The Trump Admin’s Embrace of Ideological Exclusion and Deportation

On June 11, the University of Chicago Law School Global Human Rights Clinic and Immigrants’ Rights Clinic sent a joint letter to a group of high level UN special rapporteurs. They filed the complaint on behalf of nine “[n]on-citizens in the United States of America who wish to exercise their right to freedom of speech, assembly, and association, in addition to other human rights, without the threat of arbitrary detention, deportation, and disappearance,” as well two U.S. citizens, one student and one professor, who faced similar threats. The complaint alleges that the Trump administration “surveilled, detained, and attempted to forcibly remove non-citizen students and scholars for peacefully protesting and speaking about the Israeli-Palestinian conflict” as part of a broader “weaponization of the immigration system.”

One of the letter’s “alleged victims” is a Columbia University graduate and legal permanent U.S. resident named Mahmoud Khalil. Immigration and Customs Enforcement (ICE) agents had initially arrested Khalil, a leader in Columbia University’s pro-Palestinian movement, on March 8 in the lobby of his university-owned apartment building in Manhattan. Khalil’s wife, a U.S. citizen named Noor Abdalla, was eight months pregnant at that time and filmed the entire encounter while on the phone with one of Khalil’s attorneys.

In the days that followed, the agents refused to disclose to Khalil or Abdalla the reason behind the arrest. Abadalla reportedly often found it difficult to determine where Khalil was being detained at any given time. The Trump administration did not produce any evidence that Khalil broke the law. Nor did it claim he did: “The allegation here is not that he was breaking the law,” one official told the media. Eventually, a court filing revealed the Trump administration was relying on 8 U.S.C. § 1227(a)(4)(C)—or INA 237(a)(4)(C)—a rarely invoked statute that authorizes the secretary of state to personally declare any noncitizen “deportable” if that person’s presence in the U.S. “would have potentially serious adverse foreign policy consequences.” And then, more than a week after Khalil’s initial arrest, the government added a second charge related to misrepresentations on immigration forms to justify his detention.

“The moment you enter this facility, your rights leave you behind,” Khalil told reporters on the day of his release just outside the detention center in Jena, Louisiana. “So once you enter there, you see a different reality, just a different reality about this country.”

At a bail hearing on the day of Khalil’s release, U.S. District Judge for the District of New Jersey Michael Farbiarz said there was “at least something to the underlying claim” that the Trump administration was using the immigration charge to punish Khalil for his political speech. That, “of course … would be unconstitutional,” said Judge Farbiarz, before ordering Khalil released on bail. The judge noted that criminal law—not civil or immigration law—is used for punishment.

Back in March, two days after Khalil’s arrest, President Trump wrote on Truth Social, “This is the first arrest of many to come.” That same day, a White House official told The Free Press that “the basis for targeting Khalil is being used as a blueprint for investigations against other students.” And then, in a statement following Khalil’s release months later, White House spokesperson Abigail Jackson said, “The Trump administration won’t hesitate to hold Khalil, and others who mimic his tactics, accountable.”

Indeed, while Khalil may have been one of the first students arrested and detained, he was certainly not the last. On March 17, masked federal officers arrested Georgetown University postdoctoral fellow Bahar Khan Suri outside of his apartment in Arlington, Virginia, despite never charging him with a crime. A week later, six masked ICE agents in plainclothes arrested 30-year-old Tufts University doctoral student Rümeysa Öztürk on the street because of a Tufts Daily op-ed critical of the university’s response to the war in Gaza that she co-wrote with three other authors. In yet another high-profile incident, on April 15, ICE agents arrested 34-year-old Columbia University graduate and pro-Palestinian activist Mohsen Mahdawi at his naturalization interview in Vermont.

While the White House described it as a “blueprint,” Khalil’s case was also something of a canary in the coal mine: the first high-profile detention of President Trump’s second term and one of the first signs of the Trump administration’s efforts to suppress dissent through its use of ideological exclusion and deportation—that is, the barring or expulsion of foreign noncitizens from the United States based on their political beliefs, expressions, and associations. What follows is a history of one of the tools used to carry out ideological exclusion and deportation—the “foreign policy provision”—and why the Trump administration may abandon it in favor of others in the government’s toolbox.

