The Volokh Conspiracy
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Another Federal Judge Concludes Aliens Generally Can't Be Deported for Their Political Advocacy
Today's decision by Judge Geoffrey Crawford (D. Vt.) in Mahdawi v. Trump allows a legal permanent resident to be bailed out of detention, pending his immigration hearings. And the bail analysis requires considering whether Mahdawi raises "substantial claims" that his deportation (on the grounds that "[t]he Secretary of State has determined that your presence and activities in the United States would have serious adverse foreign policy consequences and would compromise a compelling U.S. foreign policy interest") would violate the First Amendment. The court concludes that he has indeed raised such claims:
Noncitizen residents like Mr. Mahdawi enjoy First Amendment rights in this country to the same extent as United States citizens. See, e.g., Bridges v. Wixon (1945) (holding that a noncitizen who published communist literature was protected by First Amendment); Kwong Hai Chew v. Colding (1953) (noting that the First Amendment does not distinguish "between citizens and resident [noncitizens]"); United States v. Verdugo-Urquidez (1990) (confirming that resident noncitizens "enjoy certain constitutional rights," including "First Amendment rights"); Rafeedie v. I.N.S. (D.D.C. 1992) ("Plaintiff is entitled to the same First Amendment protections as United States citizens, including the limitations imposed by the overbreadth and vagueness doctrines."); OPAWL – Building AAPI Feminist Leadership v. Yost, (S.D. Ohio 2024) ("[T]he Supreme Court has never held that the First Amendment fails to protect [noncitizens'] political speech to the same extent it protects citizens' political speech."). That includes the right to be free from retaliation for the exercise of his First Amendment rights. See Ragbir v. Homan (2d Cir. 2019) (holding that legal permanent resident could not be deported in retaliation for his protected speech even where he was deportable on other grounds)….
[Mr. Mahdawi's] speech, which advocated for a peaceful resolution of the conflict in Gaza and opposed Israel's military campaign, is at the heart of an ongoing political debate among the American people. "Because [Mr. Mahdawi's] speech concerns 'political change,' it is also 'core political speech' and thus 'trenches upon an area in which the importance of First Amendment protections is at its zenith.'"
Mr. Mahdawi's speech does not appear to fall within any areas in which the First Amendment permits restrictions based on the content of speech. The Supreme Court recently summarized these areas: "incitement—statements direct at producing imminent lawless action and likely to do so," "defamation—false statements of fact harming another's reputation," "obscenity—valueless material appealing to the prurient interest," and "true threats of violence."
In a memorandum written by Secretary of State Marco Rubio, the government accused Mr. Madawi of "engag[ing] in threatening rhetoric and intimidation of pro-Israeli bystanders" at a protest. A bail hearing is not the time to make detailed findings on the merits of the First Amendment claim. On the limited record available, Mr. Mahdawi has provided enough information to show that his speech was protected….
Mr. Mahdawi bears the burden of proving that the Government detained him in retaliation for his protected speech or to chill the speech of others. A bail hearing is not the time to rule on the merits of the evidence or the methods of inferring retaliatory motive. It is sufficient at this juncture to consider the Government's public statements, including Executive Orders 14161 and 14188, as evidence of retaliatory intent. Executive Order 14161 states that its purpose is, in relevant part, to "protect [United States] citizens from aliens who … espouse hateful ideology." Executive Order 14188 is entitled "Additional Measures to Combat Anti-Semitism." The fact sheet accompanying Executive Order 14188 promises to "punish anti-Jewish racism in leftist, anti-American colleges and universities."
The fact sheet also promises to deport or revoke the student visas of "all Hamas sympathizers on college campuses, which have been infested with radicalism like never before." It threatens: "To all the resident aliens who joined the pro-jihadist protests, we put you on notice: come 2025, we will find you, and we will deport you." Before his election, President Trump reportedly promised donors, in reference to pro-Palestinian activism, that he would "set that movement back 25 or 30 years" if elected. Together, this evidence is sufficient for Mr. Mahdawi's present purpose of raising a "substantial claim" of First Amendment retaliation….
And the court goes on to say, in related different part of the opinion:
The court also considers the extraordinary setting of this case and others like it. Legal residents—not charged with crimes or misconduct—are being arrested and threatened with deportation for stating their views on the political issues of the day. Our nation has seen times like this before, especially during the Red Scare and Palmer Raids of 1919–1920 that led to the deportation of hundreds of people suspected of anarchist or communist views. In Colyer v. Skeffington (D. Mass. 1920), Judge Anderson of the District of Massachusetts granted habeas relief to multiple immigrants detained for their political beliefs. His decision was instrumental in bringing an end to the moral panic that gripped the nation and its officials.
Similar themes were sounded during the McCarthy period in the 1950s when thousands of non-citizens were targeted for deportation due to their political views. Again, the fever passed, but not before Justice Jackson was moved to dissent in U.S. ex rel. Knauff v. Shaughnessy (1950), writing in a habeas case concerning the exclusion of a German war bride:
Security is like liberty in that many are the crimes committed in its name. The menace to the security of this country, be it great as it may, from this girl's admission is as nothing compared to the menace to free institutions inherent in procedures of this pattern.
Justice Minton's majority decision is not much remembered. The wheel of history has come around again, but as before these times of excess will pass. In the meantime, this case—like Colyer and Knauff—is extraordinary in the sense that it calls upon the ancient remedy of habeas to address a persistent modern wrong….
Mr. Mahdawi argues that release is necessary to make habeas effective because keeping him in detention pending adjudication on the merits "would ratify the chilling effect that the government intends to create." As this court observed in Ozturk:
The Second Circuit has specifically recognized potential retaliation for protected political speech as a cognizable ground for habeas relief in the immigration context, noting that "to allow this retaliatory conduct to proceed would broadly chill protected speech, among not only activists subject to final orders of deportation but also those citizens and other residents who would fear retaliation against others."
Mr. Mahdawi, like Ms. Ozturk, "has presented evidence to support [his] argument that [he] may qualify for a retaliation claim." "[A]n inmate's constitutional protections are not left at the prison gate." However, "[t]he fact of confinement and the needs of the penal institution impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration." Mr. Mahdawi's ability to exercise his First Amendment rights is "severe[ly] curtail[ed]" as long as he is detained. If he has been detained in retaliation for exercising those rights, release is essential to make habeas relief effective, not only for him but for others who wish to speak freely without fear of government retaliation….
Mr. Mahdawi's release is also in the public interest. His continued detention would likely have a chilling effect on protected speech, which is squarely against the public interest….
I think the precedents may be more ambiguous than the court suggests; for more on that, see this post. The government has appealed the decision, and the same questions are arising in other courts as well; I expect that we'll soon get more detailed analyses from various federal appellate courts on this issue, and perhaps even from the Supreme Court.
