Bryan Rafael Gomez
On April 30, DHS issued a press release titled “Activist Biden Judge Releases Violent Criminal Illegal Alien Wanted for Murder”. The department claimed that “U.S. District Court Judge Melissa R. DuBose — who was appointed in the final days of the Biden administration” ordered the release of a Dominican national, Bryan Rafael Gomez, even though he has a pending “international warrant for homicide”. Some stories, I guess, are just too good to be true — including this one — and now some poor assistant U.S. attorney is going to have a lot of explaining to do for how ICE handled the matter.
Bryan Rafael Gomez
Gomez entered the United States illegally at or near Lukeville, Ariz., in 2022, and consistent with its “catch and release” policies, the Biden DHS released him into the United States, even though it apparently knew little to nothing about the national of the Dominican Republic.
On April 4, Gomez was arrested by the Worcester (Mass.) Police Department (WPD) for assault and battery. ICE placed a detainer on the alien, and when he was released locally with bail of $500, the WPD honored the detainer and he was taken into immigration custody.
“ICE Boston Arrests 5 Foreign Fugitives Wanted for Murder”
Under section 236(c) of the Immigration and Nationality Act (INA), Gomez appears to be subject to mandatory detention while his removal proceedings play out.
“Appears to be subject” because according to an April 16 ICE press release captioned “ICE Boston arrests 5 foreign fugitives wanted for murder in a month”, Dominican authorities “issued an arrest warrant for” Gomez in January 2023, “for homicide”.
Keep that April 16 press release in mind as I explain the rest.
“Homicide” is a “crime involving moral turpitude” (CIMT), and an alien who hasn’t been admitted to this country and who has been “convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of” a CIMT is removable under section 212(a)(2)(A)(i) of the INA.
It’s unclear whether Gomez has either been convicted of homicide in the Dominican Republic or admits having committed such act, but pursuant to section 236(c)(1)(A) of the INA, DHS must take into custody and detain any alien “inadmissible by reason of having committed any offense covered in” section 212(a)(2) of the INA, “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense”.
So far, so good, because ICE took custody of Gomez as soon as the WPD cut him loose, and detained him.
Judge DuBose
At some point, Gomez filed a petition for writ of habeas corpus seeking release from ICE detention with the U.S. District Court for the District of Rhode Island (D. R.I.), where it was assigned to Judge DuBose.
The judge — a Rhode Island native who had taught in the Providence public school system for 14 years before going to law school — was nominated by President Biden for a seat on the D. R.I. in January 2024 and narrowly confirmed by a vote of 51 yeas and 47 nays in the Senate on March 12, 2024.
Then-Sen. Joe Manchin (D-W.Va.) crossed party lines to vote against her nomination, while Sens. Lindsey Graham (R-S.C.) and Susan Collins (R-Maine) broke with their fellow Republicans in voting in favor of Judge DuBose.
There may have been more votes in favor of DuBose had Sen. John Kennedy (R-La.) not brought up a 2000 interview of the then-teacher in Women’s Studies Quarterly, during which she alluded to being “in [her] Marxist phase” when she was working in a coffee shop where students would congregate before she became a teacher.
We all go through phases, I guess.
The Release Order
In any event, Judge DuBose granted Gomez’s petition, and on April 28, ordered DHS to transfer the alien to the ICE Boston office, “set minimal release conditions that will reasonably assure his appearance at the bond hearing” that day, and (for reasons that are unclear) also grant him a bond hearing within 30 days.
Respectfully, there is no reason for immigration officers or the immigration court to grant immigration bond to an alien who isn’t in immigration custody, but then either the judge or I may be a little unclear on the process in this particular case.
Two days later, on April 30, DHS issued the press release I referenced at the outset, which claimed:
An activist judge appointed by Joe Biden released this wanted murderer back into American communities. This is yet another example of an activist judge trying to thwart President Trump’s mandate from the American people to remove criminal illegal aliens from our communities. Under President Trump and Secretary Mullin, DHS will continue to fight for the removal of criminal illegal aliens who have no right to be in our country.
DHS likely had the temerity to attack the court in this manner because it assumed this would be the last time it would be dealing with Judge DuBose, at least in Gomez’s case. If that’s correct, it assumed wrongly.
