Feds struggle to justify Minnesota refugee sweep in court

MINNEAPOLIS (CN) — The Trump administration’s refugee sweep operation in Minnesota appeared to falter in federal court Thursday, as a federal judge questioned the government’s justification of warrantless detainment of refugees.

While the Justice Department maintains the federal government’s actions are authorized and encouraged under a congressional mandate, advocates argue the interpretation, and sweep, is an entirely unconstitutional exercise of power — one Congress never intended in their initial writing of the statute.

“Intrusions on physical liberty are the highest infringements we have on constitutional scrutiny,” E. Michelle Drake, attorney for the Advocates for Human Rights, said. “If you’re going to shackle someone, or put them in handcuffs, there needs to be a good reason why … today was the day [to show it], and they haven’t offered it.”

The Advocates for Human Rights are seeking a further injunction on the “Operation PARRIS” refugee sweep in Minnesota after U.S. District Judge John Tunheim granted an initial restraining order on Jan. 28., and denied the Trump administration’s attempt to dissolve it weeks later.

Advocates claim the federal government has no statutory basis for arresting and detaining refugees who have yet to adjust to citizenship — arguing the government is attempting to reinterpret a long-existing statute that never before allowed for this warrantless detainment.

Drake delivered a pointed, passionate rebuke of the federal government’s treatment of refugees, arguing that, throughout the entirety of the case and related operation, there has been no justification for its actions.

“They cannot point to anything, not a statute, case, mandate or statistic that justifies an arrest in this case,” she said. “Their reading turns the Fourth Amendment on its head.”

In addition to the argument that the existing statute allows such actions, Justice Department attorney Brantley Mayers pointed to a new Homeland Security memo as further justification.

The memo, issued Wednesday, attempts to quell any dispute over the relevant congressional mandate by defining custody in the statute to include “arrest and detain,” and allowing DHS to maintain this custody for the duration of the “inspection and examination” process — an unspecified amount of time.

Kimberly Grano, member of the International Refugee Assistance project, pointed out that refugees cannot obtain a green card until one year of residency in the country, yet would be immediately subject to detainment under DHS policy.

Throughout the case’s existence, Tunheim, a Bill Clinton appointee, has strongly opposed the government’s belief it can detain refugees precisely at the one year mark — finding that, if carried out, it would result in thousands of unadjusted refugees “spending their one-year anniversary in this country in a jail cell.”

Wednesday’s memo also rescinds prior direction saying failure by a refugee to obtain residency status was not considered a proper basis for detention.

The memo includes uncited statistics claiming certain refugees pose a safety risk — including one line stating “less than 47% could be conclusively found to not represent a public safety concern.”

Tunheim all but dismissed the details laid out in the memo, scoffing at Mayers attempt to use statistics backed by no traceable study. Drake too appeared baffled at the memo’s unverifiable statistics, and its verbiage.

“I suspect everybody in this room hasn’t been conclusively found to not represent a public safety risk, but that’s a justification for detaining thousands of refugees?” she asked the court.

When questioned on why the government needs the ability to detain refugees, Mayers instructed the court to imagine a scenario where a refugee refused to show up for status adjustment, and the government could do nothing in response.

“Why would a refugee fail to show up to be adjusted to lawful permanent resident status and obtain a green card?” Tunheim asked — echoing frustration in his prior rulings over the government’s inability to justify its actions. “This is a solution looking for a problem.”

Drake said it’s absurd to allow hypotheticals to serve as a backing for mass deportation and “flouting” of the Fourth Amendment.

“We don’t allow for the shackling of people and warrantless detainment of four-year-olds based on something that somebody might imagine,” she said. “What I just heard is there’s essentially no Fourth Amendment as it applies to immigrants."

Mayers also suggested Homeland Security would “exercise discretion” in detaining those who voluntarily show up for status adjustment or inspection, but provided no policy language or guidelines for when and how DHS would go about exercising that discretion.

“Your argument is that on day 366, all are subject to arrests and detention … everybody … if they voluntarily return, you can arrest and detain them under your policy?” Tunheim asked Mayers — visibly concerned of the authority that would allow federal agents to have.

Tunheim did not issue a bench ruling Thursday.