for that.

Certainly you have the right to, you know, you have the right to access counsel, but. It's the right to have counsel appointed, I don't think that exists.

Natalie Orpett: I'm curious about how people get matched up with lawyers, right? They're all these very chaotic sounding contexts in which people are brought into detention and as you said, you know, then shipped off in short order to a different state.

And you know, I've heard and read about real concerns about attorneys being able to even access people, and families having a hard time identifying where their loved one is and just the chaos of all of it.

So what can you say about how people who find themselves in detention are able to actually find lawyers, and to what extent that's a threshold problem before people are even able to secure representation?

John Albanese: It's definitely a problem. Oftentimes it's done by family members. So we've represented folks who were unionized employees, right? And the union there would step in and find them a lawyer or represent them. So we served as local counsel for various AFL-CIO lawyers who were filing petitions on behalf of their members.

A lot of it's through just word of mouth, family. So, maybe a family member will contact legal aid or a local community organization and ask, where can I get a lawyer? So there are some private lawyers that are, been filing habeas petitions, especially if they are also immigration lawyers. So a lot of immigration lawyers filing habeas petitions for our refugee clients.

They, you know, work closely with resettlement agencies, so the resettlement agencies would contact us when they had a client who was detained, or they were worried about client being detained. And there have been some efforts to, to more broadly organize; like have a centralized hub that's being run through our legal aid here to intake people, find out if there's a reasonable grounds to file a habeas petition and then find volunteer or other lawyers to assist them. But a lot of it's been grassroots there.

There was a clinic set up by a local lawyer here who, I think she had former clients who had people they knew who would get detained, and she's not an immigration lawyer either, and she just figured out how to do it and started training others how to do it as well.

So it's been a lot of different—certainly. was not an infrastructure in place beforehand to handle this, but it's a huge problem. Like I've, I think of the people I've represent, I've probably only talked to two or three of them. And certainly I didn't talk to anyone before I would agree to represent them. I talked to their family members and things like that and they'd let the person know.

But the Department of Homeland Security took the position that we did not have a right to have a lawyer go down and visit people at the Whipple Detention Center in Minnesota. And then in Texas you could set up video interviews to talk with your clients.

But that was a fairly cumbersome process.

Natalie Orpett: Okay. So, and we were previewing before, you're not an immigration lawyer, you're not a habeas lawyer. So, start by just telling us what kind of lawyer you were before this.

John Albanese: Yeah.

Natalie Orpett: And presumably are still trying to do some of—Despite how much habeas work you're doing.

John Albanese: Yeah. So I work for Berger Montague. We're essentially a plaintiff's class action and complex litigation firm. Our main office is in Philly, but 10 years ago, we opened up a Minneapolis office. We currently have around eight lawyers in the office and about 12 staff. And when Operation Metro Surge started to really pick up, and like another lawyer in my office has a kid at the same daycare and other people who lived in town, there, you know—

There was a lot of community activity going on about the immigration rates and we felt we needed to do something. People were asking for help. A newer lawyer we had, she was, had a friend of a friend who worked for the AFL-CIO and needed local counsel to file some habeas petition, and we agreed to do that.

Also just started reaching out and saying, Hey, we're available to help. Let's do something. Trying to work with the nonprofits in the area and the people who really had the expertise and boots on the ground to do this type of work. But we said we were building the plane as we were flying it. And that's, that's basically what it was.

So we just thought it was something we felt we needed to do, was to do this, 'cause it was—I mean, you had the feeling living here that you had an occupying force terrorizing neighborhoods. So it was something everyone felt compelled to do.

Natalie Orpett: Yeah, it's been a really incredible response in particular, 'cause just reading about the quantity of need, I mean, I was reading today that there were more than 900 habeas petitions filed in the District of Minnesota in January 2026 alone, and that was a higher number than the total number of criminal cases that were filed during the same period. So it's just an astonishing amount of need. And that even leaves out the people like we were talking about, that can't access lawyers for one reason or another.

I'm curious, you know, given that this is all new, combined with the fact that the administration has been making some, really, let us say, novel and aggressive legal arguments with respect to their authority to detain people, not only, for example, removing, you know, the temporary protected status from, I believe 13, 14 different countries that, you know, suddenly render people unlawful by virtue of a declaration. Also, the refugees that you mentioned, where previously the year passing didn't constitute a reason to be able to detain someone, but rather just a deadline by which they had to start a process of adjusting their status and all these other, you know, the reporting about the use of administrative warrants rather than judicial warrants to sweep people out of their homes.

