February 15, 2017

Expect More DACA Beneficiary Deportations Under Conflicting Executive Policies



Last Friday, Immigration and Customs Enforcement (ICE) officials placed Daniel Ramirez Medina in custody in Tacoma, Washington. According to the agents who questioned Mr. Ramirez, ICE intended to detain and deport him “because he was not born in this country.”

Mr. Ramirez is the first individual with twice-granted Deferred Action for Childhood Arrivals (DACA) status to be arrested in the United States, and subject to removal. His arrest highlights two major conflicts in U.S. immigration law and policy.

First, is undocumented presence criminal?

Second, which of two currently legitimate executive orders takes precedent when defining “criminality”? Specifically at issue is President Obama’s DACA executive order, which led the Secretary of Homeland Security to define grounds of eligibility for deferred action and work authorization, and President Trump’s enforcement executive order, which effectively dismisses the deferred status conferred by the Secretary of Homeland Security for DACA, based on a different set of enforcement priorities—also enforced by the Secretary of Homeland Security.

The takeaway? Yes, you are eligible for deferred action and work authorization, but you are also eligible for immediate detention and removal.

President Trump’s repeated mischaracterizations of all illegal aliens as criminals is an attempt to normalize the idea that all undocumented individuals are, in fact, criminals. They are not. Undocumented presence alone is not a violation of federal criminal law; it is, however, a civil offense punishable by deportation. Rebranding all undocumented individuals and undocumented individuals convicted of a crime as ‘criminals’ does not properly differentiate between the wildly divergent populations that make up those eligible for deportation.

Undocumented presence does not make a criminal. Likewise, a charge does not make a criminal—or does it, now?

Under the DACA framework, certain people brought into the United States as children and who meet specific requirements can apply for deferred action for a period of two years, subject to renewal. DACA applicants must submit to a comprehensive background check and pay a fee. The Secretary of Homeland Security established a number of criteria that determine whether applicants will receive DACA-based prosecutorial discretion. A successful applicant must—among other requirements—have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety.

This requirement is much narrower than the enforcement priorities laid out by President Trump in his January 25, 2017 executive order. In Section 5, “Enforcement Priorities,” the Secretary of Homeland Security is required to prioritize the removal of aliens who, among other things:

  • have been convicted of any criminal offense;
  • have been charged with any criminal offense, where such charge has not been resolved; or
  • have committed acts that constitute a chargeable criminal offense. (Emphasis added).

There is significant conflict between the two policies—but the consequences are clearly illuminated by the case of Mr. Ramirez.

He is a twenty-three year old father of a United States citizen. The Secretary of the Homeland Security has twice determined that Mr. Ramirez poses no threat to national security or public safety, evidenced by the success of his initial DACA application, and his recent renewal of DACA status and work authorization in 2016. Mr. Ramirez has no criminal convictions, but ICE officials allege that he is a “self-admitted gang member,” and it is his affiliation with a gang that poses a significant threat to public safety, and warrants his deportation.

Whether these allegations are true will certainly come to light, but the bigger question we need to grapple with is how to reconcile the DACA standards of eligibility with the chillingly broad grounds of criminality issued by President Trump. In a modicum of deference to the Trump administration, the  removal and deportation of undocumented, convicted criminals is a pragmatic policy that is widely supported by most Americans.  HOWEVER, it should strike every person in the United States as incredibly alarming that the President is removing individuals charged with a criminal offense or who act in a way that could potentially constitute a criminal offense.

Harking all the way back to English common law is an idea firmly cemented in American jurisprudence: innocent until proven guilty. It is not a right specifically enshrined the Constitution, but it is deeply rooted in our codified burdens of proof and case precedent. For example, in a criminal case, the State has the burden of proving the guilt of a defendant beyond reasonable doubt—not the other way around—because we want the state to prove the accused is guilty. If the prosecution leaves any reason to doubt guilt, the accused is presumed innocent.

Neither accusal of a crime nor an arrest alone warrants deportation, but a conviction can include a formal judgment of guilt, a ‘no contest’ plea, a guilty plea, or an admittance of facts sufficient to warrant a judge or jury to enter a finding of guilt—any of which can warrant deportation. Congress intentionally enacted this section to ensure a number of additional adjudications are considered convictions for purposes of removal. Not among them, however, is a charge alone, or an act that may constitute a criminal offense that would then warrant a charge.  

Under Trump’s new criminal code, if you’re charged with speeding, you can be removed without a hearing, even if you have solid grounds to dispute the charge. Moreover, if you speed and aren’t caught, but you still broke the law, you can be removed without a hearing because you acted in way that could constitute a criminal charge. Needless to say, most of us would be eligible for removal.  

The conflicting policies confuse ICE officials, the Secretary of Homeland Security, DACA beneficiaries, and Americans. More importantly, the expansion of criminality in this way is an egregious affront to American values rooted in jurisprudence and rule of law. Without clarity, many, many more individuals with valid deferred action and work authorizations can expect to qualify for both deferred action from removal, and removal.