Using ICE to Freeze Speech Isn't New, But Has an American Spring Arrived?

You may not have heard but Immigration and Customs Enforcement (ICE) planted a covert informant within a migrant rights organization, engaged in widespread electronic and physical surveillance of its members, and utilized other government agencies to collect information about them, which led to the detentions, and at times deportations, of some of its key members. They did this to freeze the organization’s political speech and put an end to their organizing.

You may or may not be surprised that this started during the Obama administration and ending during Trump’s first term—well before the onslaught of constitutional and human rights abuses against politically active immigrants (and others) that we have seen over the last several weeks.

The use of immigration enforcement to freeze political speech is not new; in fact, it’s a practice that dates far back in the country’s history.

However, it’s possible the current administration is pushing the practice to a breaking point and waking the U.S. public up to its gross and extreme injustices. And we just may have seen one of the first signs of this breaking point with the release of Palestinian rights activist and green card holder Mohsen Mahdawi on Wednesday.

To start, the organization mentioned above is a powerful and internationally recognized migrant rights group, Migrant Justice, which has been organizing migrant workers in the state of Vermont’s dairy industry since 2009. Migrant Justice is perhaps best known for its work improving conditions for migrant workers on farms sourced by the ice cream brand Ben & Jerry’s (now owned by Unilever) but out of necessity expanded its organizing to include fighting for protections from police and ICE collaborations, winning access to drivers’ licenses for undocumented residents in Vermont, successfully organizing workers in the construction industry, expanding access to in-state tuition and financial aid for undocumented residents in the state, and fighting to keep many immigrants out of detention (among other ongoing campaigns and programs).

For its successes, however, the group garnered much attention from the country’s increasingly belligerent and internally focused immigration enforcement agencies.

“I've brought you a famous person,” an ICE officer boasted when he brought Enrique Balcazar, one of the organization’s lead organizers, into detention, mockingly referring to the national recognition Balcazar had gained for his work.

The depth to which ICE knew the details of Migrant Justice members’ lives, references to colleagues and friends and family, and a specific refusal for those detained to contact other Migrant Justice members, whom the officers specified by name, all revealed that ICE had been surveilling the group down to the minute details of their lives through what Migrant Justice has since shown were illegal means and reasons.

However, Migrant Justice, being who they are, sent the Trump administration back to their corner.

In a subsequent lawsuit filed by the group in 2018 against the Department of Homeland Security, they argued that ICE did not have probable cause to go after its members, and none of them fit the high priority ‘criminal’ profile of immigration cases that ICE claims to focus on. Instead, Migrant Justice argued, they had been targeted specifically for their successful organizing and that the federal government was attempting to retaliate and freeze their speech by harassing, intimidating, and deporting them. In so doing, ICE infringed on their First Amendment rights.

Migrant Justice went on to engage in an ongoing public campaign in support of their case, with large support in the state of Vermont including rallies at the Federal courthouses in Burlington, garnering national attention.

ICE eventually said uncle. By 2020 DHS settled outside of court with Migrant Justice. As a part of the stipulations of the settlement, ICE implemented a policy in which employees are obligated to act “in accordance with the First amendment, including its commitment to not profile, target on account of, or discriminate against any individual or group for exercising First Amendment rights.” This new wording clarified that all migrants (regardless of status) are protected under this constitutional right.

However, several years later, the Trump administration is at it again, as we have seen with the detention and attempted disappearance of Palestinian rights activists and other organizers of various backgrounds and immigration statuses. Once again, we see an executive branch using immigration enforcement in attempts to freeze speech. A few of those recently detained for their speech include Georgetown Professor Badar Khan Suri; Columbia University student Mohsen Mahdawi, Tufts University Student Rumeysa Ozturk; Columbia University student Mahmoud Khalil; Aditya Wahyu Harsono; Farmworker union leader Alfredo “Lelo” Juarez Zeferino; and 37 workers at a roofing company in Washington state who had not too long ago attempted to unionize.