There are all these really dramatic and novel legal arguments that I'm guessing the government is raising in these habeas cases as their basis for detention. And I'm just curious, you know, coming from the fact that you weren't doing normal habeas cases before there were these, you know, heretofore unlitigated tests of the legal authorities that the administration is now claiming.

What has the learning curve been like?

John Albanese: Extreme.

Natalie Orpett: Yeah.

John Albanese: Immigration laws are immensely complicated. We, once we started doing this work, we quickly decided we should try to just focus on one or two particular things rather than trying to handle it all because we just simply weren't in a position to get up to speed to handle it all, nearly quickly enough.

So that's one reason we started focusing on the refugee things because that's something we could really get our arms around and not, not do anything unintentionally that would end up harming someone. 'cause the more we learned about the various statuses people can have and the various detention authorities, the more we knew we didn't know.

Ao, there were some basic things like, you know, I think the most common habeas issue is that they have arrested someone who's been, who's undocumented, but they've been in this country for more than two years and haven't previously been deported or anything like that. And there's a lot of cases already litigated around the country about that issue, whether they can hold that person indefinitely or whether they're entitled to a bond hearing to get released.

And that issue, by the time, you know, Minnesota experienced it, immigration search had been litigated hundreds of times. So there was a wide body of law on that, those particular issues. But certainly the refugee issues that have come up have been novel. Minnesota is where the government's decided to test their position on their ability to detain refugees, unadjusted refugees. So yeah, it—

I mean, immigration law is immensely complicated, and because there's this administrative process and all sorts of other things, it's not just regular civil litigation where you're learning, well, this statute says this, these are the damages, that's how this type of claim works. This was a huge, huge undertaking. So I feel like we've learned something new every day and just try to apply it appropriately.

Natalie Orpett: And are most people who are representing petitioners, newly representing petitioners like you, you know, not having previously had this be part of their practice?

Is it mostly pro bono work?

John Albanese: Yeah, mostly pro bono work. Some of the people work in immigration practices, I know are charging money, as they should, but for most folks there, it is pro bono work. There is a few shifting components under the Equal Access for Justice Act, but I don't know how consistently people are seeking their fees.

We have tried it in a couple cases, but I don't have any rulings on it yet, but certainly most people I talk to are not doing this for any sort of financial gain.

Natalie Orpett: So that's a substantial amount of time that you are not billing to paying clients. It's a pretty remarkable show by the legal community in Minnesota.

John Albanese: Yeah. One thing that's nice about working with you know, I'm a plaintiff's class action lawyer. I've never sent my client a bill, a client a bill for anything. So I'm used to not getting paid for a while and moving on risks.

So, it wasn't that much of a change and this wasn't a hard sell to the firm, that we need to devote a lot of resources to this over the next few months.

Everyone understood it and was supportive of it.

Natalie Orpett: That's great. That's a really impressive showing up by the legal community. It gives me a little faith after the folding of the big law firms that I have been ranting about for the past lots of months. I’ll take the opportunity to remind all of our listeners that my old firm was not one of the ones that folded.

Okay. So I wanna switch gears too, because you obviously have spent a lot of time in court during this, and before this, facing government lawyers, and they also are really dealing with major shifts in their practice, let us say. And there's been a huge amount of impact on the U.S. Attorney's Office in Minnesota, as well.

I think, both, in connection with the influx of habeas matters, but also other issues that are coming up that have caused—I don't remember the last number, but some huge proportion of the U.S. attorney's office, of assistant U.S. attorneys, in particular, to resign, you know, seemingly many of them in protest to what they were being asked to do.

What sort of impact is that having? I guess both. What sort of impact do you think that's having in habeas litigation, but also sort of more broadly for all of the matters that the government is responsible for litigating?

John Albanese: A huge impact. It's really hard to understate. The U.S. attorney's office here is widely respected and widely respected by the judges, but there's no one who works there anymore. They’ve all resigned their positions.

We were mostly dealing with lawyers who were in-house at DHS, who had been brought in on special assignments. I'm sure you saw the news story of Julie Le who had that remarkable contempt hearing asking the judge to hold her in contempt. And I dealt with her a lot. And just the volume of habeas petitions, there was just no advance planning for any of this, it was we're gonna arrest people and the consequences would be the consequences.

