Do federal immigration officials have the power to arrest, detain, and deport immigrants in retaliation for their criticism of U.S. immigration policy? The answer to this question should be an emphatic no. The U.S. Supreme Court has long held that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Few would contest that federal immigration policy is a matter of pressing public concern—which is confirmed, if anything, by its prominent role in current political debate. As such, speech about federal immigration policy is entitled to the highest First Amendment protection. A straightforward application of First Amendment law would firmly establish that the government is prohibited from silencing its critics through imprisonment or exile.

But constitutional protections in the immigration context are, unfortunately, anything but straightforward. In this essay, I describe and critique the legal and structural barriers that immigrant activists in the U.S. have faced when fighting back against ongoing First Amendment retaliation by federal immigration officials. Drawing from my past scholarship and experience litigating these matters under the two previous administrations, I describe the problematic legal positions taken by the federal government in First Amendment litigation and propose a better reading of the relevant constitutional and immigration provisions to promote First Amendment principles. I then briefly describe additional strategies, beyond defensive litigation, that immigrant advocates have pursued in order to address First Amendment retaliation. Ultimately, I argue that immigrant activists should not face onerous barriers to protecting their First Amendment rights.

The Context

The use of federal immigration powers to retaliate against immigrants for what might otherwise be protected speech is not a new phenomenon. In Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States, Julia Rose Kraut traces the history of ideological exclusion and deportation from the late 18th century to the War on Terror. The passage of the Alien and Sedition Acts of 1798, the Palmer Raids of 1919, and the repeated efforts to deport alleged communists and anarchists throughout long periods of the 20th century are all troubling examples. Throughout this history, federal courts have been reluctant to intervene due to a judicially created “plenary power” doctrine that counsels against judicial intervention in immigration matters, particularly at the intersection of immigration and national security. Congress has only increasingly constrained judicial review, and in 1999, the Supreme Court issued a decision in Reno v. American-Arab Anti-Discrimination Committee (“AADC ”)holding that immigrants have no constitutional right to raise a selective enforcement claim against federal immigration officials relating to their decisions to commence proceedings, adjudicate cases, or enforce deportation orders in the absence of outrageous discrimination.

In the decades since AADC, the power of federal immigration officials—and their ability to abuse that power—has only grown. In 2003, Congress transferred and consolidated federal immigration enforcement power to the newly created U.S. Department of Homeland Security (DHS), which divided responsibilities among: U.S. Immigration and Customs Enforcement (ICE, responsible for interior enforcement); U.S. Customs and Border Protection (CBP, responsible for border enforcement); and U.S. Citizenship and Immigration Services (USCIS, responsible for processing applications for immigration and citizenship status). Federal law gives each of these agencies vast power to determine whom to detain, deport, or grant status or citizenship to. Since the creation of the DHS, Congress has allocated billions of dollars to federal immigration agencies—more funds than all other federal law enforcement agencies combined.

In recent years, these agencies have been repeatedly accused of abusing their authority in order to retaliate against immigrants for political speech—including criticism of federal immigration policy. During the first Trump administration, the New York University (NYU) Immigrant Rights Clinic and its partners documented more than 1,000 incidents of alleged First Amendment retaliation against immigrant rights activists by numerous federal agencies. ICE targeted prominent immigrant rights leaders in New York City and Seattle for deportation, detained immigrants after they criticized ICE at town halls and rallies, and even detained and deported a grandfather after the Sundance Film Festival showcased a documentary about his past activism. At the urging of immigrant rights organizations, the DHS under the Biden administration issued guidance that “[a] noncitizen’s exercise of their First Amendment rights . . . should never be a factor in deciding to take enforcement action.” However, First Amendment retaliation continues to be reported, particularly against the most vulnerable immigrants. With Donald Trump’s return to the presidency, along with many of his first-term immigration advisors, many fear another surge of retaliation against immigrant activists and widespread suppression of speech in favor of immigrant rights.

The nature of this alleged retaliation and the harms that arise from it are severe. Immigrants who have spoken out against detention and deportation policies through protest, community organizing, the arts, the press, and the legal system have found themselves fined, arbitrarily placed in deportation proceedings, abruptly detained, placed in solitary confinement or transferred to far-off detention facilities, and/or rapidly deported because of their First Amendment activity. The chilling effect of these efforts on immigrant organizing is significant, with immigrant communities being sent a clear message: Speak out against detention and deportation, and you will be detained and deported. If the government can silence its critics, it has the power to control public debate and hide the inner workings of its most controversial immigration policies from public view.

With no right to government-appointed counsel and the full weight of the U.S. deportation apparatus against them, only a small number of immigrant activists have been able to raise First Amendment retaliation claims in court. As discussed in the next section, these cases have involved hotly contested issues regarding the power of the courts to review such claims and the scope of First Amendment protections afforded to immigrant activists. Potentially clear-cut cases of retaliation have been complicated by arguments that threaten to erode First Amendment principles. At the same time, these cases have given courts an opportunity to revive First Amendment principles in the wake of AADC and name the targeting of immigrant activists by immigration officials as a form of outrageous discrimination.

