Lawfare Daily: Katherine Pompilio on Tracking Government Non-Compliance in Habeas Corpus Cases

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What? Then is the big canon? Jacqueline, swing the hoofit. It's getting with a lot. The canon of Smarly Two is now streaming on RTL Plus. Go. But we're really trying to do as established.

First that pattern. That yes, this is a bigger issue than just, you know, a one-off violation in one case in Minnesota or even just a Minnesota problem. Even just a New Jersey problem.

“We have, I believe, 20 jurisdictions now that we've added to the tracker”

and we're looking at adding more. But this is a widespread country-wide issue. It's the law fair podcast.

I'm Molly Roberts, a senior editor at Law Fair,

here with Katherine Pompeo, associate editor at Law Fair. This is not just failure to file issues. These are, you know, it's a pattern that includes deporting people and violation of orders, failing to free people that the courts have ordered to be released,

failing to return people's property, and then moving them out of state to a different jurisdiction in violation of, again, a court's order. Today, we are talking all things, habeas, non-compliance. So, Katherine, last week, you and Benjamin Wittis

published a piece called 300 habeas cases in which the government has defied court orders. So, tell me a little bit about what this project is exactly and how it came about. Yeah, so the project is, like what says in the title,

we are trying to count and collect all of the instances of non-compliance and habeas court-based cases in immigration proceedings. So, issues of non-compliance look like anything from failure to file to failure to provide a bond hearing

to even deportation despite an order against removal. The project came about because a few months ago, I'll say weeks ago, Judge Shultz and Minnesota

“released a list, I think the initial list was somewhere”

around 60 to 70 cases of instances in which the government had failed to comply with court orders in Minnesota. And I saw that and obviously thought, "Hey, that's pretty bad." So, I wanted to just kind of start keeping track of if any other judges.

We're releasing lists of some kind. And then a few weeks after that, I believe a judge in New Jersey ordered the Justice Department to produce a list of their own violations of court orders. And that list produced around, I'm going to say 53 cases.

So, I added that to a spreadsheet. And I thought, I'll just keep keeping track of this just for personal use as I see them come up because this seems to be a broader problem than, you know, just Minnesota or just New Jersey

because I had seen, you know, Kyle Cheney from Politico or, you know, LaFair's Roger Parloff, flagging online, other instances of non-compliance, kind of one off, you know, one here, one there. And I thought it would be really great to be able to kind of see

this entire picture. And then it has just kind of snowballed from there. So, yeah, that's how we got started. So, it seems like a pretty heavy lift and also somewhat reliant on having seen a new story

or a judge assembling a list of his or her own.

“But that's not exactly how you guys ended up doing this, right?”

You kind of figured out another way to get even more cases than we previously would have known about. Yeah, I was keeping track of the manually, which took a lot of time and also there was just no way to know individually about without somebody flagging it online

or a judge flagging it in a case about whether or not there was an issue of non-compliance. So, I teamed up with Ben to create a program

using Anthropics Cloud to basically search and scrape

every habeas corpus docket in the country. Over the last few months mostly, but we've started looking back now to the beginning of the Second Trump administration. But we've gotten cloud to scrape these dockets and flag for us cases in which there are potential non-compliance issues.

The way that cloud does that is it doesn't have access to individual filings within the dockets. That's behind a pacer paywall.

publicly available, cloud still, I don't think

had the access to individual documents. So it was just reading dockets. So that would be either orders to show cause or minute orders that were available on the docket. And then it dumped every single case that it thought

there might be an issue with into a giant spreadsheet which we have one called the megalis and that one should have been called the megalis. That was about 25,000 cases. And then from there, we were able to individually

and manually using humans, including ourselves, individually and manually go through each one of those cases. And look at where cloud had flagged issues of non-compliance and then verify whether or not that was an actual issue of non-compliance or not.

Cloud is, I don't want to, you know, drag on cloud, because it has been super, super helpful. But cloud is not as of now, not the best legal analyst. So it would get pretty confused. That's comforting now, right?

