Well, this is unfortunate. Late last year, Marco Rubio’s State Department declared that it had banned five people from entering the US because of their speech. Most of them work, in one way or another, on fighting hate speech online, including Imran Ahmed, the head of the Center for Countering Digital Hate (CCDH). As I’ve made clear over the years, I think that Ahmed and CCDH play fast and loose with their work, pushing sketchy research that is then used to create a misleading moral panic about certain online services.
But he should be protected by the First Amendment in his right to publish weak research. I said as much when Elon Musk sued CCDH in an obvious SLAPP suit, and again when the judge dismissed that lawsuit (while noting that it was clearly censorial).
But the State Department barring him from the US is a much thornier problem. Ahmed isn’t a US citizen, but he is a lawful permanent resident with an American wife and child. It’s a little harder to “bar” someone from a country he actually lives in. Indeed, it would have to involve deporting him out of the country first. So Ahmed, reasonably, challenged the designation by the State Department.
Unfortunately, last week, Judge Loretta Preska dismissed that challenge, saying that the court had no jurisdiction over the matter at this time, because the government hadn’t yet actually tried to deport Ahmed. The judge suggests her hands are tied:
Ultimately, while Mr. Ahmed may very well have valid causes of action, his claims are premature, and Congress has determined that this Court may not review them….
The issue, basically, is that while Rubio has barred Ahmed from the US, he hasn’t started actual deportation procedures against him. As the court notes, back in the 1990s, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act, which, among other things, stripped the federal courts of jurisdiction to review most deportation decisions, channeling whatever review remains into a single appeal after a final removal order. The REAL ID Act in 2005 added even more teeth to this, going even further in restricting what judges could review.
This has been a huge mess and has always raised serious red flags among civil liberties groups, and anyone who believes in basic due process.
Here, the Court finds that section 1252(g) strips this Court of subject matter jurisdiction. Although Mr. Ahmed claims he only seeks to “prevent his unlawful arrest, detention, and transfer,” … his Amended Complaint shows otherwise. Indeed, Mr. Ahmed alleges that “[t]his Court should vacate and set aside the Defendants’ efforts to target Mr. Ahmed, declare Defendants’ actions be illegal, enjoin Defendants from arresting, detaining, transferring, or deporting Mr. Ahmed from this district unless Defendants establish that their actions are lawful and do not violate the Constitution’s protections against retaliation and discrimination.” … The relief Plaintiff seeks is barred by section 1252(g) because, if granted, an injunction would prevent the Government from commencing removal proceedings against him — precisely the action Congress has removed from this Court’s authority.
So Ahmed can’t challenge the designation by Rubio, with the court saying he can only raise it after he’s received a final removal order, at which point he may be able to file a “petition for review” with the appropriate appeals court.
“[T]aken together, §1252(a)(5) and §1252(b)(9) mean that any issue — whether legal or factual — arising from any removal-related activity can be reviewed only through a petition for review filed with an appropriate court of appeals.”
While this may be the correct interpretation of current law, it should be horrifying to anyone who believes in the First Amendment (even if you buy Rubio’s claim that Ahmed himself would prefer to suppress the legal speech of Americans). Even if you could understand the logic of removing the jurisdiction of the federal courts from hearing deportation cases (and I don’t actually understand that logic), this is clearly not a standard deportation case.
The sole reason Ahmed faces the possibility of deportation, and the only plausible reason he landed on this list, is his obviously constitutionally protected speech criticizing Elon Musk, one of the biggest bankrollers of the Republican party. The decision to punish him has zero to do with immigration, and absolutely everything to do with attacking him for expressing his opinions.
That alone should be enough for a court to review on First Amendment grounds, separate from whether the deportation process itself is reviewable. The designation itself is the government punishing someone inside the United States for protected speech. The First Amendment is supposed to bar exactly that.
Tragically, because of Congress’s shameful decision thirty years ago to effectively block judicial review of immigration issues, we’re left in a position where Ahmed basically has zero recourse as Marco Rubio gets to punish him for his speech. And all of this is happening while Rubio’s State Department is lecturing European governments about their assaults on free expression. It turns out the government most eager to punish a person for disfavored speech is the one doing the lecturing.