In Immigation Court, the Deck is Stacked Against Daniel Ramirez and Other Immigrants

Last week in Washington State, Immigration and Customs Enforcement (ICE) arrested and detained Daniel Ramirez.  Ramirez now sits in the Northwest Detention Center in Tacoma Washington awaiting his hearing in Immigration Court on whether he should be removed from the United States.

Ramirez was granted protection pursuant to President Obama's Deferred Action for Childhood Arrivals (DACA) program.  DACA recipients essentially received a promise that the Government would not seek their removal for a certain period of time, and legal work authorization.  ICE seized Ramirez from his home despite the fact that his DACA protection had not expired.  Ramirez has no criminal convictions.

ICE contends that Ramirez admitted to "gang affiliation," and based on that persuaded U.S. Citizenship and Immigration Services (USCIS), the agency that grants and administers DACA, to revoke DACA protection.  Though his attorney, Ramirez denies gang membership.  He states that ICE has doctored records to make it appear as though he admitted gang affiliation, and that ICE has misconstrued statements he made during a custodial interrogation.  Moreover, ICE acted illegally and in direct contravention of the Constitution when it seized him, and questioned him aggressively without giving him an opportunity to consult with a lawyer.

Ramirez challenged his detention in the U.S. District Court for the Western District of Washington.  Friday, the court ruled that it would not order Ramirez be released, but that the Immigration Court must hold a hearing within one week on whether Ramirez should be released on bond.

The District Court's ruling is correct in that there is a procedure to seek Ramirez's release from detention while his removal case is pending before the Immigration Courts.  The Immigration Court should have the first shot of addressing whether Ramirez should be released on bond.  What is unusual, however, is that the District Court has given Ramirez permission to skip an appeal to the Board of Immigration Appeals (BIA) if bond is denied, and ask that the District Court hear his case on appeal.  This may be in recognition of the immense procedural hurdles that face Ramirez, indeed any alien, who seeks bond in Immigration Court while being detained for removal proceedings, faces.

When a person is detained, the Immigration Court can hold a hearing on whether to allow the person to be released on bond pending the resolution of his or her removal proceedings.  Because Ramirez has no criminal convictions, he may be released on bond.  He is not a mandatory detainee.

But a bond proceeding is not the same as a habeas corpus proceeding.  Through a habeas corpus proceeding, a court decides whether the Government is holding a person unlawfully.  A bond proceeding is simply a determination of whether a person should be released while further proceedings are pending, and if so the amount of a bond to be posted to secure his or her attendance at a later hearing.

The difference between these two proceedings shows the limits that the Immigration Courts have.  Despite the name, Immigration Courts as not part of the judiciary.  They are part of the Executive Branch.  Because of this, Immigration Courts lack powers of equity.  They cannot rule that an action of the Executive Branch is unconstitutional.  They cannot hold a person in contempt.  They cannot issue injunctions.  The powers of the Immigration Courts are strictly limited to what powers Congress has granted by statute.

The Immigration Courts are part of the Department of Justice.  They cannot hold an action of the Department of Homeland Security to be invalid.  In some instances, when the Department of Homeland Security has denied an application for immigration benefits, the Immigration Courts can hold a new hearing on the same application.  Thus, Immigration Courts can hear an application for asylum after it has been denied by USCIS, or review a petition to remove conditions on permanent residency, if initially denied by USCIS.  But without statutory authority, it cannot review other actions by the Department of Homeland Security.

This means that whether or not ICE violated the Constitution in arresting Ramirez and interrogating him without a lawyer present is not the deciding factor in the bond proceeding before the Immigration Court.  The questions before the Immigration Court will be whether Ramirez is a danger to the community, whether he is a risk of not appearing for his removal hearings, and whether there is any form of relief from removal available to him.  The constitutional violations could come into play if the Immigration Judge believes that the evidence obtained in violation of the Constitution should be suppressed in considering the bond motion.  But the constitutional arguments are not much more helpful in a bond proceeding.

For Ramirez, the key issues appear to be whether his so-called gang affiliation renders him a danger to the public, and whether there is relief from removal available to him.  In this regard, the reason he was able to stay in the United States before his arrest was the fact that he was granted protection pursuant to DACA.  DACA was not created by statute.  In fact, the President only created DACA when Congress failed to pass the DREAM Act, which would have given legal status to certain undocumented aliens who were brought to this country when they were children.  It is entirely a creature of executive discretion, not statute.  Because the Immigration Court lacks the ability to review every action of the Department of Homeland Security, the Immigration Court lacks the power to decide if DACA protection was rescinded illegally by USCIS.  This could be the issue that sinks Ramirez's request for bond.

