Does Immigration and Customs Enforcement think it’s above the law?

Is Immigration Enforcement About to Become Totally Lawless?

Is Immigration Enforcement About to Become Totally Lawless?

The law, lawyers, and the court.
Feb. 15 2017 3:18 PM

“You Weren’t Born in This Country”

An alarming arrest raises concerns about the lawlessness of immigration enforcement in the age of Trump.

ICE Enforcement and Removal Operations unit raid
An ICE Enforcement and Removal Operations unit conducts a raid to apprehend immigrants without any legal status and who may be deportable in Riverside, California.

Irfan Khan/Los Angeles Times via Getty Images

On Friday, Immigration and Customs Enforcement arrested Daniel Ramirez Medina, a 23-year-old man whose parents illegally brought him to the United States from Mexico as a child. The federal government has granted Ramirez deferred action and an employment authorization card under President Obama’s Deferred Action for Childhood Arrivals, or DACA, program, allowing him to remain in the country and work lawfully despite being undocumented. (So far, Donald Trump has let DACA remain in place.) Ramirez renewed his DACA status in May for another two-year period, undergoing yet another background check. In renewing his status, the government confirmed that Ramirez met the requirements and issued documentation affirming his ability to remain in the U.S. He has not been convicted of a crime, nor does he pose a threat to national security or public safety.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Federal agents arrested Ramirez anyway. ICE’s treatment of Ramirez bears disturbing similarities to the behavior of Customs and Border Protection officers in the wake of Trump’s travel ban. CBP officers allegedly violated court orders, lied to lawful permanent residents and visa holders, rushed illegal deportations, and unlawfully detained travelers. When attorneys presented CBP officers with federal court orders allowing them access to detainees, the officers refused, “on CBP orders.” The Ramirez case raises the disturbing possibility that ICE has decided that, under Trump, it too is empowered to take the law into its own hands. And the agency’s willingness to flout Ramirez’s constitutional rights does not bode well for the hundreds of thousands of DACA beneficiaries whose liberty suddenly seems imperiled.

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When ICE agents went to Ramirez’s father’s house in Seattle to arrest him on Friday, they encountered Ramirez and asked whether he was “legally here.” Ramirez responded, truthfully, that he was and had a work permit. ICE agents detained him anyway. They took him to a processing center, where, according to a lawsuit filed on his behalf, Ramirez once again told an ICE agent that he had a lawful work permit.

“It doesn’t matter,” the agent responded, according to the lawsuit, “because you weren’t born in this country.”

While processing Ramirez, agents allegedly seized his wallet, which contained his work permit. The card identified him as a DACA beneficiary with a “C-33” code, reflecting work authorization. But ICE ignored the permit, questioned him further, fingerprinted and booked him, then sent him to a detention center in Tacoma, Washington. He has been placed in removal proceedings.

ICE’s treatment of Ramirez is almost certainly illegal. Indeed, his arrest itself likely violated his constitutional right to be free from unreasonable seizures. Under the Fourth Amendment, arrests must be supported by a judicial finding of probable cause (in the form of a warrant), absent exigent circumstances (like a bona fide emergency) that were not present here. This finding must either precede the arrest or follow it within 48 hours. ICE agents had no warrant to arrest Ramirez, nor did they secure one after detaining him. This bizarre dereliction of duty would seem to violate Ramirez’s Fourth Amendment rights.

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Even worse, these agents were presented with evidence that Ramirez was complying with the law—but arrested and detained him anyway. These actions raise grave due process concerns under the Fifth Amendment. The federal government has explicitly given Ramirez permission to live and work in the U.S. Unless Ramirez’s DACA status is formally revoked, he retains a liberty interest and a property right in retaining his DACA benefits. Before the government deprives him of these rights, it owes him, at a bare minimum, notice and a fair hearing. Yet ICE agents appear to have spontaneously decided that he no longer deserves DACA benefits and unilaterally revoked them. This complete lack of procedural due process is both unnerving and unlawful.

Even if ICE afforded Ramirez notice and a hearing, it is doubtful the agency can continue to detain him, let alone deport him. Again, Ramirez is authorized to live in the U.S., yet he is now being detained, for no clear reason. The Supreme Court has said that freedom from detention lies at the heart of the liberty protected by the Due Process Clause; ICE’s deprivation of that liberty must thus be accompanied by “sufficiently strong special justification.”

Such justification does not seem to exist. An ICE spokeswoman has alleged that Ramirez is a “self-admitted gang member” and a “risk to public safety.” (Ramirez’s lawyers contest that claim, insisting that their client was “repeatedly pressured” to falsely admit gang affiliation and that he “unequivocally denies” the charges.) But ICE’s lone piece of evidence backing up the gang affiliation claim—a purported statement by Ramirez, given to reporters four days after his arrest—doesn’t solve its broader problem. If ICE had evidence that Ramirez is a gang member before arresting him, it should’ve obtained a warrant. If it has this evidence now, it should go get a warrant or ask the government to revoke Ramirez’s DACA status. Simply detaining him based on an unproven suspicion cannot possibly comport with basic constitutional requirements.

Fortunately, the federal court in which Ramirez’s lawyers filed suit appears to be taking this matter seriously. U.S. Magistrate Judge James P. Donohue has stated his desire to resolve the case “as expeditiously as possible” and ordered an aggressive briefing schedule. Donohue has asked immigration officials to explain, by Thursday morning, whether Ramirez is still detained; what the basis for his detention is, given his DACA status; whether he has been placed in removal proceedings (as ICE has suggested); and, if he hasn’t been, why ICE still has authority to detain him. By March 6, officials must explain why the court should not hold habeas corpus proceedings to consider freeing Ramirez. Donohue’s questions evince a healthy skepticism toward ICE’s startling claim of power. But his inquiries do not provide much relief to the many DACA beneficiaries who may view Ramirez’s arrest as a declaration that they are no longer welcome, or safe, in this country.

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