ACLU Comment on Trump Plan to Attend Supreme Court Arguments in Birthright Citizenship Case

The ACLU is at the Supreme Court for oral arguments in Trump v. Barbara. Follow live coverage of the fight to defend birthright citizenship.

PHILADELPHIA — Today, Mahmoud Khalil’s legal team asked the full Third Circuit Court of Appeals to re-consider the three-judge panel’s 2-1 decision overturning a lower court’s orders releasing Mr. Khalil on bail and barring the government from detaining or deporting him based on Secretary of State Marco Rubio’s vague and unsupported assertion that Mr. Khalil’s lawful protected speech would “compromise a compelling U.S. foreign policy interest.” The panel decision would effectively block anyone in immigration proceedings from challenging their detention on First Amendment grounds in federal court until those proceedings are complete, no matter how long they may take or how unconstitutional the basis for their detention. “There is no world in which Mahmoud should be torn away from his family for a second time and sent back behind bars for his protected speech,” said Brett Max Kaufman, senior counsel in the ACLU’s Center for Democracy. “In this country, the government cannot punish people just because they don’t like what they have to say, and it is imperative that federal courts are immediately available to halt unconstitutional detentions. That’s what the district court did here, and we think those orders should and will be upheld in the end.” Back in June, the court found that Mr. Khalil was likely to succeed on the merits of his constitutional challenge to his detention and attempted deportation on the Foreign Policy Ground, and it ordered his release on bail based on the extraordinary circumstances of his detention, including the government’s failure to produce any evidence of flight risk or dangerousness. A federal judge granted Mr. Khalil’s request for a preliminary injunction after concluding that he would continue to suffer irreparable harm if the government continued efforts to detain and deport him on the basis of Secretary of State Marco Rubio’s determination. In January, two judges on the Third Circuit panel ruled that the lower court’s order should be overturned, without evaluating the merits of his constitutional claims, but because they held the federal court did not have jurisdiction to even consider ordering Mr. Khalil's release for the months or years his immigration proceedings remained ongoing. However the third judge, the Honorable Arianna Freeman dissented, concluded that under Third Circuit and Supreme Court precedent, a federal court can hear Mr. Khalil’s “now-or-never claims” because without immediate federal review, Mr. Khalil will suffer irreparable harm from detention that cannot be remedied after the executive branch’s own administrative immigration process runs its course. As Judge Freeman further explains, the majority opinion “renders meaningful review hollow," and “only this habeas petition can provide Khalil meaningful review of the First Amendment harms from his detention.” The Trump administration and Department of Homeland Security (DHS) illegally arrested and detained Mr. Khalil in direct retaliation for his advocacy for Palestinian rights at Columbia University. Shortly after, DHS transferred him 1,300 miles away to a Louisiana detention facility — ripping him from his then eight-months pregnant wife and legal counsel. During the 104 days he remained in ICE custody, Mr. Khalil missed the birth of his first child. “Federal courts must have the power to step in when the government exploits our country’s immigration system to punish people for their protected speech,” said Bobby Hodgson, Assistant Legal Director at the New York Civil Liberties Union. “This case goes to the heart of what the First Amendment protects: if the Trump administration can target, arrest, and deport Mahmoud for his speech, they can do it to anyone expressing an opinion they disagree with.” Earlier this month, Mr. Khalil’s legal team filed an appeal with the Board of Immigration Appeals (BIA), which is controlled by the Department of Justice, asking that it reverse a lower immigration court’s unprecedented decision to sustain a baseless, after-the-fact charge related to his green card application and asking that it terminate the proceedings entirely. As detailed in their appeal, this charge was retaliatory and only added after Mr. Khalil challenged the government’s violations of his constitutional rights. Mr. Khalil is represented by Dratel & Lewis, the Center for Constitutional Rights, CLEAR, Van Der Hout LLP, Washington Square Legal Services, the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), the ACLU of New Jersey, and the ACLU of Louisiana. For all case materials, please see here, here, and here.

FORT MYERS, Fl. – A federal court granted a preliminary injunction today that requires Immigrations and Customs Enforcement (ICE) and the Florida Department of Emergency Management to provide access to legal counsel for people detained at the Everglades Detention Facility, commonly referred to as “Alligator Alcatraz.” The ruling comes more than a month after the court heard oral arguments and client testimony during a two-day hearing, where people formerly detained at the Everglades Detention Facility described horrific conditions, being denied the opportunity to speak with an attorney, and even the denial of access to papers and pencils. Specifically, the preliminary injunction issued by federal district judge Sheri Polster Chappell requires ICE to provide readily-available confidential outgoing legal calls to people detained at the facility, as well as publish information about how attorneys and people detained may contact one another. The order also states that ICE must continue their newly enacted policy of allowing attorneys to visit the facility without prescheduling visits, on behalf of the entire class. The court also certified the case as a class action, which means that it protects all people currently at the Everglades Detention Facility, and persons held there in the future. Quotes from co-counsel and plaintiff organizations are as follows: “Today’s ruling is a major victory and underscores what we’ve known to be true all along: access to legal counsel is a constitutional right – not a privilege – for all people in this country, and the State of Florida and ICE cannot lock people up with no way to speak to an attorney,” said Corene Kendrick, Deputy Director of the National Prison Project at the American Civil Liberties Union. “We won’t stop fighting until this abusive facility is shut down once and for all.” “Access to counsel is one of the most basic safeguards in our legal system,” said Paul R. Chavez, Director of Litigation & Advocacy at Americans at Immigrant Justice. “Today’s ruling reinforces the importance of meaningful access to legal counsel for people in immigration detention. Confidential communication with an attorney is essential to a fair legal process, and people navigating detention deserve a genuine opportunity to understand and exercise their rights. We will continue working to ensure these protections are fully implemented.” “Access to an attorney is essential for people in immigration detention—especially at a time when we are witnessing due process being sidelined,” said Amy Godshall, Staff Attorney at the ACLU of Florida. “As mass deportation policies expand and Florida deepens its use of 287(g) agreements, access to legal counsel is one of the last safeguards protecting people from unjust deportation or family separation. No one should have to fight deportation alone and without counsel from inside a detention center—it’s a basic constitutional right.” "When a facility obstructs timely and confidential access to counsel, it makes meaningful legal representation virtually impossible,” said Katie Blankenship, Founder of Sanctuary of the South and an organizational plaintiff in this case. “That is not a minor barrier; it is a direct violation of due process. People are left to navigate life-altering immigration proceedings without the ability to communicate with their attorneys. This is unconstitutional and unacceptable. The Court correctly recognized that these policies are unlawful and are inflicting serious harm every day." A copy of the ruling is available here: https://www.aclu.org/cases/c-m-v-noem?document=Class-Cert-and-PI-Order

How culpable is the company for the constitutional and human rights violations of the deportation drive?