The foreign policy provision and the arrest and detention of Khalil and of other foreign noncitizens in the United States has brought the use of ideological exclusion and deportation as a tool of political repression to the forefront of the public’s attention. And, consequently, it has also revealed what appears to be the Trump administration’s desire and determination to repeat the mistakes of the past, rather than to learn from them.

A Brief Legislative History of the Foreign Policy Provision

Following Khalil’s arrest, the press has referred to the foreign policy provision 8 U.S.C. § 1227(a)(4)(C) as a “little-used” or “rarely used” provision. Initially, some early reporting on the Khalil case misleadingly identified the provision as in the original Immigration and Nationality Act of 1952 (also known as the McCarran-Walter Act). Rather, the foreign policy provision was added to the McCarran-Walter Act many years later with the passage of the Immigration Act of 1990. The addition reflected a compromise in Congress, which included the new provision while repealing the McCarran-Walter Act’s original ideological exclusion and deportation provisions. The history of the foreign policy provision reveals not only the use of the McCarran-Walter Act to ideologically exclude or deport but also the effort to end it as the Cold War came to a close.

Passed at the height of McCarthyism during the Cold War, the McCarran-Walter Act of 1952 was one of the most draconian and comprehensive pieces of federal immigration legislation enacted in the 20th century. It also represented the culmination of ideological exclusion and deportation laws in the United States, including previous immigration restrictions. It also added new categories of individuals to exclude or deport, such as those who were members of or affiliated with the Communist Party of the United States, and those who advocated or who were members of or affiliated with organizations that advocated “the economic, international, and governmental doctrines of world communism or the establishment in the United States of a totalitarian dictatorship.” Under the act, the attorney general held the power to deport and exclude foreign noncitizens, as well as to admit them, granting them a waiver of inadmissibility. Congress had passed the act, overriding President Truman’s veto. Truman described some of its provisions as a form of “thought control” and “inconsistent with our democratic ideals.”

In 1952, a few months after the passage of the McCarran-Walter Act, the Bulletin of the Atomic Scientists published a special issue discussing the detrimental effects of ideological exclusion laws on free exchange and inquiry essential to scientific discovery. Foreign scientists from England and France described their challenging experiences attempting to obtain a visa and the damage done to the United States’s reputation—depicted as fearful and repressive. One American contributor to the issue noted that ideological exclusion had turned ill-informed U.S. consular officials into censors. Rather than risk making a mistake by admitting the “wrong” person and endangering their careers, these consular officials often opted to delay or deny visas instead of granting them. Also during this time was national and international press coverage of the exclusion of British-born film star Charlie Chaplin. When Chaplin left to promote his new film “Limelight” in Europe, the then-attorney general revoked his reentry permit and demanded that Chaplin “prove his worth and right to enter the United States.” Chaplin refused and relocated to Switzerland.

In 1953, the Justice Department announced it would ideologically deport 12,000 people from the United States. Those foreign noncitizens who were targeted for ideological deportation included former members of the Communist Party who had lived in the United States for decades and who had American-born children and families. In reality, between 1950 and 1956, 231 foreign noncitizens were ideologically deported. Yet that number did not reflect the fear of deportation and the threat of being separated from children and spouses, or of those who chose to leave. It was not the number of those ideologically deported but, rather, it was the “chilling effect,” the fear, intimidation, and self-censorship that was the most effective form of political repression.

In Harisiades v. Shaughnessy (1952), the Supreme Court upheld ideological deportation, consistent with the First Amendment legal precedent at that time. But, by the late 1950s and into the 1960s, the rollback of McCarthyism and Cold War political repression was underway. By the late 1960s, the Supreme Court had expanded First Amendment protections to include the right to receive information and the right to hear, and had provided more protection for advocacy and free speech.

Despite the end of McCarthyism, the expansion of protections under the First Amendment, and immigration reform through the Hart-Celler Act of 1965, the ideological exclusion and deportation provisions in the McCarran-Walter Act remained. Members of Congress had no incentive to repeal the provisions and risk appearing weak on communism, and the focus of fear and repression had largely shifted to New Left activists and anti-Vietnam War protesters.

In Kleindienst v. Mandel (1972), the Supreme Court upheld the Nixon administration’s use of these provisions to ideologically exclude Belgian Marxist economist Ernest Mandel. Yet, in its decision, the Court also provided a new pathway to challenge exclusion by determining that the American university and college professors who invited Mandel to come to the United States to speak on their campuses did have the standing to sue to challenge Mandel’s ideological exclusion as it implicated their First Amendment rights, including the right to receive information.

