MANHATTAN (CN) – An attorney for a prominent immigration activist at risk of deportation urged the Second Circuit on Monday not to miss the chance to prevent a “First Amendment black hole.”
“Does the First Amendment allow ICE to weaponize its own deportation laws to silence one of its most prominent critics,” Arnold & Porter attorney R. Stanton Jones asked this morning at oral arguments in Manhattan.
On Jan. 11, Jones’ client Ravi Ragbir was arrested while reporting for a routine check-in at the New York City field office for Immigration and Customs Enforcement.
Ragbir had convicted 17 years earlier of wire fraud and is fighting in New Jersey now to topple that record. But his lawyers contend that political retaliation spurred ICE to pursue him after so much time had passed.
With the 53-year-old fighting now to seek more evidence of this selective-enforcement theory, the Second Circuit peppered both sides with questions during a hearing Monday that stretched roughly an hour.
“What could be more outrageous than denying someone of their First Amendment rights?” U.S. Circuit Judge Christopher Droney asked the government’s attorney at one point. “Is there any star in our constitutional firmament that is more important than that?”
Citing the Supreme Court precedent of Reno v. American-Arab Anti-Discrimination Committee, federal prosecutors argue that the courts have no jurisdiction to investigate such motives.
“Is it outrageous for ICE to say: If you criticize us, out?” U.S. Circuit Judge Pierre Leval asked Assistant U.S. Attorney Steven Kochevar.
“It is not outrageous in the circumstances of this case,” Kovechar replied.
Jones argued that the hypothetical is not too far from the facts of Ragbir’s case.
He quoted the director of ICE’s New York field office threatened Ragbir by saying: “You shouldn’t make matters worse by speaking out.”
If not given the right to explore retaliatory motive, Jones warned: “ICE could tell any noncitizen: Do not criticize ICE, or we will deport you.”
U.S. Circuit Judge John Walker appeared troubled that allowing Ragbir to investigate this issue would give any immigration activist with a removal order a basis to challenge deportation.
“If you are a member of an immigrant’s rights group, and you are under an order of removal,” he said that claiming retaliation would “effectively be able to achieve immunity from deportation.”
Jones called the argument absurd because immigrants depend on ICE’s discretion over their cases.
“Nobody would think that someone would ever think that they could extend their stay in the country by publicly criticizing ICE,” he said.
Addressing what he called the “slippery-slope problem,” Droney asked: “How would we be able to focus on those cases that really have some substance to them?”
Jones argued that this has been the law of the land for 10 years, without the feared consequences.
“The outrageousness exception has been on the books for a decade, and there has been no opening of floodgates,” he said.
Judge Leval worried about a different precedent that could be set if a court were to declare retaliatory motives off limits for investigation by the courts.
“We’ve got a lot more people under orders of removal than we could possibly remove,” he noted.
What would happen, he asked, if “only people who are not white skinned who are being removed?”
“Or only Jews?” he pressed. “Or only Catholics?”
In a passionate closing, Jones argued that a debate over whether the constitution protects political speech is more fitting for regimes in Russia, Saudi Arabia and North Korea.
“In any other context, we would agree that the First Amendment protects political dissidents against retaliation,” he said.
After his emotional final pitch, the three-judge panel reserved decision on the matter, with no indication of how they might rule.