And you know, they didn't have appropriate detention facilities lined up. So they're shipping everyone to Texas. Certainly the U.S. attorney's office, and the government in general, DHS was not prepared to deal with the number of previous petitions or really comply with court orders, you know, it's just a mess.

And I think you saw, I mean, a lot of that frustration came out and the contempt hearing. But the judges here have really stepped up. They know how important this is, and they're working nights and weekends and issuing orders and rendering opinions and judgements extremely quickly.

I know that they're frustrated with how everything's gone, and they don't, they're trying to get the message to the government that you need to be better prepared and you're holding hundreds of people without any lawful basis. We're gonna release them and we expect them to be released and their property returned and we want them to be released in Minnesota so they're not just left on the side of the road in Texas and told to find their way back.

And the government is simply not prepared to do that. And so many longtime people at the U.S. attorney's office have designed because of this.

I don't necessarily think that the judges blame the government lawyers or anything like that, but it's gonna take years to rebuild that office. And certainly, I think the court system here is, you know, it's gonna change the way how everything works for a while. Certainly, in the eyes of the judges here about how to respond to what the government says in court proceedings, 'cause there's a lot of skepticism and a lot of distrust.

Natalie Orpett: Yeah. It does seem, from what you're saying, that it sort of goes to this broader principle that we've been talking about here at Lawfare a lot, which is the presumption of regularity that it really does seem—from some of these transcripts that I've seen and some of the reporting—

That judges are starting to really expressly question the government and what they're arguing and the veracity of it, but also just the, and this came out in the hearing that you're talking about with Julie Le that you know, if—who are DOJ lawyers at this point, she's on detail to DOJ—but if they're not able to get their clients, who in this case are DHS, to respond to them, that, you know, how do you even deal with that from a sort of presumption of regularity?

You know, the philosophy that is traditional in courts that judges will traditionally believe the government 'cause they're repeat players and it's just sort of a doctrine that has—I guess, not quite doctrine, but philosophy, that has developed over time. And I think you're really seeing the strain of that and it's really surfacing that judges are not so sure about the applicability of that, at least in these circumstances.

Does that sound right?

John Albanese: Absolutely. Yeah. You have to remember, this is in Minnesota too. Everyone's pretty reserved here, and it can take, it takes some pretty extreme circumstances to get the bench riled up here, and I would've never imagined—Yeah, I'm still stunned every day at how frustrated the judiciary clearly is with the government.

And I clerked on the northern district of Illinois and we had a lot of police abuse cases, you know, involving the Chicago Police Department. And after a while that I know the judges on the bench from the Northern District just tended not to believe what they would, the official positions of the Chicago Police Department, and what happened. I don't think we're at that point here, but there is a ton of skepticism on the bench about what the government's saying and what's actually happening.

So, yeah, presumption of regularity. Nothing's, nothing's regular here right now.

Natalie Orpett: Do you have the sense that that either now is expanding to non-habeas matters, or will it? Do you think this will persist as a problem?

John Albanese: I don't know. I think the judges will continue to trust the DOJ lawyers that are still there, that they know and respect.

But to the extent that the government's other areas is gonna implement rash and chaotic operations, like, you know, withholding funding and things like that. You know, I think the judges are certainly gonna be very skeptical of stated rationale and briefs and taking the government at its word for things that seem to be, you know, priorities of the administration, that what they say in court is not what Trump's tweeting about.

Natalie Orpett: Yeah. I mean the other thing that, I'm not sure it's best described as the presumption of regularity, but it seems to have similar implications is, as you were saying, that just the capacity question that there are so many fewer people, and so much of the caseload, and the U.S. attorney's office is dedicated to immigration matters now,

that even if judges are not assuming bad faith of the AUSAs that they know from previously, and they, you know, believe that they're doing their best, that they're not sure they can sort of afford the presumption of regularity, not because they think the lawyers themselves, the government's lawyers themselves are making misrepresentations or whatever, but rather because they just can't trust that the government is functioning the way that it traditionally has, which has been a separate basis for the presumption of regularity.

John Albanese: Yeah.

Natalie Orpett: Besides just believing that individual lawyers will uphold their oaths.

John Albanese: Yeah. I don't have much, you know, visibility in other matters that the U.S. attorney might be responsible for it, but I mean, that office has been decimated, as far as I'm aware.

Natalie Orpett: Do you know what the numbers are? I can't remember.

John Albanese: At least 17 people have resigned.

