Rojas v. Moore: Immigrants and the First Amendment

Claudio Marcelo Rojas v. Marc J. Moore, No. 1:19-CV-20855-JLK (S.D. Fla. Apr. 29, 2019), order hosted by Courthouse News.

On September 22, 2020, the United States Court of Appeals for the Eleventh Circuit heard oral argument in the case of Claudio Marcelo Rojas. Rojas, an Argentinian immigrant and activist who has been in the U.S. for twenty years, was arrested and detained in February 2019 by immigration enforcement agents from U.S. Immigration and Customs Enforcement (“ICE”). The appeal arose out of a Florida federal judge’s dismissal for lack of jurisdiction. Rojas argued that ICE’s practice of targeting immigrants for deportation due to their speech violates the First Amendment.

In early 2019, Rojas was scheduled to speak at the Miami Film Festival for his role in The Infiltrators. The film criticizes conditions at an ICE detention center in South Florida and features interviews with immigration activists including Rojas. Prior to the start of the Festival, Rojas reported to ICE on February 27, 2019 for a routine supervision appointment, which he had been appearing for regularly since 2012. At the appointment, ICE detained Rojas. In April 2019, Judge King of the Southern District of Florida denied Rojas’s complaint for lack of jurisdiction, citing the 2001 case Al Najjar v. Ashcroft, in which the Eleventh Circuit held that the manner of arrest and removal in deportation proceedings do not present cases or controversies for judicial review.

In his appeal to the Eleventh Circuit, Rojas argues that ICE’s behavior in his case reflects a pattern of targeting immigrants for deportation based on their speech.

Rojas’s arrest has been met with opposition by the entertainment industry and immigrant rights networks. Hundreds of documentarians have signed a petition arguing against his deportation. The Washington Post covered Rojas’s arrest and detention. A Remezcla article groups Rojas’s plight with that of British-born rapper 21 Savage, noting that both were detained by ICE in part due to their political activism. Law school immigrant rights clinics, including those at New York University and Miami, filed lawsuits protesting ICE’s actions.

Rojas’s case presents a long-standing question concerning First Amendment claims made by non-citizens. Courts have long deferred to congressional and executive power with regards to immigration, even if deportations are motivated by animus against deportee speech. In the 1952 case Harisiades v. Shaughnessy, the Supreme Court ruled that the government may constitutionally deport resident aliens due to their membership in the Communist Party. The Supreme Court also elaborated on the specific question in two cases during the 1990s. In United States v. Verdugo-Urquidez, the majority noted in passing that “the people” referred to by the First Amendment must belong to a “national community” or have “developed sufficient connection” to the U.S. in order to fall under its protection. Finally, in Reno v. American-Arab Anti-Discrimination Committee, Justice Scalia held that immigrants unlawfully present within the U.S. have no right to assert selective enforcement as a defense against deportation, regardless of any potential chilling effects on free speech. Whether Rojas’s extended stay in the United States allows him to claim constitutional protections based on the Verdugo-Urquidez test of “sufficient connection” to the country remains an open question on appeal. But taken as a whole, these precedents stand for the general proposition that undocumented immigrants in the U.S. have no First Amendment rights that may shield them from deportation.

Nevertheless, a different line of cases by the Supreme Court favors Rojas’s position. In the 1945 case Bridges v. Wixon, Justice Douglas defended the First Amendment rights of resident aliens, noting that the First Amendment makes “no exception in favor of deportation laws.” The majority in Verdugo-Urquidez acknowledged a contrary holding in Plyler v. Doe, granting that illegal immigrants were protected by the Equal Protection Clause. Finally, the Court ruled in the 2001 case Zadvydas v. Davis that the federal government’s power to enforce immigration law “is subject to important constitutional limitations.” Rojas’s case illuminates the contrasting lines of precedent available to answer the question of whether non-citizen immigrants are protected in deportation proceedings by the First Amendment.