Are Immigrants Protected Under Obama No Longer Safe?

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By Laura D. Francis

A case involving an immigrant in former President Barack Obama’s deportation protection program may be testing the limits of that program and the Trump administration’s treatment of it.

Daniel Ramirez Medina, who twice received protection and a work permit under the deferred action for childhood arrivals program, has been in Immigration and Customs Enforcement detention in Tacoma, Wash., since Feb. 10.

His attorneys say he’s committed no crime or otherwise violated the program’s terms. But an ICE spokeswoman told Bloomberg BNA Feb. 15 that he’s a “self-admitted gang member.”

A lawsuit ( Ramirez Medina v. Dep’t of Homeland Sec. , W.D. Wash., No. 2:17-cv-00218, petition for habeas corpus filed 2/13/17 ) filed Feb. 13 in federal court in Washington state claims that Ramirez’s detention violates his constitutional rights, setting up a potential legal battle over the exact scope of DACA’s protections. It also could be indicative of a shift in immigration enforcement tactics despite President Donald Trump’s statements that he would go soft on the DACA population.

ICE Claims Public Safety Threat

“ICE officers took Mr. Ramirez into custody based on his admitted gang affiliation and risk to public safety,” agency spokeswoman Rose Richeson said in a Feb. 15 e-mail to Bloomberg BNA. He was arrested at a home in Des Moines, Wash., during an ICE operation targeting a felon who had previously been deported, she said.

Although not common, the agency has arrested DACA recipients in the past during enforcement operations, an ICE official added. Those immigrants were considered an enforcement priority because of criminal convictions or affiliations, the official said.

But Ramirez never said he was in a gang, Ethan Dettmer, one of his attorneys, told Bloomberg BNA Feb. 15.

“He was pressured to admit that during his questioning,” but he never did, said Dettmer, who practices with Gibson Dunn & Crutcher in San Francisco. “We heard for the first time yesterday this claim that he admitted he’s a gang member,” he said.

Nonenforcement the Point of Deferred Action

“There are some important legal and policy questions raised by this claim,” Shoba Sivaprasad Wadhia, a professor at Pennsylvania State University’s Dickinson School of Law, told Bloomberg BNA Feb. 15. “The whole idea of deferred action is to not take enforcement action against a person or a group of persons,” said Wadhia, who directs Penn State Law’s Center for Immigrants’ Rights.

To enforce the immigration laws against someone proved to be a low priority without notice or termination of the DACA program “raises some legitimate concerns at both the legal and policy level,” she said.

Despite Trump’s campaign promise to terminate DACA on “day one” of his presidency, the program remains in place. And the president in media interviews following the election indicated that he wasn’t planning to deport the young, undocumented immigrants covered by DACA.

Even Trump’s Jan. 25 executive order on interior immigration enforcement—while “breathtaking"—indicates that DACA recipients aren’t an enforcement priority under the new standards, Wadhia said.

It’s true that all grants of DACA indicate that it can be revoked at any time, she said. But “at the very least, a revocation would require notice,” she said.

There are some serious legal concerns if “individuals who received DACA and had no criminal history were all of a sudden deemed enforcement priorities, or had enforcement action taken against them,” Wadhia said.

Just a Mistake?

Ramirez’s legal team is “going under the impression that this might have been a mistake,” Dettmer said. There is “no official change in policy that we’re aware of,” and “I hope that doesn’t happen,” he said.

“It’s very possible” that this is the way the Trump administration is ending DACA, La Habra, Calif., attorney Annaluisa Padilla told Bloomberg BNA Feb. 15. But this case is “a clear example of the emboldening and empowering” of ICE agents, in their discretion, to “go out there and arrest individuals,” said Padilla, who serves as president-elect of the American Immigration Lawyers Association.

ICE agents appear to have “much broader discretion” to “take these kinds of actions,” she said. The real concern among immigration attorneys is “the violation of due process and constitutional rights,” Padilla said.

“The law is really clear” that “anybody within the United States,” regardless of status, is “entitled to constitutional protections,” Dettmer said. “I don’t think that’s really controversial at all.”

“Where do we stand” when agency employees are given “such indiscriminate discretion” that anyone’s rights could be violated—even those of citizens? Padilla asked.

‘Steps That Are Unprecedented.’

“My phone keeps ringing off the hook” with calls from DACA recipients asking what they should do if ICE comes to the door, she said. “We just don’t know what they’re going to do,” she said. The administration is “taking steps that are unprecedented and we have never seen before,” Padilla said.

A hearing in Ramirez’s case is set for the morning of Feb. 17 before Magistrate Judge James P. Donohue of the U.S. District Court for the Western District of Washington.

DACA recipients “made a commitment” to give the government their information and submit to background checks, and in exchange the government promised that they wouldn’t be deported as long as they contributed to society, Dettmer said. “By going back on that promise, I don’t think we’re serving ourselves well.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

Text of the habeas corpus petition for Ramirez is available at http://src.bna.com/mfa.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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