Natalie Orpett: Out of how many?

John Albanese: I think they had about 80 or 90, you know, maybe 100. But like we filed a fee petition and a habeas case the other day. By the time we filed it, both DOJ attorneys who were on the case were no longer on it.

So we had no idea who we were supposed to meet, confer with at the DOJ about the petition and you just send an email to the general email saying, we're gonna file this. If you wanna talk about it, someone please appear. So it's just, it just didn't have an attorney on the case anymore who still worked there.

Natalie Orpett: That's really remarkable.

I wanted to ask about something relatively specific, but it just really stood out to me when I was reading the transcript from the hearing that we've been talking about, what I have said is, sort of unfortunately, become known as the “this job sucks” hearing.

John Albanese: Yeah.

Natalie Orpett: Which I think is a real injustice to what actually happened if you read the whole transcript.

But one thing that the AUSA said there, was the judge was, sort of obliquely, asking about some argument that the government had been making in justifying or explaining why they hadn't complied with the judge's orders to release people. And it was, as you said, it was a contempt hearing.

The judge was saying, you know, why shouldn't I hold you in contempt? I've issued all of these orders that you have to release people, they are unlawfully detained, and they're still detained, and you have passed the deadlines.

One of the answers that they ended up talking about, as I said, obliquely, so it's not really clear how it appeared in the papers, what exactly the government was saying in this respect, but it sounded like, you know, he, the judge, referenced something about, you know, your argument that there would be some danger to the government if we complied with your order to specify when and where someone is going to be released. You know, the judge sort of says, you suggested that there would be some danger in that, and that's why you couldn't, you know, file the information that I told you to file so that this person's family would know where to find them when they are released, according to the order that I have demanded that you release them.

And she said something about how she had been instructed by her office that providing that information might be dangerous. I'm gonna read from the transcript: “I was told that if we provided all information, the protestor will show up at the airport, and the agent and other people will be in danger.”

Do you have any sense of either that, in particular, or, what sorts of guidance the government is getting, with respect to how forthcoming they can be with information that judges are asking for?

John Albanese: I don't have any like things specific. I mean, the sense I've gotten is the DHS views judges as hostile to them and to the extent that there's a reason not to do what the judge says, you know, go ahead and try it, regardless of whether it has a grounding in fact or law or not. You know, I think they don't take court orders seriously.

Natalie Orpett: Yeah. So it's sort of, sounds like it's sort of a ‘take the most aggressive litigation stance you can and test the limits of everything, including what the judge tells you.’

John Albanese: Yeah.

Natalie Orpett: So, and you, you've talked a bit about how the bench is responding to all of this. But, you know, I'm curious what you've seen beyond things like this hearing that we've been talking about of, you know, demanding the government justify why they shouldn't be held in contempt for defying court orders.

Like what else have you seen judges do to try to deal with, whether it's defiance of court orders or just the general chaos of all of this, you know, what are judges doing?

John Albanese: I mean, first and foremost, they're just acting very swiftly, and we follow a habeas petition, get assigned in an hour, within 30 minutes of it getting assigned, normally there'd be a standard order out saying, you know, government’s to respond by this date.

Even in the limited time, we've been doing this since, you know, the second week in January, you know, they were shipping people from Minnesota to Texas, and there's an argument that once they're in Texas, the Minnesota courts no longer have habeas jurisdiction over the petitioner. So, you really gotta get that petition on file while they're still in Minnesota.

And when we first started, a handful of the judges would include in their standard order: you are not to remove this person from Minnesota, if they're still in Minnesota. And we would just call chambers and say, will that be part of your standard order? And if not, then we'd move for a temporary restraining order, shortly after filing a petition.

Within like seven days, I'd say all but one of the judges would include that in all their standard orders. Like you're not, if the person's still in Minnesota, you're not to move them. And they've just been adjusting on the fly like that.

We have one case where—even when somebody gets released, ICE often maintains control of the property. So like their ID, their work permit, they, one reason or another, I'm not really sure what the explanation is, they keep it and don't give it back. And we had someone who didn't have their driver's license, they didn't have the work permit, I believe, and ICE was claiming they couldn't find it anymore. The person had been released.

We had a judge issue, I think it was two or three same-day hearings on these things. Like, alright, the petitioner filed something at 11 saying they couldn't find their property. By 4:00 PM today, everyone's gonna come to court and we're gonna talk this out. And then, you know, the result of that hearing was, we're gonna have another hearing in two more days. You know, just really making time for all of this.