DOJ’s “Statement Regarding Recent Media Reports on Court Ruling”
Apparently, Judge DuBose did not know the “Coordination of the Courts of Instruction of the National District of Santo Domingo, Dominican Republic” had issued a criminal arrest warrant for Gomez for homicide in January 2023 until after DHS issued that April 30 press release, but that day, she issued a separate “show cause” order asking DOJ why she hadn’t been told about Gomez’s legal issues in the DR and threatening to hold someone in contempt.
Sheepishly, the U.S. Attorney’s Office for the D. R.I. issued its own press release on May 1, a “Statement Regarding Recent Media Reports on Court Ruling”, in which it conceded Judge DuBose was unaware Gomez was wanted abroad when she issued her release order.
Why didn’t the U.S. Attorney’s office share that salient tidbit of information with the court?
As Chales Calenda, the first assistant U.S. attorney for the D. R.I., explained in his response to Judge DuBose’s order to show cause, he knew about the Dominican warrant before he filed his response to Gomez’s petition, but had been told by ICE that he could not “disclose that information”, apparently even with Judge DuBose.
Calenda, of course, “was not aware that ICE had previously disclosed that same information” in its April 16 press release on Gomez’s arrest and therefore “relied on ICE’s representation that” he wasn’t allowed “to disclose that information” because at the time he “understood that a legitimate law enforcement reason prevented disclosure”.
In closing, Calenda “sincerely apologize[d] to Judge DuBose, personally, and to the entire Court for the consequences of this lack of disclosure”, which at this point in the debacle was about the best and least he could do.
A Lesson and a Reminder
Perhaps DHS could view this case both as a lesson on how not to message its frustration with the federal judiciary and a reminder that, if certain information is so sensitive it can’t be shared with a court, it likely shouldn’t be highlighted in a press release, either.
Or, alternatively, the department should just follow that tritest of sports maxims, “hate the game, not the player” — especially when the player has more power and you will be required to curry the player’s favor repeatedly in the future.
Before Trump II concluded (likely correctly) that section 235(b) of the INA requires ICE to detain aliens who haven’t been admitted and began holding illegal entrants who had resided here for years, relatively few habeas petitions were filed with district courts seeking release from immigration custody.
That policy change has prompted thousands of such filings in just over a year, which is a problem for three reasons.
First, the judicial review provision in section 242 of the INA deliberately excludes nearly all district court reviews of immigration-related decisions, and therefore most trial-level federal judges have little to no experience in the hotly contested and highly politicized subject.
Second, as I explained last November, Senate rules make it more likely that district court judges in states like Rhode Island — which hasn’t had a GOP senator since Lincoln Chaffee (who was a Republican at the time) lost his bid for reelection two decades ago — are going to be somewhat left-leaning even when nominated by a Republican and often full-blown progressives when a Democrat is in the White House.
Conversely, in a state like Texas (which hasn’t had a Democratic senator since Robert Krueger lost a special election there in June 1993), district court judges are probably going to be a little more palatable to conservatives.
That phenomenon has only accelerated since then-Senate Majority Leader Harry Reid (D-Nev.) ended the filibuster for district-court nominations in November 2013, and while it’s objectively not good for the body politic or the Republic, it’s how the game is now played.
There’s a reason Congress keeps district court judges away from immigration, but under the Constitution, there’s little it can do about habeas corpus petitions filed by detained aliens.
Third, this flood of habeas petitions has inundated assistant U.S. attorneys in places like Rhode Island, who, much like the district court judges there, aren’t as savvy when it comes to the arcane rules that govern immigration-related disclosures as their colleagues in the Southern District of New York and D.C., who have long had to handle those issues.
The U.S. attorneys in Rhode Island likely had no reason to doubt DHS when it claimed they couldn’t tell Judge DuBose that Bryan Gomez had an international warrant for homicide in the Dominican Republic. They do now, and I pity the lawyers who must face the “activist judge” who was pilloried by DHS.
DHS can hate the game it must now play in the district courts over habeas all it wants, but it’s better not to publicly hate the player — especially when the department itself has screwed up, and the player has the lifetime tenure of a federal judge and the power to hold government officials in contempt.