A Judge Just Turned The Government’s Own ‘Reconsider’ Motion Against Them And It’s Glorious

There’s a moment in Judge Gary R. Brown’s April 27th order (available below) in Sanchez Alfaro v. Mullin that stopped me cold. After noting the detailed litany of constitutional violations committed by ICE agents, Judge Brown reveals that in the Department of Justice’s motion to reconsider the “description of the efforts that would be undertaken to ensure compliance with the law” was… nothing. The Eastern District of New York judge then dropped this line: “So, paradoxically, it is this Court’s turn to ask respondents to reconsider their position.”

And if the government pulls a Bartleby and prefers not to? “Should respondents’ answer remain unchanged, the Court will take appropriate action.” That’s cold as ice (pun intended). But I guess that’s what happens when you submit a brief that’s “legally spurious.”

Let’s back up. The underlying facts here are remarkably egregious, even by the degraded standards we’ve all gotten used to. ICE arrested William Enrique Sanchez Alfaro — a man who had been granted Special Immigrant Juvenile (SIJ) status, deferred action, and work authorization — without a warrant. Officers later admitted they arrested the wrong man. The administrative warrant and paperwork were issued after the arrest, as post-hoc cover. Then, after the petitioner sought legal relief, his deferred action was revoked, with no explanation other than the illegal arrest itself. Judge Brown found four distinct constitutional and statutory violations. He gave the government 21 days to tell the court what it planned to do about it, but got “nothing” in the way of substance.

And it actually gets worse because that nothingburger of a response was wrapped in a motion for reconsideration so weak that Judge Brown methodically dismantled it section by section, calling out “frivolous” arguments, a “blatant misstatement,” selective quotation of case law that was “misleading,” and jurisdictional arguments that were “entirely meritless.”

At one point, the government cited DHS v. Thuraissigiam to claim that habeas corpus only allows for simple release — and therefore the court’s work was done, case over, nothing to see here. Brown spent several pages demonstrating that the government was misreading a case that said almost the exact opposite of what they claimed. He noted the government “cannot plead ignorance” because he had cited the correct precedents to these same respondents in previous cases. They knew… or at least, they should have.

The government also tried to argue that the court had improperly raised the issue of Sanchez Alfaro’s SIJ and deferred action status on its own. Brown’s response was withering: the petitioner had raised it in his very first filing. The government had briefed the issue in their own papers. Calling it a surprise was a “blatant misstatement.”

So that’s the backdrop against which Judge Brown wrote the line that should have every government attorney in the Eastern District of New York paying very close attention. Because what comes after “the Court will take appropriate action” is not vague. Brown spelled it out in careful, patient, devastating detail.

If the government won’t tell the court what it plans to do to prevent future illegal ICE enforcement actions — warrantless arrests, post-hoc paperwork, disregard of legally awarded immigration status, retaliation — then the court will consider whether injunctive relief is necessary. And not just narrow relief. Brown noted that if he’s not satisfied that an injunction confined to protecting this specific petitioner would be sufficient, “equitable relief at the policy level might be required.”

This is not a judge that’s bluffing. He is laying out, step by step, exactly what legal tools he has available and exactly how he plans to use them if the government comes back with another round of “nothing.”

This is, of course, part of a pattern that has become a drumbeat across the federal judiciary. A Bush-appointed judge in Minnesota had to threaten to haul the ICE acting director into court personally before ICE released a man it had been ordered to give a bond hearing — and only backed down when ICE blinked first. A Trump-appointed judge found ICE was systematically blocking detainees’ access to counsel in Minnesota and issued a TRO. A judge in Illinois had to explain that you can’t freeze grant funds, declare the grants closed, and call it a day. In West Virginia, four judges across the political spectrum spent weeks issuing increasingly volcanic opinions, with one noting the government had “offered no evidence that they have seen or even care about” the court’s rulings. And that doesn’t even get into the Kilmar Abrego Garcia saga, where the government spent months trying to paper over a wrongful deportation to a forced labor camp.

What makes Judge Brown’s order distinct isn’t just the quality of the benchslap — though it is a good one, opening as it does with the federal officer oath of allegiance, which, again, is not subtle. What makes it notable is the explicit, almost tutorial quality of the warning. He’s not just ruling against the government. He is explaining to them, in advance, in writing, exactly what is about to happen to them if they don’t change course.

The question is whether there’s anyone left at DOJ that cares. Given the track record, I have my doubts. But Judge Brown has made the stakes about as clear as a federal judge is able to make them. The next move is theirs.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1