ICE Memo on Public Defender Draws Judge's Apology

A federal magistrate judge in Minneapolis says an ICE memo that cast a public defender as an accomplice should never have circulated, and he plans to order it pulled from an unrelated case.

An ICE memo accusing a Minneapolis federal public defender of helping a client slip an immigration arrest drew an apology from the bench on Oct. 20. U.S. Magistrate Judge David Schultz told assistant federal defender Matthew Deates that “this should not have happened” and said he would order prosecutors to destroy every copy of the memo they had handed to defense lawyers in a separate conspiracy case, replacing it with a version that blacks out Deates’ name, MPR News reported.

The episode is small in scale but pointed in what it shows. An immigration officer’s written account of a lawyer doing ordinary client work ended up in criminal discovery for 15 people the lawyer never represented, and it took a court hearing, not a correction from the agencies, to start clearing it.

According to MPR’s account of the court filings, on April 28 Deates appeared with Ezequiel De Jesus Portillo Rodriguez, a Salvadoran man charged with illegal reentry after deportation, and Schultz released him without objection from prosecutors. A federal judge in Sacramento had already ordered Portillo Rodriguez freed from ICE custody and barred the agency from re-detaining him. Deates then walked his client to a nearby light rail station; in an Oct. 1 filing, he said he learned only later that an ICE deportation officer and two U.S. marshals had trailed them in an apparent effort to make an arrest. The next day, that officer wrote a memo, subject line “Aid and Abetting,” saying Deates had helped his client avoid immigration arrest.

Prosecutors later sent that memo to lawyers defending the so-called “Minnesota 15,” activists charged with conspiracy over opposition to immigration enforcement. In a Sept. 25 letter, U.S. Attorney Dan Rosen’s office said the memo was not relevant to that case and “does not reflect the position” of the office, without saying the accusation was untrue. At the Oct. 20 hearing, Assistant U.S. Attorney Tory Sailer called its release “an oversight,” blamed confusion over which agent was which, and said Deates is not under investigation.

Schultz was blunter. “On the face of the memo, it’s clear that Mr. Deates did not and could not have committed any crime,” he said, according to MPR, calling it “outrageous” that federal agents would follow a defender who was making sure his client complied with a court order. ICE, asked about the case earlier this month, told MPR it conducts operations “with integrity” and that obstructing law enforcement is a federal crime, and declined further comment citing active litigation.

The limits of the fix. The judge’s planned order reaches the copies prosecutors distributed in discovery. It does not, on its terms, reach whatever remains in ICE’s own files, and Schultz said he was unsure he had the authority to grant Deates’ request for a formal finding that he broke no law. That leaves the open question his lawyer, Chris Madel, raised in an earlier filing: whether the government can circulate a stigmatizing accusation against an officer of the court with no chance for him to answer it. The next things to watch are the written order and whether Deates presses for broader relief, such as notice to every recipient.

For lawyers who walk immigrant clients out of federal and state courthouses, the case lands amid running fights over where and how ICE makes arrests, from California’s suit over courthouse arrests to disputed accounts of a Long Beach arrest. The practical lesson is uncomfortable: an attorney’s routine conduct near an enforcement target can end up described in agency paperwork, and that paperwork can travel. It is also another Minnesota clash between federal agents and the courts, after a fight over where an ICE agent’s assault charge will be tried. A judge’s apology does not settle how far agents may go in shadowing defense counsel.

One loose end cuts the other way. Portillo Rodriguez missed a July 30 hearing at which he was expected to plead guilty, MPR reported, and it was unclear as of early October whether ICE had deported him or was holding him.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

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Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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