In Ragbir v. Homan, No. 18-1597, 2019 WL 1811537 (2d Cir. April 25, 2019), a split panel of the U.S. Court of Appeals for the Second Circuit held that federal courts do have subject matter jurisdiction over claims that a high-profile, foreign-born immigration activist was singled out for removal from the United States on the basis of his disfavored speech against the authorities. The court's decision distinguished both statutory barriers and a Supreme Court case announcing the general rule that unlawfully present aliens do not have the constitutional right to assert claims of selective enforcement as a removal defense. See Reno v. American-Arab Anti-Discrimination Committee (AADC), 119 S. Ct. 936 (1999).

Indeed, the majority decision—written by Judge Christopher Droney and joined by Judge Pierre Leval—underscores the importance of the First Amendment values at issue and the impact of retaliatory measures not only on the penalized speaker, but also on other like-minded would-be speakers. And, although the Second Circuit disclaimed “delineat[ing] the boundaries” of a generally applicable test, Ragbir, 2019 WL 1811537, at *14, it offered a modest roadmap for successful removal challenges based on serious First Amendment violations.

In dissent, Judge John M. Walker Jr. explained that, despite “agree[ing] with much of the reasoning in the majority opinion,” he would not have remanded the case for further proceedings because the taint from improper government motive had dissipated after Ragbir was released from immigration detention. He also disagreed with the majority's assessment of what conduct is “outrageous” enough to justify departure from the general AADC rule.

Background. Ravidath “Ravi” Ragbir is a prominent advocate for immigrant rights and an outspoken critic of Immigration & Customs Enforcement (ICE). Ragbir, a permanent resident, became removable following a 2002 felony conviction. After receiving four administrative stays of removal, he was able to continue living and working in the United States so long as he attended periodic check-ins with ICE officials. All was well until March 2017, when Ragbir brought clergy and New York elected officials to one of his check-ins. When ICE field staff sought to turn away Ragbir's guests, a confrontation ensued that generated significant negative press coverage for the agency.

Over the course of the year—as Ragbir continued to attend protests and vigils and carry on with the work of the organization he founded—ICE officials repeatedly expressed their displeasure with the March 2017 incident and Ragbir's commentary. Finally, at a regularly scheduled January 2018 check-in, Ragbir was informed that his latest stay of removal—which was valid for eight more days and pending renewal—would be revoked, and the original 2006 removal order enforced against him.

Ragbir's counsel secured his release from immigration detention through a successful petition for a writ of habeas corpus, but ICE indicated that it would still seek Ragbir's removal at his next check-in. Ragbir then sued ICE in the Southern District of New York, alleging First Amendment claims for retaliation against his protected speech and for viewpoint discrimination.

On May 23, 2018, the District Court dismissed Ragbir's claims for lack of subject matter jurisdiction to the extent that he sought to prevent the execution of the 2006 order of removal—an action that the court concluded was barred by 8 U.S.C. §1252(g), which deprived federal courts of jurisdiction even as to removal challenges rooted in the Constitution. The District Court also held that Ragbir had failed to state a First Amendment claim, which obviated the need to consider whether the Suspension Clause—the constitutional habeas corpus provision—could provide alternative grounds for relief. On April 25, 2019, a divided panel of the Second Circuit reversed the District Court's decision.

Congress Intended to Foreclose Habeas Challenges to Removal Orders. Section 1252(g) provides that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to … execute removal orders against any alien” (emphasis added). In response to several court decisions holding that habeas review remained available, Congress eventually added “unmistakably clear language” that §1252(g) applied notwithstanding any “statutory or nonstatutory” provision of law including, specifically, the habeas corpus jurisdictional statute.

The Second Circuit agreed with the District Court's reading of §1252(g) as jurisdiction stripping. Further, it chose to respect—as a matter of statutory interpretation—the “informed legislative choice” to eliminate habeas review of constitutional claims. 2019 WL 1811537, at *8. But, as a matter of constitutional law, the court's “own independent judgment” ultimately called for reversal. Ragbir, 2019 WL 1811537, at *8.

Aliens Are Not Categorically Barred From Challenging Speech-Related Selective Removal. According to the District Court, Ragbir's First Amendment retaliation claim failed for two reasons. First, under Second Circuit precedent, probable cause for arrest could defeat a First Amendment retaliation claim. Second, under the Supreme Court's AADC decision, an alien who is unlawfully present in the United States has “as a general matter … no constitutional right to assert selective enforcement” as a defense in removal. The Court of Appeals disagreed.

First, the court emphasized that its earlier decisions had only suggested that probable cause would overcome a retaliation claim where there was no evidence that the speaker had been actually chilled or silenced. Ragbir, 2019 WL 1811537, at *9 (discussing Mozzochi v. Borden, 959 F.2d 1174, 1179­80 (2d Cir. 1992), and Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995)). Here, neither the government disputed nor the court doubted that Ragbir could demonstrate the requisite chilling effect. Id.

