Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
On Appeal Contracts Expression
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Ravi Ragbir, an immigration rights activist, is claiming that he was unconstitutionally targeted by the Trump Administration due to his political speech. He alleges that his deportation order was in retaliation for his work with migrant communities and his criticism of the Trump Administration. Ragbir filed a First Amendment claim seeking an injunction against his removal which was heard by the United States District Court of Southern New York. The Court found that it did not have subject matter jurisdiction over the matter and dismissed Ragbir’s complaint.
This case is on appeal and will be updated as the case proceeds.
Ravi Ragbir is the head of the U.S. based immigration-advocacy group New Sanctuary Coalition. His work is largely focused on the treatment of immigrants including campaigns like “keep families together” and broader issues like the poor treatment of the immigrant workforce in the United States.
Ravi Ragbir was a legal permanent resident who was ordered to be deported in August 2006 because of a criminal conviction. Since then, he has been granted multiple stays of removal and has cooperated with U.S. Immigration and Customs Enforcement (“ICE”). However, on January 11, 2018, he was detained in anticipation of removal. Ragbir claims that an ICE representative showed resentment towards Ragbir and told leaders of New Sanctuary Coalition that they “don’t want to make matters worse by saying things.” Ragbir claims that the decision to deport him is in retaliation for his political speech and his activism criticizing the Trump administration, and thus violates the First Amendment. Ragbir filed suit, joined by various other immigration groups, requesting a preliminary injunction that would stop any action to effectuate his removal from the United States unless it could be demonstrated that the removal was “untainted by unlawful retaliation or discrimination against protected speech.” The case was heard by the United States District Court of Southern New York.
In a separate complaint, the U.S. District Court of New Jersey granted Ragbir a temporary stay of deportation in regards to an issue arising from the criminal conviction. This complaint does not raise freedom of expression and is not addressed in this analysis.
The decision of the United States District Court of Southern New York focused on whether the Court had subject matter jurisdiction over the case. In order to assert a First Amendment claim, a plaintiff must be protected by the First Amendment, the defendant’s actions must be motivated or substantially caused by the plaintiff exercising his First Amendment rights, and the defendant’s action must have caused injury.
While the court accepted that Ragbir had engaged in political speech criticizing governmental policies on immigration, and that the order of removal was executed to silence him and stifle his advocacy of immigrant rights, this was not sufficient: the court found that the final removal order was based on the criminal conviction after a finding of clear and convincing evidence by both the Board of Immigration Appeals as upheld by the federal courts.
The court noted that as a matter of jurisdiction, it was specifically barred from hearing the case under federal law providing 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 commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” [8 U.S.C. § 1252]
The court examined various exceptions to this rule, ruling them out ruled out except for one: the exception of outrageous discrimination.This turned on the question whether Ragbir was singled out for his speech activism. The Court stated that such a ‘selective prosecution’ claim is rare even in the criminal law field, partly because “courts are reluctant to intervene because “the decision to prosecute is particularly ill-suited to judicial review,” “entails systemic costs of particular concern,” “threatens to chill law enforcement,” and “may undermine prosecutorial effectiveness.” … These concerns … are greatly magnified in the deportation context … Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal’s receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law.”” [citing Reno v. Am.-Arab Anti-Discrimination Comm (AADC), 525 U.S. 471 at 489-490].
While the Court noted that it could not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome,” [citing AADC, 525 U.S. at 491], it found no evidence that the present case would qualify under this exception.
The court stated that while so long as Ragbir remains in the United States, the First Amendment guarantees him the freedom to speak and associate on any subject of his choosing; but it does not confer immunity from the enforcement of a pre-existing final order of removal. It concluded that it did not have jurisdiction to hear the claim.
The decision has been appealed to the 2nd Circuit. This case will be updated as more information becomes available.
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The Court refused to recognize that this case might engage the ‘outrageous discrimination’ exception which would have allowed it to take jurisdiction over the case, stating that the order of removal was grounded in the plaintiff’s criminal past conviction and did not engage the First Amendment. As such, it has a potential chilling effect on other immigrant rights activists. The case is on appeal.
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