Later in 1977, Congress passed the McGovern Amendment to the Foreign Relations Authorization Act. The move was intended to align the legislation with that of the Helsinki Final Act of 1975—an agreement signed by 35 nations that called for freer movement of individuals and respect for human rights and fundamental freedoms. The legislation provided more oversight and protection against ideological exclusion based on guilt by association and served as a check on the executive branch’s use of discretion and power. The McGovern Amendment applied to Section 212(a)(28) of the McCarran-Walter Act, which also pertained to membership in or affiliation with organizations that advocated the “economic, international, or governmental doctrines of world communism.” Under the McGovern Amendment, the secretary of state should recommend that the attorney general grant a waiver of inadmissibility unless the secretary of state determined the admission of the foreign noncitizen “would be contrary to the security interests of the United States” and certified this determination to Congress.

In the 1980s, the Reagan administration used the McCarran-Walter Act to deny nonimmigrant visas to foreign noncitizens who were critical of U.S. foreign policy based on their affiliations and memberships. The Reagan administration also circumvented the McGovern Amendment by denying the visas under Section 212(a)(27), which was not subject to the McGovern Amendment’s certification requirement. This provision pertained to foreign noncitizens whom the government had reason to believe sought entry “solely, principally, or incidentally to engage in activities that would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.” Legal challenges to these visa denials were successful as the U.S. Courts of Appeals for the D.C. Circuit and the First Circuit held that the Reagan administration had not established an independent basis to deny the visas under Section 212(a)(27), instead of 212(a)(28).

Meanwhile, members of Congress sought to repeal the ideological exclusion and deportation provisions under the McCarran-Walter Act, with Rep. Barney Frank (D-Mass.) leading the charge. In a House Judiciary subcommittee hearing in 1984, representatives from civil liberties and human rights organizations—including the American Civil Liberties Union (ACLU) and PEN America—described the chilling effect and damage created by ideological restrictions, including the inhibition of free exchange and inquiry, embarrassment and humiliation felt by Americans and by foreign noncitizens, many of whom simply refused to attempt to visit the United States. American novelist William Styron testified before Congress about the detrimental effects on writers. Having faced ideological exclusion, Mexican novelist Carlos Fuentes and Colombian novelist Gabriel García Márquez were also outspoken critics of the McCarran-Walter Act’s provisions and called for their repeal. American writers E.L. Doctorow, John Irving, and Susan Sontag, as well as American playwright Arthur Miller and American poet Carolyn Forché, also criticized the act. Irving described the ideological exclusion provisions as the “vestiges of McCarthyism” that “shame us today.” These provisions had been used to ideologically exclude, as well as to deport, in order to suppress dissent and criticism of the United States and its foreign policies, including expression that was protected under the First Amendment.

In his testimony on behalf of the Reagan administration in another House Judiciary subcommittee hearing held in 1987, State Department legal adviser Abraham D. Sofaer expressed support for the repeal of the ideological restrictions based on advocacy and association in Section 212(a)(28), but expressed concern over removing Section 212(a)(27) for foreign policy reasons. He proposed repealing parts of the ideological exclusion and deportation provisions, but also providing the executive branch with the authority to deny visas to foreign noncitizens if admission to the United States would “implicate potentially serious foreign policy consequences.”

That year, Congress added the Moynihan-Frank Amendment to the Foreign Relations Authorization Act, which prohibited exclusion or deportation from the United States “because of any past, current, or expected beliefs, statements, or associations which, if engaged in by a United States citizen in the United States, would be protected under the Constitution of the United States.” It was celebrated as “an affirmation of the principles of the First Amendment” and ensured that foreign noncitizens facing ideological exclusion or deportation were subject to the same free expression and association standards and protections as American citizens under the First Amendment. 

