Does the First Amendment Apply to Immigrants Facing Deportation?

Does the First Amendment protect non-citizens who believe they're being deported for political speech?

That was one of the central arguments Monday when the prominent immigration activist Ravi Ragbir appeared at the federal appeals court in Manhattan.

Ragbir, a leader of the New Sanctuary Coalition, was detained in January during what was supposed to be a routine check-in with Immigration and Customs Enforcement. Though he had been convicted of wire fraud almost 18 years ago, he argued the government hadn't taken any action to remove him until he began speaking out against the Trump administration in 2017. About three weeks later, a federal judge said his detention was "unnecessarily cruel" and ordered his release.

Shortly afterwards, Ragbir filed a lawsuit in federal court alleging that immigration officials had targeted him and other immigrants because of their activism. On Monday, attorney R. Stanton Jones, of the firm Arnold & Porter, argued that the U.S. Court of Appeals for the Second Circuit should issue a preliminary injunction blocking the government from deporting Rabgir until that case is heard. Jones cited a 1995 U.S. Supreme Court ruling that said non-citizens can't use the First Amendment to argue they're being selectively targeted for deportation. The case, American Arab Anti-Discrimination Committee v. Reno, involved eight immigrants who were members of the Popular Front for the Liberation of Palestine.

But Jones said the Supreme Court case was about raising money for foreign terrorism. By contrast, he argued Ragbir's activities at the New Sanctuary Coalition were peaceful. And he noted that the 1995 ruling preserved the possibility of a First Amendment lawsuit if the discrimination is so "outrageous" to allow for a claim.

Ragbir's case met that requirement, he said, because it involved "core political speech." Without this exception, he said, the government would create a "First Amendment black hole," where non-citizens could be deported just for criticizing ICE. 

But Judge Christopher Droney asked whether a win by Ragbir could trigger a "slippery slope" for other immigrants with deportation orders. Judge John M. Walker, Jr., also wondered whether an immigrant could buy time by claiming unlawful retaliation by the government for speaking out.

Jones said "no rational" non-citizen who's at risk of imminent deportation would publicly criticize ICE. Not everyone has Ragbir's "fortitude," he added.

The judges questioned Assistant U.S. Attorney Steven Kochevar about whether seeking to deport an immigrant who criticizes ICE would meet the Supreme Court's definition of "outrageous" discrimination. "Not in this case," said Kochevar. He called Ragbir "a criminal alien subject to a final order of removal for several years." He added, "That makes this case not outrageous."

When asked why Ragbir had been allowed to stay in the U.S. for so long despite the order of removal, Kochevar asserted the government could take action at any time. He denied Ragbir's activism played any role.

But Ragbir's attorney rebutted that. He claimed ICE's deputy director in New York told another member of the New Sanctuary Coalition, "You shouldn't make matters worse by speaking out."

It's not known when the three-judge panel will issue its ruling on the preliminary injunction. Ragbir also has a separate case in New Jersey, where he's seeking to vacate his conviction for wire fraud. 

After Monday's hearing, Ragbir said he would continue to speak about issues affecting immigrants. "The travesty of injustice right now is very clear, blatantly so," he said. "You see the child separation, you see the caravan issue, you see the detention issue. So more and more I have to speak up."   

Correction: The original version of this article identified Ragbir's attorney as Stanford Jones, it is R. Stanton Jones.