Are federal immigration officers free to retaliate against immigrant activists who exercise their First Amendment rights? That is the question the Second Circuit will confront on Monday, when it hears arguments in Ragbir v. Homan.
The case involves the highly public surveillance, arrest, transfer and attempted deportation of immigrant rights activist Ravi Ragbir by U.S. Immigration and Customs Enforcement (ICE). Ragbir, the executive director of the New Sanctuary Coalition, is an outspoken critic of ICE. For years, he has helped bring elected officials and clergy into ICE federal buildings to bear witness to the human costs of deportation. Last year, however, ICE began closing their public spaces to New Sanctuary Coalition volunteers, and, in January of this year, it conducted an apparently coordinated operation to surveil, arrest and deport two coalition leaders. ICE agents successfully deported New Sanctuary Coalition co-founder Jean Montrevil to Haiti that same month. In Ragbir’s case, a federal court intervened, issuing a temporary stay and ordering his release. But ICE continues to pursue his deportation.
Ragbir and Montrevil are not alone. Across the country, there have been more than 20 reported cases of immigrant rights activists being targeted by ICE after speaking out. Many people in the community have come to one conclusion: ICE is attempting to silence its critics.
In February, Ragbir, the New Sanctuary Coalition and several other immigrant rights groups filed a lawsuit challenging this disturbing “pattern and practice” on First Amendment grounds. The district court rejected the plaintiffs’ request for a preliminary injunction to enjoin Ragbir’s removal, concluding that it lacked jurisdiction based on a broad reading of a jurisdiction-stripping statute, 8 U.S.C. 1252(g). This jurisdiction-stripping did not raise constitutional concerns, the district court concluded, because Ragbir did not have a constitutional claim. (The plaintiffs’ request for a nationwide preliminary injunction against the selective enforcement of immigration laws remains pending.)
As the Knight First Amendment Institute at Columbia University, the Institute for Constitutional Advocacy and Protection at Georgetown Law, and the Roderick & Solange MacArthur Justice Center have explained in amicus briefing, the district court’s decision is wrong. There are more than 900,000 immigrants like Ragbir—people who are under final orders of removal, but who have been released from custody. There are millions more immigrants who have not yet gone through the immigration system, but may be subject to deportation. They do not belong in a First Amendment “black hole”—subject to retaliation by ICE for bringing to light the harms of ICE policies as only they, the directly impacted, can.
Immigration law, to be sure, is often unforgiving, and the Trump administration reads Reno v. AADC, decided almost 20 years ago, to have categorically foreclosed selective enforcement claims in the immigration context. Crucially, though, that case involved individuals placed into deportation proceedings for supporting an alleged foreign terrorist group. The Court reasoned that allowing the plaintiffs to pursue selective enforcement claims in that context would risk the disclosure of “foreign-intelligence products and techniques,” and threaten to delay proceedings, thereby intruding on prosecutorial discretion. As we explain in our brief, AADC did not address cases like Ragbir’s, which do not involve allegations relating to foreign terrorist organizations and where the claimed retaliatory conduct is the withdrawal of a stay and the carrying out of a decade-old removal order.
Even if AADC did apply here, what happened to Ragbir fits squarely within the exception the AADC court carved out for situations involving “outrageous” government conduct. What we have here is blatant retaliation—going beyond even “selective enforcement” in the classic sense. The enforcement of Ragbir’s deportation order in the ordinary course would have involved his being provided with notice that the time had come for deportation, as well as an opportunity to wrap up his affairs and depart—indeed, that was ICE’s own promise in the terms of his order of supervision. But ICE did not do that. It gave no notice or grace period. It did not even wait until its own grant of a two-year stay of removal had expired. Instead, after expressing his resentment of Ragbir’s political activities and criticism of ICE, the deputy director of the New York ICE Field Office abruptly arrested him, revoked his order of supervision without hearing, revoked his stay of removal, took him away from his wife and counsel without informing them of his location, and moved him 1,000 miles away to a private prison in Florida, with the goal of deporting him to Trinidad the next day. In the words of the habeas court that ordered his release, ICE’s actions were “unnecessarily cruel”—the types of acts we associate with “regimes we revile.”
On Monday, Judges John Walker, Pierre Leval and Christopher Droney will address these arguments at a critical time for immigrants in this country. The government will no doubt push to extend AADC beyond its narrow facts. Allowing it to do so, however, would enable the government to quash dissent from some of the most vulnerable members of our community—at a time when their voices most need to be heard.