In Ragbir v. Homan, No. 18-1597, 2019 WL 1811537 (2d Cir. April 25, 2019), a split panel of the U.S. Court of Appeals for the Second Circuit held that federal courts do have subject matter jurisdiction over claims that a high-profile, foreign-born immigration activist was singled out for removal from the United States on the basis of his disfavored speech against the authorities. The court’s decision distinguished both statutory barriers and a Supreme Court case announcing the general rule that unlawfully present aliens do not have the constitutional right to assert claims of selective enforcement as a removal defense. See Reno v. American-Arab Anti-Discrimination Committee (AADC), 119 S. Ct. 936 (1999).

Indeed, the majority decision—written by Judge Christopher Droney and joined by Judge Pierre Leval—underscores the importance of the First Amendment values at issue and the impact of retaliatory measures not only on the penalized speaker, but also on other like-minded would-be speakers. And, although the Second Circuit disclaimed “delineat[ing] the boundaries” of a generally applicable test, Ragbir, 2019 WL 1811537, at *14, it offered a modest roadmap for successful removal challenges based on serious First Amendment violations.

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