By upholding the right of immigrant activists to criticize federal immigration policy without fear of retaliation, courts can help resurface the anti-subordinating role of the First Amendment as a protection against majoritarian tyranny. The next section discusses the core questions that have cropped up in immigrant activists’ First Amendment litigation and proposes how courts should resolve these issues in line with First Amendment principles.

The Core Legal Questions

The core legal questions presented in any case alleging First Amendment retaliation by the government should address whether the evidence demonstrates that First Amendment retaliation has occurred and, if so, what the remedy should be.  Unfortunately, in the context of retaliation against immigrants in the U.S., the federal government has raised three additional immigration-specific gatekeeping questions that courts have had to confront before applying core First Amendment law: (1) Does the First Amendment protect all noncitizens in the U.S.? (2) Do federal courts have the power to consider, and do noncitizens have the right to raise, First Amendment challenges to retaliatory immigration enforcement? (3) Does the existence of a legally valid basis to arrest, detain, or deport a noncitizen preclude a noncitizen from bringing a First Amendment challenge to that action? In this section, I address each of these core questions in turn, proposing answers that would align with First Amendment principles. I focus on cases in which immigrants in the U.S. have sought to stop the retaliatory use of interior immigration enforcement power through stays, declaratory and injunctive relief, and grants of writs of habeas corpus.

Does the First Amendment protect all noncitizens in the U.S.?

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In Bridges v. Wixon, a case challenging efforts to deport Australian-born union leader Harry Bridges based on his alleged communist affiliation and membership, the Supreme Court affirmed that “[f]reedom of speech and of press is accorded aliens residing in this country.” There are many good reasons why the First Amendment would apply to noncitizens and citizens alike. Unlike other provisions in the U.S. Constitution, the First Amendment makes no reference to “citizens” and instead, where it refers to rights, speaks of “the people.” The values of the First Amendment reach much more broadly than the speaker: The First Amendment protects democratic self-governance for society as a whole and ensures both the right to speak and the right to listen. Moreover, the First Amendment restricts the federal government from abusing its power to suppress speech based on its content or viewpoint, an important value irrespective of the status of the person whose speech is being silenced.

Despite this, in a narrow set of circumstances, the federal government has argued that some immigrants in the U.S. are not entitled to First Amendment protections at all. Specifically, it has taken the position, in at least one First Amendment retaliation case litigated a decade ago, that noncitizens who have arrived in the U.S. recently and without authorization fall outside the First Amendment’s protection. In Pineda-Cruz v. Thompson, a group of mothers detained with their children at Karnes County Detention Center in Texas while seeking asylum sued the federal government, alleging First Amendment retaliation. Approximately 80 mothers engaged in a protest, circulating a petition demanding their release and initiating a five-day hunger strike. The complaint alleged that the prison reacted by placing several of the protest leaders in solitary confinement, terminating their prison jobs, threatening to take the mothers’ children away, and engaging in verbal abuse. The federal government filed a motion to dismiss that argued, in part, that “[a]s non-resident aliens who have not gained admission or entry to the United States – and who have not established connections to the United States – Plaintiffs are not entitled to prevail in a lawsuit seeking relief for alleged violations of the First Amendment.” The plaintiffs voluntarily dismissed the case prior to a decision on the motion to dismiss, but the federal government’s position—that it had limitless power to silence asylum seekers within the U.S.—was alarming.

The federal government based this position on three Supreme Court cases arising in significantly different contexts: Johnson v. Eisentrager, United States ex rel. Turner v. Williams, and United States v. Verdugo-Urquidez. None of these cases hold that a noncitizen living in the U.S. lacks First Amendment rights, but the federal government’s brief in Pineda Cruz used each case to suggest that immigration status may be relevant to a First Amendment inquiry.

Eisentrager addressed whether nonresident “enemy alien” German citizens captured as prisoners of war outside of the U.S. may seek habeas review in U.S. courts. In denying them access to habeas review, the Supreme Court described the “ascending scale of rights” afforded to immigrants to the U.S.:

The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

In Pineda Cruz, the federal government used this case to argue the inverse, that a person without “lawful presence” in the U.S. is therefore categorically unprotected by the U.S. Constitution. This is something that the Supreme Court has not held, and it was not addressed by Eisentrager (which, even in the context of addressing the reach of habeas corpus in wartime, has been interpreted as a highly context-specific decision). Eisentrager therefore does not stand for the proposition that people in the U.S. without lawful presence have no First Amendment rights.