A few years later, the Immigration Act of 1990 repealed Sections 212(a)(27) and 212(a)(28), added a new foreign policy provision, and incorporated the previous amendments to the Foreign Relations Authorization Act. It included the language from the Moynihan-Frank Amendment for past, current, and expected beliefs, statements, or associations protected by the First Amendment but also added a foreign policy exception for exclusions and deportations. Thus, under this new provision, foreign noncitizens were excludable or deportable if the secretary of state has “reasonable ground to believe” that their “entry or proposed activities” or their “presence or activities in the United States” would have “potentially serious adverse foreign policy consequences for the United States.” To authorize exclusion or deportation, the secretary of state must determine that the foreign noncitizen’s admission or presence would “compromise a compelling United States foreign policy interest.” However, the secretary also must timely notify the chairmen of the House and Senate Judiciary and Foreign Affairs committees of the identity of the foreign noncitizen and “the reasons for the determination.” This notification requirement was similar to the McGovern Amendment’s certification requirement, in order to provide additional congressional oversight to prevent abuse of power and discretion.

Within the legislative history of the Immigration Act of 1990, in a conference report, members of Congress described their intention for this new foreign policy provision to be used “sparingly and not merely because there is a likelihood that an alien will make critical remarks about the United States or its policies.” The conferees emphasized that if exclusion [or deportation] was because of a foreign noncitizen’s beliefs, statements, or associations, it must be “linked” to a “compelling foreign policy interest,” which would be held to a higher standard than the “potentially serious adverse foreign policy consequences standard.” Admission and presence of a foreign noncitizen must have a “clear negative impact” on United States foreign policy. They cited the admission of the former Shah of Iran to the United States in 1979, which sparked the Iranian hostage crisis and directly affected foreign relations, as an example of when the foreign policy provision permitting exclusion or deportation would be appropriate. A “mere entry into the United States could result in imminent harm to the lives and property of United States persons abroad (as occurred with the former Shah of Iran), or when an alien’s entry would violate a treaty or international agreement to which the United States is a party.” And, the conferees intended for the secretary of state’s notification requirement to indicate that the provision was to be used “only in unusual circumstances.” 

Civil liberties organizations, including the ACLU, objected to the inclusion of the foreign policy provision. They argued the provision could still be used to ideologically exclude or deport and, thus, it would undermine the intent behind the Moynihan-Frank Amendment and the repeal of the ideological exclusion and deportation provisions in the McCarran-Walter Act. Arthur C. Helton, of the Lawyers Committee for Human Rights (now known as Human Rights First), expressed his concerns about the inclusion of the foreign policy provision, describing it as a “legacy of the Cold War.” Dismissing assurances that the foreign policy provision would be rarely used, Helton warned, “You can be sure that, someday, you will see these powers being reached for and exercised. There is no reason to look at our border in an ideological fashion.”

The U.S. Government’s Invocations of the Foreign Policy Provision

Over the years, the government has used this legal basis sparingly. On May 7, Judge Farbiarz ordered the government to file a letter listing “each instance, other than this one, in which federal officials have invoked 8 U.S.C. § 1227(a)(4)(C)” or a predecessor statute.

The government initially found three instances in which federal officials invoked 8 U.S.C. § 1227(a)(4)(C) to initiate removal from the United States. The first, dated April 24, 2004, described an episode in which then-Secretary of State Colin Powell recommended to the Department of Homeland Security that “the presence of an African national in the United States would have potentially adverse foreign policy consequences,” after discovering evidence “that the individual participated in and/or contributed to violent political activity while in Somalia.” The other two examples were much more recent. Both cases from March 2025 involved determinations made by Secretary Rubio himself. According to the government’s filing, on March 14, Secretary Rubio invoked 8 U.S.C. § 1227(a)(4)(C) and “determined that the presence and activities of another alien would have potentially serious adverse foreign policy consequences for the United States, because of (among other things) his ‘active support’ for Hamas, his efforts to spread Hamas ‘propaganda,’ and his conduct in creating a ‘hostile environment’ for Jewish students on campus.” One day later, on March 15, the government claimed that Rubio again invoked 8 U.S.C. § 1227(a)(4)(C)(i) to remove another alien who had “a documented history of antisemitism and encounters with law enforcement, including incidents involving the possession of illicit drugs, a domestic dispute with his former spouse, and a 2015 episode in which he visited a gun store and bragged about ‘kill[ing] Jews while he was in Palestine.’” 

