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On Jan. 26, U.S. District Judge Michael Farbiarz prohibited ICE from moving an immigrant, Baljinder Kumar, out of New Jersey while he challenged his unlawful detention. Five days later, Immigration and Customs Enforcement flagrantly defied that order, transferring Kumar to a detention center in … Texas. After his lawyers complained, federal officials returned Kumar to New Jersey. But Farbiarz was not inclined to let this disobedience go unpunished. He informed the New Jersey U.S. attorney’s office that he sought to craft a “remedy” for ICE’s defiance—and would require an “investigation” to assist him. He then ordered the office to investigate itself and to “enumerate each instance” in which it had “violated an order issued by a judge of this district” since Dec. 5.
Last Friday, Jordan Fox—an associate deputy attorney general and special attorney assigned to New Jersey—gave Farbiarz an answer: The office had violated at least 56 court orders since December alone, all related to the Trump administration’s unlawful policy mandating the indefinite detention of noncitizens legally entitled to a bond hearing. This confession, first reported by Politico’s Kyle Cheney, was accompanied by a letter stating that “we regret deeply all violations” but insisting that they were “unintentional and immediately rectified once we learned of them.” Fox, who is helping lead the New Jersey office after courts ousted Donald Trump’s first choice, Alina Habba, depicted these transgressions as relatively minor and rare. But Farbiarz did not buy it, noting that Kumar’s illegal transfer to Texas was far from an “outlier.”
On this week’s Slate Plus bonus episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed this court-ordered investigation, its startling conclusions, and the possible consequences. A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: I guess I have to give credit where it’s due. Jordan Fox took one for the team and laid out, chapter and verse, all the court orders this office had violated.
Mark Joseph Stern: Sort of. Fox actually excluded two categories of violations, missed status update deadlines and late docket notifications. When you include those, it’s 75 violations. So let’s dig into these numbers. At least 17 times, the government transferred a noncitizen to a different detention facility after a court unambiguously prohibited it from doing so. That means they were detained in another state, where it would be harder to reach their lawyers, and perhaps where judges are more inclined to rule for the government. At least 10 times, the U.S. attorney’s office failed to produce evidence ordered by the court. And at least one time, the government deported a noncitizen in direct contravention of a court order forbidding that deportation.
In some ways, this is a bigger deal than the ICE lawyer’s meltdown in court a few weeks ago. We now have the U.S. attorney’s office not going rogue here, but admitting under oath that it has breached court orders more than 50 times. And there were often dire consequences for the people whose rights were violated. Fox tried to paint this as a few errors around the edges, but to me it depicts a complete breakdown of the system. And it shows that if you sign up for this work—if you agree to work in a U.S. attorney’s office—you now know you will be violating court orders, maybe on the daily. Everybody is on notice: If you are assigned to handle these cases, you will violate court orders, and you may be held in contempt.
Dahlia Lithwick and Mark Joseph Stern
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I’m old enough to remember Judge James Boasberg trying to ascertain whether his court order around the rendition flights to CECOT prison was flouted, and the lies and deceit that went into gaslighting him about that. And he’s still trying to get to the bottom of it! We talked about that story obsessively last spring. A year later, defiance of court orders doesn’t capture two weeks of a news cycle. We just say: Yeah, they do that now. They don’t care what judges think anymore. The American public has somehow normalized this.
All I can say is bless Boasberg for continuing to push that contempt case. I am glad to hear the rising chorus of other judges doing the same. We’ve seen Republicans in Congress say they want to impeach judges who hold Trump administration officials in contempt. Maybe this could be a Spartacus moment where you can’t impeach them all?
That takes us back to Minnesota, where Judge Laura Provinzino found Special Assistant U.S. Attorney Matthew Isihara in civil contempt during a Wednesday hearing for violating a court order. She said she’d fine him $500 a day until the government complied. One interesting piece of this story is that Isihara is a JAG attorney who was conscripted to help with the flood of habeas petitions in response to the mass detention policy as prosecutors continue to flee the Justice Department. And even he said he couldn’t handle the caseload.
This story illustrates the mix of incompetence and malice that is defining the administration’s mass detention campaign. The government arrested this individual, Rigoberto Soto Jimenez, at his workplace in January—even though he had lived here since 2018 and has no criminal record or a final order of removal authorizing his deportation. ICE then hustled him to Texas. His lawyers still managed to persuade Provinzino to issue a writ of habeas corpus ordering his immediate release in Minnesota and the return of all confiscated property.
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The government did neither. It released him in Texas, not Minnesota, and withheld all of his property, including his driver’s license and other identification paperwork. So he was just dumped and abandoned. His lawyers had to go to Provinzino and tell her that her order had been flagrantly violated, which is when she scheduled the hearing. Soto Jimenez managed to make his way back from Texas, but as of Wednesday, ICE still hadn’t returned his identification cards. So Provinzino held Isihara, the JAG lawyer detailed to this case, in civil contempt until the cards were returned, with the $500 daily sanction. Fox 9 News reports that her order finally prompted the agency to mail back the ID cards. Which gives us the answer to the question we’ve been asking: What will it take to make ICE comply with the law? The answer is dragging JAGs into your courtroom and holding them in contempt.
The caseload is impossible. Nobody can do this volume of work. If you are a government lawyer thinking, Step aside, Mr. Isihara, because I can do this better next time, just know you’re being set up to pay $500 a day for the privilege.
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