First Amendment Prohibits ICE from Retaliating Against Immigrant Rights Activists, ICAP and Partners Argue

September 11, 2018

NEW YORK— The First Amendment prohibits the government from retaliating against noncitizen activists for peacefully protesting the government’s immigration activities, according to an amicus brief filed in the U.S. Court of Appeals for the Second Circuit by Georgetown Law’s Institute for Constitutional Advocacy and Protection, the Knight First Amendment Institute at Columbia University, and the Roderick & Solange MacArthur Justice Center.

“The right to engage in peaceful advocacy and protest lies at the very heart of the First Amendment,” said Seth Wayne, a litigator at Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP). “It’s therefore particularly concerning to see the government retaliating against activists by seeking to remove them from the country as a way to silence them. We’re proud to stand alongside the Knight Institute and the MacArthur Justice Center to defend essential First Amendment rights.”

Ravi Ragbir, a prominent immigrant rights activist, filed suit to prevent U.S. Immigration and Customs Enforcement (ICE) from deporting him to Trinidad & Tobago after 25 years of living in the United States. According to the lawsuit, Ragbir v. Homan, it was Ragbir’s First Amendment-protected activism that motivated ICE to begin removal proceedings. Ragbir seeks an injunction preventing his removal on this basis and preventing governmental retaliation against other noncitizen activists for the exercise of their First Amendment rights. The district court denied the injunction, and that decision is now pending before the U.S. Court of Appeals for the Second Circuit.

“Immigration, including the treatment of noncitizens, has been a touchstone of political debate in the United States,” said Ramya Krishnan, staff attorney at the Knight Institute. “Allowing the government to deport noncitizens for criticizing the nation’s immigration policies would silence crucial voices on a political issue central to the national conversation, and enable a practice that the U.S. government has condemned in other countries around the world.”

The amicus brief filed by the organizations responds specifically to ICE’s position that the law affords people in Ragbir’s circumstance no right to invoke the First Amendment as a shield. According to the brief, ICE’s view stems from a flawed interpretation of the Supreme Court’s decision in Reno v. American–Arab Anti-Discrimination Committee, a case that addressed individuals alleged to have provided material support to a foreign terrorist organization — not activists engaged in peaceful issue advocacy. The brief also asserts that the pattern of retaliation against Ragbir and other activists is “outrageous,” because it violates the most fundamental guarantees of the First Amendment without serving a legitimate government interest. The brief argues that the government’s retaliation against Ragbir is not, therefore, immune from a First Amendment challenge.

“The use of deportation to quell dissenting voices should be concerning to all Americans,” said Amir Ali, Supreme Court and appellate Counsel for the MacArthur Justice Center. “The trial court’s view that courts have no role to play here is manifestly wrong — the rule of law depends on the Second Circuit stepping in to correct that error.”

Read the brief here.