There were at least two similarities among the four seasoned immigration officers who recently testified in federal court. They were all law enforcement professionals. Furthermore, none of them could recall ever being ordered to make the kind of arrests they did earlier this year.
The men claimed that in March, Secretary of State Marco Rubio’s office gave them orders to hold a number of noncitizen students, including a Tufts University doctorate student whose arrest was widely publicized and caught on camera. Citing a rarely used law, Mr. Rubio had suddenly canceled their legal status, allowing immigration officers to detain them.
One of the main themes of President Trump’s return to the White House was highlighted by the agents’ evidence during a trial that ended in Boston on Monday on the Trump administration’s attempts to deport international students who held pro-Palestinian beliefs. As Mr. Trump strains the limits of executive power and violates the law to further his agenda, there is no clear parallel in the administration’s strategies.
By necessity, those who oppose his ideas are likewise breaking new territory.
The government targeted those overseas students in violation of the First Amendment, according to the academic associations who filed a lawsuit after the widely reported wave of arrests in March. Attorneys for the groups contended in court over the last two weeks that the Trump administration overreached Mr. Rubio’s limited authority to deny visas and green cards in an effort to silence the most vulnerable activists and suppress political participation on campuses in general.
In its final remarks on Monday, the government rejected the idea, claiming that the concept of a coordinated program aimed at noncitizen activists is the result of creative conjuring and imagination.
In a number of cases, the Supreme Court has already ruled that noncitizens in the US are entitled to the same First Amendment protections as citizens. However, constitutional scholars and legal experts have cautioned that the case has some inherent danger because courts have not yet examined all of the potentially difficult legal issues at stake, which is precisely why the Trump administration’s actions are so new.
In a way that has never been challenged before, the lawsuit essentially confronts the secretary of state’s explicit authority—granted by Congress—against the First Amendment’s protections for noncitizens. And if it does make it to the Supreme Court, the conservative majority on the court might be especially unrestricted by precedent while determining whether to uphold the Trump administration.
It’s dangerous because the courts might rule that the government can deport people based on their statements, which would be a terrible blow to freedom of speech, according to Michael Kagan, a law professor at the University of Nevada Las Vegas. He went on to say that one reason this criteria hasn’t been used previously is because governments haven’t done this in the current era of free speech laws.
The four current and former Immigrations and Customs Enforcement officers testified last week that they remembered preparing to arrest people, including Tufts doctoral student Rumeysa Ozturk and Columbia University graduate Mahmoud Khalil, after learning that the students’ visa or green card had been revoked.
On his college, Mr. Khalil was a driving force behind pro-Palestinian demonstrations. A Turkish national on a student visa, Ms. Ozturk gained notoriety for essays she assisted in publishing in a student newspaper that attacked university administration for their handling of Israel’s conflict in Gaza.
According to the orders, Mr. Rubio had relied on a rarely used clause in the Immigration and Nationality Act, a 1952 law that was amended in 1990. This clause states that the government can only deport someone based solely on their speech if the secretary personally decides that their presence would jeopardize a compelling foreign policy interest of the United States.
Decades of immigration policy were abruptly broken when the provision was applied to student activists. Alejandro N. Mayorkas, the homeland security secretary at the time, established a policy during the Biden administration that said that a noncitizen’s exercise of their First Amendment rights should never be taken into consideration when determining whether to take enforcement action.
150 attorneys and legal experts wrote a brief stating that the Immigration and Nationality Act clause used against Mr. Khalil was so ambiguous that it should be declared unconstitutional when he was arrested in March, the first of multiple similar detentions.
They cited a related Supreme Court case when they said, “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.”
Analysis of AdataAccording to the data that accompanied that brief, the foreign policy provision had only been used 15 times out of the 11.7 million immigration cases the Justice Department had recorded since 1990, and even then, usually in conjunction with other charges. The defendant was eventually expelled from the nation in just four of the cases.
Several students who were detained by the Trump administration spent months in immigration detention before being released while their individual immigration cases were being handled.
According to Yale statute School professor Cristina Rodriguez, Congress changed the statute in the 1990s with the goal of increasing the bar for its application.
Because it is so ambiguous, this section of the immigration code is vulnerable to misuse, she added.
She said that Mr. Rubio’s conclusion that several pro-Palestinian activists all meddled in U.S. foreign policy was questionable since the government’s case could eventually be applied to a wide variety of speech. It might be applied to action against climate change or any of the many types of expression that we believe should be protected.
Attorneys for the civil rights groups involved in the Boston case, such as the Knight First Amendment Institute and the A.C.L.U., have maintained that the Trump administration blatantly set out to silence political speech on college campuses in a manner that might have far-reaching effects.
In closing arguments on Monday, Ramya Krishnan, a senior staff attorney at the Knight Institute, stated that if noncitizens can be deported for their political speech, then they have no First Amendment rights at all because they must constantly worry that their associations and speech will offend those in authority.
According to sworn testimony and other emerging facts in the case, the administration specifically looked into professors and students who had demonstrated against Israel while publicly asserting—without proof—that those individuals had contributed to the mobilization of support for Hamas or terrorist groups in general. The U.S.-designated terrorist organization Hamas launched an attack against Israel on October 7, 2023. The protests on campus were sparked by the Israeli government’s military reaction in Gaza.
According to Jonathan Jacoby, national director of the Jewish watchdog group Nexus Project, the arguments the Trump administration has relied on closely resemble the tactics outlined in Project Esther, a Heritage Foundation policy proposal designed to weaken the American pro-Palestinian movement.
According to him, these are instances of how the Trump administration has used justifiable worries about Jewish safety as weapons, taking advantage of or playing on Jewish anxiety to stifle expression that is guaranteed by the constitution. That script includes what you see occurring in Boston at the moment: Pro-Palestinian protests, they claim, are a show of solidarity with Hamas.
The lawsuit’s academic groups want to prevent the government from carrying out any more deportations on the basis of pro-Palestinian beliefs. However, the case focuses only on how the administration has abused the law, not on the foreign policy clause of the Immigration and Nationality Act or the legal authority Mr. Rubio has asserted.
The Justice Department has maintained throughout the trial that it made decisions on students on an individual basis and denied that the government ever had a deportation policy that targeted student activists.
The trial’s judge, William G. Young, said he would need some time to consider his options before making a decision.
According to Ms. Rodriguez, the question of whether Mr. Rubio had acted outside of Congress’s goal for the law was the reason why it was crucial that the academic associations and civil rights organizations pursue the lawsuit on First Amendment grounds. (In other situations, judges have questioned whether the law is unconstitutional in its application to specific students.)
However, she stated that the law as worded grants the government latitude, and it can be extremely challenging for outside organizations to demonstrate that the government intended to systematically abuse those powers.
They are utilizing their discretion to target individuals with this provision in ways that have never been utilized before—in fact, based on the 1990 modifications made by Congress, I believe you might say that it was not meant to be used in those ways,” she said. Simply put, it will be difficult to prove that in court.