A follow-up filing later that day offered four more instances of federal officials invoking the foreign policy provision under its predecessor statute, INA § 241(a)(4)(C)(i), 8 U.S.C. § 1251(a)(4)(C)(i), which Congress transferred to its current location in 1996. The first three examples occurred in 1995 under then-Secretary of State Warren Christopher: a case on Jan. 5 of that year involving a Saudi national named Mohammad J.A. Khalifah “who was convicted for terrorist activities in Jordan, among other things”; a case on March 29 of that year involving an unnamed Haitian national who co-founded and led “an illegitimate paramilitary organization responsible for numerous human rights violations in Haiti,” whose “presence and activities in the United States created the impression in Haiti that the United States was permitting this individual to use the United States as a base of operations and fueled rumors that the United States secretly supported him”; and a case on Oct. 5 of that year involving a Mexican national named Mario Ruiz Massieu (discussed more in depth below). In the fourth instance the government found, on April 4, 1997, then-Secretary of State Madeleine Albright recommended an unnamed Palestinian national for removal after finding that the person “was a top leader of a designated foreign terrorist organization and had been declared a Specially Designated Terrorist,” in addition to the fact that two U.S. “courts had found probable cause that this person was criminally responsible for ten incidents of terrorism.”

It is difficult to say whether the cases provided by the government represent an exhaustive list. As the government noted in a time extension request, some records exist only in paper format, and others contain potentially sensitive information, requiring time to “consult with the Departments of State and Homeland Security along with the Department of Justice’s leadership.” According to Yael Schacher, another possible reason the government had trouble finding more historical invocations of the foreign policy provision could be that the Department of Homeland Security has not preserved and archived crucial policy records of the Immigration and Naturalization Service from the late 20th century, even though required to do so.

Of the seven instances provided by the government, five had a record of criminal activities, which in some cases included conduct as severe as leading Hamas or a coup in Haiti. Only one seemed to have produced case law, Massieu v. Reno, in which a federal district court judge found the foreign policy provision to be unconstitutional as an impermissibly vague delegation of power to the executive branch, one that does not provide clear notice to noncitizens about which conduct it prohibits (though the U.S. Court of Appeals for the Third Circuit later vacated the ruling without addressing the constitutional findings). “The facts of this case read more like a best-selling novel than a typical deportation proceeding,” wrote Judge Maryanne Barry for the U.S. District Court for the District of New Jersey in her 1996 opinion. That statement has only grown more prescient: Judge Barry (full name Maryanne Trump Barry) is President Trump’s late sister and presided over Massieu in the very jurisdiction to which the Southern District of New York transferred Khalil’s case. 

Judge Farbiarz evaluated the legal precedent cited by the government in opinions filed on May 28 and June 11. In the former, Khalil claimed that the foreign policy provision applied to his case was unconstitutionally vague, an argument the judge found likely to succeed on the merits. The court leaned in favor of Khalil’s void-for-vagueness challenge on lack of notice and standardless enforcement grounds arising from the fact that Secretary Rubio did not mention any other countries or regions in his determination. And “foreign policy,” as the judge notes, involves U.S. relations with a foreign country.

Other arguments also leaned in favor of Khalil’s vagueness argument, including the fact that the foreign policy provision is “markedly vaguer than a number of statutes the Supreme Court has struck down over the years on vagueness grounds,” the judge wrote. But ultimately, legal precedent, legislative history, and the enforcement history all suggested to Judge Farbiarz that the foreign policy provision “was generally meant to be used, and has been used, for conduct (a) that entirely or all but entirely took place outside the United States and (b) that, as determined by the Secretary, would impact U.S. relations with a foreign country.” But in Khalil’s case, Rubio determined that Khalil “acted solely within the United States.”

As a final point, Farbiarz noted that the Supreme Court “has repeatedly said that vagueness doctrine is especially demanding” when it comes to speech protected by the First Amendment. Because Rubio’s determination suggests it was made based on Khalil’s “lawful” “beliefs, statements, or associations,” all of which are generally protected by the First Amendment, then the “vagueness doctrine becomes especially unforgiving.”’

On July 10, Khalil filed a notice of claim under the Federal Tort Claims Act, seeking $20 million in damages—or an apology—from the Trump administration for allegations of false arrest, false imprisonment, and malicious prosecution. In the claim, Khalil’s attorneys write that the “unprecedented use” of the foreign policy provision “against student activists like Mr. Khalil has been found likely unconstitutional under the First Amendment and/or the Due Process Clause by numerous federal courts,” because it “was deployed as a part of a Policy targeting noncitizens who participated in protests critical of Israel’s genocide in Gaza and the United States’ support for it.”

