U.S. District Judge Nancy Brasel sharply criticized the Justice Department during a federal court hearing Friday, giving advocates and federal officials six days to resolve what she described as a vast disconnect in evidence regarding the treatment of immigrant detainees in Minnesota.
Faced with extensive evidence from advocates claiming constitutional violations against a single declaration from a federal field office director, Judge Brasel expressed clear frustration with the government's defense. "There's an enormous gap in the experience in the record of the declarants, and the statements you're making now," Brasel told a Justice Department attorney. "We can do a war on declarants all day long, you're not winning, and you know that."
The Trump-appointed judge issued the directive at the close of a preliminary injunction hearing, expressing concern about federal procedures at the Bishop Henry Whipple Federal Building in Minneapolis, where many detainees are held before transfer, often out of state.
The hearing stems from a class action lawsuit filed by the Advocates for Human Rights and a detainee, who allege that immigration agents in Minnesota pressure detainees to waive their rights and restrict attorney access to the facility. The lawsuit claims these practices violate detainees' constitutional right to counsel.
Attorney Jeffrey Dubner, representing the advocates, argued that the current environment chills protected legal speech and leaves detainees in a communication "dead zone" until they are "booked" — a process that often leads to out-of-state transfers. "The real standard is, can your attorney get there and back in a day," Dubner said, claiming that attorney communication with detainees becomes substantially more difficult once they leave Minnesota.
"It's another thing to say 'you can talk to your attorney' 1,700 miles away in Texas," Dubner added, highlighting how transfers to distant facilities can effectively undermine the right to counsel.
The Justice Department argued that detainees at the Whipple building have access to free, unmonitored phone calls. However, advocates submitted declarations from attorneys and detainees disputing that claim. According to these declarations, calls, when permitted, often take place within earshot of federal agents, undermining attorney-client confidentiality.
Both sides acknowledged that detainees have a constitutional right to counsel. The dispute centers on whether that right is being properly protected in practice. Advocates argued that the right is being "hollowed out" by restricted access, while the government relied on its existing policy without providing evidence that it is being properly implemented in Minnesota.
Justice Department attorney Christina Parascandola addressed some of the reported violations, arguing that the Whipple building serves as a temporary "holding facility." However, the judge appeared unpersuaded by the government's explanation given the substantial evidence presented by the advocates.
The case highlights broader concerns about immigration detention practices and access to legal representation. Immigration attorneys have long argued that physical proximity to detained clients is crucial for effective representation, particularly in complex immigration cases where time constraints and language barriers can complicate communications.
The evidence presented by advocates included multiple declarations from attorneys and detainees describing instances where access was denied or severely restricted. These firsthand accounts contrasted sharply with the government's limited response, which relied primarily on a single declaration from a federal official.
Judge Brasel's sharp criticism of the Justice Department's defense suggests she may be inclined to grant some form of relief to the plaintiffs if the evidentiary gap is not addressed. Her comment that the government was "not winning" the "war on declarants" indicates skepticism about the federal response to the substantial evidence presented.
The six-day deadline set by the judge creates urgency for both sides to address the documented discrepancies. For advocates, this represents an opportunity to secure improved access for their clients. For the Justice Department, it means either producing stronger evidence to support its position or potentially facing court-ordered changes to detention procedures.
The case also reflects broader tensions in immigration enforcement, where constitutional protections must be balanced against operational concerns. The outcome could have implications for immigration detention practices beyond Minnesota, particularly regarding how facilities ensure meaningful access to counsel.
The Whipple building's role as a temporary holding facility before out-of-state transfers adds another layer of complexity. If detainees are quickly moved to distant locations, the practical ability to maintain attorney-client relationships becomes severely compromised, potentially undermining the effectiveness of legal representation in immigration proceedings.
The hearing's outcome will likely depend on how well each side can substantiate their claims during the six-day period Judge Brasel has provided. The substantial gap she identified between the parties' evidence suggests significant work remains to resolve the dispute over constitutional compliance at the Minneapolis facility.