"known Adversary": the Targeting of the Immigrants' Rights Movement in the Post-trump Era

• Publication year: 2023
• Citation: Vol. 72 No. 5

"Known Adversary": The Targeting of the Immigrants' Rights Movement in the Post-Trump Era

Azadeh Shahshahani

Chiraayu Gosrani

"KNOWN ADVERSARY": THE TARGETING OF THE IMMIGRANTS' RIGHTS MOVEMENT IN THE POST-TRUMP ERA Azadeh Shahshahani Chiraayu Gosrani TABLE OF CONTENTS

INTRODUCTION........................................................................................ 1246

I. THE FIRST AMENDMENT'S HOLLOWED OUT PROTECTIONS........... 1249

A. Constitutional Exceptionalism............................................... 1251
B. Exceptionalism for Immigrants and the Plenary Power Doctrine ............................................................................... 1253

II. THE CHILLING OF THE IMMIGRANTS' RIGHTS MOVEMENT............. 1256

A. Indigenous Organizers, Faith Leaders, and Humanitarian Aid Workers at the Southern Border...................................... 1256
B. Grassroots Organizations and Their Organizers................... 1265
C. Immigrants in Detention ....................................................... 1279
D. 'Dreamers' and Youth Leaders ............................................. 1291

III. LOOKING BEYOND THE COURTROOM: GUIDANCE FOR THE MOVEMENT.................................................................................. 1296

A. Demanding Policy Interventions as Reparations ................... 1296
B. Facilitating Transparency and Accountability for Abolitionist Ends .................................................................. 1297
C. Bridging Cross-Movement Solidarity.................................... 1298

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INTRODUCTION

During the COVID-19 pandemic, immigrants in the custody of Immigration and Customs Enforcement ("ICE") faced unprecedented threats to their health and well-being.¹ At the Stewart Detention Center ("Stewart") in Georgia, one of the largest privately-run immigration detention centers in the country, individuals caged in close quarters reported falling ill en masse and urgently in need of medical attention.² Their pleas to be released—or to at least receive testing, protective equipment, and care—were being roundly ignored by jail staff.³ Immigrants decided to organize and demonstrate against their mistreatment by placing sheets on the windows and doors.⁴ In response, the prison deployed its Special Operations Response Team ("SORT"), a unit of correctional officers trained to use riot shields, helmets, pepper spray, and pepper ball ammunition for the sole purpose of suppressing disturbances.⁵ On at least two occasions in a two-week period, SORT officers pepper-sprayed, physically abused, and segregated immigrants in solitary confinement for their acts of protest.⁶ In a social media post, one officer alarmingly bragged that he had been in "call of duty mode" during one of the assaults and shot every immigrant in sight.⁷

For many years even prior to the COVID-19 pandemic, advocacy groups, including Project South, Georgia Detention Watch, and El Refugio, had been in close communication with immigrants at Stewart to report out and challenge the abuses inside the detention center.⁸ Immigration officials had taken notice.⁹ They began monitoring the organizations and their members online, at protests, and other organized activities.¹⁰ Internal documents revealed that at one point, an official was contemplating ways to remove El Refugio, an immigrants' rights

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organization and ministry that focuses on visiting and supporting people at Stewart, from the visitation program.¹¹ Officials were also closely monitoring the real-time presence of organizers at a vigil held by Georgia Detention Watch, an abolitionist organization which one ICE agent described as a "known adversary."¹²

The simultaneous targeting of immigrants in detention and advocates on the outside follows a longstanding pattern of federal immigration officials engaging in surveillance and outright retaliation against individuals and organizations advocating for immigrants across the country.¹³ This targeting reached untold levels under the Trump administration.¹⁴ When immigrants' rights defenders took to the streets to protest the administration's anti-immigrant policies,¹⁵ emboldened federal immigration officials responded by using their unencumbered authority to surveil, deport, and detain protesting immigrants deemed a threat to their agenda.¹⁶ As Professor Alina Das wrote in a 2021 law review article, this campaign of targeting had a "chilling effect" on the immigrants' rights movement across the country.¹⁷ All told, immigration officials engaged in over one thousand instances of retaliation and surveillance against the immigrants' rights movement during the Trump administration.¹⁸