This is not to mention the more than 1,000 international students across 160 colleges that had their visas or legal status revoked or the countless others taken from their homes, places of worship, schools, vehicles, you name it, and detained or deported without due process—another constitutionally protected right.

And just last Monday evening, Border Patrol agents detained eight farmworkers associated with Migrant Justice on a dairy farm in Northern Vermont, in addition to one other who was on his way to deliver groceries to farm workers on that very same farm. Migrant Justice is now rallying for their release.

The connection between Migrant Justice’s ongoing struggle and what is happening to Palestinian rights activists today is not lost on the group.

In fact, these farmworkers were held in the same room as Mohsen Mahdawi prior to his release.

In an earlier speech at a rally for Palestinian rights activist Mahmoud Khalil, Balcazar, stated:

“…for this organizing, the struggle in which we find ourselves, we have faced persecution from immigration authorities. Immigration uses the threat of detention and deportation to keep us silent, just as they do with Mahmoud Khalil and all the immigrant students who are fighting against the genocide in Gaza.”

He continued:

“I went through what Mahmoud Khalil is going through today…but thanks to the brave and powerful solidarity of the community, [we] won back our freedom. We fought our case to stay in this country and denounced ICE’s abuse of power. It was a long fight, but we won. And we are going to win the freedom of Mahmoud Khalil. We demand that this government respect the constitutional right of freedom of expression! Free Mahmoud Khalil now!”

In their case, Migrant Justice and their legal representation (ACLU, Center for Constitutional Rights, and others) had followed in a long line of court cases that have proven that immigrants, of all statuses, are protected under the U.S. constitution; and thus the U.S. government cannot use immigration enforcement to retaliate for political reasons.

The history of case law in the U.S. is quite clear:

• Yick Wo v. Hopkins (1886) - Supreme Court unanimously ruled biased enforcement of the law against non-citizens is in violation of the Fourteenth Amendment
• Bridges v. Wixon (1945) - Supreme Court ruled in favor of an immigrant’s First Amendment right to free speech: “Freedom of speech and of press is accorded aliens residing in this country”
• Chew v. Colding (1953) - Supreme Court ruled in favor of an immigrant’s First and Fifth amendments
• Almeida-Sanchez v. United States (1973) - found that all persons accused of a crime on U.S. soil, no matter their immigration status, are guaranteed due process
• Zadvydas v. Davis (2001) - Supreme Court ruled due process, a Constitutional right, applies to everybody in the U.S. even if their presence is “unlawful, involuntary, or transitory”
• In 2014 several federal district courts found ICE detainer requests that kept noncitizens in custody longer than citizens was unconstitutional, e.g., Miranda-Olivares v. Clackamas Cty. (2014).
• For a more comprehensive review of this history check out Migrant Justice in the Age of Removal.

And Migrant Justice’s case influenced coinciding cases that had similarly dealt with the question of First Amendment rights for immigrant organizers. Notably, shortly after the settlement, migrant rights activists Maru Mora-Villalpando and Ravi Ragbir won their respective cases against ICE and the right to remain in the country.

The U.S. Department of Justice has, throughout history, repeatedly attempted to deny constitutional rights for documented and undocumented immigrants alike. And, of course, there are cases that have not fallen in favor of immigrant plaintiffs, often due to abstract (and arguably unconstitutional) legal practices such as the Plenary Power doctrine, in which the court has at times deferred jurisdictional authority over matters of immigration to the Executive branch.

Despite some legal setbacks for immigrant rights over time, however, the federal court system has increasingly taken up immigrant rights cases, and despite some cases to the contrary, have mostly shown in undeniable ways that immigrants are included within the U.S. Constitution’s protections. I argue that this has happened in tandem with public protest, immigrant rights campaigns, and a shift in public opinion.

At this point, any case against the federal government on the grounds of constitutional rights for immigrants in the U.S. should be cut and dry. But it’s painfully obvious we should not feel comfortable resting on those laurels. We know this administration is breaking the law – denying rights that they have no authority to take away. So, what is to be done?

