Daniel Ramirez is Still In Detention. Here’s Why.

Daniel Ramirez Medina’s attorney went into court this morning in the hope of securing his immediate release from an ICE detention facility. That didn’t happen, but they also didn’t leave empty handed.

Here’s some background on the case; it will take about 5 minutes to read, but it’s time well spent since the factual and legal issues are complicated. This morning’s hearing brought the arguments on both sides into sharp relief.

The government’s argument is pretty straightforward: this is a routine illegal immigrant removal/deportation procedure: Ramirez was picked up and questioned, and ICE concluded that he had gang affiliations and thus formally started removal procedures. As such, the law is clear that at this point the U.S. District Court cannot hear the case; Ramirez must petition to an immigration judge (which he has not done). Thus U.S. Magistrate Judge Donohue, who presided over the hearing this morning, has no choice but to dismiss the case. The government cites US statute (in particular paragraphs b.9 and a.5) for immigration removal procedures that restrict writs of habeas corpus, and that limit appeals to only a final order of removal (not the intermediate procedures).

Ramirez’s attorneys don’t deny that a removal procedure is now underway. The crux of their argument is that ICE’s initial arrest and detention of Ramirez was without cause (in fact with full knowledge that his presence in the United States was lawful, since they had seen the ID card in his wallet noting his DACA enrollment). Further, they argue that ICE’s weak case for deporting him is entirely based upon events that transpired while he was being illegally detained, and thus is itself illegal. This, they say, goes to the very heart of what a writ of habeas corpus stands for: that a person cannot be arrested and held by the government without cause, and the government may not benefit from such illegal actions. They point to US statute granting the power to grant writs of habeas corpus, and to case law in Nadarajah vs. Gonzales which interprets the two statutes the government cites together: saying that writs of habeas corpus are only restricted for final orders of removal (and thus are allowed for other parts of ICE’s activities, such as detention before the removal process is initiated).

And that frames up to the key issue the judge faces in deciding whether he can hear Donohue’s case at all: what court, if any, is allowed to review the constitutionality of a warrantless ICE arrest and detention prior to initiation of removal procedures?

The judge came into the courtroom this morning without an answer to that question, and an expectation that he still wouldn’t have one by the end of the hearing. He was right. After listening to both sides reiterate their points, he declared that he needed further briefings and oral arguments on that topic and couldn’t proceed to consideration of the merits of the case until that had happened. So on the government’s motion to dismiss the case for lack of jurisdiction, he set a schedule:

  • The government files its brief by 5pm next Friday, February 24th;
  • Ramirez’s attorneys file their response by 5pm the following Friday, March 3rd;
  • The government files its reply by noon on Tuesday, March 7th;
  • A hearing, with oral arguments, will be held on March 8th.

Donohue added one more twist: he anticipated that Ramirez’s attorneys might want to amend their complaint to request declaratory relief: asking the court to make a declaration of what Ramirez’s rights are as a DACA enrollee with regard to the circumstances under which ICE is empowered to arrest and detain him. They said that they did, and he gave them until Tuesday to file an amended complaint.

The issue of a declaratory judgement is critical not just for Ramirez but for all 750,000 DACA enrollees in the United States today who are living in a “legal limbo.” When the DACA program was launched, those that qualified were asked to “come out of the shadows” and register for the program, with a promise that the information collected would not be used at a later point against them — including for the purposes of rounding them up — and that if granted DACA status they could live and work openly. The Trump administration now has a list of 750,000 DACA enrollees who have been promised that so long as they behave lawfully they can live their lives openly without fear that ICE will swoop down on them. The Ramirez case is a test of whether that promise is backed by the laws of the United States.

That said, Donohue was also keenly aware of the immediate issue: Ramirez has been detained for over a week now, a detention which his lawyers claim violates his constitutional rights. Knowing that it would likely take weeks to sort out whether the judge can even hear the case, he wanted to expedite the process of getting Ramirez a bond hearing with an immigration judge. After the government’s lawyer conceded that scheduling a hearing normally could take up to 30 days, and that the documentation for such a hearing is already “well developed” since Ramirez has been screened and approved for DACA twice, Donohue ordered the immigration court to schedule and complete a bond hearing for Ramirez within a week. Normally an appeal from that hearing would need to go through the Board of Immigration Appeals before landing in district court, but Donohue also said that if Ramirez’s lawyers didn’t like the outcome next week they could petition him to make an exception to that and have the appeal come straight back to him. He is clearly uncomfortable with the notion of Ramirez rotting in an ICE detention facility while the wheels of justice move slowly.

To sum up:

  • Ramirez is still being detained.
  • Some time next week he will get a bond hearing in front of an immigration judge, which will be his first chance to get released from ICE detention.
  • Judge Donohue has ordered further briefs and a hearing on the question of whether the court can hear a petition for a writ of habeas corpus, challenging Ramirez’s initial arrest and detention. He will rule on the matter sometime after March 8th.
  • The merits of Ramirez’s case did not receive any consideration today, nor will they (at least in district court) for at least several weeks until the jurisdiction issue is resolved.

In a press conference after the hearing, Ramirez’s attorneys expressed their disappointment that they were unable to secure his immediate release, but were appreciative of the judge’s desire to speed things up by ordering a bond hearing for next week. Today’s hearing was a tactical setback for them, but they ceded no ground: none of their legal arguments were rejected; the judge simply wanted more information before ruling.

City Council member Lorena Gonzalez, a civil rights attorney and the daughter of undocumented immigrants, told me after the hearing that she too was disappointed, but not surprised at the outcome of today’s hearing since the jurisdictional issue is tricky. She also expressed her frustration that ICE officials have refused to meet with the Mayor and City Council, and with members of the state’s congressional delegation. Gonzalez later released a statement:

“I’m disappointed that Daniel wasn’t released today. That was the hope. However, Judge Donohue’s comments indicate that he understands the gravity of the situation for both Daniel and DACA recipients across the nation. I’m pleased to hear that he has directed his judicial colleague to consider Daniel’s bond hearing in a week. However, we still need answer from ICE and will follow closely as this court pursues them. Seattle stands with all people that consider this country their home.”

Next week Ramirez will get his bond hearing, and on Friday the government will submit its legal brief on the jurisdiction issue.