Immigration crackdown reveals grave threat to press freedom
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Headlines abound about the Trump administration’s immigration crackdown against students alleged to have engaged in speech or protest activity regarding Israel and Gaza. Such cases include Rümeysa Öztürk, a Tufts graduate student who was taken into immigration custody after co-writing an op-ed criticizing the university’s policies on Israel, as well as Mohsen Mahdawi and Mahmoud Khalil, both student activists at Columbia.
While these individuals aren’t journalists, all three cases implicate an obscure and unusual threat to press freedom: a little-used provision in immigration law that explicitly permits the U.S. secretary of state to revoke non-citizens’ green cards or visas for protected speech, which could include news reporting. That provision is at play in different ways in all three cases.
This is commonly known as the “foreign policy grounds” in the Immigration and Nationality Act, which is really two interconnected provisions. The provisions give the secretary of state the ability to deem a non-citizen inadmissible or deportable if the secretary “has reasonable ground to believe” that the non-citizen’s “presence or activities in the United States” would have “potentially serious adverse foreign policy consequences.” None of those terms is defined.
The foreign policy grounds do purport to protect constitutionally protected speech and activity, but the exception is toothless. This “safe harbor” provides that the secretary cannot exclude non-citizens based on their “past, current, or expected beliefs, statements, or associations, if such beliefs, statements, or associations would be lawful within the United States” unless the secretary determines that such activity “would compromise a compelling United States foreign policy interest,” and certifies as much to Congress. In other words, under the plain text of the law, the secretary could bar a non-citizen journalist from entering the United States — or could seek their removal — based explicitly on newsgathering or reporting perceived as critical.
To be sure, the foreign policy provisions are likely unconstitutional, but that question has almost never been explored because the provisions are so rarely invoked.
The main case on the books is an opinion written by none other than President Trump’s late sister, Judge Maryanne Trump Barry, who found that the removal provision was unconstitutionally vague. In doing so, she pointed to the elephant in the room — that while “there may be a common understanding, in a definitional sense, of what ‘foreign policy’ is, no one outside the Department of State and, perhaps, the President ever knows what our nation’s frequently covert foreign policy is at any given time.” The U.S. Court of Appeals for the Third Circuit — in an opinion written by now U.S. Supreme Court Justice Samuel Alito — reversed, but purely on jurisdictional grounds. More recently, the federal judge in the Khalil case found that the provisions were also likely unconstitutionally vague, at least as applied to Khalil.
The possible use of the foreign policy grounds against journalists is not hypothetical. While the current text of these provisions is a relatively recent addition to the INA, added in its modern form in 1990, laws like it have been used against journalists in the past.
For example, the original INA of 1952, known as the McCarran-Walter Act, included provisions that allowed the attorney general to exclude foreigners if he or she had “reason to believe” they were seeking entry “to engage in activities which would be prejudicial to the public interest” or “activity subversive to the national security.”
In 1986, these authorities were used against a Colombian journalist named Patricia Lara, who was detained after immigration authorities revoked her visa. Lara had been attempting to enter the country to attend an awards ceremony at Columbia University for distinguished Latin American journalists. The government refused to provide a specific reason for the revocation, other than citing the “activity subversive to the national security” grounds. Lara’s work was perceived as critical of “Reagan policy in Central America.”
The Öztürk, Mahdawi, and Khalil cases also all underscore another essential protection for press freedom. That is, all three were detained and all filed lawsuits seeking a particular kind of relief: a writ of habeas corpus, the mechanism by which a person who has been detained by the government can challenge the basis for their detention in a court. In each case, the government has advanced aggressive arguments that the federal district courts do not have the authority to hear a habeas petition quickly. Were that argument credited by the district court, it could mean that, as one judge put it, the executive would have “practically limitless, unreviewable power to detain individuals for weeks or months, even if the detention is patently unconstitutional.”
Notably, the importance of habeas protections for non-citizen journalists was front-and-center in a high-profile case during the first Trump administration. Authorities arrested Manuel Duran — a journalist who immigrated to the United States from El Salvador after being subjected to death threats because of his reporting there — while he was covering a protest against immigration policies in Memphis. Although the protest-related criminal charges were dropped, Duran was detained by immigration authorities, who asserted that an immigration judge had ordered his removal at a hearing 10 years prior. Duran would ultimately be detained for 465 days until he was finally released on bond — filing two habeas petitions in the meantime (the Reporters Committee signed onto a friend-of-the-court brief filed in one of them). It took several more years for him to be granted asylum by an immigration court.
The threat to press freedom these kinds of cases pose is significant. Perhaps now more than ever before, the public benefits when non-citizen journalists report on immigration, national security, and foreign affairs, in many cases because they possess special language or cultural knowledge that makes them particularly skilled at covering those beats.
Were the government given carte blanche to revoke visas or green cards based on protected newsgathering and reporting, many non-citizen journalists might ultimately decide that covering these issues is simply not worth the risk. And that’s bad news for members of the public who rely on their reporting to stay informed and hold the government accountable.