In Turner, the Supreme Court upheld the federal government’s power to exclude “alien anarchists” from the U.S., finding no First Amendment concern and stating that a person excluded or expelled from the U.S. “does not become one of the people to whom these things are secured by our Constitution by an attempt to enter, forbidden by law.” The federal government in Pineda Cruz cited Turner to suggest that “deportable aliens” are therefore unable to seek First Amendment protection from deportation, but the analysis in Turner was much more narrow. In Turner, the Court observed that Congress reasonably viewed anarchy as a threat to national self-preservation and that, while anyone barred from entering the U.S. “is in fact cut off from worshipping or speaking or publishing or petitioning in the country[,]. . . that is merely because of his exclusion therefrom” and is not in and of itself a First Amendment injury. Moreover, Turner pre-dates developments in constitutional law generally, and First Amendment law specifically, that recognize that the government may not deprive an individual of a benefit in violation of that individual’s constitutional rights, even if the individual has no right to the benefit itself. Turner does not, therefore, stand for the proposition that immigrants lack First Amendment protections.

United States v. Verdugo-Urquidez is a Fourth Amendment case, holding that the Fourth Amendment does not apply to searches and seizures of noncitizens outside the U.S. The Supreme Court contrasted the Fourth Amendment’s reference to “the people” with the Fifth and Sixth Amendments’ references to “persons” or the “accused” and refused to apply the Fourth Amendment extraterritorially. In so doing, the Court mentioned the First Amendment, stating:

While this textual exegesis [examining references to “the people” in various portions of the U.S. Constitution] is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

In Pineda Cruz, the federal government used this language to argue that the detained mothers at Karnes could not raise First Amendment claims because they had not proven that they had “developed sufficient connection with the country” to be considered part of the community. But nothing in Verdugo-Urquidez addresses what would constitute “sufficient connection” or suggests that people physically within the United States would not be considered part of the “national community.” Verdugo-Urquidez is not about the rights of people inside the United States at all. Nor does Verdugo-Urquidez address whether freedom of speech (as opposed to other freedoms specified in the First Amendment) is limited to “the people” in the collective sense. As Michael Kagan has emphasized, the portion of the First Amendment protecting freedom of speech does not reference the class of speakers at all—suggesting a broad interest in limiting governmental abuses of power. This interest underscores why the First Amendment should protect the mothers in Pineda Cruz from retaliation. As I have written in my previous scholarship, the treatment of immigrants in immigration detention is a matter of pressing public concern and the voices of people who are directly impacted by detention in the U.S. are critical to the public’s understanding of these issues. If the government can silence those whom it chooses to hold in custody without scrutiny, it undermines democratic debate.

The origins of the First Amendment also matter. Verdugo-Urquidez did not end its analysis with this “textual exegesis” and instead went on to examine the history of the drafting of the Fourth Amendment and its purposes. Similar context-specific debates are occurring in the Second Amendment sphere. Any limitations on the reach of the First Amendment must align with its origins and purposes, including its focus on the free exchange of ideas and the right of the public to listen to diverse perspectives on issues of public concern.Moreover, because freedom of speech is “the matrix, the indispensable condition, of nearly every other form of freedom,” there are strong reasons to examine the First Amendment in conjunction with other constitutional provisions that undeniably protect all persons. This suggests not only more fulsome speech protections for anyone present in the territorial U.S. but also a reexamination of the reach of these protections to speakers outside the U.S., as other scholars have suggested.

Perhaps recognizing the folly of its argument in Pineda Cruz, the federal government has not actively pursued similar arguments in other First Amendment cases involving immigrant activists in the decade since. It would have been difficult for the federal government to apply such reasoning to the majority of cases in which immigrant activists have alleged retaliation in any event. Immigrant activists who have drawn the attention of federal immigration officials generally have long-standing and substantial ties that have driven their organizing—family, employment, and community, in addition to long residence in the U.S. Even immigrant activists who are more recent arrivals—such as those who are detained within the U.S. pending immigration proceedings—are part of our national community and have viewpoints salient to the public debate. The federal governments and the courts should resist further fragmentation of First Amendment law and apply First Amendment principles robustly to all immigrant activists in the U.S.

Do federal courts have the power to consider, and do noncitizens have the right to raise, First Amendment challenges to retaliatory immigration enforcement?

The Supreme Court has long recognized that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” The First Amendment prohibits retaliation because allowing retaliation would permit the government to punish speech indirectly, when the government has no right to punish speech at all.

To effectuate this right, however, an individual facing First Amendment retaliation requires access to a judicial forum. Federal question jurisdiction provides a judicial forum for constitutional controversies. Indeed, some degree of judicial review over First Amendment claims is guaranteed by Article III and the First Amendment of the U.S. Constitution. The Supreme Court has held that interpreting a statute to deprive federal courts of jurisdiction over constitutional claims would raise serious constitutional concerns. As Akhil Amar has explained, to ensure the Constitution’s status as the supreme law of the land, it “would have been insufficient simply to empower, but not oblige, Congress to give federal courts jurisdiction in these cases.” Moreover, where the alleged First Amendment retaliation involves a restraint on liberty, other jurisdictional provisions apply. Article I, § 9, cl. 2 (the Suspension Clause) of the U.S. Constitution and the civil habeas statute, 28 U.S.C. § 2241, ensure the review of unconstitutional restraints on liberty.

