AI Generated Image (not the actual court order in this case)
The Justice Department asked the U.S. Court of Appeals for the Eighth Circuit on Oct. 21 to throw out a government attorney contempt finding from a Minnesota immigration case, arguing that a federal lawyer cannot be punished for what his client, ICE, failed to do. The three-judge panel spent much of the hearing asking a more basic question: whether anything is left to decide, since the contempt was purged before a single dollar of the $500-a-day fine came due, according to Courthouse News and Law&Crime.
The appeal matters beyond one lawyer. Minnesota’s federal judges have ordered hundreds of detainees released this year, Courthouse News has reported, and the court’s then-chief judge warned in February of hundreds of violations of court orders, according to Law&Crime. How the Eighth Circuit treats the tool used here, holding the government’s courtroom lawyer personally responsible, will shape what judges do the next time a detainee is not released as ordered.
A release order, a missed handoff and a $500 daily fine
Rigoberto S. J., a Mexican citizen who had lived in Minnesota since 2018 with his lawful permanent resident wife, was arrested on Jan. 14, 2026, according to the court’s order. His habeas petition argued that the mandatory detention provision, 8 U.S.C. 1225(b)(2), did not apply to him. The government missed its Feb. 5 deadline to respond. On Feb. 9, U.S. District Judge Laura M. Provinzino granted the petition, treating the silence as a waiver and citing earlier rulings from her court that people in his position fall under 8 U.S.C. 1226(a), which requires an administrative warrant.
The order required release in Minnesota by 5 p.m. on Feb. 13, without conditions, and that the government “return all property to him.” ICE instead released him in Texas, from the Camp East Montana facility in El Paso, without his Minnesota driver’s license or Mexican consular ID, FOX 9 reported. On Feb. 17 the judge ordered “the Government” to show cause why it should not be held in contempt. The next day she found Matthew Isihara, the military lawyer serving as a Special Assistant U.S. Attorney and counsel of record, in civil contempt and set a fine of $500 for each day ICE did not comply.
Note that Department of Justice has started using military attorneys to help civilian offices combat acute staffing shortages and manage overwhelming federal caseloads, particularly in districts dealing with a surge of immigration-related litigation. This arrangement provides the federal government with immediate, trained legal personnel to handle government defense work in federal courts, though critics occasionally raise concerns about the blur between military and civilian law enforcement roles.
Isihara told the court the order had “fallen through the cracks” and that he had handled nearly 130 cases in the previous month, FOX 9 reported. ICE returned the property the next day, so no fine was paid, Law&Crime reported. Daniel Rosen, the U.S. attorney for Minnesota, called the ruling “a lawless abuse of judicial power,” according to FOX 9.
Why DOJ kept appealing a sanction that cost nothing
The department wants a ruling barring courts from using government lawyers as financial leverage over the agencies they represent, Courthouse News reported. The Eighth Circuit declined in April to dismiss the appeal, Bloomberg Law reported. Justice Department attorney Daniel Tenny told Judges Bobby Shepherd, James Loken and Steven Colloton that “there has to be a clear order of the court saying there’s something that Mr. Isihara had to do at the time the contempt order was issued.” Jeffrey Justman, a court-appointed lawyer defending the order, answered that Isihara “personally dropped the ball and never forwarded the order.”
Shepherd’s questions point to the likeliest exits for the court. He asked what the panel could do “to redress any injury that had been inflicted here,” and observed that the show-cause order gave notice of possible contempt against the government, not against an individual attorney. Either point would let the court rule narrowly: dismiss for lack of a live controversy, or vacate on the ground that Isihara never had fair notice that he personally faced sanctions. The broader rule DOJ wants would require the panel to go further than the facts demand, which appellate courts usually avoid when a narrower path exists.
The legal ground under these Minnesota releases has already moved. In March, a divided Eighth Circuit panel held that people in the country without authorization can be treated as “seeking admission” and held without bond, Courthouse News reported, rejecting the reading Provinzino relied on. The Supreme Court agreed on Oct. 1 to decide the mandatory detention question nationally, JURIST reported. The same friction shows in the Justice Department’s recusal motion against two Minnesota judges, an Arizona judge’s sanction of a federal prosecutor and a case in which a man was deported twice despite court orders.
The practical lesson is about drafting. Provinzino’s release order named a place, a deadline and the property to be returned; its weak point, if the panel agrees with Shepherd, was a show-cause order naming only “the Government.” A ruling on notice would tell judges that a sanction aimed at a particular attorney or official must name that person in advance. Judges would still have other levers, such as the re-detention limits the Tenth Circuit recently enforced and fights over which statute authorizes a detention. No decision date has been set.
This article is for general information and is not legal advice.
Sources: Order granting habeas petition, Rigoberto S. J. v. Bondi, D. Minn. No. 26-cv-957 (Feb. 9, 2026); Order to show cause, D. Minn. No. 26-cv-957 (Feb. 17, 2026); Courthouse News, “Justice Department fights Minnesota judge’s contempt order against government attorney” (Oct. 21, 2026); Law&Crime, Eighth Circuit argument report (Oct. 21, 2026); FOX 9, “Judge holds government attorney in contempt for violation of court order” (Feb. 18, 2026); Bloomberg Law, “DOJ Gets Green Light to Appeal Contempt Order in ICE Case” (April 20, 2026); Courthouse News, “Eighth Circuit backs Trump tactic of detaining immigrants without bond” (March 26, 2026); JURIST, Supreme Court agrees to hear mandatory detention challenge (October 2026).
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