INA Sec. 221(i) vs. the First Amendment

Monday, March 31, 2025

In a fight between the First Amendment and Section 221(i) of the Immigration & Nationality Act, who wins?

The State Department and DHS have “revoked” - via email - hundreds of student visas using an obscure (even to me!) section of the immigration statute: INA Sec. 221(i), codified at 8 U.S. Code Sec. 1201(i). It reads: “ Revocation of visas or documents - After the issuance of a visa or other documentation to any alien, the consular officer or the Secretary of State may at any time, in his discretion, revoke such visa or other documentation. Notice of such revocation shall be communicated to the Attorney General, and such revocation shall invalidate the visa or other documentation from the date of issuance: Provided, That carriers or transportation companies, and masters, commanding officers, agents, owners, charterers, or consignees, shall not be penalized under section 1323(b) of this title for action taken in reliance on such visas or other documentation, unless they received due notice of such revocation prior to the alien's embarkation. There shall be no means of judicial review (including review pursuant to section 2241 of title 28 or any other habeas corpus provision, and sections 1361 and 1651 of such title) of a revocation under this subsection, except in the context of a removal proceeding if such revocation provides the sole ground for removal under section 1227(a)(1)(B) of this title.” [Emphasis added.]

To refresh our memories, the operative text of the First Amendment reads: “Congress shall make no law … abridging the freedom of speech … “

CBS News: “Trump's crackdown on students with visas and green cards sets up First Amendment showdown … "There's a tension between everyone's First Amendment rights to free speech and the immigration statute's broad provisions giving the secretary of state broad latitude to declare someone deportable simply because he thinks that the student may have potentially serious adverse foreign policy consequences. And the courts will have to figure out where the appropriate line should be drawn," said Stephen Yale-Loehr, a retired immigration law professor at Cornell University. … Attorneys in the recent cases have accused the Trump administration of using immigration enforcement to suppress speech it disagrees with. … Yale-Loehr expects it will take years for these cases to be settled, predicting that "it's going to be a mess." … "I suspect that the litigation will take years to unravel before a court and get a definitive ruling on the extent to which foreign nationals have First Amendment rights."

Forbes: “In the majority opinion in Bridges v. Wixon (1945), Justice William O. Douglas declared, “Freedom of speech and of the press is accorded aliens residing in this country.” … [F]ormer Cornell Law Professor Stephen Yale-Loehr and Jonathan Grode see three problems that threaten the ability of international students to remain in the United States. First, the State Department is canceling visas due to an exercise of free speech that administration officials find objectionable. Second, ICE denies due process since students cannot respond to charges. Third, student SEVIS records are terminated for “failure to maintain status” because the State Department revokes a visa and makes them subject to removal. (SEVIS, headquartered with ICE, is used to maintain information on international students.) … Attorneys believe the State Department is identifying students, possibly using AI (as reported by Axios), revoking passport visa travel stamps and turning to ICE to terminate the student visa record and potentially detain a student. “Given how minor the issues are for most of the 300 students affected so far, such as writing an op-ed or a speeding ticket, a university cannot give any kind of certainty to students,” said Grode. “Anyone could be at risk. Some universities are checking on visa revocations hourly and being on call to share SEVIS termination with the student quickly.” “Even if the visa is revoked and the F-1 status has been terminated in SEVIS, a foreign student can still continue to study and, if placed in deportation proceedings, should challenge the deportation before an immigration judge,” said immigration attorney Cyrus Mehta. “If removal proceedings have not commenced, I think a student can also challenge the notice that they have been terminated in SEVIS in federal district court through the Administrative Procedure Act on the grounds that the action was arbitrary, capricious and the student was not given any warning or notice to respond.” Mehta believes a student could also challenge an action on First Amendment grounds. “If the student is placed in removal, then too can a student challenge on First Amendment grounds, but the student may need to do this at the Court of Appeals stage since an immigration judge and the Board of Immigration Appeals may rubber stamp Rubio’s determination,” he said.

The Forbes and CBS News articles are both worth reading in full.

Zeteo and the Times of India have more on this topic.

IN OTHER NEWS:

• Alien Enemies Litigation Update: The plaintiffs filed a Motion for Preliminary Injunction on March 28, 2025. It will shock your conscience. From the Introduction: “The unprecedented Proclamation at the heart of this case is unlawful because the Alien Enemies Act is a wartime measure that cannot be used where, as here, there is neither an “invasion or predatory incursion” nor such an act perpetrated by a “foreign nation or government.” And even if it could be used against a non-military criminal “gang” during peacetime, targeted

  individuals must be provided with a meaningful chance to contest that they fall within the Proclamation’s scope. That is particularly so given the increasing number of class members who dispute the government’s allegations of gang affiliation. For these and other reasons, Plaintiffs are likely to succeed on the merits. The remaining factors also decidedly tip in Plaintiffs’ favor. In the absence of an injunction, the government will be free to send hundreds more individuals,

  without notice, to the notorious Salvadoran prison where they may be held incommunicado for the rest of their lives.”

• You can keep track of all the lawsuits against Trump here.

• A new podcast! - Unsettled: Immigration in Turbulent Times examines Trump administration policies and actions affecting immigration and migrants and their communities. It adopts a broad perspective, seeing immigration policies in the context of constitutional norms, US history and our national narrative.”

• Immigration Expert Discuss The Latest Developments in Immigration Policy and Politics - “America’s Voice hosted a virtual press event as part of its “Beyond the Immigration Headlines” series, focusing on the latest developments in immigration policy and the growing consequences of mass deportation efforts. Experts discussed the economic and human impact of these policies, including labor shortages, rising consumer costs, and the strain on essential programs like Social Security and Medicare. The discussion also covered broader implications of proposed agreements between the IRS and DHS, the revocation of CHNV status, and recent detentions, including the abduction of Tufts University student Rumeysa Ozturk, highlighting the impact of these policies on communities nationwide.”

• Judge temporarily stops new immigration law from taking hold in Idaho - “U.S. District Judge Amanda Brailsford has temporarily blocked a controversial new immigration law that swiftly passed through both chambers of the Idaho Legislature this session.”

• Detained Tufts student can’t be deported to Turkey without court order, judge says - “A Tufts University doctoral student who was detained this week can’t be deported to Turkey without a court order, a federal judge in Massachusetts said on Friday. Rumeysa Ozturk, 30, was taken by masked immigration officials as she walked along a street in the Boston suburb of Somerville on Tuesday. Ozturk was quickly moved to an Immigration and Customs Enforcement detention center in remote Basile, Louisiana, before her attorneys could secure a judge’s order blocking the transfer. On Friday, U.S. District Court Judge Denise Casper gave the government until Tuesday evening to respond to an updated complaint filed by Ozturk’s attorneys.”

• Hoping millions will turn out nationwide on Saturday, April 5, 2025 for the Hands Off! demo. Download some signs here.

That’s all for now. THANK YOU! to all subscribers, free and paid. See you in the streets on Saturday!

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