Khalil was the first high-profile student activist to be detained—and the last to be released—on the foreign policy provision since January. His release was another indication that the government’s argument in favor of using the foreign policy provision as a tool to suppress dissent may be a losing one.

A Shift to Ideological Exclusion and Social Media Vetting

As the public protested and as federal courts began reviewing these deportation cases, raising questions about the First Amendment implications, and releasing the students from detention, the Trump administration and Secretary Rubio began to shift their focus from ideological deportation to ideological exclusion. On March 25, the same day Öztürk was arrested and detained in Massachusetts, Rubio sent a cable to foreign service and consular officials entitled “Action Request: Enhanced Screening and Social Media Vetting for Visa Applicants.” The cable provided guidance for consular officials to screen and scrutinize the social media of student or exchange visitor visa applicants, in accordance with enforcement of Executive Order 14161, “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” and Executive Order 14188, “Additional Measures to Combat Anti-Semitism.” According to The Handbasket, which first reported the cable, consular officials should look for evidence of “advocating for, sympathizing with, or persuading others to endorse or espouse terrorist activities or support a DESIGNATED FOREIGN TERRORIST ORGANIZATION (FTO).” Demonstrating “a degree of public approval or public advocacy for terrorist activity or a terrorist organization” would be sufficient to potentially deny a visa application. The consular officials were also instructed to scrutinize the applicant’s credibility and stated purpose of travel, looking for “conduct that bears a hostile attitude toward U.S. citizens or U.S. culture (including government, institutions, or founding principles). Or it may be evident in advocacy or sympathy for foreign terrorist organizations.” It also advises officials to review social media accounts of those holding student or exchange visas between Oct. 7, 2023, and Aug. 31, 2024, indicating a focus on those involved in campus protests or with pro-Palestinian expressions or associations. On May 27, Rubio sent another cable pausing the issuance of new student and visiting scholar visas pending new guidelines for reviewing visa applicants’ social media accounts. 

A few days before Khalil was released, the State Department announced on June 18 that issuance of student and exchange visas would resume soon under new guidance that would include social media vetting, instructing all student and visiting scholar visa applicants to adjust their social media accounts from private to public. The department’s justification was to identify visa applicants who were inadmissible, including those who would “pose a threat to U.S. national security,” and “to ensure that those applying for admission into the United States do not intend to harm Americans and our national interests, and that all applicants credibly establish their eligibility for the visa sought, including that they intend to engage in activities consistent with the terms for their admission.” Consular officials were to look for “any indications of hostility toward the citizens, culture, government, institutions or founding principles of the United States.”

Social media vetting is not new to the Trump administration. In a speech in August 2016, during his first presidential campaign, Trump expressed his desire to screen immigrants and visitors in order to admit only “those who share our values and respect our people” into the United States. He then reached back to the past. “In the Cold War, we had an ideological screening test. The time is long overdue to develop a new screening test for the threats we face today. I call it extreme vetting.” During Trump’s first term, in May 2019, the State Department began requiring visa applicants to disclose past and present social identifiers to enter the United States.

In December 2019, the Knight First Amendment Institute at Columbia University joined the Brennan Center for Justice in filing a lawsuit challenging the social media disclosure requirement for visa applicants. They represented two U.S.-based documentary film organizations and argued that the requirement violated the organizations’ First Amendment right to receive information and to engage with foreign filmmakers by creating a “significant chilling effect on their use of social media, especially for political speech.” Not only could this lead to self-censorship but also discourage the filmmakers from coming to the United States not wanting to “risk that a U.S, official will misinterpret their speech on social media, impute others’ speech to them, or subject them to additional scrutiny or delayed processing because of the views they or their contacts have expressed.” The Biden administration continued the disclosure requirement but also conducted a review of the use of social media identifiers in the visa vetting process. In 2023, the Knight Institute published documents disclosed through the Freedom of Information Act litigation it brought in 2022. The internal documents revealed that the requirement for visa applicants to disclose their social media identifiers was ineffective from a national security standpoint. On June 27, the U.S. Court of Appeals for the D.C. Circuit held that the plaintiffs in Doc Society v. Rubio lacked standing, but remanded the case, where the plaintiffs potentially could be allowed to amend their complaint and show how a favorable decision would redress their harms. In a press release, Faiza Patel, co-director of the Brennan Center’s Liberty and National Security Program, said, “Requiring registration of the social media handles of everyone who applies for a visa makes it all too easy to target viewpoints that a particular administration disfavors. This program is unconstitutional and uniquely open to abuse as we have seen in recent attempts to exclude people whose views can somehow be characterized as hostile to the United States. It must be stopped.”

