One of the big stories this week — locally and nationally — has been the arrest and detention of Daniel Ramirez Medina, a 23-year-old resident of Washington State who was brought to the US illegally as a child and has been a beneficiary of the Obama Administration’s Deferred Access for Child Arrivals (DACA) program since 2014. Last Friday he was arrested and is still being detained by U.S. Immigration and Customs Enforcement (ICE). And at a time when immigrants — both legal and illegal — are living in fear of the Trump administration’s saber-rattling about immigration policy, this has become a key test for the fate of DACA under Trump.
Tomorrow morning at 10am, there will be a hearing in his case before a U.S. district court magistrate judge. The government filed their brief this morning; Ramirez’s legal team filed their response tonight. And the stuff that’s in them is mind-blowing.
A word on DACA first. It’s an Obama-era executive branch program, without congressional approval (and it has a large number of Republican detractors in Congress). Basically, it allows undocumented immigrants in the country to apply for “deferred removal” and permission to work in the U.S. for a renewable period of two years. It instructs ICE to avoid arresting, detaining, and starting deportation procedures on those who have been granted participation into the program. To qualify, someone must have been brought into the US as a child and have no criminal record. They go through extensive screening. Even then, granting DACA status is purely at the discretion of the government, and can be revoked at any time without a specific reason. Here’s a longer FAQ on the topic. A really important subtlety here: DACA participants are not granted legal status to be in the United States; they are still illegally here. Their DACA status simply means that for a period of time if they exhibit model behavior they won’t be picked up and deported. Ramirez was accepted into the DACA program in 2014, and was renewed in 2016 — meaning he passed the difficult screening process twice.
The U.S. laws governing arrest, detention and deportation of an “alien” say that the executive branch has broad discretion over when to do so. It says that with a warrant from the DOJ the government may arrest and detain an alien pending a decision on whether to initiate deportation proceedings. It also says that it shall arrest and detain aliens who have committed serious crimes in some specific categories.
On February 10, ICE officials arrived at the Ramirez household in order to serve a warrant on his father. Pretty much everything that happened after that is in dispute at some level. ICE entered the house, and asked Ramirez some questions about where he was born and whether he was in the country legally. ICE and Ramirez give different accounts of what they asked and how he responded. He insisted he told them that he was born in Mexico but he had a work permit. Nevertheless they arrested him and took him to the ICE detention facility in Tacoma. There they interrogated him; again, the questions they asked and his responses are disputed. He told them he was a DACA participant with a work permit. According to Ramirez, an ICE agent told him “it doesn’t mean anything because you weren’t born in this country.”
ICE was intent on establishing whether Ramirez had gang affiliations, either now or in the past. Ramirez claims he repeatedly said “no.” They asked him about whether he hung out with gang members when he was younger. He claims he told them that growing up in Fresno, CA, he hung out some people who belonged to a gang, but he did not belong to a gang, never did, and quite frankly everyone knew people who were in gangs regardless of whether they themselves took part in any gang activities. ICE questioned him about the tattoo on his left forearm, which they interpreted as a mark of his gang membership. The tattoo says “La Paz BCS” along with a 5-pointed star. Ramirez was born in La Paz, Baja California Sur. He got the tattoo when he was 18, and added the star because he liked it when he saw it in the tattoo catalog.
When he was being booked into the detention facility, they asked him if he would have any issues with being put in a section of the facility with any of the gang members being held there (which they keep separate from each other). He said that he didn’t have any issues with the gangs, but asked to be put in with the “paisas” — Mexican slang for “Mexicans living in the U.S.,” i.e. the people who aren’t gang members.
Based on these conversations, ICE reported that Ramirez had hung out with gangs when he was growing up in Fresno, he had a gang tattoo, and he associated with a gang in Washington called the “Paizas.” (I have found no evidence that such a gang exists in Washington, or anywhere else) They thus issued him a Notice to Appear (NTA), which kicks off the deportation process and also revokes his DACA participation.