Second, the Court of Appeals emphasized that AADC had not “rule[d] out the possibility of a rare case in which the alleged basis of discrimination is so outrageous” that an alien could be permitted to challenge selective enforcement in a removal proceeding. Ragbir, 2019 WL 1811537, at *11. Balancing various factors, the court concluded that Ragbir's was such a rare case. Id.

The court noted that Ragbir's speech was “core political speech” “at the heart of current political debate among American citizens and other residents,” thereby “implicat[ing] the apex of protection under the First Amendment.” Id. It also credited the allegations that Ragbir was singled out for deportation “not only on the viewpoint of his political speech, but on the public attention it received.” Id. Emphasizing the potential community-wide chilling effect of ICE's actions, the court reasoned that allowing ICE to deport Ragbir on the basis of his advocacy “would be a particularly effective deterrent to other aliens who would also challenge the agency and its immigration policies.” Id. at *12. Therefore, the “outrageousness” AADC exception applied.

The decision was also influenced by the court's awareness of the punitive nature of certain civil sanctions, including in the immigration context. AADC had discounted an alien's interest in avoiding selective deportation because “[w]hile the consequences of deportation may assuredly be grave, they are not imposed as a punishment.” 525 U.S. at 491. In Padilla v. Kentucky, however, the Supreme Court held that for lawful permanent residents, the deportation process is so “closely connected to the criminal process” that the ineffective assistance of counsel criminal standard could apply in removal proceedings. 559 U.S. 356, 365-66 (2010). Given that close connection, the Second Circuit reasoned, there must be a substantial interest in avoiding the severe sanction of deportation based on disfavored speech. Ragbir, 2019 WL 1811537, at *13.

Finally, the court concluded that—unlike in enforcement against unlawfully present aliens or those who threaten safety and security—the government's interest in enforcing the immigration laws against permanent residents like Ragbir is not as potent. Id.

The dissent vigorously disagreed with the court's “outrageousness exemption” analysis. Id. at *21 (Walker, J., dissenting). In Judge Walker's view, the court should not have reached the outrageousness question because it ultimately held that the Suspension Clause required habeas review to be available. Id. Additionally, Judge Walker expressed concern that the multifactor test announced by the majority “will become an open door for evading the will of Congress in enacting §1252(g)” without considering the Government's actions in context. Id.

The Suspension Clause Requires Access to Habeas Review Under These Facts. The Suspension Clause of the Constitution states that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, §9, cl. 2. The Clause, whose protections “extend fully to aliens subject to an order of removal,” requires that alien petitioners in executive custody have access to either the writ itself or an adequate substitute that provides the constitutional “minimum” scope of the writ. Ragbir, 2019 WL 1811537, at *14–15.

The court held that subject matter jurisdiction existed despite Congress's intent in enacting §1252(g) because Ragbir was constitutionally entitled to a habeas corpus proceeding as to the basis for the Government's impending action to remove him. Id. at *19. This was so although Ragbir did not challenge the underlying order of removal, id. at *15, and although he was no longer physically in ICE's custody, id. at *15-17. Indeed, the court emphasized that the protection of the Suspension Clause was available to attack imminent future confinement in connection with removal. Id.

Conclusion

Questions about the practical effect of the Second Circuit's decision in Ragbir v. Homan remain. In Ragbir's case, his future will depend on the relief fashioned by the District Court on remand. The Second Circuit suggested that “the taint of unconstitutional conduct” could preclude his removal, at least for the near future—that is, perhaps until the end of the “typical” two-year stay of removal that he may have received but for the unconstitutional conduct. Id. at *19. Judge Walker, in dissent, countered that the taint of retaliation had ended no later than when Ragbir was released on habeas. Id. at *20 (Walker, J., dissenting). Judge Walker also suggested that, given the Trump administration's focus on the removal of felons, Ragbir may have been deported anyway and that only “litigation-prompted stays” had prevented the enforcement of the unchallenged final order of removal. Id.

It will now be up to the district court to determine when the “taint” of First Amendment retaliation expires, and how—if at all—it must take into account the broader chilling effects of targeted removal actions on immigration-focused speakers. These questions will resurface as more courts grapple with the collision between political speech critical of the government's immigration policies and the government's plenary powers in the immigration arena.

Martin Flumenbaum and Brad S. Karp are litigation partners at Paul, Weiss, Rifkind, Wharton & Garrison, specializing in complex commercial and white-collar defense litigation. Brad is the Chairman of Paul, Weiss. Melina Meneguin Layerenza, a litigation associate at the firm, assisted in the preparation of this column.