By: Theodore J. Boutrous Jr. and Jesse Gabriel, The Wall Street Journal ~ May 1, 2017
President Trump has adopted a sympathetic tone toward the young undocumented immigrants known as Dreamers, who were brought to America as minors. The Obama administration offered them renewable two-year protection from deportation under a policy called Deferred Action for Childhood Arrivals, or DACA. Asked in February about the policy’s future, Mr. Trump pledged to “show great heart” in dealing with these “incredible kids.” Last month he declared that Dreamers should “rest easy.” For his part, Homeland Security Secretary John Kelly has characterized DACA as “a commitment” that must be honored.
But the administration is sending mixed signals. Attorney General Jeff Sessions, asked about Mr. Trump’s “rest easy” remarks, resisted the notion. “Well, we’ll see,” he said. “I believe that everyone that enters the country unlawfully is subject to being deported.”
Emboldened and newly aggressive agents of Immigration and Customs Enforcement seem to have their own agenda, too. In February, ICE arrested our client, a young father and two-time DACA recipient named Daniel Ramirez Medina. He was detained for more than six weeks and is now fighting deportation. The agency detained a 22-year-old Mississippi woman, who was in the process of renewing her DACA status, after she spoke out against the detention of her father and brother. A 23-year-old man from California with a cognitive disability is suing the government, saying federal agents summarily deported him mere hours after he was detained—even though he had twice been granted protection under DACA.
As the website of Citizenship and Immigration Services indicates, however, a person who is deemed to qualify for DACA is considered “to be lawfully present” in the U.S. and protected from deportation. DACA has enabled nearly 800,000 young people to obtain work permits, attend universities, open bank accounts, start businesses, buy homes and cars, and—for Luis Cortes Romero, our co-counsel in the Ramirez case—graduate from law school and pass the bar.
Mr. Ramirez qualified for DACA in 2014 and then again in 2016, passing background checks both times. Nothing had changed when agents arrested him on the morning of Feb. 10, as he slept in his father’s house. Nevertheless, ICE revoked his DACA status and work permit and locked him up.
Our legal team immediately filed a habeas corpus petition, asking the federal district court in Seattle to set Mr. Ramirez free. On March 28 we were able to persuade an immigration judge to release him on bond as he fights deportation.
Last week we filed an amended complaint in federal court. It argues that the summary revocation of Mr. Ramirez’s DACA status was contrary to the government’s own established procedures, which require that Dreamers be provided with a “Notice of Intent to Terminate” and “33 days to file a brief or statement contesting” such action. As the Supreme Court explained in another immigration case, U.S. ex rel. Accardi v. Shaughnessy (1954), federal agencies must follow their own rules.
We also seek a judicial declaration that DACA status cannot be revoked—and that DACA recipients cannot be arrested, detained and deported—without procedural safeguards such as notice and an opportunity to be heard. The due-process rights enshrined in the Constitution, not to mention fundamental fairness, require no less.
We are not arguing that anyone has a substantive right to DACA, or that the policy creates a new immigration status. As the Napolitano memorandum recognizes, only Congress can establish those things.
Rather, we are making a narrow but important claim: that the government, after coaxing these young people out of the shadows, deeming them “lawfully present,” and then promising not to arrest, detain or deport them if they follow the rules, cannot turn around and do just that. The executive branch should be held to the promise it has made. In Raley v. Ohio (1959), the Supreme Court condemned this type of bait-and-switch as “the most indefensible sort of entrapment by the State.”
Mr. Sessions’s Justice Department thus far has defended this ICE entrapment as authorized and appropriate. It therefore seems likely that, unless and until President Trump directs the administration to put his soothing words into action, it is up to the federal courts, applying the Constitution, to ensure that Dreamers can “rest easy.”
Source: The Wall Street Journal