Despite these background principles, the federal government has argued that immigrant activists—even those whose speech is concededly protected under the First Amendment—have no right to bring a First Amendment retaliation claim and no forum for review. This argument is based primarily on the Supreme Court’s 1999 decision in Reno v. AADC, which interpreted a jurisdiction-stripping provision in the Immigration and Nationality Act, 8 U.S.C. § 1252(g), and analyzed whether the plaintiffs—members of the Popular Front for the Liberation of Palestine—could bring a selective enforcement claim to stop the commencement of removal proceedings against them. For the reasons explained below, however, neither 8 U.S.C. § 1252(g) nor the ruling on selective enforcement in AADC precludes the review of immigrant activists’ First Amendment retaliation claims. Where an immigrant raises a cognizable First Amendment retaliation claim, the U.S. Constitution guarantees review.

As an initial matter, the federal government often reads 8 U.S.C. § 1252(g) more expansively than its text or history suggests. In the 1990s, Congress amended federal immigration law to streamline and, in some cases, eliminate judicial review over certain immigration decisions. As part of this effort, it enacted 8 U.S.C. § 1252(g) to limit review of decisions or actions by federal immigration officials to “commence proceedings, adjudicate cases, or execute removal orders.” As the Supreme Court observed in AADC, Congress enacted § 1252(g) in the wake of lawsuits challenging federal immigration officials’ failure to exercise prosecutorial discretion during these three stages of proceedings. Congress wanted federal immigration officials to maintain their discretion to decide whether or not to halt proceedings at these stages in the process “for humanitarian reasons or simply for its own convenience.”

AADC examined § 1252(g) within a particular context. The plaintiffs in AADC were placed into removal proceedings and charged with routine immigration law violations and, although later dropped, with charges related to advocacy for “world communism.” They brought a selective prosecution challenge to the commencement of their removal proceedings, claiming that federal immigration officials targeted them based on their membership in the Popular Front for the Liberation of Palestine, which the federal government considered to be a terrorist organization. After determining that § 1252(g) prohibited judicial review of decisions to commence removal proceedings, the Supreme Court then considered the plaintiffs’ claim that its reading of the statute raised constitutional concerns. The Supreme Court concluded that the plaintiffs had not raised a colorable First Amendment claim, holding that “[w]hen an alien’s continuing presence in this country is in violation of the immigration laws, the Government does not offend the Constitution by deporting him for the additional reason that it believes him to be a member of an organization that supports terrorist activity.”

The Court could have stopped there but instead announced a general rule against selective enforcement claims in the immigration context. Examining the issue from the context of selective prosecution, the Court reasoned that recognizing such claims would allow unlawfully present noncitizens like the plaintiffs in AADC to “to prolong a continuing violation of United States law” and probe the mindset of prosecutors, thereby risking “the disclosure of foreign-policy objectives and . . . foreign-intelligence products and techniques” related to combatting terrorism and national security interests. The Court did not, however, foreclose all selective enforcement claims, recognizing that there may be cases “in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.”

Read in context, AADC stands for the proposition that § 1252(g) precludes judicial review of a challenge to federal immigration officials’ discretionary decision to commence a proceeding, adjudicate a case, or execute a removal order in the absence of a colorable constitutional claim and that a selective enforcement claim is not colorable in the absence of outrageous discrimination. Notably, AADC reached its result by emphasizing national security and terrorism concerns, which are not present in the vast majority of immigration cases. One can therefore distinguish AADC from cases that raise different concerns, challenge different actions, or present viable constitutional claims.

For example, only a limited set of actions fall within the purview of AADC. AADC recognizes that 8 U.S.C. § 1252(g) is tethered solely to the “three discrete actions” referenced in 8 U.S.C. § 1252(g). It therefore does not alter a court’s jurisdiction to review “many other decisions or actions that may be part of the deportation process—such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order.” Another action not described in § 1252(g) is the decision to detain. Appropriately, courts have readily found habeas jurisdiction over challenges to retaliatory detention.

Nor does AADC address a scenario where a noncitizen is raising a colorable constitutional claim for which no other forum is available. Justice Ginsburg raised concerns about this scenario in her concurrence: “[W]ere respondents to assert a colorable First Amendment claim as a now or never matter[—]were that claim not cognizable upon judicial review of a final order—again precedent and sense would counsel immediate resort to a judicial forum.” Selective prosecution is a challenge raised at the beginning of the removal process, which provides some avenue for judicial review (even if the scope of that review is subject to debate). In a “now or never” scenario—for example, a case where retaliation occurs after the removal process is completed, i.e., selective deportation—the interests of the immigrant in having some forum in which to challenge the unconstitutionality of their deportation outweigh the interests of the deporting officials. This “now or never” scenario counsels in favor of a narrow reading of § 1252(g) that does not foreclose review where a colorable constitutional claim (related to the First Amendment or otherwise) is raised.

