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Appeals Court Decision Upholds First Amendment Rights Of Undocumented Immigrants

In a victory for undocumented immigrants who engage in activism, a federal appeals court found activist Ravi Ragbir had a valid claim against Immigration and Customs Enforcement (ICE), which attempted to deport him in retaliation for his political speech.

The United States Second Circuit Court of Appeals overturned a district court ruling and remanded the case for further proceedings on his allegations against U.S. government officials.

“Ragbir’s speech implicates the apex of protection under the First Amendment,” the appeals court declared [PDF]. “His advocacy for reform of immigration policies and practices is at the heart of current political debate among American citizens and other residents.”

“I cannot begin to express my gratitude to all those who have stood with us in this struggle. It humbles me to know that not only will my voice be protected, but that together we can protect the voices of so many people who are living in this country under the threat of deportation,” Ragbir said. “It was all of our voices together that made this decision possible, and we have to continue to speak out against the travesty of our deportation system.”

Ragbir is the executive director of the New Sanctuary Coalition of New York City. He checked in with ICE on January 11, 2018, and has faced a “final order of removal” since 2007. But for the past years, he was allowed to stay in the U.S. with his wife and daughter (both U.S. citizens). In fact, he is from Trinidad and Tobago and has been in the U.S. for 25 years.

Authorities detained and transferred Ragbir to a jail in Miami. It immediately sparked a protest that was attacked by New York police, who arrested several people including city council members. The protests led authorities to bring Ragbir back to the New York area, where he was eventually released.

Around the end of January, the Southern District of New York granted Ragbir a writ of habeas corpus that required ICE to let Ragbir go free. The court stated, “[I]t ought not to be—and it has never before been—that those who have lived without incident in this country for years are subjected to treatment we associate with regimes we revile as unjust.”

A lawsuit was subsequently brought by immigrant rights groups and alleged ICE targeted immigrant rights activists with repression.

“Federal immigration authorities have specifically targeted prominent and outspoken immigrant rights activists across the country on the basis of their speech and political advocacy on behalf of immigrants’ rights and social justice,” the lawsuit argued [PDF]. “These activists have been surveilled, intimidated, harassed, and detained, their homes have been raided, many have been plucked off the street in broad daylight, and some have even been deported.”

“The ‘broad discretion exercised by immigration officials,’ has been abused in a cynical effort to punish those who disagree with [President Donald Trump’s] administration. To sweep away all opposition. The government’s targeting of activists on the basis of their core political speech is unfair, discriminatory, and un-American. And it violates the First Amendment.”

ICE officials allegedly conducted surveillance of Ragbir and various members of the New Sanctuary Coalition.

Micah Bucey, a minister in New York, provided damning evidence on Scott Mechkowski, ICE’s New York Field Office deputy director.

On January 5, 2018, Bucey, and three other faith leaders, met with Mechkowski at ICE’s office in Manhattan. They were discussing another prominent case as well as concerns about ICE surveillance of people outside a church. Mechkowski apparently complained, “Nobody gets beat up in the news more than we do, every single day. It’s all over the place,” and he added that people say, “We’re the Nazi squad, we have no compassion.”

Ragbir was not even the subject of conversation, but Mechkowski stated, “I read something that Ravi [Ragbir] wrote, [stating] ‘do you think it’s easy walking around with a target [on you]?’” He mentioned there wasn’t anybody in the entire New York Field Office who did not know about Ragbir’s case. “Everybody knows this case. No matter where you go.”

“On January 8, three days before Ragbir was scheduled to appear for his next ICE check‐in, Ragbir’s counsel Alina Das spoke with Mechkowski, who stated that he felt ‘resentment’ about the events of the March 9, 2017 check‐in, that he had heard Ragbir’s statements to the press, and that he continued to see Ragbir at protest vigils outside ICE’s New York City office,” according to the appeals court.

As the appeals court determined, “A plausible, clear inference is drawn that Ragbir’s public expression of his criticism, and its prominence played a significant role in the recent attempts to remove him.”

“The conclusion that ICE would nonetheless still be free to deport Ragbir on the basis of his advocacy would certainly draw considerable media attention and thus would be a particularly effective deterrent to other aliens who would also challenge the agency and its immigration policies,” the appeals court added.

The appeals court further maintained, “To allow this retaliatory conduct to proceed could 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.”

Stanton Jones, an attorney who argued the case before the Second Circuit, reacted, “Today’s decision stands as a warning to this administration to end its pattern of retaliating against immigrant rights activists across the country.”

“Mr. Ragbir’s activism, his advocacy, and his protest for immigrant rights stand in America’s greatest civic traditions. With today’s decision, Mr. Ragbir may continue his important work free from fear of forceful government retaliation,” Jones said.

The appeals court suggested Ragbir may prove ICE officials sought to deport him as a result of his First Amendment-protected speech. “At least for the near future, the taint of the unconstitutional conduct could preclude removal.”

But this “taint” may end after a “typical two-year stay extension.” Then the government may be able to pursue deportation since it has the authority.

For what it is worth, the above presumes the government will stop targeting immigrants involved in activism. If that conduct does not end, Ragbir and others will continue to have cases they can bring individually to halt their deportations.

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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."