Things don't tend to move faster and they've been operating at lightning speed and they're enmeshed in the details of everything. They're being very adaptive.

Like another example of adaptive things is when we first started, we would have to ask, you know, police order that they'd be released in Minnesota rather than in Texas. And the judges quickly picked up on them and that became part of their standard order.

And normally they'd issue an order or judgment within 24 hours of the briefs being in. So you could get someone released, you know, three, four days after filing the habeas petition.

Natalie Orpett: That's good to hear. To me, it's very important to meet the moment. The legal profession is not always the most eager to change the standard.

One follow-up question on something you said: Has there been any litigation in the district about the question of whether judges there retain jurisdiction for habeas purposes if lawyers are not able to file in that brief, couple of hours before people are brought to Texas?

John Albanese: Yes. We had a judge actually sua sponte order briefing on that because we had been told by various advocates that was probably a losing issue and well not worth fighting. You know, if they had been moved to Texas by the time we filed, just go file in Texas and we had filed a case, government showed that they were in Texas by the time we filed.

So we're like, file a joint motion to dismiss saying they're in Texas, we're gonna move this down to Texas. And the judge sua sponte said, I want briefing from both parties on the jurisdictional issue about whether I have jurisdiction and we filed briefs and he ended up saying, yeah, I have jurisdiction over this.

And I know other judges, things move slowly in Texas, so I know some advocates who are, things are not moving quickly in Texas, they file a petition in Minnesota and the judges here are generally entertaining them, asserting jurisdiction over them.

Natalie Orpett: So then both sides have to find local counsel in the state in which they're not admitted, if you're having to file for your clients and for you in Texas; for Texas attorneys, in Minnesota.

John Albanese: Yeah, so because our practice is nationwide, we have some attorneys who are at least admitted to the federal courts in Texas, even though we don't have a Texas office. So we've been filing for people down there, but I know a lot of Minnesota attorneys who have been admitted, who have admission pending to the Texas federal courts?

Natalie Orpett: It's pretty astonishing to think about having to pull together a habeas petition for individual clients, most of whom, as you said, you haven't even met or talked to within a couple of hours because they might be brought out of state and you would face this jurisdictional question.

So are the petitions themselves pretty general? In the sense that, you know, obviously you don't have all of the facts to start arguing about why the detention is unlawful.

So is it just a sort of general petition that says, you know, government, you have to, you have the burden of explaining to us why, because it is not obvious to us why this person is detained, or what do those briefs actually look like, in the absence of information and on the incredibly fast turnaround time that's required, given that people may actually leave the jurisdiction.

John Albanese: Yeah, so for our refugee clients, we were preparing them prophylactically. Like if they got a notice to a period in review, we'd get all the facts. And the refugee resettlement agencies had a lot of that information, already, that we thought would be relevant to the petitions.

But a lot of them are kind of plug and play with the arguments about why we don't think that they'd have detention authority. I mean, there's certain facts that are key to that. You know, whether the person has a criminal record, we'll look them up, you know, see if they have any sort of crime that would subject them to deportation proceedings.

Normally, the family member would know whether they had been deported before or how they came into the country, how long they've been in the country, those types of facts. So we would definitely have, you know, enough information that we thought was relevant to make the argument they had no detention authority.

And the way the government was behaving, their assertions of authority were so sweeping that it wasn't individualized assessments about whether this person presents a flight risk or whether this person is a danger or anything like that. It's just, we picked them up and we believe the statute gives us nearly an unquestionable right to detain them for as long as we want to.

Natalie Orpett: That's remarkable. I'm curious, have you dealt with any cases that involve this new interpretation that the government is offering of mandatory detention authority? This is we've talked about this a fair amount on Lawfare.

So, for those of you following along at home, this is 8 U.S.C. 1224(b)(2)(A). This is the, previously the government had a much narrower interpretation of, on what basis people could be detained. And now, DHS is offering an interpretation that basically anyone has to be mandatorily detained if they do not have clearly established immigration status.

Have you dealt with any cases in which the government is arguing that as its basis for detention authority?

John Albanese: No, not that provision in particular. I mean, in the refugee context, they have taken a position that defies 45 years of past practice about whether certain statutory language authorizes detainment, and they said, well, Congress could have been clearer here, but we think it clearly authorizes detention.