Specific to the selective enforcement context, AADC explicitly leaves open the review of selective enforcement claims based on “outrageous” discrimination. In Ragbir v. Homan, the U.S. Court of Appeals for the Second Circuit held that First Amendment retaliation against an immigrant rights activist for his political speech critical of federal immigration policy is a form of outrageous discrimination that fits within the exception in AADC. The plaintiff in Ragbir was the director of a prominent immigrant rights organization in New York that organized faith communities. He received a final order of removal in 2007 but was given permission to continue to live and work in the U.S. for several years prior to his abrupt detention and imminent deportation and was targeted along with the co-founder of his organization in 2018. The ICE official who authorized the detention of Mr. Ragbir and his colleague expressed resentment towards their public remarks and advocacy. Mr. Ragbir argued that ICE’s efforts to deport him amounted to First Amendment retaliation for his protected political speech and to outrageous discrimination under AADC.

The Second Circuit agreed that Mr. Ragbir presented a viable First Amendment claim. In laying out the test for outrageous discrimination, the Second Circuit explained that courts should examine “the gravity of the constitutional right affected; the extent to which the plaintiff’s conduct or status that forms the basis for the alleged discrimination is actually protected; the egregiousness of the Government’s alleged conduct; and the plaintiff’s interest in avoiding selective treatment, as balanced against the Government’s discretionary prerogative.” Applying this test, the court explained that “advocacy for reform of immigration policies and practices is at the heart of current political debate among American citizens and other residents” and therefore “implicates the apex of protection under the First Amendment.” The Second Circuit concluded that he raised strong, plausible claims of retaliation for his viewpoint on immigrant rights and the public attention it received. As the Second Circuit held, “[t]o 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.”

The existence of a valid constitutional claim, which the Supreme Court found lacking in AADC, casts serious constitutional doubt on whether Congress could eliminate judicial review. The court in Ragbir could have construed 8 U.S.C. § 1252(g) narrowly to avoid the constitutional concerns by concluding that the statute was designed to constrain review of agency discretion and not of valid constitutional claims. Instead, the court concluded that the statute’s prohibition on the review of decisions “to execute removal orders” did not distinguish between constitutional and nonconstitutional claims and thus that there was no room to construe the statute to avoid the constitutional doubt. It thus turned to the more complex issue of whether Congress’ enactment of § 1252(g) violated the Suspension Clause of the U.S. Constitution, which ensures some degree of habeas jurisdiction.

The Second Circuit concluded that the Suspension Clause guaranteed review. Mr. Ragbir was “in custody” by virtue of his deportation order and his claims fell within the “constitutionally required scope of the privilege of the writ of habeas corpus” atcommon law. Because the Great Writ had not been formally suspended, and because the parties conceded that Congress had not provided an “adequate substitute” for habeas review, the Second Circuit concluded that stripping jurisdiction over Mr. Ragbir’s First Amendment claim violated the Suspension Clause. It ordered the case to be remanded for further consideration.

The focus on the Suspension Clause has led to another line of argument that the federal government has raised in cases of alleged retaliatory deportation: whether habeas relief is available to a person who challenges their deportation. The Office of the Solicitor General filed a petition for certiorari to the U.S. Supreme Court in Ragbir. While the certiorari petition for Ragbir was pending, the Supreme Court issued a Suspension Clause case, U.S. Department of Homeland Security v. Thuraissigiam, and remanded Ragbir to consider what impact, if any, Thuraissigiam had on the Suspension Clause analysis. The question was never resolved in Ragbir because the parties entered into a settlement prior to a further decision.

In Thuraissigiam, the Supreme Court held that 8 U.S.C. § 1252(e)(2), a statutory provision that limits judicial review of expedited removal orders, does not violate the Suspension or Due Process Clauses as applied to a noncitizen “at the threshold of initial entry” who sought to overturn his expedited removal order and “obtain additional administrative review” beyond what the statute required. As scholars have observed, Thuraissigiam is a troubling case. But there are several reasons why Thuraissigiam does not ultimately undermine a conclusion that Ragbir reached the right result with respect to the Suspension Clause question.

First, Thuraissigiam is narrow in scope. Thuraissigam was an “as applied” challenge to the expedited removal of an individual seeking initial entry and a more robust process of review at the border. Thuraissigiam thus stands for the narrow proposition that a noncitizen with no ties to the U.S. cannot resort to habeas as a means of “gaining entry” and that due process is not offended by the expedited removal process of such an individual pursuant to statute. Importantly, its Suspension Clause analysis focused solely on the scope of the writ of habeas corpus in 1789 and thus did not consider the ways in which the writ has evolved over time.

