America should stop deporting peaceful immigrant advocates

America should stop deporting peaceful immigrant advocates
© Getty Images

“No one anywhere should be prosecuted or imprisoned for exercising their human rights or fundamental freedoms, including the freedoms of expression or peaceful assembly.” This was the Trump administration’s response to the prison sentence a human rights activist in Bahrain received for criticizing the Bahraini government. The statement, issued by the State Department last July, is emblematic of Washington’s long history of extolling the virtues of free speech as the cornerstone of democracy, as well as its continued condemnation of countries that respond to the peaceful expression of dissent with acts of political repression.

Inside the United States, however, the very free speech and peaceful expression we have treasured and heralded are under attack. The Supreme Court has long recognized the First Amendment rights of noncitizen residents with substantial ties to this country. Despite these constitutional protections, U.S. Immigration and Customs Enforcement (ICE) has engaged in a campaign of retaliation against noncitizen advocates and activists who criticize the government’s immigration policies. ICE’s actions, if unchecked, will effectively strip noncitizens of their crucial voice in our democracy. Those actions run headlong into the protections of our Constitution’s First Amendment.

ADVERTISEMENT
That’s why Georgetown’s Institute for Constitutional Advocacy and Protection and Columbia’s Knight First Amendment Institute have filed a brief in support of Ravidath Ragbir, a Trinidad native and prominent immigrant rights activist suddenly facing deportation who has brought a legal challenge that a federal judge in New York is expected to consider soon. Ragbir came to the United States from Trinidad in 1991 and has lived here lawfully for over 25 years. Ragbir is married to a U.S. citizen, with whom he has a daughter currently attending an American university.

He’s the executive director of a faith-based coalition dedicated to supporting immigrant rights, where he works with attorneys, elected officials, and other advocates to help immigrants with their legal proceedings and to seek reforms to the immigration system. In this role, he’s been an outspoken critic of the government’s deportation practices. Over 10 years ago, he was convicted of a nonviolent financial offense that provided grounds for an order of removal. But, recognizing that he presents no danger to our society, the government repeatedly granted him delays of that removal. During that time, he’s attended all required periodic check-ins with ICE while continuing to support immigrants and advocate for fairer laws.

During a routine meeting in January, ICE officials stunned Ragbir by informing him that he’d no longer be permitted to stay in the country and immediately detained him. His abrupt detention shocked not only Ragbir but also his family and the hundreds of community members who support him, many of whom had accompanied him to the meeting as a sign of solidarity but were suddenly left asking, “Why him? Why now?” The answer, it seems, is that the government’s about-face came during a wave of ICE enforcement actions against noncitizens who’ve criticized the agency and the administration’s deportation practices.

ICE officials now claim that, even if their actions constitute retaliation against Ragbir for exercising his right to free speech, the First Amendment affords him no protection, and they are therefore not constitutionally required to give Ragbir any answer or justification for deporting him. The crux of their argument lies in a misapplication of a 1999 Supreme Court case, Reno v. American-Arab Anti-Discrimination Committee. There, the Supreme Court asserted that noncitizens are prevented from raising selective enforcement claims — that is, claims that government officials have exercised their authority in order to punish or deter certain activity protected by the First Amendment — as a defense to the initiation of deportation proceedings in federal courts.

But the government’s invocation of that case ignores its context, in which the activity at issue was involvement in a group determined by the government to be an international terrorist organization. In those circumstances, the Supreme Court found that the government’s interest in deporting members of terrorist organizations outweighed any rights to associate with those organizations. Retaliation against Ragbir for peaceful advocacy about U.S. immigration policy is fundamentally different. He is not alleged to have been involved with a foreign organization of any kind, and peaceful protest against the government lies at the very heart of the First Amendment. Ragbir’s case simply does not fit within the case’s narrow parameters.

Moreover, if the case is read too broadly, it could strip the roughly 900,000 individuals situated similarly to Ragbir of any legal recourse if the government chooses to withdraw a noncitizen’s stay of removal because they’ve exercised their First Amendment rights. It would thus give ICE the ability to target any noncitizen critical of their practices with legal impunity. Such an extreme power to silence dissent flies in the face of our longstanding constitutional commitment to uphold an individual’s’ right to free speech, and threatens to put the United States on par with regimes like that of Bahrain, which Washington has consistently and legitimately criticized.

Joshua Geltzer is executive director and visiting professor of law at the Georgetown Institute for Constitutional Advocacy and Protection and an Arizona State University Future of War fellow at New America. He previously served as senior director for counterterrorism and deputy legal adviser at the White House National Security Council.

Seth Wayne is an associate from practice at the Georgetown Institute for Constitutional Advocacy and Protection. He previously served as a trial attorney in the special litigation section of the civil rights division at the U.S. Department of Justice and before that worked as a staff attorney with the Orleans Public Defenders in Louisiana.