Natalie Orpett: Okay, so I wanna sort of talk about what you see for going forward. So it does sound like the enforcement actions, the actual bringing people into detention might be slowing down, or is it slowing down after the administration has withdrawn some federal agents from the height of, what they called, Operation Metro Surge?

Are you seeing a slowdown in these cases?

John Albanese: I haven't checked the filings, but certainly, just in the amount of chatter and activity we've had, it's slowed down significantly.

Natalie Orpett: Despite how fast it sounds like judges are moving, the release orders, I imagine, you know, there's a longer tail of these cases than just, you know, everything disappears once there are fewer ICE and CBP officers in Minneapolis.

So, release orders could come, you know, within days, but also many of them I'm sure are taking longer to adjudicate. But are there, have there also been appeals from the government of habeas rulings?

John Albanese: Yeah, so the one primary appeal I'm aware of, which the government has repeatedly asked the circuit to fast track is on that issue of whether undocumented folks are entitled to a bond hearing, the same issue that the Fifth Circuit addressed a couple weeks ago. That has been pending at the Eighth Circuit since November or December, I believe.

And I know that U.S. attorney recently asked the Eighth Circuit to expedite oral argument on it, because they have so many cases that address that particular issue. But in individual habeas filings I've been involved in, we haven’t had any appeals by the government. So I think they were waiting on that one particular ruling.

Natalie Orpett: Okay. So I think just to wrap us up: What do you see as the overall impact of all of this on the legal community in Minneapolis, the court system in Minneapolis? What is all of this going to do?

Is it going to be sort of a permanent shift or is it gonna be a blip?

John Albanese: I think the whole thing's radicalized a lot of people, you know. When you just think about the concept of law enforcement, right? What ICE was doing here was repeatedly adjudicated as lawless, and they're claiming that they're law enforcement, but they're the ones who were detaining people en masse without legal authority.

So I think there's just, I think some folks will just say, well, once Trump's outta office and have less rash people in there that, you know, maybe some folks would wanna go back to that presumption of regularity or, as you were describing.

But I think a lot of people are just gonna be, especially in the legal community, deeply skeptical of, of the government. And I think the respect that the U.S. attorney's office had here, it's gonna take years to rebuild, because they're gonna have a hard time hiring, and they're gonna have, they've been decimated by this. They've had a lot of good people leave. And I think a lot of people are now like, gah, well, lawyers had been engaged in things now that they wouldn't have thought they would've been engaged in.

You know, one thing about Minneapolis is we have some big law firms, but they're not often associate like—They have an office here, and some of the other big firms have an office here, but they're small offices and most of the legal community here is Minnesota-based.

So we're not concerned about retribution, you know, through executive order from the federal government. There's little they can do to us. Our clients are just regular people, so I think a lot of people have been activated by this.

And there's been a lot of organizing within the legal community in the past couple months, quitting, strange bedfellows at times, like constellations of counsel working together that are normally on opposite sides of the—and of course, I don't think you're gonna get a Republican here elected statewide anytime soon for the foreseeable future.

So, Chris Madel, who's a prominent lawyer here, probably had a good shot at the nomination, a good job at the governor's office, stopped his campaign saying like, I don't agree with what ICE is doing, but more importantly, I can't win anymore, because there's just simply no way that any Republicans getting elected here in the near future. So I think the damage has been significant.

Significant, and certainly at the level of judicial coordination here in response to this has just been remarkable. I can't imagine another situation like this previously where really it seemed that there was a largely unified effort by the bench in terms of how we're gonna handle this and, just, really, courthouses in crisis. Like how are we supposed to handle all this?

And they came up with various tools to deal with it in the way that they thought was just and legal, so. You don't get an order like from Judge Schiltz saying, DHS has violated orders in, you know, 70 odd cases without something truly remarkable happening.

I think it helps that all our judges are basically in two buildings here too, that are, you know, 20 minutes away from each other. So, there's a lot of collegiality on the bench. I think it places like Texas where, you know, the courthouses in the western district are hundreds of miles from each other, can make it harder.

Natalie Orpett: Yeah. The stuff like that actually really makes a difference: the proximity, the what's happening on the ground, the how well judges know an AUSA is because of the size of the community. I think that's sort of an actually impactful piece of this that sort of gets lost in people's understanding of what all is happening.

So I think we'll leave it there, but thank you for giving us a view into what it looks like on the ground with all these practicalities and just to help understand what the environment is like there.

John Albanese: Happy to do it.

[Outro]

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