Second, several aspects of Thuraissigiam help make the case for why judicial review of a colorable First Amendment retaliation claim challenging deportation is constitutionally required. In crafting a narrow rule tailored to the border entry context, Thuraissigiam carefully preserved long-standing Supreme Court precedent protecting habeas review over the claims of noncitizens “already in the country who were held in custody pending deportation.” It also preserved Supreme Court precedent recognizing that habeas jurisdiction empowers courts to consider a variety of remedies to unlawful restraints on liberty. It further underscored the presumption of judicial review and other interpretive canons designed to prevent the elimination of judicial review over deportation. Finally, it recognized, as it must, that there are various sources of jurisdiction over colorable constitutional claims.

INS v. St. Cyr, which Thuraissigiam cites, helps to demonstrate why courts should exercise habeas jurisdiction over cases challenging retaliatory deportation. The noncitizen in St. Cyr sought a writ of habeas corpus challenging his deportation, arguing “that the restrictions on discretionary relief from deportation contained in the 1996 statutes do not apply to removal proceedings brought against an alien who pleaded guilty to a deportable crime before their enactment.” In interpreting the statute to preserve habeas review over such a claim, the Supreme Court emphasized that “at the absolute minimum” the Suspension Clause preserved the writ as of 1789 and recognized “there is historical evidence of the writ issuing to redress the improper exercise of official discretion” even in cases where detention is authorized by statute. It further observed that during the finality era, habeas was “the sole means by which an alien could test the legality of his or her deportation order.” At its core, St. Cyr recognizes the importance of preserving habeas review of deportation challenges, and Thuraissigiam upholds this view.

Whether construing § 1252(g) narrowly, upholding habeas jurisdiction in light of Suspension Clause concerns, or locating a different constitutional source for a jurisdictional guarantee, federal courts have the power to consider colorable claims of First Amendment retaliation. Courts should reject the federal government’s attempts to stretch cases like AADC and Thuraissigiam beyond their narrow facts, lest even outrageous discrimination go unremedied.

Does the existence of a legally valid basis to arrest, detain, or deport a noncitizen preclude a noncitizen from bringing a First Amendment challenge to that action?

A third emerging issue is whether the existence of otherwise valid authority to take an immigration enforcement action eviscerates any potential First Amendment retaliation claim. For example, does the fact that a person has a legally valid deportation order mean that it does not matter whether a federal immigration official engaged in outrageous discrimination by choosing to deport the person because of their protected speech? Does the fact that a person can be lawfully detained mean that it does not matter whether a federal immigration official chooses to detain the person because of their protected speech? The federal government has raised this argument in a number of recent First Amendment retaliation cases involving immigrant activists, urging courts to dismiss challenges based on the existence of valid authority to detain or deport.

Under a typical First Amendment analysis, the fact that a government entity has the authority and discretion to take a particular action does mean that they can take that action for an impermissible reason. For example, in Perry v. Sindermann, an untenured, contract professor at a state college sued public officials after his contract was not renewed, arguing that the nonrenewal was on the basis of his protected speech criticizing the college’s Board of Regents and violated his due process rights. The Supreme Court addressed whether the lack of a right (contractual or otherwise) to employment renewal necessarily defeats any claim of First Amendment retaliation. The Supreme Court held that it did not:

For at least a quarter-century, this Court has made clear that, even though a person has no “right” to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to “produce a result which [it] could not command directly.” Such interference with constitutional rights is impermissible.

In other words, even if the government has the authority and discretion to take a particular action, it cannot take that action on a basis that infringes on a person’s First Amendment rights. In Sindermann, it was sufficient that the professor alleged that the adverse action in dispute—the nonrenewal of his contract—occurred on the basis of his criticism of the Board of Regents, which he alleged was protected speech.

In many cases, including cases relating to public employment, the question of retaliatory animus and causality can be complex when the government may have multiple reasons—some permissible, some impermissible—for taking an action. Courts ordinarily have addressed these complexities by applying the burden-shifting test in Mt. Healthy City School District Board of Education v. Doyle. Under the Mt. Healthy test, a plaintiff must first show that their protected speech was a “motivating factor” in the contested government action. If the plaintiff meets this burden, the government will be liable unless it demonstrates it would have taken the action “even in the absence of the protected conduct.”

In the context of retaliatory arrest, however, an even more complex set of questions has emerged. Courts have approached the issue of retaliatory arrests with more caution than employment decisions, given Fourth Amendment considerations and the difficulty of assessing when an arresting officer should be able to consider speech as part of the decision to arrest. In some contexts, the existence of probable cause for arrest—i.e., a legally valid basis for arrest—can displace the Mt. Healthy test and defeat a claim for damages based on First Amendment retaliation entirely.

The Supreme Court addressed the issue most recently in two cases where individuals sought damages for retaliatory criminal arrest under 42 U.S.C. § 1983: Lozman v. Riviera Beach and Nieves v. Bartlett. In Lozman, an individual sought damages after he was arrested at a city council meeting, alleging that the arrest was in retaliation for a lawsuit he filed against the city over a local development project and for his vocal criticism of various council members. The Supreme Court differentiated Lozman’s claim from the “typical retaliatory arrest claim” involving “an ad hoc, on-the-spot decision by an individual officer.” Rather, Lozman alleged “[a]n official retaliatory policy” in which “the government itself orchestrate[d] the retaliation.” Under those circumstances, the existence of probable cause was not a categorical bar, since the inquiry focuses on the orchestration of the action rather than the officer’s individual decision-making. As such, the typical Mt. Healthy test could apply.