Since assuming office in January 2021, the Biden administration has sought to distance itself from the prior administration's xenophobic policies and its pattern of rights violations.¹⁹ It specifically sought to reassure advocates, organizers, and the public that federal immigration officials can be held

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"accountable" through enforcement guidance and oversight.²⁰ In September 2021, Department of Homeland Security ("DHS") Secretary Alejandro Mayorkas promulgated new guidelines that shifted the agency's resources from blanket enforcement action to focus on individuals deemed by federal immigration officials to "pose a threat to national security, public safety, and border security."²¹ The new guidelines instruct immigration officials that an immigrant's exercise of their First Amendment rights "should never be a factor in deciding [whether] to take enforcement action."²²

In reality, the Biden administration has remained committed to an immigration system that inflicts harm on immigrant communities through terrorizing, detention, and mass separation.²³ The guidelines themselves still leave immigration officials with broad discretion to determine whether an immigrant is a priority.²⁴ With this discretion, federal officials have in fact detained immigrants at a greater rate than the previous administration did, often in ICE prisons with track records for abusing and dehumanizing immigrants.²⁵ In those detention centers, federal immigration officials, private prison operators, and municipal contractors have maintained a climate of brutal repression, silencing detained immigrants for speaking out about their mistreatment.²⁶ On the streets, immigration officials contracting with private data brokers are still keeping tabs on advocates and organizers.²⁷ At the border, the Biden administration has committed more resources to border militarism to undermine the rights of asylum seekers and indigenous migrants.²⁸ The

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administration's tepid response to widespread constitutional violations across the deportation and detention system is a reminder that lasting protection for immigrants, including their right to dissent, will remain ephemeral under the status quo.²⁹

This Article asserts that retaliation is part and parcel of the deportation and detention machine, such that retaliatory enforcement action remains a threat to immigrants, movement leaders, and organizers. Part I discusses the constitutional framework of the First Amendment and how retaliation against immigrant rights organizers follows a historical pattern of excluding Black Americans and colonized people from First Amendment protection. Through the narratives of individual immigrant organizers and immigrant rights' defenders, Part II captures recent developments in First Amendment jurisprudence while identifying the ways in which retaliatory enforcement has been essential to maintaining the detention and deportation system. In Part Ill, this Article concludes by contemplating advocacy strategies and policy solutions that can aid movement actors in defending against retaliatory enforcement tactics and undoing the detention and deportation system as a whole.

I. THE FIRST AMENDMENT'S HOLLOWED OUT PROTECTIONS

"All we say to America is, 'Be true to what you said on paper.'
. . . Somewhere I read of the freedom of speech.
Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for right."

- Martin Luther King, Jr., Memphis, April 3, 1968³⁰

The First Amendment serves to prevent the government from making laws "abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the [g]overnment for a redress of grievances."³¹ By safeguarding the free exchange of ideas, the First Amendment provides the people with the clearest means of vindicating other fundamental rights, privileges, and guarantees that form the foundation of democratic government.³² At its core, the First Amendment was intended to protect the right

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to political speech—to speak on matters of public importance and criticize the government and its officials.³³ As the Supreme Court has long recognized, political speech "is more than self-expression; it is the essence of self-government."³⁴

The First Amendment plays a fundamental role in protecting the right of the people to oppose government action without punishment or the fear of government reprisal. The freedom to oppose or challenge government action without risking arrest is "one of the principal characteristics by which we distinguish a free nation from a police state."³⁵ For that very reason, retaliation is said to "offend[] the Constitution [because] it threatens to inhibit exercise of the protected right."³⁶ As a general matter, the law is settled that "the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out."³⁷ Even absent actual punishment, the courts have long recognized that government action can have a chilling effect on free expression.³⁸

In principle, the First Amendment protects immigrants just as extensively as any other group of people within society.³⁹ It should safeguard their right to oppose immigration...