The administration may appeal the latest decision and might well win. But its conduct has conveyed weakness in several respects.
The administration may appeal the latest decision and might well win. But its conduct has conveyed weakness in several respects.
L ast spring, I wrote a couple of times (here and here) about the deportation case of a Turkish national named Rumeysa Öztürk, who has been a graduate student (a Ph.D. candidate) lawfully attending Tufts University in Massachusetts on a student visa. Without notice, immigration agents arrested her on the street and whisked her away to Louisiana for deportation hearings.
Lengthy legal proceedings have followed in the lower federal courts and, finally, in the Justice Department’s immigration tribunals. Finally last month (as the New York Times reported Tuesday), a DOJ immigration judge (IJ) concluded that there were insufficient grounds to order Öztürk’s deportation.
It may be the fair result in the sense that it was foolish for the Trump administration to seek Öztürk’s removal in the first place — exacerbated by the gratuitous, traumatizing arrest, transport, and detention imposed on her. Evidently, the only factual basis for deporting her was her co-authorship of an op-ed in the student newspaper (more on that momentarily) — no criminal misconduct or terrorism ties.
Nevertheless, the IJ’s decision is legally wrong in my view, however popular it is among Democrats, their media allies, and progressive legal analysts. Bad facts make bad law. The question now is whether the Trump Justice Department is hell-bent on making more consequential bad law by appealing, potentially getting a damaging ruling from a judicial court rather than just a DOJ immigration tribunal.
If you find Rumeysa’s views toxic, I’m right there with you. On that point, it’s good to find millions of Americans finally noticing that the Muslim Brotherhood’s tropes, chanted like mantras by Muslim Students Association chapters and the rest of the campus left, are cyphers meant to obscure Jew hatred as if it were mere political opposition to Israel (e.g., “from the river to the sea,” “Boycott, Divestment, and Sanctions,” and my personal favorite, “the Palestinian genocide,” risibly describing a population that (a) has grown by a factor of about six since Israeli independence, and (b) aspires to an actual genocide of Jews). Öztürk’s op-ed, pressuring Tufts to give in to these demands and supporting Hamas’s objectives while posing as “anti-Israel” rather than pro-jihad, is an exemplar of the genre.
Nevertheless, it cannot be gainsaid that the First Amendment would have insulated the publication of such views from punitive government action had Öztürk been an American citizen.
That doesn’t mean an alien who engages in such conduct may not lawfully be removed. Aliens — even legal aliens, even aliens who have been issued visas by the federal government and then engage in conduct that is not expressly in violation of those visas’ terms — are foreign guests of the United States. They are not citizens to whom the government answers; they are non-Americans whom the government may choose to admit and may remove as long as the government is acting in accordance with the law.
That said, a law based on which an alien may be expelled over lawful conduct is the outer edge of the government’s enforcement authority. If it’s going to be invoked, it is sure to be challenged in the courts. More consequentially, it is sure to become a public controversy based on which Americans will make assessments about the administration’s judgment and competence. It should only be invoked, then, on strong facts and with careful, humane implementation.
It is on that score, rather than on the law, that the Trump administration persistently comes up short.
Immigration law empowers the secretary of state to revoke an alien’s visa if, in the secretary’s judgment, the alien’s continued presence would undermine American foreign policy interests. The visa revocation, obviously, is in anticipation of the alien’s removal from our country.
The law is constitutional: (a) The alien has a right neither to enter nor to remain in the United States; (b) it is perfectly rational to empower the government to prioritize American national interests over an alien’s interest in remaining in the United States; and (c) the decision in that regard should be made by the government official responsible for conducting American foreign policy, not a politically unaccountable judge. If the administration abuses its authority over foreign affairs, that is a political matter to be addressed by Congress and the voters whose lives are affected, not by courts that have no institutional competence in foreign affairs and national security.
Secretary of State Marco Rubio has said it is Trump policy and vital to American relations with Israel, an important ally, that the government counter antisemitism and the pro-Hamas campus agitation that fuels it. True enough. But there is no evidence that Öztürk has terrorist associations (which would be an independent ground for expelling her) or that she committed any crimes or even broke any university rules.