But even assuming the Immigration Court were to grant Ramirez bond, that would not be the end of the case.  If bond is granted, the Government has the right to appeal it to the BIA, another arm of the Department of Justice.  If the Government appeals a bond determination, Ramirez would remain detained pending the outcome of the BIA appeal.  Even then, the Government has one more avenue of appeal, this time to the U.S. Court of Appeals for the judicial circuit where the Immigration Court lies.  In this instance, that is the 9th Circuit.

With all of these procedural barriers, it is difficult for an alien in detention to be released on bond, unless the Department of Homeland Security consents.  If the Immigration Judge denies bond, the prospect that a detained alien could be waiting in detention, which in just like being held in jail in all but name, for months and spending money on appeals while still waiting for a full hearing on the issue of removal itself is so daunting, that many aliens simply give up at this point, and agree to be returned to their home country.

It is perhaps because of this great disadvantage to alien detainees that the U.S. District Court gave Ramirez the ability to waive appeal to the BIA, and return to the District Court should he be denied bond.  The U.S. District Court, as part of the judiciary, does have equitable powers, and can entertain an argument that Ramirez's detention is unlawful because of the constitutional violations.  For this reason, the Ramirez case will continue to be an important case to watch when it comes to the potential of reigning in ICE enforcement raids.  This may well be the case that provides immigration law practitioners the tools needed to defend our clients' constitutional rights more effectively.

By:  William J. Kovatch, Jr.
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Be Wary of Voluntary Police Interviews

Last Night's Better Call Saul was brilliant.  It was brilliant in many ways, but I am only going to focus on one for the purposes of this blog.  And that concerns a police tactic that I am all too familiar with, and that I wish many of my clients understood before they spoke with the police.  It's a tactic I'm not particularly thrilled with, since it is an attempt to circumvent the Constitution and hang a person by their own petard under the guise of "consent."

I'm about to talk about the details of the episode, so here is the mandatory SPOILER ALERT.  If you haven't seen the February 22, 2016 episode entitled, "Cobbler," and you've DVRed it or intend to catch one of the encore showings, don't read below.

***SPOILER ALERT***

I love Mike Ehrmantraut. We know from Breaking Bad that he is a former Philadelphia Police Officer who had his own trouble with the law.  He's not above profiting off of criminal activity.  But he's smart, and having been on the inside, he knows police tactics.

Enter Pryce, an employee at a pharmaceutical company who tries to make a little money on the side selling pharmaceutical grade drugs to street criminal Nacho Vargas.  In season one, Pryce hires Ehrmantraut to be his bodyguard for the drug exchanges.

Pryce gets a bargain in Erhmantraut, but doesn't realize it.  When Mike balks at going to a meet in Pryce's new gaudy Range Rover, Pryce fires him.  In his naivety, he then lets Vargas see his car, thereby giving Vargas the information he needs to rip Pryce off.  By the end of episode one, Pryce has reported a break-in at his house to the police because his beloved baseball card collection was stolen.  Of course, the police get suspicious of Pryce's car and the reason for the break-in.  When Pryce is out of the room, they find his hiding spot in the baseboard behind the couch.  But, of course, there is nothing they can do about it right then and there.

In episode two, we meet Pryce again as he comes to the police station for an interview with the police.  Unknowingly, he once again becomes the luckiest stupid criminal alive, as he runs into Mike, who is the parking lot attendant.  When Mike realizes why Pryce is there, he pulls him aside to tell him why he should not speak with the police.

As Mike explains, the police are suspicious.  At this point they have nothing.  So they invite Pryce in to speak with them voluntarily.  They intend to be friendly and lull him into a false sense of security.  Then they will pounce on him and try to get him to confess the illegal activity that made him the victim of the break-in in the first place.  Pryce is reluctant to believe this, but agrees to leave the station when Mike promises to get his baseball card collection back.

And that is the tactic I wish my clients understood.  I have met many people who have been invited to the police station just to talk.  The police promise, "look you're not in trouble.  We only want to understand what happened." They may even say, "If you did nothing wrong, you'd be doing yourself a favor."  If you go in, they proceed to ask questions for hours, wearing you down.  They hope you don't realize you can have a lawyer.  They may even say, "Hey, if you didn't do anything wrong, why do you need a lawyer."  And then the conversation continues . . .  voluntarily they claim.  At no time do they tell you that you can get up and leave.  And if you do, again they ask, "Why are you in a hurry?  We only want to understand what happened.  You're not in trouble now."  So you stay, and worn down, you give the police the confession they want. 

In court, statements from such an interview are difficult to suppress.  The police will claim that no one was under arrest, that the person was free to leave, he just chose to stay and tell us what happened. 

The moral of the story is quite frankly don't trust the police if they ask you to come in for a "voluntary" interview, and claim that you are not trouble.  In truth, they only do this when they suspect criminal activity, but have no proof that they can use in court.  They are looking to trick you into giving a confession without a lawyer present, and then claim that the constitutional rights do not apply because it was voluntary.  While you may believe you have anything to fear, in reality any such contact should only be done in the presence of a lawyer representing you.