In Nieves, the Supreme Court returned to the issue of damages for retaliatory arrest but this time in the context of a more typical arrest decision. The plaintiff in Nieves sought damages after the police arrested him at a sports festival, allegedly in retaliation for the plaintiff’s refusal to speak to one of the officers and his intervention in another officer’s discussion with a minor during the event. The Court noted that protected speech can be a legitimate consideration when making split-second arrest decisions and that causality between any impermissible animus an officer might have and the injury would be difficult to prove. The Court further noted that, in the Fourth Amendment context, courts are rarely permitted to probe the subjective intent of police officers and that “[t]o ensure that officers may go about their work without undue apprehension of being sued, we generally review their conduct under objective standards of reasonableness.” In light of these challenges, the Court held that the existence of probable cause defeated the individual’s claim for damages based on a retaliatory criminal arrest. Only if a plaintiff demonstrates a lack of probable cause would the case then proceed through the Mt. Healthy framework.

Drawing from these principles, the federal government has argued that similar rules should apply to the immigration context. In Bello-Reyes v. Gaynor, for example, the federal government cited Nieves to argue that a noncitizen could not challenge ICE’s decision to revoke his release on bond in retaliation for his speech because he had violated the conditions of his release several months prior. Similarly, in Ragbir v. Homan, the federal government argued that a noncitizen could not challenge ICE’s decision to deport him in retaliation for his speech because he had received a valid order of deportation several years prior, drawing from case law in the criminal arrest context.

There are several reasons why Nieves cannot be so easily repurposed. First, Nieves is a § 1983 damages case that addresses individual officer liability for past conduct. It does nothing to alter long-standing First Amendment jurisprudence prohibiting government officials from engaging in retaliation. Justice Gorsuch explained this distinction in his partial concurrence and dissent in Nieves:

Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. . . . If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age. . . . So if probable cause can’t erase a First Amendment violation, the question becomes whether its presence at least forecloses a civil claim for damages as a statutory matter under § 1983.

Immigrant activists who challenge the constitutionality of their detention and deportation on First Amendment grounds are not raising questions about individual officer liability. As the U.S. Court of Appeals for the Ninth Circuit concluded when it declined to apply Nieves in Bello-Reyes, a “petitioner need not identify a particular violator, only that his confinement is unconstitutional.” Courts should consider constitutional questions by applying normal constitutional principles, rather than importing exceptions from the context of statutory damages.

Second, even if Nieves could apply outside the damages context, it has little applicability to retaliatory immigration enforcement.Federal immigration officers are engaging in civil law enforcement, typically through pre-planned decision-making regarding the targets of an operation or the initiation of removal proceedings. Unlike police officers enforcing criminal law, federal immigration officers are generally not relying on protected speech to decide whether to take action against someone in “split-second judgments” at the scene of a crime. Moreover, many aspects of civil immigration enforcement are not governed by standards like probable cause. Given the struggle to apply Fourth Amendment concerns regarding officer intent to the civil immigration context, both the Ninth Circuit in Bello-Reyes and the Second Circuit in Ragbir refused to adopt a similar rule in the context of retaliatory detention or deportation. To the extent that a retaliation claim would require a court to probe the reasoning of immigration prosecutors, the Supreme Court already addressed those concerns by limiting any selective prosecution claims to cases of “outrageous discrimination” as outlined in AADC.

Third, even if Nieves could apply to some forms of retaliatory immigration enforcement, many of the claims raised by immigrant activists would fall into one of two exceptions. The first is the Lozman category of cases: retaliation on the basis of official government policy or the orchestration of retaliation. In cases where retaliation stems from a policy or plan, rather than “an ad hoc, on-the-spot decision by an individual officer,” there is “a compelling need for adequate avenues of redress,” and the normal test under Mt. Healthy should apply. The second is a more narrow exception recognized within Nieves: retaliation alleged under “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” The Supreme Court recognized that, in contexts in which officers exercise prosecutorial discretion, “an unyielding requirement to show the absence of probable cause could pose a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Prosecutorial discretion is a significant feature of immigration enforcement, with millions of people being permitted to remain in the U.S. under some form of supervision rather than being detained or deported. Given the relative underenforcement of civil immigration law, allegations of retaliation should not be defeated merely by pointing to federal immigration officials’ power to detain or deport. Objective evidence that officers typically exercise discretion is sufficient to meet this exception.

For these reasons, courts should reject the federal government’s attempt to expand Nieves into the immigration context and, at a minimum, should apply its various exceptions vigorously. Otherwise, federal immigration officials will be given free rein to silence immigrants for their viewpoints on immigration policy, which federal immigration officials should be powerless to do under the First Amendment.

