A judge in Boston ruled that the Trump administration cannot continue to carry out its policy of retaliating against immigrants who express support for the pro-Palestine movement, entering final judgment in a case meant to challenge that practice on behalf of a group of education nonprofits.
In a scathing 161-page opinion handed down last September, Senior District Judge William G. Young found that the government had a policy of revoking visas based on speech and that it violated the First Amendment. After a hearing last month, Young prohibited enforcement of the policy and imposed additional protections for noncitizen members of the American Association of University Professors and the Middle East Studies Association, which filed the case.
Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem “[concerted] their actions and those of their two departments intentionally to chill the rights to freedom of speech and peacefully to assemble of the non-citizen plaintiff members,” Young wrote in the September opinion. “The Public Officials’ threats to continue detaining, deporting, and revoking visas based on political speech serves as circumstantial evidence that such enforcement exists, is viewpoint discriminatory, and has objectively chilled the Plaintiffs’ speech.”
Under the most recent order, AAUP and MESA members against whom the government takes adverse immigration action may file a lawsuit challenging the decision in the court for their district of residence. After showing that they were a member of AAUP or MESA while this case was pending, the government is prohibited from deporting them and “it shall be presumed that the alteration in immigration status is in retribution for the exercise during the course of the present case of their First Amendment rights.”
The government may seek to lift that restriction in a given case only if it can prove the individual’s immigration status expired on its own, that they were convicted of a crime, or that there is “an APPROPRIATE reason under governing immigration law” for the change, Young ordered. To do so, the government must present “clear and convincing evidence” — a high standard, second only to the “beyond reasonable doubt” rule applied to criminal cases.
“In light of the Defendants’ intentional abridgement of Constitutional rights,” Young wrote, in those cases, the government should not be allowed to use a rule that normally allows it to keep documents created during the decision-making process confidential. “The reason for such advice is that, upon reflection, this Court gave the Defendants far too much latitude in asserting such privilege throughout the course of the trial herein, in derogation of the truth,” Young wrote in a footnote.
The judge’s decision about how to remedy the violations was complicated by a U.S. Supreme Court case decided last year, Trump v. CASA, in which the justices prohibited district courts from issuing orders that block a law or action beyond the parties to the case.
Young instead relied on a law called the Administrative Procedure Act, which has been widely used in immigration cases and gives judges authority to “declare unlawful and set aside” agency actions that are unconstitutional or “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
