NY Courts Finds 'Outrageous' ICE Conduct Revives Activist's Removal Suit By Michael Joseph on May 14, 2019

Attempts to deport Ragbir, a leader of New Sanctuary Coalition of New York City, have driven headlines since a high-profile confrontation with ICE officials at their office in Manhattan in March 2017.  The Second Circuit Court of Appels in Manhattan considered whether attempting to deport someone as retaliation for their advocacy, in this case, public speech about ICE tactics, was a vilation of the individual's First Amendment Rights. The majority found the actions taken against immigration activist Ravidath Ragbir qualified for a special exception to review his constitutional claims against being deported. Immigration officials’ deportation actions taken toward an outspoken critic of the Trump administration’s policies were “outrageous” enough to justify a First Amendment defense against removal, a divided U.S. Court of Appeals for the Second Circuit panel ruled on April 25, 2019.

Circuit Judges Pierre Leval and Christopher Droney stated that statements made by the Immigration and Customs Enforcement field director in New York City about Ravidath Ragbir’s public comments and actions ahead of an attempt to deport him constituted retaliation against speech that “implicates the apex of protection under the First Amendment”. Ragbir’s plausible allegations and evidence, support that the Government singled him out for deportation based not only on the viewpoint of his political speech, but on the public attention it received. To allow this retaliatory conduct to proceed would broadly chill protected speech, among not only activists subject to final orders of deportation but also those citizens and other residents who would fear retaliation against others.

Ragbir had filed the petition under review the day before a February 2018 scheduled check-in with ICE officials for which he was told to bring luggage in anticipation of deportation. He claimed he was being retaliated against because of his public opposition to ICE and sought a halt to plans to deport him on the basis of his protected speech.  In May 2018, U.S. District Judge P. Kevin Castel of the Southern District of New York dismissed Ragbir’s claim. He found federal immigration law deprives courts of jurisdiction over challenges to valid final orders of removal, including claims based on the U.S. Constitution. The district court went on to find no basis to investigate the Constitution’s habeas corpus protections under the suspension clause as Ragbir didn’t state a recognized constitutional claim. Critically, Castel cited the U.S. Supreme Court’s 1999 decision in Reno v. American-Arab Anti-Discrimination Committee. The district court noted the high court’s accepting of a rare case “so outrageous” it can overcome the presumption of no constitution right to assert selective enforcement as a defense against deportation. Castel, however, declined to extend that exception to Ragbir.

In a detailed analysis on appeal, the panel majority disagreed with the district court. Applying the multistep analysis compelled by the American-Arab decision, the appellate court found Ragbir’s political speech represented the peak of First Amendment protection, and that the retaliation he faced from government officials over the exercise of that speech was “egregious.” Specifically, the panel noted comments made by ICE Field Office Director Scott Mechkowski to a New York City minister complaining about the protests Ragbir and others regularly held outside ICE’s office, and how comments in the press negatively portrayed immigration officials.

Continuing, the majority found the more recent decision by the Supreme Court in 2010’s Padilla v. Kntucky supported the idea that Ragbir had a substantial interest in avoiding deportation based on his speech, as “deportation is indeed a punishment for lawful permanent residents who, like Ragbir, are rendered removable because of a criminal conviction.” Lastly, the majority found the discretion provided to the government in removal proceedings was less concrete in Ragbir’s case, as he had been a lawful permanent resident made deportable after a criminal conviction. He was neither illegally in the country, nor under an obligation to depart prior to deportation, the majority noted. In fact, he was able to secure numerous stay orders and work permits.

The panel majority proceeded to address Ragbir’s constitutional question. The government argued Ragbir shouldn’t qualify for even the most basic habeas corpus protections provided by the Constitution because he isn’t seeking release of custody because he hasn’t challenged his final removal order, let alone being in the government’s custody at all pending the outcome of court proceedings. The panel majority disagreed, finding in precedent ample support for the idea that Ragbir—with his continued check-ins and imminent threat of deportation—was, in fact, in the government’s custody. Finding that the district court does, in fact, have the ability to do fact-finding during a habeas petition—with the Habeas Corpus Act of 1867 making a cameo appearance in the majority’s decision—the majority remanded the suit back to the district court, with a stay on removal in place until future proceedings before Castel. Our New York immigration and deportation defense lawyers applaud this ruling and consider it a victory in the strong arm tactics of this administration to silence those who object.

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