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On March 25, the Knight Institute filed a lawsuit on behalf of the American Association of University Professors (AAUP), the AAUP’s Harvard University, New York University, and Rutgers University chapters, and the Middle East Studies Association. The lawsuit challenged the Trump administration’s ideological deportation policy, including arresting, detaining, and deporting foreign noncitizen students and faculty members who participate in pro-Palestinian activism, through their expressions and associations. The AAUP plaintiffs argued that the ideological deportation policy had produced a chilling effect on the free expression and association of foreign noncitizens on college and university campuses, and this “climate of repression and fear” had stifled public debate and caused these individuals to withdraw from engagement with their academic communities and refrain from teaching and writing about particular subjects. Furthermore, the administration’s ideological deportation policy based on political viewpoint violated the First Amendment rights of these academic organizations and U.S. citizen members to hear and associate with foreign noncitizen students and faculty. It was also unconstitutionally vague and violated the Administrative Procedure Act. The Knight Institute sought a court order to enjoin the federal government from enforcing the policy, as well as a declaration that the policy is unlawful.

U.S. District Court Judge William G. Young allowed the lawsuit, AAUP v. Rubio, to proceed, and ordered a two-week bench trial in Boston, combining a hearing on the motion for preliminary injunction and trial on the merits, which concluded on July 21. Witnesses included Veena Dubal, general counsel of the AAUP, who testified about how the ideological deportation policy impacted her work and shaped the events she organized, and how the arrest and detention of Khalil, Öztürk, and Suri led to a chilling effect on noncitizen members. Other witnesses included Professors Bernhard Nickel, Nadia Abu El-Haj, and Megan Hyska, who described the chilling effect of these arrests and detentions on their expressions, activities, and association, which hindered their teaching and writing and precluded engagement on campus and at academic conferences. Peter Hatch, a senior ICE official and assistant director of the Office of Intelligence and Analysis in Homeland Security Investigations (HSI), testified that HSI created a group of officials called the “Tiger Team” to investigate student protesters on campuses and looked to outside organizations like the Canary Mission for guidance. Andre Watson, assistant director of HSI’s National Security Division, described the coordination between the State Department and ICE on targeting student protesters for visa revocations and deportations. John Armstrong, a senior official in the State Department under the Bureau of Consular Affairs, admitted that there was no “concrete piece of guidance” on what constituted “antisemitism” for the purposes of a visa revocation and that what he considered antisemitism included “unjustified views, biases, or prejudices, or actions against Jewish people, or Israel, that are the result of hatred towards them.” Armstrong also dismissed the notion of the existence of a Trump administration ideological deportation policy, and, in closing arguments, the government described the policy as imaginary.

“Not since the McCarthy era have we seen immigrants subject to such an intense campaign of speech repression,” said Ramya Krishnan, senior staff attorney at the Knight Institute and lead counsel for the plaintiffs in AAUP v. Rubio. “We haven’t seen ideological deportations of this kind since the McCarthy era, when the government attempted to deport members of the Communist party.” The reason is history. The Supreme Court helped to roll back McCarthyism, leading to an end of McCarthy-era ideological deportation drives, and also expanded First Amendment protections for free expression and association. In the 1980s, public pressure and action by Congress to get rid of the vestiges of McCarthyism helped to turn the page, applying current First Amendment standards to foreign noncitizens facing exclusion or deportation and repealing the ideological exclusion and deportation provisions in the McCarran-Walter Act. The foreign policy provision added in the Immigration Act of 1990 was never intended to undermine that progress or to be used as a backdoor to continue to ideologically exclude and deport, even though civil liberties organizations and lawyers warned it had the potential to do so. The foreign policy provision was a bipartisan compromise, intended to be used rarely and under unusual circumstances, and was so poorly written that when confronted with its use to deport a foreign noncitizen, Trump’s late sister had found it to be unconstitutional and impermissibly vague.

Throughout the history of ideological exclusion and deportation in the United States, the targets, rhetoric, and legal justifications have changed over time, and so has the technology. What has remained consistent, however, has been the motivation behind the use of ideological exclusion and deportation to suppress dissent—and the chilling effect on free expression and association that has come with it.