Right, absolutely comforting. It's not the best legal analyst. So it would get confused about what a violation of a court order was versus or just like an annoyed judge. There were some cases thrown in there.

“Like I remember there was a criminal case in Guam.”

That was not even a habeas case. That was somehow thrown in there. So it's not perfect. And of the cases that we've added to the tracker and that we are continuing to add to the tracker that we've published on law fair.

Each case is reviewed by a person. And then at least two sets of eyes are on two sets of human eyes. Are on the cases that we add to kind of then go ahead and add them and classify them by violation type and severity. Got it, got it.

So when you give Claude the dockets to look at, there's no risk of Claude hallucinating, right? Because he just has to look at material that you're giving him. He's not going to make anything up from outside of that. I know I'm calling him he and I'm calling him.

I've started referring to him as he to privately. So in my message, my many messages to Ben about this project. Oh, I'm doing an extremely publicly. Yeah, that's too late for me. Yeah, we can go for it.

Yeah, no Claude flags specific cases for us. And then also includes a link to the court listener docket. So there are no cases that it's so far that I've seen hasn't hallucinated any actual cases. It's just gotten confused about what counts as an issue of noncompliance and what

doesn't.

And then we verify, you know, we always click on the link that to the court

listener that Claude provides to check ourselves dockets at the docket. And even then we'll go in manually past court listener into pacer just to check that, you know, docket numbers are lining up. And issues of noncompliance exist. Another not just made up in Claude's mind.

So why is that distinction so important? And you've mentioned it.

“I think twice now and you guys mentioned it in the piece too that this isn't just”

examples of where the government behave badly or annoyed a judge. And of course we know there've been a lot of examples recently of the government annoying judges. But yeah, why is that it distinction so important? Yeah, so we're keeping track of noncompliance full stop.

I think our list would be a lot longer if we were keeping track of if judges were annoyed, but the goal here is to establish a pattern or just a more comprehensive picture across the country of issues of noncompliance. So while a judge can be annoyed, that's not a full stop violation of an order. And I think, you know, if judges take a look at the stuff that we've produced

and the fuller picture of all the violations across the country, they might be more annoyed because this is clearly a pattern.

But we're trying what we're really trying to do is establish first that pattern.

That yes, this is a bigger issue than just, you know, a one-off violation in one case in Minnesota or even just a Minnesota problem, even just a New Jersey problem. We have, I believe, 20 jurisdictions now that we've added to the tracker and we're looking at adding more. But this is a widespread countrywide issue.

And it's happening everywhere. And so we want to, you know, be sure that we're being fair to the government and just not knocking them for, we're not knocking them for just behaving badly. We're, we're knocking them for violating, you know, a judge's order.

“I think at the beginning of the Trump administration, there was a lot of the second”

Trump administration, especially there was a lot of what ifs about, you know, what happens when when they start violating court orders. And I think this tracker shows, you know, we're here 300 times over. And so far, you know, there's been nothing no punishments more than threats of civil

Yeah, I wanted to ask about that.

“What does happen when the administration is non-compliant?”

The judge tells the government to do something. They don't do it. Then what? And I mean, maybe one way to talk about it would be if you could kind of walk me through like what one of these cases might look like or has looked like from what initially

the government didn't comply with what the judge told the government to do, what happened then. And yeah, just to get a little bit better of a sense of the repercussions both for the government, if there are any. And for the person who's, maybe, is rights were violated.

Yeah.

So I'll start by walking through the most common violation type that we've come across

is a failure to file. So something will happen where, you know, a judge. And again, this is like this in the simplest of terms, it gets a little bit more complicated in a lot of these cases, but a very straightforward violation that has happened often is somebody is detained by ICE.

They are brought to a detention center. And they file a petition for a rid of habeas corpus. The judge then orders the government to respond to that petition.

“In a lot of instances, I think most of our instances of failure to file violations.”

The government just will not file their response by the court's deadline. And then as a result, the petitioner is released and it's kind of defaulted in their, in their favor. There are more egregious violations.

There were certain cases, I believe it was J.B.

