During Donald Trump’s presidency, Immigration and Customs Enforcement (Ice) considered the implications of expelling foreign nationals from the US for their political beliefs, newly unsealed documents have revealed.
The two memos were written and revised by the US immigration enforcement agency and top White House lawyers in the Trump administration and recently obtained by Columbia University’s Knight First Amendment Institute via a Freedom of Information Act (Foia) lawsuit filed in 2017.
The memos examined intentions to perform ideological screenings on foreign nationals in the US, but ultimately concluded such a plan would be illegal to implement.
The first memo addresses constitutional constraints on what the former US president in 2016 called the “extreme vetting” of noncitizens through the use of ideological “screenings tests”.
“It seems likely that at least a large fraction of those aliens located in the United States who would be the subject of the vetting would be able to assert various constitutional rights. We therefore recommend assessing proposals being considered on the assumption that the aliens within the United States are generally protected by the constitution,” it read.
One constraint in particular explored what could happen in the case of mistakenly including an individual on a watchlist. “There may also be claims against programs related to vetting that are targeted against particular individuals or groups, alleging that the targeting itself is on an impermissible basis,” the memo stated.
The second memo addressed more specifically, people who “endorse or espouse terrorism”. It concluded that allowing for the exclusion or removal of these people would be unconstitutional, since a person cannot be targeted based on seemingly expressing support for terrorist-related activity due to their first amendment rights.
The memo reads: “The security-related inadmissibility ground for endorsing or espousing terrorist activity targets speech that demonstrates a degree of public approval or public advocacy for terrorist activity. Depending on an alien’s immigration status, contacts with the United States, and location, first amendment concerns may limit use of this inadmissibility ground.
“In cases involving aliens within the United States interior – lawful permanent residents either inside or outside the United States, or aliens outside the United States who have significant US contacts, first amendment protections could apply.”
The lawsuit was born in the aftermath of then president Trump’s announcement of “extreme vetting” immigrants to the US and the “total and complete shutdown of Muslims entering the United States” – a move that drew the ire of the Muslim American community and civil rights groups.
The goal of the Foia lawsuit was to explore how this policy could be legally justified, lawyers from the Knight First Amendment Institute said.
Under US law, non-US citizens have constitutional rights, including the right to free speech found in the first amendment of the US constitution.
If the policy explored in the memos had gone into effect during Trump’s time in office, foreign student visa holders and other foreign nationals could have been at risk of deportation for expressing attitudes that did not align with those of the US government – a gross violation of the first amendment right to free speech, say legal experts.
Carrie DeCell, a senior staff attorney at the Knight First Amendment Institute and a lecturer in law at Columbia Law School, said the memos’ revelation is significant in that it lays out in detail why such a policy would be unconstitutional.
DeCell said: “These memos make it clear that government lawyers themselves have carefully considered whether proposals to remove people from the country based on their political speech [and] proposals removing people for endorsing terrorism are constitutional, and they concluded that, in many contexts, the answer is likely no.”
The news of the memos and its conclusions comes at a time when Republican politicians have called for the expulsion of some foreign nationals in the US who have been protesting against the Israeli war in Gaza in the wake of a Hamas attack on Israel that killed 1,400 people and saw more than 220 hostages taken. The Israeli military assault on Gaza has now killed more than 9,000 people, many of them children, according to local officials.
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In an address to his supporters in Iowa last month, Trump, who is the leading Republican presidential candidate for 2024, brought up the idea again and said if he returns to the White House, he would revoke student visas of “radical, anti-American and antisemitic foreigners”.
He also vowed to bar refugees from Gaza, cut off any funding to Palestinians and expand a Muslim ban he tried to implement during his first term that targeted immigrants from several majority-Muslim countries.
Florida’s Republican governor Ron DeSantis, who is also vying for the 2024 Republican presidential nomination, also expressed support for deporting international students who he believed support Hamas. DeSantis took action against protesters in his state by banning Students for Justice in Palestine (SJP), a popular pro-Palestinian student organization, from Florida’s university system.
DeSantis said: “You don’t have a right to be here on a visa. You don’t have a right to be studying in the United States.”
Another Republican presidential candidate, the South Carolina senator Tim Scott, said on an episode of the Sean Hannity radio show: “If any of those students on college campuses are foreign nationals on a visa, they should be sent back to their country.”
Experts fear that such remarks – and the existence of the Ice memos – reveal a continuing desire by rightwing Republicans to bring about such a policy, despite the clear problems outlined in the memos.
They also fear that aside from targeting potential extremists in the US, such a policy would risk also sweeping up many people simply expressing support for Palestinian rights or criticizing Israeli actions or many other political opinions that might be at odds with US government policy.
DeCell said it was a cautionary tale to those considering similar policies.
“These memos speak to the vagueness of the proposals that former President Trump and other Republican candidates have been putting forward to revoke student visas or remove people from the country based on their political speech.”