Here’s where things really get surreal. Because ICE had classified him as a gang member, they made him wear the orange uniform that identifies all gang members in detention. On Friday, his first day in detention, he appealed that decision, filling out a form explaining that he was not a gang member. On the form he wrote:
“I came in and the officer said I have gang affiliation with gangs so I wear a orange uniform. I do not have a criminal history and Im not affiliated with any gangs”
Yesterday they returned the form denying his request. On the form, the first seven words of his writing had been erased, so now it said,
“I have gang affiliation with gangs so I wear a orange uniform. I do not have a criminal history and Im not affiliated with any gangs”
Check it out here. It’s clearly erased, though incompetently done.
Ramirez’s lawyers paint a picture of ICE officers making a mistake and arresting Ramirez, then rather than admit their mistake doubling down on it through any means to cover it up. And to be honest, it’s a pretty compelling case. ICE has presented no evidence that Ramirez has ever participated in any gang activity, in Fresno or in Washington state. They have produced no evidence that Ramirez admitted to being in a gang other than the declarations of ICE officers — and Ramirez denies it. They confirmed that he has no criminal record other than a speeding offense (which is not on the list of justifications for arrest and deportation). They have an extensive database of gang markings and tattoos, and yet have produced no evidence that Ramirez’s tattoo is a gang marking. And they have provably altered a legal document in order to claim that he has admitted to gang affiliation — an illegal act in itself.
This looks incredibly bad for ICE and the US Government, and is the set-up for an explosive courtroom confrontation tomorrow. But it may not get to that, if the Government has its way. In their brief, they argue that the U.S. District Court can’t hear Ramirez’s case, because the proper court to hear it is an immigration judge. They cite a 9th Circuit Court case, Leonardo vs. Crawford, as the binding case law that makes it clear that review of deportation procedures go through immigration court, then to the Board of Immigration Appeals, and then to the U.S. District Court.
Ramirez’s lawyers respond by saying that they aren’t questioning the deportation procedure; they are taking issue with his arrest and detention before ICE even began the deportation procedure. They claim that with his DACA status and clean record (ICE had no warrant for his arrest), they had no basis to arrest him in the first place. All the crazy stuff ICE did afterwards, they claim, was simply an attempt to “railroad” him to cover up their mistake. Ramirez’s lawyers are asking for a writ of habeas corpus, which is the time-honored means of challenging an illegal arrest and detention. But as another key case on immigration law says, “The statutory scheme governing the detention of such aliens is not a model of clarity. ” At various stages of the arrest, detention and removal process, the government’s authority comes from different places in the law. Tomorrow the judge will need to consider whether the law allows for a request for habeas corpus for someone in the U.S. under a DACA permit — someone undergoing deportation procedures now, but whose initial arrest and detention violated the spirit, if not the letter, of the rules. It’s going to be messy, and whichever way he rules it will almost certainly see an immediate appeal to the 9th Circuit Court of Appeals.
If the judge rules for the government (and it’s upheld on appeal), that means the case is dismissed and Ramirez’s lawyers will need to start over with an immigration judge.
If the judge rules for Ramirez and it sticks, then there are all sorts of other questions that need to be answered. Is Ramirez released from detention? ICE has now initiated deportation procedures and revoked his DACA status — which they can do unilaterally, at their discretion, and without cause. Can the judge order it reinstated, or is that overstepping? Likewise, can the judge vacate the NTA and halt the deportation procedure? If not, would ICE simply pick him up again and continue with deportation?
Oh, and let’s not forget ICE’s plainly illegal (if incompetent) behavior in altering a legal form. in order to frame Ramirez. What does the judge do about that? Beyond the intentional act to cover up their mistake, there’s also the inherent racism in their interrogation and conclusions. As Ramirez’s attorney, Mark Rosenbaum, said in a press conference earlier this evening, “We need to do better than associating being Latino and having a single tattoo with being a gang member.”
We’ll see how this plays out tomorrow morning in court, even as it plays out in the court of public opinion tonight (al the national news outlets attended the press conference this evening, and the altered document is way too juicy not to run with it). In the meantime, here’s some fun reading:
The original complaint filed on behalf of Ramirez earlier this week.
The government’s press release earlier this week where they claim Ramirez is a gang member.
The government’s response brief filed this morning.
UPDATE: here’s my report on the Friday morning hearing.