C.O. V. Bondi in Minnesota that was the case of six Venezuelan nationals who were arrested at gunpoint in their home by ICE agents. Without a warrant, they were detained. And one of them was also a 12 year old child who had asthma, who was detained without an inhaler. And the judge had ordered them to return the detainees to Minnesota.

The government didn't. They had a deadline to release the six Venezuelan nationals from custody. The government still did not release them. The judge ordered them to produce a warrant. They did not produce a warrant.

And then the judge was so angry that in one of his orders he wrote, you know, the quote, the government has not made a single filing on the docket in the case. Aside from accounts, let's notice of appearance. Yeah, pretty bad. But the broader trend of what we've noticed is that this is kind of a one-off for the government.

Just not answering whatsoever. But we've noticed that judges are overwhelmingly good at bringing the government into compliance eventually. So they'll threaten, you know, civil contempt or financial penalties. That happened.

“And I believe it's New Jersey with Matthew Aschihara.”

He was held in civil contempt. But other than that, it's just been mere threats of civil contempt. I've not seen any judges threatening criminal contempt. And then usually that kind of brings the government into compliance. And they'll file whatever thing they needed to file or they'll release the petitioner,

even though they had been asked to release the petitioner. So even though they are good at bringing the government into compliance, the government isn't facing really any big consequences other than these threats of civil sanctions. On the flip side of that, the people who are the petitioners are facing really bad consequences because of government on compliance.

Even in the simplest of cases where, you know, somebody was detained by ICE and they filed a petition and the government failed to file. So they were released on default. They're still being held for hours longer than, you know, necessary or that what is just because of the government decided to detain them

and then just didn't bother to file a response, defending their decision to detain them. There are even more instances of issues of failure to return property. So there will be a little bit of a back and forth battle between, you know, the petitioners and the respondents about,

although the rate for AVS corpus and then eventually the petitioner wins, the government's order to release the petitioner and, you know, whether that happens or not on time is another issue and another thing that has happened a lot that we have counted in our violations. Oftentimes, I think, actually, I can give you a number.

62 times on our tracker, the government has failed to return property to the petitioner. So sometimes that is, you know, I saw one case yesterday where it was, they could not return a petitioner's gold chain, which is valuable, right? But you don't need to go gold chain to live your life. There are other instances.

I mean, yeah, maybe, which is still bad. Like they should the government should not be keeping any property.

But there are also instances in which, you know,

“the government has either lost or is holding on to work permits.”

Drivers licensees, wallets. So these people are being released without, you know, things that they need to exist as a person in this country. A lot of these cases, a majority of them, 248 by my count now. I'm adding more to the tracker today.

So by the time that this goes out, there will be more cases. But 248 of them are in Minnesota. And it has just been winter. So a lot of these people were also released without coats. There was one case.

I'm forgetting the name, but, but there was one case where, you know, a petitioner was released without a coat without, oh, his driver's license without his work permit without a wallet. Into the cold, and he had to spend the night in a shelter

because he couldn't get a hold of.

He couldn't pay for anywhere to stay. He was taken in Minnesota and then moved to Texas. And he needed to get back to Minnesota.

“And his lawyers put together and donated their flight miles”

to get him back to Minnesota. So there's really serious consequences happening for these people who are being detained. And these are just the ones that we know about. There are likely so many more.

I'll share one more story that really stuck with me. And this is mentioned in our piece. There was the case of, It's castin' it a Mondragon Vinoum in Minnesota. That was just a simple failure on paper.

A simple failure to file issue.

But that person was when they were detained.

He alleged to hospital staff that he was beaten by and, and dragged by ICE agents. ICE agents alleged that he ran into a wall, giving himself a head injury. And they were quoted saying he got his shit rocked.

And then... Go on, they just so shameless. They said he got his shit rocked. And then they brought him to a hospital because of his injuries. He sustained the list goes on like so many internal injuries.

