Judge recommends federal court review of Dreamer arrest

A federal magistrate judge weighed in for the second time Tuesday against immediately releasing Daniel Ramirez Medina, a Dreamer when he was arrested in Des Moines last month by immigration officers.

Yet the judge also decided in favor of keeping jurisdiction over the case rather than sending it to immigration court — “a landmark legal victory,” according to Mark Rosenbaum, one of Ramirez’s lawyers.

“It’s a signal to the ICE (Immigration and Customs Enforcement) agents and to the immigration authorities that the courts are watching them,” Theodore Boutrous, also on Ramirez’s legal team, added in a conference call with reporters.

He and his colleagues said the decision will have an impact on how authorities approach the nearly 800,000 Dreamers throughout the country.

The Department of Justice had no comment beyond saying that it is reviewing the decision.

The 46-page document by Chief Magistrate Judge James Donohue amounts to recommendations, not an order. As a magistrate judge chosen for his post by other federal-court judges, he must refer those recommendations to a federal judge appointed by the president, in this case Chief District Judge Ricardo Martinez.

The Mexican-born Ramirez, who turned 24 last week and has a young son, came to the U.S. as a child and received authorization to remain in the country legally under President Barack Obama’s Deferred Action for Childhood Arrivals (DACA) program.

The circumstances of his arrest are vehemently contested. ICE agents said that while carrying out an arrest of his father, they ran across the young man and he admitted to being a gang member. Even though Ramirez has no criminal record, the admission invalidated his DACA authorization, the agents said.

But Ramirez and his lawyers insist the Dreamer never said he was involved with gangs. And they charge that his arrest, given that he is a DACA beneficiary, violated constitutional protections, including due process.

Immigration court, which is run by the Justice Department, normally handles deportation proceedings. Immigrants who lose in that court can appeal to the Justice Department’s Board of Immigration Appeals. If they lose again, they can petition the regular federal court system through the appellate courts.

The government argued that Ramirez must follow that process, which is stipulated by Congress, even though immigration court does not generally hear constitutional issues. Those would only be heard in appellate court.

That wasn’t acceptable, Donohue said in his recommendations, returning to a hypothetical issue he raised in a hearing last week: a roadblock set up by the government that would put all DACA recipients found into detention.

Under the government’s theory, the judge said, “the noncitizen so arrested would be forced into a labyrinthine immigration process, possibly lasting multiple years, and into a process where the immigration authorities would be unable to even review the constitutional claims asserted.”

In this preliminary decision, though, the judge made no conclusions about what constitutional claims, if any, DACA recipients are entitled to make.

“Courts have recognized that DACA confers lawful presence,” Donohue wrote. “But courts have not defined the rights that flow from this ‘lawful presence.’”

That was a matter that the federal court case would decide. And until it did, and cleared up questions of fact regarding Ramirez’s arrest, the judge said he could not recommend that he be released from the Northwest Detention Center in Tacoma.

Courts don’t usually release individuals who file “habeas” petitions like Ramirez’s, claiming wrongful detention, until their cases are decided.

Donohue had earlier ruled that a bond hearing in immigration court be held within a week. But Ramirez’s attorneys canceled a scheduled hearing, fearing that they would be stuck in immigration court if they participated.

After the judge’s decision, the attorneys said they asked the government whether it would agree to release Ramirez pending the outcome of the case.

The government last week released a detained young Mississippi woman and onetime Dreamer who was arrested after speaking at an immigration rally. She was to remain under an order of supervision.

As of late Tuesday afternoon, Ramirez’s lawyers had not heard whether the government would similarly release their client.

Each side has a chance to object to Donohue’s recommendations before an order is signed. Ramirez’s attorneys said they will object to his continued detention.

Donohue’s proposed order puts the case on an expedited schedule, with objections due by March 28 and responses by 14 days after that.

Even while this case is pending, deportation proceedings — separate from the review of constitutional issues — can go on. A first appearance before an immigration judge is scheduled for next week, said Luis Cortes Romero, another of Ramirez’s lawyers, although he noted that the hearing might be pushed back.

Ramirez’s immigration case is challenging because the ICE agents who arrested him canceled his DACA authorization and not even a judge has the power to reinstate it. He must apply again.

But his lawyers said they are hoping that a federal- court ruling that declares Ramirez’s arrest unconstitutional would propel the government into allowing him to stay.