In summary, the First Amendment prohibits the federal government from retaliating against immigrant activists in the U.S. based on their immigrant rights advocacy. This includes a prohibition against retaliatory immigration enforcement in the form of detention and deportation. When such retaliation occurs, immigrants may raise, and federal courts must review, First Amendment claims challenging such actions. Courts should reject the federal government’s attempts to limit their authority to review and redress such claims.

Additional Strategies

In addition to defensive litigation, immigrant rights advocates have identified a number of strategies to address potential First Amendment retaliation. These strategies include proactive community trainings and preparedness to mitigate the risk of First Amendment retaliation; documentation, reporting, public education, and political advocacy when First Amendment retaliation occurs; and the pursuit of opportunities for structural reform. Each of these strategies may play a critical role in addressing the possibility of future retaliation and suppression of First Amendment rights.

First, advocates have emphasized the importance of preparing and training communities to address and mitigate the risks posed to immigrants who engage in activism. Any person who chooses to organize or engage in rallies, protests, and other forms of First Amendment activity should be informed about their rights and the risks of such participation. Immigrants who are vulnerable to deportation face a unique set of risks, with respect to both federal immigration enforcement and local policing policies. To help immigrants make informed choices about how to engage in activism, some organizations have prepared trainings and developed know-your-rights materials. When retaliation has been a risk, organizers of events have sought the presence of legal observers and pre-arranged for legal support. The purpose of this preparedness is not to chill participation in speech but to ensure that people are informed and empowered to exercise their rights.

Second, when retaliation against immigrants has occurred, advocates have engaged in careful documentation, reporting, public education, and political advocacy, sometimes in concert with litigation. Organizations have prepared reports, teach-ins, and briefings to educate the public and elected officials about the need to protect immigrant communities from retaliation. Advocates have filed Freedom of Information Act lawsuits to uncover indicia of retaliation for individuals and organizations. Individuals and organizations have submitted complaints to the Department of Homeland Security’s Office of the Inspector General and Office of Civil Rights and Civil Liberties to seek internal investigations. Advocates have used these public records, complaints, and reports to demonstrate and map patterns of retaliation as part of litigation and policy advocacy, generating significant media coverage. These efforts have encouraged community organizations, faith leaders, and government officials to condemn the retaliation and participate in lawsuits challenging First Amendment retaliation.

Third, advocates and scholars have identified and proposed a number of structural solutions to address or prevent instances of retaliation against immigrant activists in the future. These include legislative, administrative, and regulatory fixes, including the issuance of prosecutorial discretion guidance; the settlement of pending First Amendment cases; the strengthening of administrative interventions (including giving more oversight and intervention powers to agency watchdogs); regulatory redress; and legislative amendments to restore judicial review. Under the Biden administration, federal officials adopted a small number of these proposals. For example, the DHS issued guidance prohibiting First Amendment retaliation in immigration enforcement and the Department of Justice settled some First Amendment retaliation cases by agreeing to grant temporary forms of protection to immigrant activists. Other promising proposals, such as the adoption of regulatory reforms and the strengthening of oversight agencies, could be adopted in the future.

With the incoming Trump administration, the prospect for such structural reforms may seem unlikely. However, opportunities for change may nonetheless arise. Under the first Trump administration, ICE was willing to settle a lawsuit in Migrant Justice v. Wolf that raised several claims, including claims of First Amendment retaliation. As part of the settlement, ICE agreed to provide immigration relief to several members of Migrant Justice and to circulate a 2019 policy memorandum prohibiting First Amendment retaliation by immigration officials.  Advocates may find opportunities, including through settlement, to push for policy changes. At a minimum, they can continue to lay the groundwork for more structural solutions for a future administration.

Conclusion

The large number of alleged instances of retaliation against immigrant activists in recent years has shed light on a long-standing problem at the intersection of immigration and First Amendment law. First Amendment principles should not be diminished on the basis of a speaker’s immigration status. Many of the legal barriers to protecting immigrant activists from First Amendment retaliation can be overcome if courts carefully cabin past precedent and exercise robust review over colorable claims. In addition, other forms of advocacy can help safeguard opportunities for immigrants to protect their First Amendment rights. At a time when immigration issues are so central to political debate in the United States, our institutions should be amplifying, rather than silencing, the voices of people directly impacted by U.S. immigration policies.

Acknowledgments

Many thanks to Ahilan Arulanantham, Jameel Jaffer, George Wang, and Kayla Yoon for their helpful feedback on the essay and to my co-counsel, colleagues, and clients for their insights and advocacy.

 

© 2025, Alina Das

Cite as: Alina Das, Protecting Immigrant Activists From U.S. Government Retaliation: Lessons From First Amendment Litigation, 25-03 Knight First Amend. Inst. (Feb. 12, 2025), https://knightcolumbia.org/content/protecting-immigrant-activists-from-us-government-retaliation-lessons-from-first-amendment-litigation[https://perma.cc/3QEV-WXSC].