And ICE refused to leave his bedside, not in a nice kind way. While he was there despite hospital staffs, asking that they leave, they shackled his feet together in the hospital bed

and then eventually used four point restraints to detain him in the hospital bed. As of Monday or Friday, when I last looked it up, he was not able to,

his injuries had gotten so bad that he was no longer able to speak. And then a judge ordered him released from detention, which in his case meant taking the restraints off from the hospital bed. And in that case, right,

it was just a failure to file issue, which again, I say just in that, you know, it's still bad. But behind that's one simple violation, you know, there's a person in the hospital bed

with life-threatening injuries. Right, it sounds so administrative, but what's actually happening is, yeah, it could be life-threatening for this man, and certainly, I mean, even if it's not life or death,

it's much lower quality of life, so right, it's distressing.

“But when you do that, you have to get the right answer.”

No, you're stupid. You have the right answer. That's what I'm talking about. We don't know where to go. We don't know where to go. We don't know where to go.

We don't know where to go. We don't know where to go. We don't know where to go. We don't know where to go. We don't know where to go.

We don't know where to go. We don't know where to go. We don't know where to go. We don't know where to go. So you mentioned 248 from Minnesota.

And I know that the databases are already bigger than the 300 that we were talking about last week. And growing still. But that nonetheless is an awful lot in Minnesota. Why Minnesota? I mean, obviously Minnesota is somewhere we've heard a lot about ice presence.

But why so many habeas cases there in particular? Yeah. So we're not 100% sure exactly the reasons why our best kind of inference is one. We were given a really helpful list.

Of all of the instances that he knew about of noncompliance. So he identified 210 specific orders in 143 separate cases in which the government failed to comply with the court. Order. So that gave us a lot. Minnesota is also the subject of the Trump administration's operation metro surge.

So I think the inference is just that there are there's more ice activity in Minnesota as compared to other states.

“And that's why there are more habeas petitions.”

But, you know, again, we're only working with the data so far that we found. We know that ice has also had a significant presence in Los Angeles. But we have not found nearly as many cases of government noncompliance in the Southern District of California. I'll also say that I think it's a bit of a testament to how worn out and overwhelmed the US attorneys offices are in these jurisdictions, specifically within Minnesota. There's just so much happening.

There's been such a surge in habeas petitions since the beginning of the second Trump administration that I think it's a testament to.

However, well, they are and the more overwhelmed the US attorneys are, the more likely they might be to make mistakes. So I just think that the Minnesota highlight is because of there's just more activity happening there. The US attorney's office is more overwhelmed and it's was or has been the subject of a major. DHS operation. Right. No, that makes sense. And is there anywhere else? You said not really so much in the Los Angeles areas. There anywhere else where you guys have noticed a concentration of cases.

Yeah. So again, the second biggest district that we have is the District of New Jersey with right now.

It has we've counted 61 violations. But again, 53 of those were admitted to by the Justice Department themselves. And in a lot of those 53 cases or around 50 cases. You know, we've looked at those individual documents that the government has admitted to making violations in. And there is no mention of a violation on the cases specific docket. So we would not and I think judges wouldn't have known about these violations if the government hadn't coped to them.

“So that's why in New Jersey specifically we have such a high volume.”

And it was easier for us to find without having, you know, Claude scrape the docket's there.

The third largest district we have is or third largest compilation of violations we have is in the Eastern District of California followed by the District of Massachusetts.

And then the Eastern District of New York. Okay, so you've been published and update to this just yesterday today yesterday. Yeah, it's hard to keep up. I mean, I imagine you have continued to publish updates and or also the database will just be updated without a situation, all of announcing it. But the conclusion in that piece was that the federal judiciary itself should be keeping data on this subject.

“And I guess my question is, why is it so important for them to do it? Not only because you have other things to do, but why else is it so important for them to do it.”

And yeah, I mean, along the same lines, why is this problem as a broader trend and why is a full understanding of just how broad that trend is something that judges should be aware of. Right, I'll start with it this way. When you look at an individual violation in an individual case, it's bad, but it doesn't seem that bad right and the governments excuse if they provide one. Oh, it was a mistake. Oh, we didn't receive notice. Oh, you know, we we meant to file it now, but we don't we filed it on hourly and we're sorry as a one off is annoying like we said judges are annoyed, but it's annoying.

