A top Department of Homeland Security lawyer in the Trump administration is renewing criticism of a Rhode Island federal judge after a courtroom clash spiraled into allegations of government misconduct and judicial overreach last week.
In a sharply worded op-ed published Tuesday in the Federalist, DHS General Counsel James Percival accused U.S. District Judge Melissa DuBose of “judicial misconduct” and argued that the fallout surrounding the temporary release of Dominican national Bryan Rafael Gomez was “entirely of Judge DuBose’s own making.”
The dispute stems from an April 28 decision by Dubose, an appointee of former President Joe Biden, ordering Gomez released from Immigration and Customs Enforcement custody before the court had been informed he was the subject of an international arrest warrant tied to a homicide investigation in the Dominican Republic.
Gomez, who illegally entered the United States in 2022 under the Biden administration, was arrested on assault and battery charges in Massachusetts earlier this year before being transferred into ICE custody after local authorities honored an immigration detainer.
Despite sharply criticizing the government’s conduct and later referring a DOJ lawyer for possible discipline, DuBose ultimately reversed course last week and ordered Gomez detained again pending a new immigration bond hearing after becoming aware of his international arrest warrant.
Percival is now speaking out on what he describes as the original sin in the case. “The court had no authority to release this criminal illegal alien,” Percival wrote. “That decision belonged to an immigration judge.”
The courtroom controversy stems from an April 16 press release ICE issued, announcing the arrest of “5 foreign fugitives wanted for murder,” including Gomez. DuBose said she did not see the press release prior to ordering Gomez’s release.
After DuBose ordered Gomez released in the subsequent days, DHS escalated the matter publicly with a second April 30 press release titled “Activist Biden Judge Releases Violent Criminal Illegal Alien Wanted for Murder.”
“An activist judge appointed by Joe Biden released this wanted murderer back into American communities,” DHS spokeswoman Lauren Bis said in the statement.
But according to statements made during hearings last week, DOJ attorney Kevin M. Bolan had been instructed by ICE officials not to disclose the Dominican allegations to the court because Dominican authorities had not yet authorized the information for litigation use.
The contradiction between the administration publicly promoting the warrant while withholding it from the court became a focal point during hearings last week, when DuBose raised concerns about the government’s candor to the judiciary.
“It’s the candor and the lack of candor to this court that has to be addressed,” DuBose said during the hearing. “And it has to be fully investigated, so we don’t have anything like this happen again.”
DuBose subsequently referred Bolan for possible disciplinary action after he acknowledged withholding the information from the court while blaming ICE for directing him not to disclose it.
Percival, however, argued the judge herself created the problem by ordering Gomez released instead of directing the matter to immigration court for a bond determination.
“The fact that the court lacked the necessary information to review Mr. Gomez’s custody status is the court’s fault and only the court’s fault,” Percival wrote.
He further accused DuBose of attempting to intimidate DHS officials for publicly criticizing her ruling, noting, “The first thing the court did was engage a spokesman who gave a statement on behalf of the court calling DHS’s statements ‘misleading and demonstrably false.’
“Rather than allow this legitimate criticism, the judge has engaged in a political public affairs battle and intimidation campaign against DHS,” he wrote.
DuBose had previously described the administration’s public attacks via the DHS press release as “dangerous.”
Art Arthur, a former immigration judge and resident fellow at the Center for Immigration Studies, previously said that the case exposed both a messaging breakdown inside DHS and a deeper procedural dispute over whether the matter should have been handled by an immigration judge rather than a federal district court.
“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,” Arthur wrote in an analysis about the case on May 4.
But Arthur also told the Washington Examiner on Tuesday that immigration law already provides a mechanism for bond determinations and appeals through the immigration court system, which he suggested complicates DuBose’s decision to order Gomez released outright.
“There’s a procedure for immigration judges to grant bond, and there’s a procedure to appeal denials of bond,” Arthur told the Washington Examiner. “The question becomes, in lieu of habeas, why didn’t they use one of those procedures instead?”
Arthur added that Percival’s argument that DuBose lacked authority to release Gomez was “arguable,” though he acknowledged he did not necessarily disagree with it.
Last week, Chief Judge John McConnell, an appointee of former President Barack Obama who has also drawn the ire of the Trump administration, escalated the matter by appointing Roger Williams University School of Law professor Niki Kuckes as special counsel to investigate possible attorney misconduct tied to the case.
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McConnell authorized Kuckes, a legal ethics expert and former clerk to late Supreme Court Justice Antonin Scalia, to review court filings, request documents, conduct interviews, and provide recommendations on whether further disciplinary proceedings are warranted.
“What exactly is the special counsel investigating?” Percival asked rhetorically in his op-ed. “Apparently, it is the fact that a co-equal branch of government dares to publicly criticize Judge DuBose.”