This morning US Magistrate Judge James Donohue held another hearing in the case of DACA recipient Daniel Ramirez, who has been detained by Immigration and Customs Enforcement for nearly a month.
The judge is currently considering two simultaneous motions: one from the government to dismiss the case for lack of jurisdiction, and one from Ramirez’s lawyers to grant him immediate conditional release while the case wends its way through the court system.
For background, here’s my post from when we last checked in on the Ramirez case.
The government’s central argument is that the law requires all judicial review of deportation and removal proceedings to go through an immigration court, not a U.S. district court. It also prohibits habeas corpus petitions (such as Ramirez’s) for most immigration cases.
Ramirez’s argument, which has sharpened in the past few weeks, is that he is not challenging the removal procedure; he is challenging his arrest and detention before the removal procedure began through a habeas corpus petition, the tried-and-true method for challenging illegal detention.
The government cites the substantial case law that supports a broad reading of the key law on review of immigration proceedings , 8 USC 1252 sections a(5) and b(9). Together they say that only immigration courts (and the courts of appeal above them) can hear reviews of immigration proceedings, and they can only hear reviews of final orders of removal (Ramirez doesn’t have a final order yet). But Ramirez’s lawyers point to a number of rulings from the 9th Circuit Court of Appeals granting review for issues that are “independent and collateral” to the removal proceedings themselves, such as ongoing indefinite detention by ICE after the proceedings conclude.
But here’s the catch: in order to successfully argue that the arrest and detention are independent and collateral, they need to be completely separate from the removal proceedings; they can’t be intertwined. The government helped out Ramirez today by admitting that the proceedings start when a Notice to Appear (NTA) is served (thus everything that happened before the NTA is not officially part of the proceedings). But wait, it gets more complicated: issuing an NTA automatically revoked Ramirez’s DACA status and his work permit, and his lawyers nearly got themselves in trouble today by arguing that the revocation was unconstitutional; that would “intertwine” the issues they are raising with the removal procedures. They quickly backed off to their original stance that they are just challenging his arrest and detention before the NTA, and will fight the DACA revocation another day.
While Judge Donohue pressed Ramirez’s attorneys hard on the issue of whether their issues were really separate from the removal proceedings, he reserved his harshest critique and questioning for the government, starting with the brief that they filed yesterday. The government’s brief was the last in a long series leading up to today’s hearing, and it introduced a new issue into the mix: whether Ramirez has “standing” to ask for declaratory relief on behalf of himself and other DACA beneficiaries. The government argued that Ramirez didn’t have standing because he couldn’t prove a future threat of being arrested again, and he couldn’t represent other DACA recipients. Donohue was visibly angry that the government would wait until the last brief to introduce that issue, and complained that he needed to stay up last night to review it before the hearing. Nevertheless he felt that he needed to give it consideration and directed Ramirez’s legal team to file a brief in response by 9am Friday — the absolute last brief he’ll read before ruling on the two motions.
Donohue also caught another issue in the government’s filings since the last hearing: they introduced two different copies of a key form (I-213)that the arresting officer filled out to justify the NTA and the start of removal proceedings. Here’s the original one filed on February 16, and the second one filed on February 27. As the judge pointed out today, despite the fact that they are both dated February 10th, the two forms differ on several points, including most notably that the second one omits mention that the ICE agents confirmed Ramirez’s DACA status. He pointedly asked the government’s attorney whether it was common for there to be more than one I-213 form submitted, and the attorney had no answer.
Donohue also pressed the government on what the probably cause was for arresting Ramirez, and they stuck by their claim that his father had told the ICE agents that Ramirez was in the country illegally. The judge asked whether the probable cause to continue to hold him remained after they had confirmed Ramirez’s DACA status, and the government attorney said that it did, because the agents had “cause for further inquiry” and because all these events happened within a “continuum of minutes.” However, the Judge took issue with that last point, given that the evidence submitted by the government gave no timeline for arrest and subsequent questioning — just that it was several hours from initial arrest to when he was officially served with an NTA.
Donohue went on to pose a set of hypothetical situations to force the government to state its belief on how far its powers to arrest and detail aliens extend. First, he asked: if ICE sets up a roadblock, arrests all the DACA recipients they encounter, and issues NTA’s to all of them, do they have the right to challenge it under habeas corpus law? The government said they didn’t, absent exceptional circumstances, because the removal proceedings had been implicated (and thus the federal law saying it must go to immigration court). Next, he asked what happens if the DACA recipients were arrested then subsequently released without an NTA being issued; the government said that in that case, they possibly did have habeas corpus rights. That plays into Ramirez’s hand, clearly showing that there are viable habeas corpus rights around the periphery of an ICE removal proceeding if they can be correctly separated out. And the judge seemed to want to help make that case.
So where does this leave things? The judge has two decisions to make. The first is whether he has jurisdiction to hear the case, based on the arguments about whether the arrest and detention are separable from the removal proceedings (by fact and by law). Assuming he finds that he does have jurisdiction — and he certainly seemed to be trying to reach that conclusion today — he then needs to decide whether to grant Ramirez conditional release pending further proceedings. To do that, the judge needs to find that Ramirez’s case (that the arrest and detention were unconstitutional) will likely succeed on the merits, and that Ramirez is neither a danger to the public nor a flight risk. The latter is easy: Ramirez has a clean record and has a young son that by all reports he is devoted to. Showing that he will succeed on the merits of his case is somewhat more complicated. If Ramirez’s father said that he was in the country illegally, that’s probably sufficient probable cause to arrest him, but the ongoing detention after they had determined he was a DACA recipient is much more concerning. The ICE agents have now been caught modifying two separate documents related to Ramirez’s detention. They have also made unsubstantiated claims about his purported gang affiliation and other nonsensical things they claim Ramirez told them. Together, this casts serious doubts on the credibility of the ICE agents who arrested, detained and questioned him and filed the NTA. If the judge finds them not to be credible and discards both their testimony and the documents they provided, then with an absence of any other evidence incriminating Ramirez it would be simple to conclude that he will win on the merits.
Judge Donohue said that he expects to issue a ruling early next week. Either way, it will likely be immediately appealed to the 9th Circuit Court of Appeals.
Even if the judge rules for Ramirez and the appeals court sustains it, his troubles are far from over. His DACA status and work permit have been revoked, and the law clearly says not only that the government may do so at any time at its own discretion, but also that its decisions are not reviewable by the courts. So expect future difficult fights about whether the NTA was unconstitutional, and if it’s withdrawn whether his DACA status can and should be reinstated.
We’ll know more early next week when Judge Donohue issues his ruling.