But whatever, it's it's not that big of a deal, but when you take a step back and look now at the 362 violations that we've found so far, these individual cases put together start to form a pattern. habeas cases are inherently individual situations, they're filed across dozens of districts before hundreds of judges who really never communicate with one another, and so each judge really only sees a fragment of a problem. Stitching these 300 plus cases together is kind of what transforms a series of seemingly mundane bureaucratic slipups into something that looks more like I'm not accusing them of this yet, but you know something that looks more like government policy.

A late filing is for a judge is a much bigger deal in the context of a broad pattern of the government's violation of court orders. And again, this is not just failure to file issues. These are, you know, it's a pattern that includes deporting people and violation of orders failing to free people that the courts have ordered to be released failing to return people's property and then moving them out of state to a different jurisdiction.

Lawfare and Ben and I are working on it and we're still, you know, trying to do as much as we can, but as of now aside from what we have so far in this tracker, there's no coordinated publicly available database of habeas cases,

noncompliance and habeas cases throughout the country. There's no way to search on court listener or pacer for issues of noncompliance.

And like I said, like in the instances in New Jersey, certain evidence of noncompliance doesn't even appear on certain individual cases dockets. So like I said before, judges might not even know about it unless the government had admitted to it or there was some sort of cross case visibility. So the data and the reason why it's so important for the judges themselves to start keeping track of this is it at minimum creates a widespread record of serial noncompliance that could somehow support a broader accountability in ways that you know dealing with this on an individual case by case basis cannot.

So my hope is that if judges start keeping track of this or if they start you know looking at what we have put together to help them keep track of this, it will inform decision making on either potential punishments for noncompliance or just give them more of a picture of hey this isn't just happening in my courtroom. This is happening you know all over the country and here are 362 cases that I can point to to prove that. So I think it's really the whole in I guess in the situation the whole is also not just different from the sum of its parts it's categorically different from the sum of its parts.

What looks like specific bureaucratic dysfunction in a specific courtroom looks like something far more systemic when you place it next to 300 plus other cases.

“So I think that's why judges need to absolutely be keeping track of this.”

So you're just gestured at this a bit but that all brings me to my last question which is and then what you said you're not yet accusing them of this being government policy but if a judge looked at this nationwide trend and said hey that does look like government policy. I would be the appropriate response from you right now they threaten civil contempt and as you said the government eventually seems almost always to come into compliance but that doesn't mean things are working well because the violations are still happening in the first place.

So what could or should maybe just could if you're not comfortable saying show judges do if they identify that there is the trend that it seems like your day to base is revealing.

“Yeah, I'm going to leave it absolutely to the judges to make the final decision on this. It's very respectful. Right. I mean I'll take a step back. I think a accusing.”

The government lawyers of non-compliance period is a big deal but remember that this is also not just you know like me and been taking a step back pointing to them and being like hey you guys didn't comply with this order that's bad stick our tongue out you should do that right we're. Accounting instances of non-compliance using the judges language or justice department admissions. So again we only count something if a judge has said you did this in violation of an order or you didn't do this in violation of an order.

So far again judges have have been successful in in bringing compliance but I don't think that's enough. I don't know if threatening criminal contempt would be adoption or if that's an extreme option because the government does eventually in most cases comply. It's important for judges and listeners and even myself as I as I go through this massive megalist spreadsheet that I have of.

“I think that's a very important thing to do. I think that's a very important thing to do. I think it's a very important thing to do. I think that's a very important thing to do. I think that's a very important thing to do.”

So I I'm hesitant to say you know I'd like to see criminal contempt and but I think more I think judges should follow through on more of their threats of sanctions and civil contempt that hasn't happened. Maybe if they did that more and actually followed through on those threats that they have always said that they're so annoyed about having to make that we would see less non compliance and I think light a little bit of a fire under them in forcing their compliance in a timely manner.

Thank you so much for joining us and thank you for spending all those hours slogging through with Claude's help these dockets. Thank you Molly.

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