Ramirez gets his trial

The judge in the Daniel Ramirez arrest and detention case filed a report this afternoon, and gave Ramirez part of what he what he wanted.

Here’s where we left the case last week:  an oral hearing in which the government got on the bad side of the judge, and the final brief filed last Friday.

Now for some important context on today’s events: Judge Donohue is a magistrate judge, not a full district court judge, which means that instead of handing down rulings he files a “report and recommendations” to his boss, Chief Judge Richard Martinez, who in turn review the report and if he agrees then issues the ruling.

Donohue filed his report and recommendations today on two motions in the case: the government’s motion to dismiss the case for lack of jurisdiction, and Ramirez’s motion for immediate conditional release from detention pending ICE’s removal proceedings.

Donohue denied the government’s motion to dismiss. This was a key victory for Ramirez’s legal team, in that they needed to find a way around the voluminous case law saying that all legal proceedings related to removal of immigrants must be heard by an immigration judge. They successfully argued that ICE’s arrest, detention and interrogation of Ramirez, all before ICE officially began removal proceedings, were not tied to removal activities and therefore the court could hear Ramirez’s challenge.

There is a price to pay, at least in the short term, for that approach though. In order to show that the case was not “inextricably tied” to removal activities, Ramirez’s legal team can’t challenge (at least in district court) the revocation of his DACA status by ICE. So even if Ramirez wins release in district court, he will need to find a way to try to get his DACA status back without establishing the link that they have worked so hard to deny (though Donohue hinted at how they might do that in a footnote to his report today).

So that’s the good news: Ramirez’s case can go forward. The bad news: Donohue recommended that Ramirez’s emergency motion for immediate release be denied. In short, he found that Ramirez’s legal team had not yet established that he was likely to win the case on the merits. The problem there, as Donohue described it, is that there is not yet any precedent in case law for the 9th Circuit Court on whether a district court can conditionally release a immigrant detainee pending removal proceedings. Without prior case law supporting or denying that claim, Donohue must give it a thorough hearing including legal briefs and oral arguments. And he will, in fact, do that, but in the short term with both facts and points of law in dispute he can’t grant an emergency motion for Ramirez’s release.

What he can do, however, is try to expedite the legal process. He has asked legal teams from both sides to confer and suggest an expedited schedule for briefs, discovery, and arguments on the merits of the case. The next few weeks, though, will be tied up in the “magistrate judge” process: both sides have the opportunity to object to Donohue’s report and recommendations by March 28th, and then to respond to objections that the other side raises. Judge Martinez will then look at Donohue’s report, the objections and the responses, and make his ruling.

A key legal question that will be hotly debated is what “interests” DACA recipients have in their DACA status. Ramirez’s attorneys argue that DACA recipients have both “liberty” and “property” interests: a shout-out to the Due Process Clause of the Constitution which guarantees that the government can’t deprive individuals of their liberty or property without due process of law. So far, the 9th Circuit has affirmed that DACA confers “lawful presence” in the United States, though not “lawful status.” Other circuit courts have noted that even lawful presence has “significant legal consequences,” though none have said whether that translates to an “interest.”

In a press statement this afternoon, Ramirez’s legal team has already made clear that they plan to file an objection to Donohue’s denial of the emergency motion. No word from the Government yet.

The other recommendation that Donohue made today is that Ramirez has standing to ask for declaratory relief: a ruling from the judge as to under what circumstances ICE can arrest and detain him and other DACA recipients. That significantly raises the stakes for the government in this case, as the result will apply to 800,000 DACA recipients in the United States, not just Ramirez. Now that the government looks to be losing its argument on jurisdiction, it might be tempted to release Ramirez, restore his DACA status, and get the case dismissed before it makes a ruling on declaratory relief that might go against them. On the other hand, Ramirez still wants clarity on whether he might be arrested without cause in the future despite his DACA status, so even if he is released he may try to keep the case alive. The question is whether Ramirez is willing to drop the case in order to get out of detention now, rather than sit in detention for weeks (if not months) more while the case plays out. Of course, this is all speculation, and depends on whether both sides are willing to cut a deal. But Donohue has yet to rule for the government on anything substantial; the rulings he’s made in their favor have all simply denied quick response in favor of a slower, more deliberative approach. And he’s shown a dislike for the government’s shenanigans on more than one occasion, so they can’t expect him to show them much deference. If they feel that the odds are tilting against them, they may be highly motivated to find a way to make this case simply go away.