Detained ‘Dreamer’ Daniel Ramirez Medina wants U.S. District Court to hear his case. The government wants it heard in immigration court. At stake is a possible precedent that could set limits on the government’s ability to arrest and detain hundreds of thousands of people.
It seemed a good sign for Daniel Ramirez Medina, arrested and detained last month despite his status as a “Dreamer,” when a federal judge ordered that he have a bond hearing in immigration court within a week.
U.S. District Court judges don’t usually determine what happens in immigration court. So Chief Magistrate Judge James Donohue’s intervention sent a message that Ramirez’s case was urgent.
Yet when immigration court duly scheduled a bond hearing for five days later, Ramirez’s lawyers canceled it.
Why would they turn down a chance to free their client, letting the government declare, in a recent brief, that his continued detention was “of his own making”?
“If we started down that road, the risk is that the government would say, ‘Here we are and we need to stay here,’ ” explained Ethan Dettmer, a San Francisco attorney on Ramirez’s legal team.
“Here” is immigration court, a little-understood system run by the Department of Justice, with its own rules and avenues of appeal.
Ramirez’s lawyers adamantly maintain it is the wrong place to consider whether the 23-year-old Mexican native and father of a toddler was unconstitutionally detained, given his authorization to live and work in the U.S. by President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program.
The attorneys say the court lacks independence and the ability to hear constitutional issues central to this case.
The Justice Department just as adamantly insists that immigration court is the only suitable venue for Ramirez, at least initially. “There is no valid reason why petitioner should be able to bypass the administrative process established by Congress to resolve his claims,” the government asserts in another brief, filed Tuesday.
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Both sides will present their arguments before Donohue on Wednesday in Seattle.
Each faces a possible precedent that could have enormous implications for the country’s estimated 750,000 Dreamers and the government’s ability to revoke their DACA permits.
“Look, there’s no question if President Trump wanted to do away with DACA, he could do that,” Dettmer said. “The program would be over. But the president hasn’t said that. He has said he wants to treat DACA holders with heart.”
The Justice Department, which declined an interview on this case, makes a similar point in its brief from last week. Taking issue with an earlier characterization by Ramirez’s lawyers that the young man’s arrest represents “an unprecedented attack on DACA,” the court filing notes that there are no “new policy or priorities.”
“If ‘panic and confusion’ have resulted from this case,” the brief goes on, quoting Ramirez’s lawyers further, it is because of statements by his own side.
And yet, the Justice Department also stresses that DACA conveys no rights or legal status; it results from the government’s discretion to hold off on deporting this group of people, made up of immigrants brought here illegally as children.
“An individual with deferred action remains removable at any time, and DHS (Department of Homeland Security) has the discretion to revoke deferred action unilaterally,” the government brief asserts.
This is the notion that lies at the heart of this case, and why it is so important for Dreamers.
Ramirez’s attorneys contest the point, arguing that as long as the DACA program stands — encouraging people to send in all their personal information in exchange for a promise that they will be allowed to stay for the duration of their two-year, renewable permits — it offers due-process protections against arbitrary arrest and detention.
Ramirez’s arrest on the morning of Feb. 10 remains a puzzle, its circumstances hotly contested. U.S. Immigration and Customs Enforcement (ICE) was targeting Ramirez’s father, a previously deported narcotics trafficker, when they came across the 23-year-old in the Des Moines apartment they shared. Ramirez’s brother, also a Dreamer, was there as well, but he was not arrested.
Why one and not the other? ICE agents say they took Ramirez into custody after he said he had been arrested in the past. Later, he admitted gang involvement, according to the government, which has supplied no further evidence of gang activity or criminal past.
Ramirez and his attorneys say none exists, and that the alleged admission is a fabrication.
In California, having dropped out of school in order to support his family, Ramirez picked fruit, he said in a court declaration, adding that he moved to the Puget Sound area looking for a better job.
“I do know that Daniel has a tattoo,” Dettmer said. “We think what happened is that the officers saw a Mexican-American with a tattoo and they thought he was a gang member.”
Normally, people facing deportation appear before an immigration judge. If the judge’s ruling goes against them, they can take their case to the Board of Immigration Appeals, also housed within the Justice Department.
Only after that body rules, if they lose again, could they access the regular federal court system, through the appellate circuit in their region — in Washington’s case, the 9th Circuit.
That’s the route the government insists Ramirez should take.
Ramirez’s lawyers object. As Dettmer explained it: “Immigration judges don’t generally hear constitutional issues.” Those would only arise at the 9th Circuit, and getting to that court could take years.
Cases move very slowly through the underfunded immigration system, according to lawyers familiar with it.
There are other problems with taking this case to immigration court, Dettmer said. Because its judges work for the Justice Department, they are not independent, the attorney said. That raises separation- of-power concerns, he maintained.
Immigration court also has different standards of evidence: An ICE arrest report is presumed correct, whereas in District Court it would have to be backed by sworn testimony, according to Dettmer.
Typically, he added, court reporters are not present in immigration court, so there is no record of the proceeding. “One of the things we think is important is for court proceedings to be open,” he said.
Yet, Won Kidane, an immigration-law professor at Seattle University, said Ramirez faces challenges in his bid to have District Court take on his case. The kind of “habeas” petition his lawyers have filed, charging unconstitutional detention, “primarily exists when there is no other remedy,” Kidane said. It’s not unreasonable for the government to argue that such is not the case here, he continued.
He understands why Justice Department attorneys might want to avoid federal court and a due-process debate. “They don’t want District Court to make a constitutional rule which will have broad implications,” he said. “If a judge says you can’t arbitrarily revoke a grant of DACA, that’s a huge statement … It would effectively make DACA some kind of immigration status.”
At a time when the Trump administration still seems to be figuring out what it wants to do with the program, the government may not want a ruling that will force its hand, Kidane suggested.
A federal judge wouldn’t issue such a ruling lightly, Kidane added.
So Donohue has a lot to consider before ruling on whether to hear the case.
Arguments Wednesday are expected to return to the subject of bond for Ramirez. While the magistrate previously deferred to immigration court, Ramirez’s lawyers are trying to get him to rethink the matter and order the young father released.
In the meantime, he remains at the Northwest Detention Center in Tacoma.