NEW YORK—According to press reports, today the Trump administration will sign an executive order pledging to cancel student visas and deport foreign students who have participated in pro-Palestine protests on U.S. campuses. 

The following can be attributed to Carrie DeCell, senior staff attorney and legislative advisor at the Knight First Amendment Institute at Columbia University:

“The First Amendment protects everyone in the United States, including foreign citizens studying at American universities. Government lawyers have already considered at length whether proposals to remove people from the country based on their political speech are constitutional, and their answer is almost certainly no. They’re right. Deporting non-citizens on the basis of their political speech would be unconstitutional.”

In November 2023, the Knight First Amendment Institute published two U.S. Immigration and Customs Enforcement (ICE) memos that provide insight into how the First Amendment would limit the Trump administration’s efforts to revoke student visas and remove foreign nationals who express support for Hamas or criticize Israel’s response to Hamas’ attack. The memos were apparently drafted in connection with the first Trump administration’s “extreme vetting” program. The Institute obtained the memos through a Freedom of Information Act (FOIA) lawsuit for records relating to the government’s ideological screening of immigrants and visitors at the border. 

The two ICE memos confirm that proposals to revoke the visas of student and other protestors on the basis of their political speech would be subject to strict scrutiny—the highest level of legal review—and almost certainly held unconstitutional. So too would proposals to use the Immigration and Nationality Act’s security-related ground of inadmissibility to remove individuals who express support for Hamas. Regulations that target political speech on the basis of viewpoint almost never survive strict scrutiny. 

Read the “Constitutional Considerations Relating to Proposed Enhanced Vetting of Aliens in the United States for Counterterrorism Purposes” memo here.

Read the “Inadmissibility Based on Endorsing or Espousing Terrorist Activity: First Amendment Concerns” memo here.

Additional documents obtained through the Knight Institute’s litigation are available here.

For more information, contact: Adriana Lamirande, [email protected].