She wrote an op-ed, expressing views that are obnoxious but neither illegal nor all that unusual at American universities. Even if the law technically gives Rubio authority to revoke her visa (it does), many Americans, maybe a majority of Americans, will be disturbed by booting an apparently unthreatening alien for expressing her opinions, off-putting and ill-informed as they may be.
Disappearing someone over an op-ed that does not incite violence or at least lawlessness conveys weakness. Our free speech principles are rooted in strength — the confidence that robust political debate exposes the best ideas and the worst ones, producing better policy and better governance.
The weakness conveyed by the administration’s decision to proceed against Öztürk was exacerbated by the way it proceeded.
Trump officials, when they are defending other edgy policies, such as forcibly entering homes based on administrative (i.e., non-judicial warrants), are fond of pointing out that immigration enforcement is a predominantly civil procedure, not criminal. That’s right . . . but then how about doing it civilly? Why must every alien the Trump administration decides to boot — even the legal ones, even the ones who’ve committed no crimes — be treated as if he or she is Osama bin Laden?
Since Öztürk was here attending Tufts lawfully and was not a threat to anyone, Rubio could have revoked her visa if he truly believed doing so was imperative, ICE could have proceeded on that basis to seek an order of removal, and Öztürk could have been given a summons to appear for removal proceedings. She wasn’t going to flee; she wants to stay in the country, she has an argument the courts may find attractive, and she is not a criminal, so of course she’d have shown up as directed for removal proceedings.
Instead, when the visa was revoked, the immigration agents arrested her and wouldn’t tell her counsel and family where she was as they covertly transported her, in custody, from place to place, until she was finally detained in Louisiana.
The Trump administration does this for two reasons. First, it is trying to convey a message that aliens who are here illegally should leave voluntarily and those thinking of trying to enter illegally should reconsider. In terrorem policies can be very effective — they’re why the Romans crucified lawbreakers along the Appian Way. But the American way is to promote the rule of law, not to intimidate by the rule of cruelty.
Second, the administration is forum shopping. It doesn’t want to litigate in federal districts up north — in Massachusetts (the First Circuit) and Vermont (the Second Circuit) — that are heavy with judges appointed by Democratic presidents. It calculates that it has a better shot in Louisiana (the Republican-tilted Fifth Circuit).
I doubt the judges of any of these circuits appreciate the implications of forum shopping by the Justice Department. Traditionally, the DOJ has litigated on the premise that, if the government is faithfully executing the laws, it should be able to prevail in the place where the case should be brought — which, in Öztürk’s case, would have been Massachusetts.
That’s not to deny that there are politically minded judges whom the Justice Department would prefer to avoid. We harshly criticize such judges here all the time. The point is that the government is supposed to let the appellate process work that out, not try to rig the litigation.
In Öztürk’s case, as in others, the government’s unnecessary arrest-transport-detain practice had the predictable effect of injecting district judges into the mix. Even though Congress has sought to strip the district courts of jurisdiction over removal proceedings, they clearly have jurisdiction over habeas corpus petitions claiming unlawful detention — which the administration has invited. That’s why a judge in Vermont (where Öztürk was briefly held on the trip to Louisiana) was able to order Öztürk returned there for future proceedings. It’s why she was released.
And now an IJ — an official of Trump’s own Justice Department — has blocked her deportation. I don’t think the ruling makes sense. The IJ says the revocation of a visa does not necessarily mean Öztürk must be deported. Clearly, though, if she does not have a legal authorization to be in the country, she is illegally present (even though she legally entered and studied at Tufts). If she is illegally present, she should be removable.
The administration may appeal and might well win. That means a federal appeals court, likely the Second Circuit, could eventually be called on to decide whether it’s constitutional for the government to revoke a visa over conduct that the First Amendment permits.
There may be aliens the secretary of state should be able to kick out of the country based on their speech or writings. There is an appealing logic to Rubio’s point that the government should be able to expel any alien it wouldn’t have admitted in the first place if the alien engaged in provocative expression, supportive of Hamas’s objectives, while still outside our country.
But is this really the case, and are these really the facts, based on which the Justice Department wants the federal courts to decide whether he has that power?