As history has shown us, rights aren’t won or protected in the courts alone, in a vacuum. Any legal scholar will tell you; it is the timbre of public opinion, and protest, that the courts often react to when making these decisions. Public opinion, can certainly affect the way the federal courts lean, as was seen in the civil rights movement and its relationship to the massive gains made during the years of the Warren Court era (1953-1969). While rights won through civil rights movements are latent within the constitutional expression “we the people,” those words only come into fruition when people challenge the forms of power within American democracy that seek to border, territorialize, and limit inclusion of those rights to just a select few.

The same is possible for all persons present in this country regardless of immigration status. While mass public outrage increased during Trump’s first term, it is building arguably to new heights today, particularly against its most publicly visible acts like the disappearance of Palestinian rights activists and the mass deportation of immigrants to a prison known for its torturous conditions in El Salvador.

Last weekend saw another round of mass protests across the country against the Trump administration’s extra-judicial actions. Last weekend also saw the U.S. Supreme Court block the Trump administration from sending another group of Venezuelan migrants to El Salvador with no due process. And we saw a federal judge order the Trump administration to transfer Rumeysa Ozturk to Vermont, stating, "The government cannot undermine the justice system and attempt to manipulate a case's jurisdiction by secretly transporting and imprisoning someone over a thousand miles from home." And after a considerable amount of pushback, including 65 lawsuits, the Trump administration appears to be reversing its attempts to strip thousands international students of their visas through the SEVIS system.

The Supreme Court is today stacked with judges implanted by Trump in his first term. And yet, today, they appear to be, in some cases, holding him accountable to the law, in what I might argue is in lockstep with immigrant rights activists and the supporting public opinion that is only made known by those growing crowds of protesters who dare to continue speaking out.

For the last two weeks I have attended morning rallies outside of the Federal courthouses in Burlington for the release of Mohsen, the same place we rallied for in support for Migrant Justice’s case against ICE almost 7 years ago. The crowd last Wednesday was big. The crowd Wednesday was even bigger. One can assume that the chants of “Free Mohsen!” and “Free them all!” could be heard inside the court room.

And the whole world heard that same crowd burst out when Mohsen walked free from building, peace signs in the air.

What history tells us is that we must continue showing up in protest in the streets, outside of court rooms, outside of detention centers, in our public spaces, and show the courts, and all of our branches of government for that matter, where our alliance lies: not with some rogue executive branch bent on ruling at will, but in the principles laid out in the U.S. constitution, those of equal dignity and rights for all.

As Mohsen said today: “From this place, in front of this court, me standing here with you, among you, it sends a message that is loud and clear not only to Vermont but to the rest of America: We the people will hold the constitution accountable to the principles and values we believe in.”

The Trump administration has shown it is willing to defy court orders, and has now detained a judge for refusing to comply with an extrajudicial action by the Trump administration. Mohsen has court dates ahead of him yet. And there is a long road ahead for any of the current cases mentioned here. As some have suggested, the country may by on the brink of a constitutional crisis.

That is one reason why we all need to continue to protest and make our voices heard. Today, at your local May 1 rally is a great time to do so.

Today we remember (again) that together, working in tandem and in support of migrant activists from all backgrounds, we can all actually affect these processes.

I write this from the chilly state of Vermont one month into Spring. If you listen closely, you can hear a great thawing, as protesters continue to speak out in favor of the inalienable human, civil, and constitutional rights of all persons in the U.S. As the movement grows, perhaps we could be witnessing an American Spring in the name of human dignity, at least if we continue to fight for it. Its mud season in Vermont. Our boots are still laced up, but the heavy coats are being put away for the year. There is still some snow in the mountains, but the ice is sure to melt.

*A small portion of this article is excerpted from my book, Migrant Justice in the Age of Removal, recently published by University of Georgia Press.