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Until recently, this provision was rarely used, but now, the Trump Administration seems intent on labeling hundreds of non-citizens--mostly students who have expressed opposition to Israel's war in Gaza--as people whose presence in the U.S. has "potentially serious adverse foreign policy consequences," thus rendering them deportable.
Here, we'll discuss INA § 237(a)(4)(C)(1) and some policy implications of its widespread use.
When I first heard about the Administration's efforts to deport pro-Palestinian students for supposedly supporting the terrorist group Hamas, I thought they would rely on one of the many anti-terrorism provisions of the INA, which are quite broad. Essentially, anyone who "endorses or espouses" terrorism is deportable. The problem with this provision is that it involves a question of fact: The Immigration Judge must review the evidence and determine whether the charged non-citizen was somehow supporting terrorism. It might be difficult for DHS (the prosecutor) to prove this point, given that most reasonable judges would not equate opposing the war or supporting Palestinian rights with support for Hamas.
The evil genius of relying on the Secretary of State's determination is that it cannot be reviewed by an Immigration Judge. If Mr. Rubio finds that a particular non-citizen's presence in the U.S. has "potentially serious adverse foreign policy consequences," that person is deportable. There is no fact finding for a judge to do, and the Secretary's determination is essentially checkmate in Immigration Court (though the person could still apply for protection under the United Nations Convention Against Torture).
While that may be end of the road in court, it's not quite the end. That's because there is a Constitutional question here: Whether INA § 237(a)(4)(C)(1) is so vague as to be unconstitutional. What does this mean?
Basically, where a law is so unclear that we cannot know what it means, and thus cannot avoid violating the law, that law may be invalid under the Constitution. In our case, INA § 237(a)(4)(C)(1) means whatever the Secretary of State says it means. So if Mr. Rubio declares that non-citizens who believe in man-made climate change cause "potentially serious adverse foreign policy consequences," then non-citizens who believe in man-made climate change are deportable. If a new Administration ever takes office and concludes that non-citizens who do not believe in man-made climate change cause "potentially serious adverse foreign policy consequences," then these non-citizens would be deportable. In this example, non-citizens really can't know what to do to avoid deportation, other than to purge their minds of any thoughts related to climate change. But even then, what if another Administration concludes that any non-citizen who refuses to think about climate change is causing "potentially serious adverse foreign policy consequences"? In short, because it is impossible to know in advance what will trigger deportation under this law, it is arguably void for vagueness.
Given the number of cases where INA § 237(a)(4)(C)(1) is being employed, we can expect the issue to eventually reach the Supreme Court. The judiciary in general--and this Supreme Court in particular--have been deferential to the Executive Branch in the area of immigration. However, there is a long-standing principle that ambiguous statutes are interpreted in favor of non-citizens and that Green Card holders are protected by the First Amendment right to free speech. How these competing interests will play out at the high court, we shall see, but until we have some clarity, non-citizens who speak publicly about the Israeli-Palestinian conflict face a risk of harm from the current Administration.
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One last point. Several right-wing Zionist organizations have identified pro-Palestinian activists online, and have claimed credit when they were arrested. Whether these organizations are actually responsible for the arrests is not clear, but the organizations have certainly celebrated the Administration's efforts to allegedly combat antisemitism by targeting pro-Palestinian immigrants.
For several reasons, I think these efforts are bad for the Jews. First, by arresting primarily Muslim non-citizens in the name of Jewish people, the Administration is pitting Jews against Muslims and trying to drive a wedge between our communities. Second, the Administration is reinforcing antisemitic tropes (such as Jews control the institutions), and so we will take the blame for the arrested non-citizens. Third, by labeling opposition to Israel as anti-Semitic (or pro-Hamas), we conflate legitimate criticism of Israel with actual antisemitism, which dilutes the term "antisemitism" and makes it more difficult to condemn those who actual hate Jews. Finally, the push to punish free speech is contrary to Jewish values, which have always supported robust debate.
As my rabbis have stated, "Freedom of speech, and the freedom to practice our religion, have long protected Jews in America." If we as Jews allow the erosion of those principles--especially when done in our name--it is not only pro-Palestinian immigrants who will be harmed. Ultimately, the danger will reach us all.
Originally posted on the Asylumist: www.Asylumist.com
